Alvarez v. Peterson Hydraulics CA2/1

Filed 8/25/14 Alvarez v. Peterson Hydraulics CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ESTEBAN ALVAREZ, B248947

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC493015) v.

PETERSON HYDRAULICS, INC.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Ernest M. Hiroshige, Judge. Affirmed. Atkinson, Andelson, Loya, Ruud & Romo, Ronald W. Novotny and Ann K. Smith for Defendant and Appellant. Livingston Bakhtiar, Ebby S. Bakhtiar; Shegerian & Associates, Inc., Carney R. Shegerian for Plaintiff and Respondent. ___________________________________

An employee was injured on the job and ultimately terminated. He filed a complaint against his employer asserting common law causes of action and statutory claims under the Fair Employment and Housing Act (FEHA). The employer moved to compel arbitration and stay the action, arguing the claims were subject to a grievance and arbitration procedure set forth in a collective bargaining agreement (CBA). The trial court denied the motion on the ground that the CBA did not clearly and unmistakably waive the employee’s right to a judicial forum for his statutory claims. On appeal, the employer contends that the arbitration clause contained in the CBA encompasses statutory claims, that the employee waived his right to contest the motion because he filed his opposition a day late, and that the Federal Arbitration Act (FAA) trumps the standard used by California to assess arbitrability. We reject each contention and affirm. BACKGROUND Plaintiff Esteban Alvarez worked as a millwright for defendant Peterson Hydraulics, Inc. (PHI) from March 1989 to October 2010. He was assigned an assistant from the start, to whom he routinely delegated heavy lifting, pulling, pushing and other heavy labor activities. Alvarez was a member of a carpenters union, a signatory of a CBA with PHI. Article XV of the CBA, entitled, “Equal Employment Opportunity,” provided that “The Employer and the Union will not discriminate against any person with regard to employment or Union membership because of his race, religion, color, sex, age, national origin, or ancestry and hereby declare their acceptance and support of existing laws. This shall apply to hiring, placement and training during employment, rates of pay or other forms of compensation, layoff or termination and application for admission to Union membership.” The CBA also contained an arbitration clause that provides in relevant part that “The Contractor and the Union agree to submit all disputes concerning the interpretation or application of this Agreement to arbitration . . . .” Alvarez incurred three separate work-related injuries between September 2007 and March 2009. Following the March 2009 injury, a PHI supervisor allegedly asked him whether he was “just getting too old” and told him it was time “to think about