Filed 4/23/14 Certified for partial publication 5/21/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                                DIVISION ONE


SEAN GLOSTER,
         Plaintiff and Respondent,
                                                                 A137081
v.
SONIC AUTOMOTIVE, INC., et al.,                                  (San Mateo County
                                                                 Super. Ct. No. CIV505781)
         Defendants and Appellants.


         Plaintiff Sean Gloster filed an employment-related lawsuit against his former
employer, defendant Melody Toyota (Melody), Melody’s parent corporation, other
employees, and a third party. Although Melody and its related defendants warned
Gloster prior to his filing of the lawsuit they would insist on arbitration under his
employment agreement, the defendants waited until a year after the complaint was filed
before petitioning the trial court to compel arbitration, filing a motion for summary
judgment along with the petition. The trial court denied both the motion and the petition,
reasoning defendants had waived the right to arbitration by their delay and the joinder of
the third party created a risk of inconsistent rulings. We conclude the denial of the
summary judgment motion is not appealable and dismiss the appeal to the extent it seeks
review of this order, but we reverse the trial court’s denial of the petition to compel
arbitration.
                                             I. BACKGROUND
         Gloster is a former employee of Melody, a subsidiary of defendant Sonic
Automotive, Inc. (Sonic). In May 2011, Gloster filed suit against Melody, Sonic, and
other defendants. The first amended complaint, filed the next month, alleged causes of
action for retaliation, constructive termination, and other claims related to Gloster’s
employment. In July, all of the defendants except Toyota Motor Sales, U.S.A., Inc.
(Toyota) filed a joint answer to the first amended complaint, asserting as an affirmative
defense, among others, that Gloster was required to arbitrate his claims.1 The Melody
defendants took no immediate action to enforce their claimed right to arbitrate, but in
their first case management statement, dated September 13, 2011, they informed the court
they would be “filing a Motion for Summary Judgment on the issue of whether Plaintiff
has waived his rights to bring these claims and in the alternative for an Order compelling
Plaintiff to binding arbitration pursuant to the parties’ written arbitration agreement.”
       The prior month, Toyota, which was alleged in the complaint to be “Toyota’s U.S.
sales and marketing arm” and to have “acted in concert” with the Melody defendants, had
filed a demurrer, arguing the complaint failed to state a claim against it because Toyota
was not alleged to be Gloster’s employer and the complaint contained no allegation of
wrongful acts by Toyota employees. For reasons that are not entirely clear, Gloster filed
no response to the demurrer until December, when he attempted to file a second amended
complaint. Although the court clerk initially rejected the filing, the second amended
complaint was deemed filed nunc pro tunc in a stipulated order entered in January 2012.
       In January and February, respectively, the Melody defendants and Toyota filed
separate answers to the second amended complaint. Both answers contained the
arbitration-related affirmative defense mentioned above. The Melody defendants
reiterated their intent to petition to compel arbitration in case management statements
filed in January and March. At the March case management conference, a trial date was
set for December 2012.
       In May 2012, the Melody defendants and Toyota filed a joint motion for summary
judgment or, in the alternative, petition to compel arbitration (motion/petition). As


       1
       All defendants other than Toyota will hereafter be referred to collectively as the
“Melody defendants.”


                                              2
grounds for summary judgment, the Melody defendants and Toyota argued Gloster had
forfeited his right to litigate his claims by filing suit rather than commencing an
arbitration, as required by his various employment agreements with Melody. In the event
the court rejected this argument, the motion/petition sought an order compelling
arbitration of Gloster’s claims. Although not a party to Gloster’s arbitration agreement,
Toyota agreed to participate in any arbitration.
       In support of their motion/petition, the Melody defendants and Toyota
demonstrated that, in the course of his three-year employment with Melody, Gloster
signed some nine separate agreements containing clauses requiring him to arbitrate
disputes with Melody and related parties. A copy of each agreement was submitted to the
court. The terms of the arbitration agreements relevant to this appeal were inconsistent.
The earliest agreement, signed in 2006, stated that arbitration would be “under the
Federal Arbitration Act, in conformity with the procedures of the California Arbitration
Act . . . , including [Code of Civil Procedure] section 1283.05 and all of the Act’s other
mandatory and permissive rights to discovery.” However, that agreement also stated
“any arbitration proceeding must move forward under the Federal Arbitration Act . . .
even though the claims may also involve or relate to parties who are not parties to the
arbitration agreement and/or claims that are not subject to arbitration: thus, the court may
not refuse to enforce this arbitration agreement and may not stay the arbitration
proceeding despite the provisions of California Code of Civil Procedure § 1281.2[,
subdivision] (c).” Gloster signed four separate agreements containing arbitration clauses
in February 2008, and three of the four contained different language on this topic. Two
contained the same language quoted above; another was similar but omitted the language
addressing Code of Civil Procedure section 1281.2; a fourth was much more succinct.2 3



       2
           All further statutory references are to the Code of Civil Procedure.
       3
         This agreement stated that the arbitration “shall be governed by the Federal
Arbitration Act, and carried out in conformity with the procedures of the California
Arbitration Act,” but it also noted that the arbitration would be governed by “a more

                                               3
The most recent agreement, signed in 2010 (2010 agreement), deleted all references to
California law, stating the arbitration “shall be submitted to and determined exclusively
by binding arbitration under the Federal Arbitration Act, in conformity with the
procedures published by the American Arbitration Association (AAA).”4
       The motion/petition also demonstrated that, prior to filing suit, Gloster’s attorney
had engaged in discussions with Melody. In the course of the discussions, Melody
repeatedly informed Gloster’s attorney that Gloster had agreed to arbitrate any dispute
and threatened Gloster with a claim of waiver if he elected to file suit rather than
commence an arbitration.
       In opposition, Gloster argued the motion for summary judgment should be denied
because the Melody defendants and Toyota had not demonstrated prejudice as a result of
his failure to seek arbitration. As to the petition to compel, Gloster argued (1) the
Melody defendants and Toyota had not demonstrated the agreement to arbitrate was
valid; (2) the petition should be denied under section 1281.2, subdivision (c) because his
claims against Toyota were not subject to the arbitration agreements; and (3) the Melody
defendants had waived their right to arbitrate by delaying their petition to compel.5
       In support of the claim of waiver, Gloster’s counsel submitted a declaration
detailing the activities that had occurred in the course of the litigation. The parties had
sought from each other and stipulated to various extensions of time in connection with
their obligations. Gloster had served lengthy discovery requests on the Melody
defendants, and the Melody defendants had not only responded to some of them but also
engaged in meet and confer activities and filed supplemental responses. As noted above,


comprehensive arbitration agreement.” All three 2008 agreements referred to in the text
contain more extensive arbitration clauses.
       4
        As in 2008, another agreement in 2010 contained an abbreviated arbitration
clause and referred to Gloster’s execution of a “more comprehensive arbitration
agreement.”
       5
         Gloster does not repeat here the first argument, which is without merit under
existing law. (See Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215,
218–219.)


                                              4
Gloster had filed three versions of the complaint, and the parties had attended status
conferences. It does not appear the Melody defendants served discovery or made any
motion other than the motion/petition.
       The trial court entered a tentative ruling, which it subsequently adopted as the
ruling of the court, denying the motion/petition in its entirety. As to the summary
judgment motion, the court held the Melody defendants and Toyota had failed to
demonstrate that all of the claims in the second amended complaint were subject to an
arbitration agreement, since Toyota was not a party. As to the petition to compel
arbitration, the court found the Melody defendants “have waived their right to compel
arbitration, and Plaintiff has been prejudiced due to the delay of over a year of litigation.”
In addition, the court found “a possibility of conflicting rulings subject to Code of Civil
Procedure section 1281[.2]” because the claims against Toyota would have to be
litigated. The court directed the clerk to prepare an appropriate written order, but the
order executed by the court reflected only the ruling on the summary judgment motion,
without mentioning the petition to compel arbitration.6 The Melody defendants filed a
notice of appeal purporting to appeal both rulings.
                                     II. DISCUSSION
A. The Motion for Summary Judgment
       Gloster argues, and we agree, that the trial court’s order denying the motion for
summary judgment is not appealable. We therefore dismiss the Melody defendants’
appeal to the extent it seeks review of that denial.
       An order denying a motion for summary judgment is not appealable. (Sierra
Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256.) In support
of their right to appeal the denial, the Melody defendants argue, “orders which have an

       6
         Gloster argues the Melody defendants’ notice of appeal was defective because it
sought review of the denial of their petition to compel arbitration but referred only to the
written order, without mentioning the minute order. In light of the text of the tentative
decision, which directed the clerk to prepare a written order reflecting all of the court’s
rulings, we construe the court’s written order to incorporate the portion of the minute
order ruling on the petition to compel arbitration.


                                              5
effect on the review of the denial or dismissal of a petition to compel arbitration are also
reviewable on appeal,” citing as authority only MKJA, Inc. v. 123 Fit Franchising, LLC
(2011) 191 Cal.App.4th 643, 655–656 (Fit Franchising). Fit Franchising states no such
principle; instead, it permitted the appeal of an order denying a stay of litigation pending
arbitration because, under the circumstances, that order was found to be “the functional
equivalent of an order denying a petition to compel arbitration.” (Id. at p. 655.)
       No such circumstances exist here. The Melody defendants do not argue the order
denying the motion for summary judgment was the “functional equivalent” of an order
denying a petition to compel. On the contrary, the motion sought to avoid their
obligation to arbitrate, and it was accompanied by an actual petition to compel. Contrary
to the Melody defendants’ claim, Fit Franchising does not suggest that orders not directly
addressing the right to arbitrate may be appealed. The order denying summary judgment
did not become appealable merely because summary judgment was sought as an
alternative to arbitration.
B. The Petition to Compel
       1. Section 1281.2, subdivision (c)
       Section 1281.2, subdivision (c), first paragraph, authorizes the court to deny a
petition to compel if “[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.”7 If the facts are not in dispute, the determination of
whether section 1281.2 is applicable to a particular arbitration agreement is an issue of



       7
         If these conditions of section 1281.2, subdivision (c) are satisfied, “the court
(1) may refuse to enforce the arbitration agreement and may order intervention or joinder
of all parties in a single action or special proceeding; (2) may order intervention or
joinder as to all or only certain issues; (3) may order arbitration among the parties who
have agreed to arbitration and stay the pending court action or special proceeding
pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending
the outcome of the court action or special proceeding.” (§ 1281.2, subd. (c), 4th par.)


                                               6
statutory and contractual interpretation that we review de novo. (Mastick v. TD
Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263.)
       The parties disagree about which arbitration agreement should govern the
resolution of this issue, but we need not resolve the dispute because we find
section 1281.2, subdivision (c) inapplicable to both versions.
       The Melody defendants seek to apply the 2010 agreement, arguing that as the last
agreement, it supersedes all earlier agreements. The 2010 agreement states any
arbitration will be conducted “under the Federal Arbitration Act, in conformity with the
procedures published by the American Arbitration Association (AAA).” Because the
Federal Arbitration Act (9 U.S.C. § 1 et seq.; FAA), contains no provision analogous to
section 1281.2, subdivision (c), that subdivision cannot be applied to deny the
enforcement of arbitration clauses governed by the FAA. (Cronus Investments, Inc. v.
Concierge Services (2005) 35 Cal.4th 376, 386 (Cronus); Acquire II, Ltd. v. Colton Real
Estate Group (2013) 213 Cal.App.4th 959, 968.) Accordingly, to the extent the 2010
agreement applies, denial of the petition to compel under section 1281.2, subdivision (c)
was error.
       Gloster argues for application of one of the 2008 agreements.8 In justifying the
selection of this agreement, he notes the agreement contains an integration clause and
requires that “any agreement contrary to the foregoing must be entered into, in writing,
by the President of [Melody].” Because the 2010 agreement was not executed by the
president, Gloster argues, it could not have modified the 2008 agreement.9 Although it

       8
         As noted above, Gloster executed four separate agreements containing arbitration
agreements in 2008. The particular agreement identified by Gloster was submitted to the
trial court as exhibit C to the declaration of a Sonic employee, Jayne Jennings, and is
found at page 235 of the clerk’s transcript (hereafter the 2008 agreement).
       9
         We take Gloster’s argument at face value, but it would not appear to justify
selection of the 2008 agreement as the governing arbitration clause. The initial 2006
agreement contains exactly the same integration clause and requirement of execution of
any “contrary” agreement by the president. Because neither the 2008 agreement selected
by Gloster nor any other subsequent agreement is executed by the president, none of
them would, under his reasoning, supersede the original 2006 agreement. Because, as

                                             7
refers to the FAA, the arbitration provision in the 2008 agreement also permits the
application of California procedural law. Similar provisions have been held to authorize
the application of section 1281.2, subdivision (c). (E.g., Cronus, supra, 35 Cal.4th at
p. 394.) The 2008 agreement selected by Gloster, however, also states in bold type “any
arbitration proceeding must move forward under the Federal Arbitration Act . . . even
though the claims may also involve or relate to parties who are not parties to the
arbitration agreement and/or claims that are not subject to arbitration: thus, the court may
not refuse to enforce this arbitration agreement and may not stay the arbitration
proceeding despite the provisions of California Code of Civil Procedure § 1281.2[,
subdivision] (c).” (Italics added.)
       An arbitration clause is governed by the same principles of interpretation as other
agreements. “ ‘The fundamental rule is that interpretation of . . . any contract . . . is
governed by the mutual intent of the parties at the time they form the contract. [Citation.]
The parties’ intent is found, if possible, solely in the contract’s written provisions.
[Citation.] “The ‘clear and explicit’ meaning of these provisions, interpreted in their
‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special
meaning is given to them by usage’ [citation], controls judicial interpretation.” ’ ”
(Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1129.)
       The parties could not have stated their intent that section 1281.2, subdivision (c)
would not be applied to defeat enforcement of the arbitration clause in the 2008
agreement any more clearly. We are required to give effect to that intent. Gloster’s brief
does not even acknowledge this language, let alone provide a reason not to enforce it.
       Because we find section 1281.2, subdivision (c) inapplicable to the agreements
executed by Gloster, we need not consider whether there is a risk of conflicting rulings,
as the trial court found.




pertinent to this issue, the language of the 2006 and 2008 agreements is identical, the
choice between the two is of no import here.


                                               8
       2. Waiver
       The law governing waiver of a contractual right to arbitrate was summarized in
St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187 (St. Agnes):
“State law, like the FAA, reflects a strong policy favoring arbitration agreements and
requires close judicial scrutiny of waiver claims. [Citation.] Although a court may deny
a petition to compel arbitration on the ground of waiver [citation], waivers are not to be
lightly inferred and the party seeking to establish a waiver bears a heavy burden of
proof.” (Id. at p. 1195.)
       “Both state and federal law emphasize that no single test delineates the nature of
the conduct that will constitute a waiver of arbitration. [Citations.] ‘ “In the past,
California courts have found a waiver of the right to demand arbitration in a variety of
contexts, ranging from situations in which the party seeking to compel arbitration has
previously taken steps inconsistent with an intent to invoke arbitration [citations] to
instances in which the petitioning party has unreasonably delayed in undertaking the
procedure. . . .” ’ [Citation.] [¶] . . . ‘In determining waiver, a court can consider
“(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether
‘the litigation machinery has been substantially invoked’ and the parties ‘were well into
preparation of a lawsuit’ before the party notified the opposing party of an intent to
arbitrate; (3) whether a party either requested arbitration enforcement close to the trial
date or delayed for a long period before seeking a stay; (4) whether a defendant seeking
arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether
important intervening steps [e.g., taking advantage of judicial discovery procedures not
available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or
prejudiced’ the opposing party.” ’ ” (St. Agnes, supra, 31 Cal.4th at pp. 1195–1196.)
       “[W]hether litigation results in prejudice to the party opposing arbitration is
critical in waiver determinations.” (Hong v. CJ CGV America Holdings, Inc. (2013)
222 Cal.App.4th 240, 249.) “ ‘ “The moving party’s mere participation in litigation is not
enough [to support a finding of waiver]; the party who seeks to establish waiver must
show that some prejudice has resulted from the other party’s delay in seeking


                                               9
arbitration.” [Citation.]’ [Citations.] [¶] . . . [¶] . . . ‘[C]ourts will not find prejudice
where the party opposing arbitration shows only that it incurred court costs and legal
expenses.’ [Citation.]” (Lewis v. Fletcher Jones Motor Cars, Inc. (2012)
205 Cal.App.4th 436, 451–452 (Lewis).) “Rather, courts assess prejudice with the
recognition that California’s arbitration statutes reflect ‘ “a strong public policy in favor
of arbitration as a speedy and relatively inexpensive means of dispute resolution” ’ and
are intended ‘ “to encourage persons who wish to avoid delays incident to a civil action to
obtain an adjustment of their differences by a tribunal of their own choosing.” ’
[Citation.] Prejudice typically is found only where the petitioning party’s conduct has
substantially undermined this important public policy or substantially impaired the other
side’s ability to take advantage of the benefits and efficiencies of arbitration. [¶] For
example, courts have found prejudice where the petitioning party used the judicial
discovery processes to gain information about the other side’s case that could not have
been gained in arbitration [citations]; where a party unduly delayed and waited until the
eve of trial to seek arbitration [citation]; or where the lengthy nature of the delays
associated with the petitioning party’s attempts to litigate resulted in lost evidence
[citation].” (St. Agnes, supra, 31 Cal.4th at p. 1204.)
       “Generally, the determination of waiver is a question of fact, and the trial court’s
finding, if supported by sufficient evidence, is binding on the appellate court. [Citations.]
‘When, however, the facts are undisputed and only one inference may reasonably be
drawn, the issue is one of law and the reviewing court is not bound by the trial court’s
ruling.’ ” (St. Agnes, supra, 31 Cal.4th at p. 1196.) Because the material facts are not
disputed here, we apply de novo review. (Pulli v. Pony Internat., LLC (2012)
206 Cal.App.4th 1507, 1514.)
       While we recognize the Melody defendants delayed for an extended period in
taking affirmative steps to enforce their right to arbitrate, Gloster failed to carry his




                                                10
“heavy burden” of demonstrating this delay was unreasonable and prejudicial.10
(St. Agnes, supra, 31 Cal.4th at p. 1195.) Importantly, the Melody defendants
consistently asserted their intention to arbitrate, insisting on the requirement of arbitration
in communications with Gloster and his counsel even before the litigation was filed.
They reflected that intent in pleading an appropriate affirmative defense and consistently
asserted their intent to seek arbitration in a series of case management statements.
Throughout the period of delay, there was no question the Melody defendants wanted to
arbitrate; the only question was when they would get around to enforcing their right.
       Under the circumstances present here, the delay alone was not sufficient to support
a finding of waiver. Answering a complaint and participating in litigation, on their own,
do not waive the right to arbitrate. (Hoover v. American Income Life Ins. Co. (2012)
206 Cal.App.4th 1193, 1204 (Hoover).) Further, it was not unreasonable for the Melody
defendants to defer a petition to compel while awaiting the results of the Toyota
demurrer, since a dismissal of Toyota would have simplified the analysis of issues under
section 1281.2, subdivision (c)—as subsequent events proved. The demurrer was not
resolved until January 2012, when Gloster was permitted to file his second amended
complaint. The Melody defendants filed their petition to compel four months later. In
the meantime, they filed no motions or discovery requests of their own, restricting their
litigation activity to responding to Gloster’s requests and attending case management
conferences. Ordinarily, a delay is found unreasonable only when it is combined with the
attempt by the party asserting a right to arbitrate to obtain an advantageous litigation
position during the delay. (See, e.g., Hoover, at pp. 1204–1205 [defendant conducted
discovery, removed case twice to federal court, and filed demurrer during delay]; Lewis,
supra, 205 Cal.App.4th at pp. 440–441, 446 [defendant filed succession of demurrers and
motions to strike before asserting right to arbitrate]; Roberts v. El Cajon Motors, Inc.

       10
         The Melody defendants argue for the first time on appeal that, under the 2010
agreement, the issue of waiver should be decided by the arbitrator. Because of the
uncertainty over the applicable arbitration agreement, we will decide the issue, as urged
by Gloster.


                                              11
(2011) 200 Cal.App.4th 832, 847 [defendant engaged in class discovery and contacted
absent class members during delay].)
       Other than the delay, which, as noted above, was at least partially justified by
Gloster’s joinder of Toyota, the Melody defendants’ only conduct arguably inconsistent
with an intent to arbitrate was their filing of a motion for summary judgment with their
petition to compel. While the filing of a dispositive motion has been found to contribute
to waiver, such a motion ordinarily must involve “the merits of arbitrable issues.”
(Lewis, supra, 205 Cal.App.4th at p. 450.) In contrast, the Melody defendants’ summary
judgment motion raised only the procedural issue of Gloster’s waiver and did not
otherwise address the merits of his claims. Further, it was combined with an alternative
motion to compel. Given these circumstances, the summary judgment motion could not
be construed as inconsistent with an intent to arbitrate.
       In addition, Gloster failed to show any cognizable prejudice from the Melody
defendants’ delay. As noted above, a party is not prejudiced for this purpose solely
because it has incurred expenses as a result of its participation in litigation. (Lewis,
supra, 205 Cal.App.4th at pp. 452–453.) Rather, the party must show it “ ‘has been
substantially deprived of the advantages of arbitration as a “ ‘ “speedy and relatively
inexpensive” ’ ” means of dispute resolution.’ ” (Id. at p. 452.) Gloster’s claim of
prejudice was based on the legal expenses he incurred, which were largely the result of
his own efforts at discovery and his response to the Toyota demurrer, and the increased
anxiety he suffered as a result of the litigation. In the absence of a demonstration that the
discovery would not be useful to Gloster in pursuing his claims in arbitration, its expense
did not constitute prejudice. Expenses incurred in connection with Toyota’s activities
cannot be attributed to the Melody defendants, since Toyota was a third party to the
arbitration. We are unaware of any decision holding that anxiety constitutes prejudice for
these purposes.
C. Toyota
       The Melody defendants contend the trial court should have found Toyota to be a
party to the arbitration agreement or should have left the issue to the arbitrator. We


                                              12
address this issue briefly because it may arise again in connection with the trial court’s
entry of an order granting the petition to compel. We find no basis for requiring Gloster,
over his objection, to arbitrate with Toyota.
       We find no merit in the Melody defendants’ contention Toyota should be deemed
a third party beneficiary of the arbitration agreement merely because it was labeled an
“agent” of the other defendants in boilerplate allegations of the complaint. The issue is
resolved conclusively in Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446,
which holds that a third party cannot be deemed an “agent” under an arbitration
agreement solely on the basis of boilerplate allegations, particularly when the party
advocating that status denies the truth of the allegation. (Id. at pp. 451, 453.) As the
Melody defendants’ brief makes clear, they do not concede Toyota was, in fact, their
agent, and they submitted no evidence to the trial court of Toyota’s status as an agent.
       Neither of the cases cited by the Melody defendants to support their argument hold
that a party can voluntarily join a contractual arbitration over the objection of the
opposing party. (See Kustom Kraft Homes v. Leivenstein (1971) 14 Cal.App.3d 805,
809; Unimart v. Superior Court (1969) 1 Cal.App.3d 1039, 1049.) Arbitration is a right
arising out of contract, and Toyota has no contractual right to arbitrate here. While there
seems little doubt Gloster could consent to Toyota’s joinder in the arbitration, there is no
legal basis for compelling him to arbitrate with Toyota in the absence of his contractual
commitment to do so.
       Nor do we find any merit in the Melody defendants’ claim that the issue must be
resolved by the arbitrator. In the sole case they cite for support, Zakarian v. Bekov
(2002) 98 Cal.App.4th 316, the arbitration agreement contained a clause stating, “ ‘I also
hereby consent to the intervention or joinder in the arbitration proceeding of all parties
relevant to a full and complete settlement of any dispute arbitrated under this Agreement,
as set forth in the Medical Arbitration Rules and/or CHA-CMA Rules for the Arbitration
of Hospital and Medical Fee Disputes.’ ” (Id. at p. 320, fn. omitted.) There is no similar
language consenting to the participation of essential nonparties in the nine arbitration
agreements signed by Gloster. Accordingly, there is nothing for the arbitrator to decide.


                                                13
                                   III. DISPOSITION
       The Melody defendants’ appeal is dismissed to the extent it seeks review of the
trial court’s denial of their summary judgment motion. The trial court’s order denying
the petition to compel arbitration is reversed. The matter is remanded to the trial court
for entry of an appropriate order directing arbitration between Gloster and the Melody
defendants.




                                                  _________________________
                                                  Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Banke, J.




                                             14
Filed 5/21/14
                      CERTIFIED FOR PARTIAL PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                       DIVISION ONE


SEAN GLOSTER,                                         A137081
         Plaintiff and Respondent,
                                                      (San Mateo County
v.                                                    Super. Ct. No. CIV505781)
SONIC AUTOMOTIVE, INC., et al.,
                                                     ORDER CERTIFYING OPINION FOR
         Defendants and Appellants.                  PARTIAL PUBLICATION

                                                     [NO CHANGE IN JUDGMENT]


THE COURT:
         The opinion in the above-entitled matter filed on April 23, 2014, was not certified
for publication in the Official Reports. After the court’s review of requests under
California Rules of Court, rule 8.1120, and good cause established under rule 8.1105, it is
hereby ordered pursuant to rule 8.1110 that the opinion should be published in the
Official Reports, with the exception of part II.C.
Dated:

                                                     ___________________________
                                                     Margulies, J.
Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Joseph E. Bergeron

Counsel:

Morgan, Lewis & Bockius, L. Julius M. Turman, Philip J. Smith; Fine, Boggs & Perkins,
John P. Boggs, Davis A. Hosilyk and Ian G. Robertson, for Defendants and Appellants.

Law Offices of David S. Seacrest, David S. Seacrest, for Plaintiff and Respondent.




                                            2
