If You Litigate, You Can't Arbitrate

Fleming Dist. Co. v. Younan, No. A157038 (D1d3 May 15, 2020)

An employment contract contains an arbitration clause. But Employee files a wage claim with the Labor Commissioner. Employer claims that the Labor Commissioner case can’t proceed, given the arbitration clause. But instead of immediately moving to compel arbitration, Employer winds up litigating the wage claim. Employee wins. Then, in connection with a demand for a trial de novo in superior court, Employer finally files an arbitration petition. Too late. Litigating the claim before the Labor Commissioner is not consistent with the right to arbitrate. Employer needed to do more than complain that the case was arbitrable. It needed to take active steps to move the case to arbitration. By filing to do that in a timely fashion, Employer waived the right to compel.

Affirmed.