Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. CPF-05-505683, CPF-06-506336.
Kline, P.J.
These consolidated appeals involve efforts by the California Correctional Peace Officers Association (CCPOA) to arbitrate the question whether its labor agreement permits arbitration of pattern-and-practice grievances. In A113595, CCPOA appeals from an order denying its petition to compel arbitration, contending the trial court erred in failing to order that its grievances be arbitrated in a single proceeding or that an arbitrator determine whether its labor agreement permitted a pattern and practice grievance. In A118069, the State of California, Department of Personnel Administration (DPA) and California Department of Corrections and Rehabilitation (CDCR) (collectively State) appeal from an order confirming an arbitrator’s decision that the labor agreement does permit this type of grievance. The State contends this second case should not have been submitted to arbitration and the arbitrator’s decision should not have been affirmed. We conclude the trial court erred in denying the petition to compel arbitration in A113595, and reverse the judgment in that case. We conclude the trial court lacked jurisdiction to proceed in A118069, and consequently reverse the orders in that case compelling arbitration and confirming the arbitrator’s decision.
STATEMENT OF THE CASE AND FACTS
These cases concern a provision of the CCPOA’s labor agreement, or Memorandum of Understanding (Agreement or MOU), with the State, which requires the State to participate in negotiations with CCPOA before implementing changes affecting CCPOA members’ working conditions in certain circumstances. CCPOA contends the State has been following a policy of refusing to negotiate in situations required by the MOU.
Article 27 of the MOU provides that the MOU “sets forth the full and entire understanding of the parties regarding the matters contained herein” and supersedes any other prior or existing understandings or agreements. (MOU, § 27.01.A.) With respect to matters not covered by the Agreement, the MOU provides: “The parties recognize that during the term of this Agreement, it may be necessary for the State to make changes in areas within the scope of negotiations. Where the State finds it necessary to make such changes, the State shall notify CCPOA of the proposed change thirty (30) days prior to its proposed implementation. [¶] The parties shall undertake negotiations regarding the impact of such changes on the employees in Unit 6 where all three (3) of the following exist: [¶] 1. Where such changes would affect the working conditions of a significant number of employees in Unit 6; [¶] 2. Where the subject matter of the change is within [the] scope of representation pursuant to the Ralph C. Dills Act; and [¶] 3. Where CCPOA requests to negotiate with the State.” (MOU, § 27.01.B).) “Any agreement resulting from such negotiations shall be executed in writing and shall become an addendum to this Agreement. If the parties are in disagreement as to whether a proposed change is subject to this subsection, such disagreement may be submitted to the arbitration procedure for resolution. The arbitrator’s decision shall be binding. In the event negotiations on the proposed change are undertaken, any impasse which arises may be submitted to mediation pursuant to Section 3518 of the Ralph C. Dills Act.” (MOU, § 27.01.B.)
Additionally, Government Code section 3517 requires the State to “meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of recognized employee organizations” and to “consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.”
The MOU contains a detailed grievance procedure. (MOU, § 6.01 et. seq.) In general, the procedure comprises four successive steps: Informal discussion with the employee’s supervisor; formal appeal to the Appointing Authority; formal appeal to the Department Director; formal appeal to the Director of the DPA. (MOU, §§ 6.07-6.10.) Grievances involving “the interpretation, application or enforcement of the provisions of this MOU” may then be appealed to binding arbitration. (MOU, § 6.11.A.) The MOU sets forth certain exceptions to this procedure, such as certain types of grievances that cannot be appealed beyond the second step (MOU, § 6.08.H), others that may be submitted to “mini-arb” as a final level of review after the second step (MOU, §§ 6.09.A.1, 6.13), and others that can be appealed directly to arbitration after the third level response (MOU, § 6.09.A.2.e). Either party may proceed directly to Step 4 of the grievance procedure “where either party alleges the other is proposing to take an action in violation of the provisions of this MOU, which would result in irreparable injury, in so short a period of time as to disallow the other party from proceeding within the time limits.” (MOU, § 6.11.C.)
By letter dated February 28, 2005, the CCPOA informed the DPA of a “pattern-and-practice” grievance alleging an “ongoing practice” by the State of ignoring its responsibilities under section 27.01 of the MOU. The letter described 14 separate alleged violations and requested arbitration to address the ongoing problem as well as the specific violations enumerated. After a fourth level grievance conference, the DPA refused to consolidate the separate grievances, stating that they were “currently distributed throughout the entire grievances process, up to and including arbitration.”
On December 21, 2005, CCPOA filed its first amended petition to compel arbitration under Code of Civil Procedure section 1281.2 (Super. Ct. S.F. City and County, 2005, No. CPF-05-505683). The petition alleged that the State had “engaged in a pattern-and-practice of refusing to meet-and-confer about changes in terms and condition[s] of employment” and “refused to carry out the agreements previously reached under § 27.01 of the MOU.” The petition referred to eight grievances as evidence of the pattern and practice (documented in exhibits to the declaration of the CCPOA Chief of Labor) and described four of these incidents it offered as a “representative sample” of the many in which the State had refused to meet and confer: (1) The State’s unilateral decision not to staff a prison tower during a shift; (2) The State’s unilateral decision to limit the number of officers who could qualify to substitute for transportation officers; (3) The State’s unilateral decision to run a “night yard”; and (4) The State’s unilateral deletion of positions. The petition further alleged that for more than 15 years the parties had interpreted the grievance procedure as permitting resolution of pattern-and-practice grievances, including through binding arbitration.
CCPOA’s opening brief on appeal offers the same first three examples, but a different fourth one.
After a hearing on January 27, 2006, the trial court (Judge Warren) on February 7, 2006, filed its order denying the amended petition on the ground that CCPOA had failed to satisfy the elements of Code of Civil Procedure sections 1281.2 and 1281.3.
CCPOA filed a timely notice of appeal on March 3, 2006.
Also on March 3, 2006, CCPOA presented to the State, by letter, a grievance alleging that the CDCR and DPA were “refusing to process what historically have been known as ‘pattern-and-practice’ grievances.” The letter referred to the above case in which the State had been “successful in not having . . . matters heard as a pattern-and-practice grievance” and stated the present grievance was being filed “to demand that we have an arbitration about whether, under the MOU, a ‘contract grievance’ or ‘grievance’ includes a ‘pattern-and-practice’ grievance.” The State rejected the grievance, noting that “this issue is before the court.”
On May 9, 2006, CCPOA filed a petition to compel arbitration under Code of Civil Procedure section 1281.2 (Super. Ct. S.F. City and County, 2006, No. CPF-06-506336). This petition alleged that a “dispute has arisen between the parties concerning whether or not a ‘contract grievance,’ as defined in § 6.02 of the MOU, includes a ‘pattern-and-practice’ grievance,” and that the State “is engaged in a pattern-and-practice of violating § 27.01 of the MOU.” The petition further alleged that “[f]or more than 15 years now, the parties have interpreted their grievance procedure to permit the resolution of pattern-and-practice grievances, including through final and binding arbitration,” that at least five “class action pattern-and-practice grievances” between the parties had been arbitrated since 1990, with the State raising no objection and sometimes expressly stipulating that the matters “were being properly heard,” and that the court had confirmed some of the arbitration decisions.
This new petition discussed the prior case as follows: “In San Francisco Superior Court Case No. CPF05505683, [CCPOA] sought to arbitrate a dispute over whether or not it could bring a pattern-and-practice claim under its MOU. The claim was founded on eight (8) separate grievances, which [CCPOA] sought to bring as the single pattern-and-practice claim. Each of the eight (8) grievances involved an alleged violation of the same section of the MOU, § 27.01. [¶] During the hearing on the petition, held on January 27, 2006, in front of Judge James Warren, the Court had several inquiries about what [CCPOA] wanted, and was very concerned about the procedural status of the case. Accordingly, [CCPOA] has brought a different single, clean, grievance on the issue of whether or not, under the MOU, there can be a pattern-and-practice allegation. By doing so, [CCPOA] makes this a clear procedural issue for the Court; rather than having to decide substantive issues such as whether or not the eight separate grievances were similar enough to be brought together as a pattern-and-practice grievance. As such, this grievance presents a ‘pure’ case of contract interpretation.” CCPOA sought to have the matter heard by Judge Warren “to decide whether this alternative petition alleviates the concerns he raised with respect to the other matter.”
The State opposed the petition, arguing that the question whether CCPOA was entitled to have an arbitrator decide if the MOU provided for a “pattern-and-practice” grievance was on appeal in case No. CPF-05-505683 (A113595) and the trial court lacked jurisdiction to rehear the issue. The State also argued the new petition was barred by the doctrine of collateral estoppel and the rule against splitting a cause of action, that the time in which CCPOA could have sought rehearing in the trial court had passed, and, on the merits, that the MOU did not permit “pattern-and-practice” grievances.
At the hearing on July 20, 2006, Judge Quidachay indicated his tentative decision to grant the motion to compel, commenting that the appeal was in a different case and that the MOU’s definition of “grievance” was “pretty broad. . . . If there’s a dispute about what the meaning is, as I read it, in the Memorandum of Understanding, that goes to the arbitrator, goes to arbitration.” Counsel for the State asked the court to stay further proceedings pending the outcome of the appeal in case No. CPF-05-505683. The court directed the parties to submit proposed orders. On July 31, 2006, the court filed its order compelling arbitration of the question whether “a pattern-and-practice grievance is cognizable under the grievance procedure of the parties’ Memorandum of Understanding.” The order noted that section 6.02 of the MOU “is quite broad with reference to the definition of a ‘grievance.’ ”
Judge Warren had retired from the superior court.
The State filed a motion for reconsideration on August 15, 2006, arguing that because of the pending appeal in case No. CPF-05-505683 (A113595), the trial court either had no jurisdiction to compel arbitration or should reconsider its order and stay further proceedings. The new evidence offered by the State to justify reconsideration under Code of Civil Procedure section 1008 was the reporter’s transcript of the January 27, 2006 hearing in case No. CPF-05-505683, which had not been available for the July 20 hearing and which the State offered to show that CCPOA, in that case, had argued and had decided against it the same issue presented in the current case. The State also argued the trial court had inherent authority to reconsider its orders to correct errors of law, even without a showing of new evidence or change in law.
While the motion for reconsideration was pending, CCPOA demanded that the arbitration hearing be set. The State sought an ex parte hearing to stay the arbitration pending resolution of the motion for reconsideration; this ex parte motion was denied on October 18, 2006.
The arbitration began on October 19, 2006. At the outset, the State asked the arbitrator to stay the proceeding. This request was denied. The next day, the State filed a petition for writ of supersedeas in this court, which was denied on October 25.
The trial court heard the State’s motion for reconsideration on November 2, 2006. By order filed on November 22, the court held that the transcript of the hearing in case No. CPF-05-505683 did not constitute a “new fact” so as to permit reconsideration under Code of Civil Procedure section 1008, and denied the motion. On January 29, 2007, the court granted CCPOA’s request for sanctions against the State for pursuing the motion for reconsideration based on the transcript of the prior hearing.
On February 16, 2007, the arbitrator issued his decision finding pattern-and-practice grievances cognizable under the MOU. The arbitrator stated his decision was based on “the straightforward terms of their Agreement as its language requires,” and not on precedent under the Federal Arbitration Act (FAA) or other laws or contracts. The decision described CCPOA as seeking to file a grievance alleging that “when a number of grievances are considered as a group that the group, considered as a whole, presents a dispute as to the application, enforcement or interpretation of provisions of the Memorandum of Understanding,” and that dispute “is separate or distinct from the application, enforcement or interpretation of the Memorandum of Understanding presented in each of the constituent grievances.” The arbitrator concluded, “[t]hus viewed, whether or not labeled a pattern-and-practice grievance, the Union’s grievance is a contract grievance under that provision as the Agreement is written. As long as it involves subjects covered by the provisions of the Memorandum of Understanding and deals with its interpretation, application or enforcement, it is a ‘contract grievance,’ not a ‘policy grievance’ under Section 6.02.B. And, if not resolved, can be appealed to arbitration pursuant to Section 6.11.A.”
The arbitrator stated: “The decision in this case is limited solely to the issue of whether a pattern-and-practice grievance is cognizable under the grievance procedure. Any issues presented in any such grievances in the future concerning whether or not what is alleged shows an Agreement violation, whether they were filed at the correct step of the grievance procedure or whether or not any such grievance was timely filed, are to be determined then under their facts by the arbitrators chosen to decide such cases. [¶] . . . [¶]
“A ‘pattern-and-practice’ grievance is cognizable under the grievance procedure of the Parties’ Memorandum of Understanding as follows:
“The Union can file a grievance alleging issues involving the interpretation, application or enforcement of the provisions of the Memorandum of Understanding wherein it alleges that more than two timely-filed grievances provide the bases for its allegations, and, if not otherwise resolved, appeal the grievance to final and binding arbitration pursuant to the Agreement between the Parties. Any issues concerning procedural regularity and substantive merit of such grievances are to be decided then by the arbitrators chosen to hear them.”
The arbitrator’s decision described a history of grievances in 1990, 1995, 2001, 2002 and 2004, which the parties, in formal documents and in correspondence, referred to as “pattern-and-practice” grievances. The arbitrator noted that “given the clear language of the Agreement in Section 6.02.A, past practice is not necessary to sustain the grievance here,” but went on to state that the past arbitrations demonstrated both parties understood the proceedings to concern pattern-and-practice grievances.
The arbitrator found the grievance was timely, indicating that the employer’s failure to raise the issue until the arbitration would ordinarily be a waiver of the right to object on this ground and that failing to permit the Union to file grievances to which it has a right under the MOU would be a continuing violation.
CCPOA petitioned the trial court to confirm the arbitrator’s award; the State asked the court to vacate the award or, in the alternative, stay the action pending resolution of the appeal in A113595 (case No. CPF-05-505683). The State argued that the award should be vacated because the grievance was untimely and the arbitrator therefore had no jurisdiction over it, the arbitrator exceeded his power under the MOU by adding to or altering the provisions of the MOU, and the award violated public policy. On April 19, 2007, the trial court confirmed the arbitrator’s decision.
On May 10, 2007, the State filed a timely notice of appeal (A118069) from the trial court’s orders compelling arbitration and confirming the arbitrator’s decision.
On July 13, 2007, this court granted CCPOA’s unopposed motion to consolidate appeals A113595 and A118069.
DISCUSSION
Code of Civil Procedure “[s]ections 1281 and 1281.2, which govern petitions to compel arbitration, reflect a ‘ “strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.” ’ (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9, quoting Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322.)” (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25, fns. omitted.)
“Under Code of Civil Procedure section 1281.2, unless the petitioner has waived arbitration, grounds exist for revocation of the agreement, or a party to the arbitration agreement is also a party to a pending matter with a third party creating the possibility of conflicting rulings, the trial court ‘shall order’ the parties to arbitrate the controversy ‘ “if it determines that an agreement to arbitrate the controversy exists.” ’ (Amalgamated Transit Union Local 1277 v. Los Angeles County Metropolitan Transportation Authority (2003) 107 Cal.App.4th 673, 684.)” (Zavala v. Scott Brothers Dairy, Inc. (2006) 143 Cal.App.4th 585, 589.)
Code of Civil Procedure section 1281.2 provides in pertinent part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:
The status of arbitration as a favored means of dispute resolution “includes disputes arising out of collective bargaining agreements.” (Los Angeles Police Protective League v. City of Los Angeles (2001) 94 Cal.App.4th 77, 80.) “The question of whether a collective bargaining agreement creates a duty for the parties to arbitrate a particular grievance is an issue for judicial determination. Unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator. The court also determines what issues are subject to arbitration. (Engineers & Architects Assn. v. Community Development Dept. (1994) 30 Cal.App.4th 644, 652-653.) ‘ “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute. [Citation.]” ’ (Ibid.) However, there is no public policy favoring arbitration of disputes which the parties have not agreed to arbitrate. (Los Angeles Police Protective League v. City of Los Angeles (1988) 206 Cal.App.3d 511, 514.)
“The right to arbitration depends upon the terms of the contract—a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Fontana Teachers Assn. v. Fontana United School Dist. (1988) 201 Cal.App.3d 1517, 1521; Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795.) Where, as here, the agreement is interpreted based on undisputed evidence, we are not bound by the trial court’s construction of the agreement. Instead, in such a case, the interpretation of the agreement becomes a question of law and we must make an independent determination of its meaning. (Service Employees Internat. Union v. City of Los Angeles (1996) 42 Cal.App.4th 1546, 1552-1553; Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 817.)” (United Public Employees v. City and County of San Francisco (1997) 53 Cal.App.4th 1021, 1026; see Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 771; Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.)
CCPOA argues that the trial court erred in failing to order that the grievances at issue be arbitrated in a single proceeding because the parties have a valid agreement to arbitrate the grievance and because an arbitrator, not the court, must determine whether the MOU permits a pattern-and-practice grievance. The State makes no contention that the MOU does not contain a valid agreement to arbitrate grievances concerning the “interpretation, application or enforcement of this MOU,” including section 27.01. (MOU, § 6.11.A.) The State does argue, however, that the trial court must make the “gateway” determination whether the MOU embodies an agreement to arbitrate a pattern-and-practice grievance. Thus, the issues for our determination are whether the trial court erred in refusing to submit to arbitration the question whether the MOU permits arbitration of pattern-and-practice grievances and, if the trial court was correct in so refusing, whether it was also correct in concluding the MOU does not permit such claims.
Preliminarily, the State urges that CCPOA waived its right to arbitrate its pattern-and-practice claim by failing to raise it in a timely fashion. The State notes that in its February 28, 2005 letter raising the pattern-and-practice grievance, CCPOA stated the practice it was challenging had been occurring for over a year. The MOU provides that “[e]ach party involved in a formal written grievance shall act quickly so that the grievance may be resolved promptly,” and “[e]very effort should be made to complete action within the time limits contained in the grievance procedure,” although “with the mutual consent of the parties, the time limitation for any step may be extended.” (MOU, § 6.03.A.) The State points out that the time limit for filing an unfair practices charge is six months. (Gov. Code, § 3514.5, subd. (a).)
An employee grievance must be discussed with the involved supervisor within 21 days of the alleged violation or date knowledge of the alleged violation should have been acquired; the supervisor must respond “immediately” or within seven days if research is necessary. (MOU, § 6.07.A.) If not resolved at this level, a formal grievance may be filed within seven days of the decision at the first level; if the grievance was not initiated at the first level, it must be filed within 21 days of the alleged violation or date knowledge of it should have been acquired. (MOU, § 6.08.A and B.) A written response must be rendered within 21 days of receipt of the formal grievance. (MOU, § 6.08.F.) Appeal to the third level must be filed within 21 days of receipt of the second level response, with a response at that level to be rendered within 21 days of receipt of the appeal. (MOU, § 6.09.A.2.) The same 21-day time periods apply to appeal and response at the fourth level. (MOU, § 6.10.A.) Where applicable, the appellant may then demand arbitration within 21 days of the decision at the fourth level. (MOU § 6.11.A.)
CCPOA, relying upon Carpenters 46 Northern Cal. Conf. Bd. v. Valentine (1982) 131 Cal.App.3d 534 (Carpenters), responds that alleged failure to comply with contractual time limits is an issue for the arbitrator, not the court, to decide. Carpenters affirmed a judgment confirming an arbitration award. In response to the appellant employer’s argument that the union had failed to comply with contractual requirements for grievances to be called to the employer’s attention within 30 days of the last alleged violation, the court stated, “[w]hether or to what extent failure to comply with such contractual time limits bars arbitration, however, is an issue for the arbitrator to decide.” (Id. at p. 543.) The court noted that the arbitrator could have determined that the violation was a continuing one, and that the arbitrator’s award, which reserved jurisdiction over disputes as to amounts owed by the employer, did not foreclose consideration of the contractual time limits in the context of such disputes. (Ibid.)
As elaborated in Napa Association of Public Employees v. County of Napa (1979) 98 Cal.App.3d 263, 270-271 (Napa), one of the cases cited by Carpenters in connection with this issue, the question whether failure to timely file grievances bars arbitration is distinct from the question whether the right to arbitration was waived by untimely demand. The latter is a question for the court under Code of Civil Procedure section 1281.2. Here, however, the State’s waiver argument is based on the asserted untimeliness of CCPOA’s pattern-and-practice grievance and therefore presents an issue for an arbitrator to decide.
Napa held that the trial court erred in deciding as a matter of law that the failure to file a grievance within the time specified in the contract necessarily demonstrated waiver under Code of Civil Procedure section 1281.2. The court distinguished between time limits for presenting grievances and time limits for demanding arbitration, stating that questions about whether contractual time limits have been complied with and what consequences the agreement calls for if they have not been followed are for the arbitrator to decide. (Napa, supra, 98 Cal.App.3d at pp. 270-271 [“An arbitrator might, for example, decide as a matter of contract interpretation that the parties intended contractual time limitations to operate as a strict bar without regard to prejudice or mitigating factors, or he might consider such factors to be relevant in assessing the consequences of delay”].) Noting that there could be situations in which delay in filing a grievance could “rise to the level of waiver of arbitration for purposes of section 1281.2,” the court stated it was holding only that “the mere assertion of a party’s failure to file a grievance within the time specified in the agreement, in the absence of an allegation and proof of intentional abandonment of the right to arbitrate or substantial prejudice resulting from the delay, is not of itself sufficient to raise a question of ‘waiver’ within the meaning of that section, and that the trial court therefore erred in finding waiver as a matter of law.” (Napa, at p. 271.)
Whether arbitration waiver claims are to be decided by the court or by the arbitrator depends on whether state or federal law governs the arbitration agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 963-964; Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2007) ¶¶ 5:170-5:172, pp. 5-131 to 5-132.) “[U]nder California law the court determines waiver, while under federal law the arbitrator must decide whether the delay in demanding arbitration was unreasonable and prejudicial and, where the delay is unrelated to the litigation process, ‘it is improper for the judge to decide this issue.’ ” (Omar v. Ralphs Grocery Co., at p. 963, quoting Knight et al., Cal. Practice Guide: Alternative Dispute Resolution, supra, ¶ 5:172, p. 5-131.)
Turning to the substance of the parties’ dispute, section 6.02.A of the MOU defines “contract grievance” as “a dispute between CCPOA and the State, or a dispute of one (1) or more employees against the State, involving the interpretation, application or enforcement of the provisions of this MOU.” The State views this language as excluding CCPOA’s pattern-and-practice claim because none of the provisions of the MOU expressly refers to such a claim. CCPOA points out that the MOU does not expressly require individual grievances either.
Relying on Green Tree Financial Corp. v. Bazzle (2003) 539 U.S. 444 (Green Tea), CCPOA argues that pattern-and-practice grievances may be arbitrable even though there is no language in the parties’ contract expressly so stating, and that it is for the arbitrator, not the court, to determine whether such grievances are permitted. Green Tree concerned the question whether an arbitration agreement permitted class arbitration. The case produced no majority opinion and, by our state Supreme Court’s description, produced the narrow holding “that when the question of whether a class action arbitration is available depends on whether or not the arbitration agreement is silent on the matter or expressly forbids class action arbitration, then it is up to the arbitrator, not the court, to determine whether the arbitration agreement is in fact silent.” (Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 170-171.)
The arbitration agreement in Green Tree provided for submission to binding arbitration of “ ‘[a]ll disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract.” (Green Tree, supra, 539 U.S. at p. 448.) In light of this provision, the plurality held that the question whether the contract was silent or actually forbade class arbitration was for the arbitrator to decide because “the dispute about what the arbitration contract in each case means (i.e., whether it forbids the use of class arbitration procedures) is a dispute ‘relating to this contract’ and the resulting ‘relationships.’ ” (Id. at p. 451.) The plurality explained that the question was not one of the “limited instances” of “gateway matters” the “ ‘contracting parties would likely have expected a court’ to decide,” such as “whether the parties have a valid arbitration agreement at all or whether a concededly valid arbitration clause applies to a certain type of controversy.” (Id. at p. 452, quoting Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83.) The question whether the contracts precluded class arbitration concerned “neither the validity of the arbitration clause nor its applicability to the underlying dispute between the parties,” nor “whether the parties wanted a judge or an arbitrator to decide whether they agreed to arbitrate a matter,” but rather “what kind of arbitration proceeding the parties agreed to.” (Green Tree, at p. 452.) “That question does not concern a state statute or judicial procedures [citation]. It concerns contract interpretation and arbitration procedures. Arbitrators are well situated to answer that question. Given these considerations, along with the arbitration contracts’ sweeping language concerning the scope of the questions committed to arbitration, this matter of contract interpretation should be for the arbitrator, not the courts, to decide.” (Id. at pp. 452-453.)
Green Tree was decided under the FAA. Prior to Green Tree, our courts had viewed the question whether classwide arbitration was permitted in a given case to be one for determination by the trial court. (Garcia v. DIRECTV, Inc. (2004) 115 Cal.App.4th 297, 298; Yuen v. Superior Court (2004) 121 Cal.App.4th 1133, 1137; Izzi v. Mesquite Country Club (1986) 186 Cal.App.3d 1309, 1322.) Since Green Tree, this question “must (in FAA cases) . . . be decided by the arbitrators, not the courts.” (Garcia v. DIRECTV, Inc., at p. 298.) Applying Green Tree’s reasoning, it has also been determined that the question whether two arbitrations should be consolidated, in a FAA case, must be decided by the arbitrator. (Yuen v. Superior Court, at p. 1135.) Absent application of the FAA, the consolidation issue is determined by the court under Code of Civil Procedure section 1281.3. (See id. at p. 1137.)
As the present case is not governed by the FAA, Green Tree is not of direct relevance. Not focusing on this point, however, the State urges Green Tree does not govern here because Green Tree’s analysis was predicated on the broadness of the arbitration clause in that case, and the arbitration provision here is considerably narrower. As indicated above, the provision in Green Tree required arbitration of “[a]ll disputes, claims, or controversies arising from or relating to this contract or the relationships which result from this contract.” (Green Tree, supra, 539 U.S. at p. 448.)
The State relies heavily on Bono v. David (2007) 147 Cal.App.4th 1055, 1067 (Bono), which stated that “the decision as to whether a contractual arbitration clause covers a particular dispute rests substantially on whether the clause in question is ‘broad’ or ‘narrow.’ (See Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2005) ¶ 5:215.3; see generally id., ¶¶ 5:8 & 5.215 to 5:225.) A ‘broad’ clause includes those using language such as ‘any claim arising from or related to this agreement’ (id., ¶ 5:222) while ‘[m]ore narrowly worded clauses’ are considered ‘dangerous to utilize’ (id., ¶ 5:223)—presumably meaning ‘dangerous’ to the party wanting to arbitrate disputes under it.” (Bono, at p. 1067.) Bono viewed the arbitration clause with which it was concerned, covering controversies “involving ‘the construction and application of any provision of this Agreement’ ” as “narrow.” (Ibid.) The court concluded arbitration was not required for a defamation action between two parties to an MOU governing a group purchase of real property because the alleged defamation consisted of statements made to a third party attempting to mediate a dispute regarding the property and did not in any way involve interpretation of the parties’ contract.
The MOU in the present case permits arbitration of “grievances which involve the interpretation, application or enforcement of the provisions of this MOU.” As the State points out, the MOU further provides that the arbitrator “shall have no authority to add to, delete, or alter any provisions of this MOU, or any agreements supplementary thereto, but shall limit the decision only to the application and interpretation of the provisions.” (MOU, § 6.12.E.) Although the language of the MOU is similar to that involved in Bono, the nature of the dispute in the present case differs significantly from the dispute in Bono. As applied to the case before us, the “broad” versus “narrow” distinction drawn by the State begs the critical question: Does the determination whether the MOU permits or forbids pattern-and-practice grievances involve “interpretation, application or enforcement of the provisions of this MOU”? If it does, it is a matter for the arbitrator.
As a general matter, a federal court has observed that “[t]here is a well-established practice to permit the arbitration of multiple grievances or grievances against policies or patterns of conduct where it is not explicitly prohibited by the collective bargaining agreement.” (United Electrical Radio & M. Wkrs. v. Honeywell, Inc. (7th Cir. 1975) 522 F.2d 1221, 1226.) “The Supreme Court has recently said that it has no reason to believe that the processing of grievances is inherently limited to the correction of individual cases and that the question of whether a union can grieve against a ‘pattern or practice’ is essentially contractual.” (Id. at p. 1226, fn. 5, citing Emporium Capwell Co. v. Western Addition Community Organization (1975) 420 U.S. 50.)
As described above, the MOU defines “contract grievance” as “a dispute between CCPOA and the State, or a dispute of one (1) or more employees against the State, involving the interpretation, application or enforcement of the provisions of this MOU.” This definition neither expressly permits pattern-and-practice grievances nor expressly forbids them. “There is nothing in the arbitration clause that requires a topic to be expressly mentioned in the MOU in order to qualify for arbitration. Rather, the arbitration clause broadly permits arbitration of ‘grievances which involve the interpretation, application or enforcement’ of the MOU.” (California Correctional Peace Officers Assn. v. State of California (2007)142 Cal.App.4th 198, 206.) The MOU does exclude from arbitration a “policy grievance,” defined as a “dispute between one (1) or more employees against the State, or a dispute between CCPOA and the State involving subjects not covered by this agreement and not under the jurisdiction of the State Personnel Board.” (MOU, § 6.02.B.) There is no question that the subject matter of the grievance here—the alleged violation of section 27.01 of the MOU—is covered by the MOU. There is also no question that the determination whether the State has violated that section in a given instance entails interpretation of a provision of the MOU. Whether the MOU permits that determination to be made in the context of a pattern-and-practice grievance can only be determined by interpretation of the provisions of the agreement. According to the parties’ agreement, interpretation of the provisions of the MOU is the job of the arbitrator. Accordingly, the motion to compel arbitration should have been granted to enable the arbitrator to determine whether pattern-and-practice grievances are permitted under the MOU and, if so, to resolve the grievance at issue.
Given our conclusion that the trial court erred in denying the motion to compel arbitration, we need not review the trial court’s implicit decision to deny consolidation of the multiple separate arbitrations. A court has discretion to consolidate separate arbitration proceedings when “(1) Separate arbitration agreements or proceedings exist between the same parties; . . . and [¶] (2) The disputes arise from the same transactions or series of related transactions; and [¶] (3) There is common issue or issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators.” (Code Civ. Proc., § 1281.3.)
We thus conclude that the decision in case No. CPF-05-505683 (A113595) must be reversed, and the matter remanded to the trial court with directions to grant the petition to compel arbitration.
In case No. CPF-06-506336 (A118069), the trial court granted CCPOA’s petition to compel arbitration of the question whether the MOU permits arbitration of a pattern-and-practice grievance. This decision, of course, is fully in accord with our resolution of A113595—indeed, it is precisely the same. This very fact demonstrates that the trial court erred in proceeding with the petition in case No. CPF-06-506336 while the appeal in case No. CPF-05-505683 (A113595) was pending. The effort to bring before the trial court the identical question on appeal, between the identical parties, defied the established rule that during the time an appeal is pending, the trial court lacks jurisdiction to act in proceedings on the appealed judgment or matters affected by it.
“Subject to certain exceptions not relevant here, ‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.’ ([Code Civ. Proc.,] § 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.) [¶] . . . ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381 . . . .) ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938 . . . .)” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189 (Varian).)
One example of a situation in which Code of Civil Procedure section 916 requires a stay of trial court proceedings is where the trial court proceeding “directly or indirectly seek[s] to ‘enforce, vacate or modify [the] appealed judgment or order.’ ” (Varian, supra, 35 Cal.4th at p. 189.) Another is where “the actual or possible results of the proceeding are irreconcilable.” (Id. at p. 190.) Also, “a proceeding affects the effectiveness of the appeal if the very purpose of the appeal is to avoid the need for that proceeding. In that situation, the proceeding itself is inherently inconsistent with a possible outcome on appeal and must therefore be stayed under Code of Civil Procedure section 916, subdivision (a). Thus, an appeal from the denial of a motion to compel arbitration automatically stays all further trial court proceedings on the merits.” (Varian, at p. 190.)
Here, the petition to compel arbitration in case No. CPF-06-506336 characterized itself as a separate case, presenting a separate grievance, from that in case No. CPF-05-505683 (A113595). Accepting this characterization, the trial court rejected the State’s reliance on Varian as defeating its jurisdiction to proceed in case No. CPF-06-506336. In our view, however, the distinction between the two cases was an artificial one. The second petition was nothing more than an attempt to carve out a single issue from the first petition and pursue it in the trial court despite the pendency of the appeal on the first petition on that very issue.
As set forth above, the first petition, in case No. CPF-05-505683 (A113595), sought arbitration of a pattern-and-practice grievance alleging violation of section 27.01 of the MOU on a number of separate occasions as examples of an overall pattern and practice of violating that provision. At the hearing on that petition, Judge Warren sought to clarify exactly what relief CCPOA was seeking, noting that the specific grievances alleged in the petition involved unrelated decisions made at different times and places, and were at different stages of the grievance procedure. The judge asked whether CCPOA was seeking arbitration of the question whether the MOU permits pattern-and-practice grievances or consolidation of the eight grievances: “So, is the question, does the MOU authorize future grievances to be on a pattern and practice basis, or are you saying, ‘I want to consolidate all eight of the existing grievances into one grievance so that we can show that the State is engaging in a pattern and practice to violate [27.01] or to violate the MOU?’ ” Counsel for CCPOA responded “yes” to both questions. Even more specifically, counsel for CCPOA responded in the affirmative to the judge’s question whether it was “your position now, that the grievance that you have or the issue that you wanted grieved is the issue of whether or not pattern and practice grievance procedures are covered by this MOU without regard to any specific set of facts or circumstances, nothing but an interpretation of the MOU?” Counsel clarified that CCPOA was seeking resolution of two issues: First, whether the MOU’s definition of “grievance” included a pattern-and-practice claim—i.e., that central decisions were made in Sacramento and applied in various circumstances at prisons throughout the state; and, second, if it does, whether the State committed the alleged pattern-and-practice violation. In response to the court’s direction for each party to submit a proposed order, with CCPOA’s spelling out “exactly what you think is being granted,” CCPOA submitted a proposed order granting the petition to compel arbitration under specified conditions including that the arbitration be bifurcated into an arbitrability portion, during which the arbitrator would determine whether the term “contract grievance” in the MOU “includes ‘pattern and practice’ grievances,” and, if that issue was determined in CCPOA’s favor, a hearing on the merits.
It could not be more clear that, in its first petition, CCPOA was seeking arbitration of precisely the same issue it presented in its second petition—whether the MOU permits arbitration of pattern-and-practice grievances. In denying the motion to compel arbitration on the first petition, Judge Warren implicitly found that the parties did not have an agreement to arbitrate this issue. Judge Quidachay, in the context of the second petition, reached the opposite conclusion. This second decision was “inherently inconsistent” with one possible outcome of the first appeal—an affirmance of Judge Warren’s order. As such, it violated the principles discussed in Varian, supra, 35 Cal.4th 180, 189.)
CCPOA’s sole argument against this conclusion is that our denial of the State’s petition for writ of supersedeas necessarily determined that the trial court had jurisdiction to proceed on the second petition. Not so. In Varian, the trial court denied defendants’ motions to strike the complaint as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16. The defendants appealed, and one of them filed an application with the trial court and a petition for writ of supersedeas with the Court of Appeal seeking to stay further proceedings in the trial court. The application and petition were denied. (Varian, supra, 35 Cal.4th at pp. 187-188.) The trial concluded with a judgment against the defendants; the Court of Appeal dismissed the appeal from the denial of the anti-SLAPP motions as moot; the defendants appealed the judgment; and the Court of Appeal affirmed. (Id. at p. 188.) The Supreme Court, however, held that the appeal of the denial of the anti-SLAPP motions effected an automatic stay of further trial court proceedings, meaning the trial court lacked jurisdiction to proceed with the case and the resulting judgment was void. (Id. at p. 196.) It expressly reached this result despite the fact that the Court of Appeal had denied the petition for writ of supersedeas. (Id. at pp. 200-201.)
Varian explained that the necessary result of a determination that trial court proceedings were stayed under Code of Civil Procedure section 916, subdivision (a), is that the erroneously pursued trial court judgment is void. “In order to preserve the status quo and return the parties to ‘the same condition they were before the order was made’ (Wolcott v. Hudner [(1924)] 67 Cal.App. [704,] 707), section 916 necessarily renders any subsequent trial court proceedings on matters ‘embraced’ in or ‘affected’ by the appeal void—and not merely voidable (§ 916). A contrary conclusion would allow the trial court to render an appeal futile. If trial court proceedings during the pendency of the appeal are consistent with the reviewing court’s resolution of the appeal, then the appeal is, in effect, futile because the trial court has already granted the relief that would have been granted on appeal. And if trial court proceedings during the pendency of the appeal conflict with the reviewing court’s resolution of the appeal, then the appeal will likely be futile because the prevailing party, in most instances, will have no adequate remedy left.” (Varian, supra, 35 Cal.4th at p. 198.)
It follows that the trial court orders compelling arbitration and confirming the arbitration decision in A118069 (case No. CPF-06-506336) are void.
DISPOSITION
The judgment in A113595 (case No. CPF-05-505683) is reversed. The judgment in A118069 (case No. CPF-06-506336) is reversed. The matter is remanded to the trial court for further proceedings consistent with the views expressed herein. Each party to bear its own costs.
We concur: Haerle, J., Richman, J.
“(a) The right to compel arbitration has been waived by the petitioner; or
“(b) Grounds exist for the revocation of the agreement.
“(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . .
“If the court determines that a written agreement to arbitrate a controversy exists, an order to arbitrate such controversy may not be refused on the ground that the petitioner’s contentions lack substantive merit. . . .”
Consolidation was not the relief CCPOA directly sought, though it was discussed by the parties and court. A determination that the trial court did or did not properly exercise discretion in refusing to consolidate the many claims potentially at issue here, which concern various fact situations and have reached different stages of the grievance procedure, would not dictate the result of the inquiry into the MOU’s provision, or lack thereof, for pattern-and-practice grievances.