Fraser v. RV Country, Inc. CA5

Filed 10/8/20 Fraser v. RV Country, Inc. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

PATRICK FRASER et al.,
F080279
Plaintiffs and Respondents,
(Super. Ct. No. 19CECG01717)
v.

RV COUNTRY, INC., et al., OPINION
Defendants and Appellants.

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Alan M.
Simpson, Judge.
Fine, Boggs & Perkins, Michael K. Perkins and William D. Wheelock for
Defendants and Appellants.
Whelan Law Group and Brian D. Whelan for Plaintiffs and Respondents.
-ooOoo-
An employer appeals from an order denying its motion to compel arbitration of a
dispute with two employees. We conclude the trial court correctly determined the

* Before Levy, Acting P.J., Franson, J. and Peña, J.
employer waived any contractual right it had to compel arbitration when it entered into a
joint stipulation with one of the employees. A recital in the joint stipulation stated the
parties wished to proceed with the employees’ civil action in the superior court instead of
before the Division of Labor Standards Enforcement (DLSE) without prejudicing in any
way the employees’ claims or rights. In exchange for the employee’s dismissal of his
DLSE complaint, the employer agreed “that it will not raise any defenses of any kind nor
arguments of any kind against either [employee’s] claims … in the civil action” pending
in the superior court. The joint stipulation also stated the “[d]ismissal of the DLSE
Complaint will not be admissible for any purpose at trial in this case. Again, the
dismissal of the DLSE Complaint … will not adversely impact in any way the Plaintiffs
in this lawsuit.” (Italics added.)
Applying an objectively reasonable layperson standard to the language used in the
joint stipulation, we conclude arbitration qualifies as a defense or argument for purposes
of the phrase “any defenses of any kind nor arguments of any kind” and, therefore, the
employer agreed it would “not raise” any purported right to arbitration “in the civil
action.” This agreement constitutes a waiver of any right to compel arbitration. (Code
Civ. Proc., § 1281.2, subd. (a) [right to compel arbitration may be waived].)1
We therefore affirm the order denying the motion to compel arbitration.
FACTS AND PROCEEDINGS
From 2003 to 2007, plaintiff Patrick Fraser worked for defendant RV Country,
Inc. as a salesperson. After working elsewhere, he returned to RV Country, Inc. in 2008
and continued working there until his termination on August 20, 2018. Fraser was
compensated solely on a commission basis.

1 All further statutory references are to the Code of Civil Procedure.

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 In May 1991, plaintiff Jerold Wight began his employment with RV Country, Inc.
At the start of this litigation, Wight still was employed by RV Country, Inc. as a
salesperson. Wight also was compensated on a commission basis.
In January 2019, Fraser filed a complaint with the DLSE alleging that he had
earned and was not paid commissions in the amount of $300,000 for the period from
November 30, 2015 through the date of his termination. Fraser filed the DLSE complaint
on his own and then hired an attorney to help him with that matter and to initiate a
lawsuit.
In April 2019, RV Country, Inc. submitted an answer to Fraser’s DLSE complaint.
RV Country, Inc. stated its records did not show any wages or commissions were due and
that it did not know how Fraser calculated the amount claimed.
In May 2019, plaintiffs filed a complaint in Fresno County Superior Court against
RV Country, Inc., a California corporation; Charles E. Curtis, the president and an owner
of the corporation; and Oasis Outsourcing III, Inc., a Florida corporation (Oasis).
Plaintiffs alleged RV Country, Inc., Curtis and Oasis were their joint employers.
Plaintiffs alleged that Oasis was the entity that appeared as their employer on their 2017
and 2018 tax records. The complaint alleged defendants miscalculated the sales
commission earned by plaintiffs and, as a result, underpaid the compensation owed.
On June 24, 2019, plaintiffs filed a first amended complaint, which is the operative
pleading for purposes of this appeal. The first amended complaint included causes of
action for (1) breach of contract, (2) open book account, (3) account stated, (4) violating
Labor Code section 226’s requirement that employers furnish accurate wage statements,
(5) waiting time penalties under Labor Code sections 201 through 203, (6) negligence,
(7) failure to reimburse expenses, (8) unfair competition based on nonpayment of wages,
(9) violating the 30-minute meal break requirement of Labor Code section 226.7, (10)
violating the rest break requirement of Labor Code section 226.7, and (11) penalties

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under various Labor Code provisions. The prayer for relief sought compensatory
damages of not less than $2.4 million.
In July 2019, the DLSE served the parties with a notice stating a hearing would be
held in Fresno on August 15, 2019. In early August 2019, defendants, Fraser, and
counsel for all parties executed a “JOINT STIPULATION RE WAIVER OF DEFENSES
BASED ON THE DISMISSAL OF PATRICK FRASER’S DLSE COMPLAINT” that
included a recital stating “the Parties wish to proceed with the Plaintiffs’ civil action in
the Superior Court instead of before the DLSE without prejudicing in any way Plaintiffs’
claims or rights.” The joint stipulation stated the parties agreed that Fraser would
“dismiss his DLSE Complaint against RV Country Inc. without prejudice … in exchange
for RV Country Inc.’s agreement that it will not raise any defenses of any kind nor
arguments of any kind against either Fraser’s claims or Wight’s claims in the civil
action.” They further agreed that the dismissal would not serve as a bar against any
current or future claims that either Fraser or Wight “may now or ever choose to advance
against any of the named parties in this lawsuit including Doe Defendants.”
On August 12, 2019, defendants filed a petition to compel arbitration and stay
proceedings in the superior court. Defendants’ petition asserted plaintiffs entered into
agreements to submit any legal dispute with defendants to binding arbitration for
resolution, the agreements had been memorialized in writing, and each plaintiff executed
the document by electronic signature. In particular, defendants alleged that on November
16, 2016, Fraser executed by electronic signature a document entitled “Employee
Acknowledgements” that contained an arbitration agreement. Defendants alleged Wight
also executed an arbitration agreement on the same day and in the same manner.
In October 2019, Oasis was dismissed from the lawsuit. The other defendants
continued to pursue the petition to compel arbitration. Plaintiffs filed an opposition to the
petition to compel arbitration along with supporting declarations from Fraser, Wight and
their attorney. Fraser and Wight asserted they had not been presented with, and had not

4.
signed, an arbitration agreement. Wight stated that he had never seen the agreement
presented as part of defendants’ petition to compel arbitration and he did not sign it,
electronically or otherwise. Referring to the joint stipulation, Fraser stated he would not
have given up his right to the expedient process of the DLSE hearing if he had known
that RV Country, Inc. would claim, falsely, that all of his claims needed to be resolved in
arbitration. Fraser stated he understood that RV Country, Inc. had committed to a jury
trial and he believed he had been deceived into dismissing his complaint before the
DLSE.
Near the end of October 2019, the trial court issued a tentative ruling denying the
petition to compel arbitration. Defendants requested oral argument. On October 30,
2019, a hearing was held. The court heard argument, took the matter under submission,
conducted further review, and issued a law and motion minute order adopting its tentative
ruling as its final order. The ruling stated defendants’ petition to compel arbitration was
denied and the defendants’ objections to the evidence plaintiffs submitted in support of
their opposition to the petition were overruled. The court specifically found “defendants
waived their right to compel arbitration when they agreed, in writing, to proceed in
Superior Court.” Five days later, defendants filed a timely appeal.
DISCUSSION
I. CALENDAR PREFERENCE
California has a “ ‘long-established and well-settled policy favoring arbitration as
a speedy and inexpensive means of settling disputes. [Citation.] This policy is reflected
in the comprehensive statutory scheme set out in the California Arbitration Act. (§ 1280
et seq.)’ ” (Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType
Technology Co., Ltd. (2020) 9 Cal.5th 125, 146 (Rockefeller).) A purpose of the
California Arbitration Act “ ‘is to promote contractual arbitration, in accordance with

5.
this policy, as a more expeditious and less expensive means of resolving disputes than by
litigation in court.’ ” (Ibid.)
Typically, parties entering into an arbitration agreement expect that any
subsequent dispute will be resolved without going to court. (Rockefeller, supra, 9 Cal.5th
at p. 146.) However, the California Arbitration Act recognizes this expectation is not
always met and the parties may end up in court. To expedite those court proceedings, the
statute provides:

“In all proceedings brought under the provisions of this title, all courts
wherein such proceedings are pending shall give such proceedings
preference over all other civil actions or proceedings, except older matters
of the same character and matters to which special precedence may be
given by law, in the matter of setting the same for hearing and in hearing
the same to the end that all such proceedings shall be quickly heard and
determined.” (§ 1291.2.)2
Despite the mandatory language in section 1291.2, counsel for defendants did not
mark the box for item II.B. on mandatory Judicial Council form APP-004, Civil Case
Information Statement. The text following that box states in full: “This appeal is entitled
to calendar preference/priority on appeal (cite authority).” (See Bus. & Prof. Code, §
6068, subd. (d) [duty of attorney in making representations of fact or law to the court].)
As for plaintiffs’ counsel, they did not file a motion for preference under
California Rules of Court, rule 8.240. However, the rule’s Advisory Committee
comment states the rule’s mandatory language “is not intended to bar the court from

2 Legislative directives granting priority to certain matters and requiring the
proceedings be conducted as speedily as possible are a common feature of procedural
statutes. (Briggs v. Brown (2017) 3 Cal.5th 808, 848.) Witkin provides a partial list of
preference-granting statutes. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 764, pp.
836–838 [statutory preferences and advancement]; see Briggs, supra, at p. 848, fn. 24
[list of statutes]; e.g., § 44 [preference on appeal for probate proceedings, election
contests and certain defamation cases].) We note that the California Environmental
Quality Act (Pub. Res. Code, § 21000 et seq.) includes a provision using language similar
to section 1291.2. (See Pub. Res. Code, § 21167.1, subd. (a).)

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ordering preference without a motion when the ground is apparent on the face of the
appeal.” Because this appeal involves the enforcement of an arbitration clause, it clearly
falls with the scope of section 1291.2’s mandatory language. Therefore, we have treated
it “as a preference matter as required by statute.” (Hedges v. Carrigan (2004) 117
Cal.App.4th 578, 582.)
II. FORMATION OF AN AGREEMENT TO ARBITRATE
Defendants contend the trial court erred by not deciding the threshold issue of
whether the parties in fact agreed to arbitrate the disputes. Defendants argue this
determination is the trial court’s essential first task and the failure to perform that task
requires a remand directing the trial court to fulfill its role as trier of fact and determine
whether the parties agreed to arbitrate the dispute.
This remand request borders on the frivolous because it ignores the constitutional
requirement that an appellant demonstrate prejudice to establish reversible error.
California’s doctrine of reversible error requires appellants to affirmatively demonstrate
“the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, §
13.) In civil cases, the “miscarriage of justice” standard is satisfied when there is a
reasonable probability that in the absence of the error, a result more favorable to the
appealing party would have been reached. (Harb v. City of Bakersfield (2015) 233
Cal.App.4th 606, 617; see In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1051
[doctrine of reversible error requires appellant to establish prejudice].)
Here, the appellate record does not demonstrate a miscarriage of justice. Indeed, it
affirmatively demonstrates the opposite—that is, defendants would not have received a
more favorable result if the agreement formation issue had been decided in their favor.
Specifically, the record shows that if defendants had a contractual right to arbitration of
the dispute, the trial court would have denied their motion to compel arbitration on the

7.
ground defendants had waived that contractual right. As a result, defendants were not
prejudiced when the trial court decided a single, pivotal issue.
III. WAIVER OF CONTRACTUAL RIGHT TO ARBITRATE
Defendants also claim the trial court erred in finding defendants waived any right
to compel arbitration of plaintiffs’ claims because plaintiffs failed to meet their heavy
burden of establishing a waiver. As background for our analysis of this purported error,
we set forth the rules of law that define waiver in the context of an arbitration agreement
and the principles that govern the interpretation of a stipulation.
A. Basic Principles
Section 1281.2 provides that a written agreement to arbitrate a dispute is
enforceable by a petition to compel arbitration. When an arbitration agreement covers a
dispute, the court shall order the parties to arbitration unless it determines “[t]he right to
compel arbitration has been waived by the petitioner” or there are grounds for revocation
of the agreement. (§ 1281.2, subds. (a), (b).) In St. Agnes Medical Center v. PacifiCare
of California (2003) 31 Cal.4th 1187 (St. Agnes) and Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951 (Engalla), the Supreme Court set forth several legal
conclusions relating to this statutory waiver provision.
1. Defining Waiver
First, a waiver under subdivision (a) of section 1281.2 is not limited to a voluntary
relinquishment of a known right. (Engalla, supra, 15 Cal.4th at p. 983.) Instead, waiver
extends to other circumstances that are not dependent upon the intent to relinquish the
right to arbitrate. (Ibid.; St. Agnes, supra, 31 Cal.4th at p. 1195, fn. 4.) As a result, under
state and federal law, “no single test delineates the nature of the conduct that will
constitute a waiver of arbitration.” (St. Agnes, supra, at p. 1195.) Thus, waiver of
arbitration may be expressed in words or implied from the petitioner’s conduct. (Cinel v.
Barna (2012) 206 Cal.App.4th 1383, 1389.)

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 Second, the relevant factors that are properly considered in assessing a waiver
claim include (1) whether the petitioner’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 petitioner notified the opposing
party of an intent to arbitrate; (3) whether the petitioner sought to enforce the right to
arbitrate close to the trial date or sought a stay after a lengthy delay; (4) whether a
defendant seeking arbitration filed a counterclaim without asking for a stay of the
proceedings; (5) whether important intervening steps such as invoking 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 p.
1196.) Most of these factors are relevant to whether to infer a waiver from a party’s
conduct and do not bear directly on interpreting a written agreement that purportedly
waives the right to arbitration.
Third, the assessment of the foregoing factors is informed by the principle that a
waiver is not inferred from a party’s mere participation in litigation prior to a judgment
on the merits unless the party opposing arbitration has demonstrated prejudice in some
form other than incurring court costs and legal expenses. (St. Agnes, supra, 31 Cal.4th at
p. 1203.) Typically, prejudice is established where the petitioner’s conduct has
substantially impaired the public policy underlying arbitration or substantially impaired
the opposing party’s ability to take advantage of the benefits and efficiencies of
arbitration. (Id. at p. 1204.)
2. Procedural Aspects of Proving Waiver
The trial court has jurisdiction to decide the waiver question when petitioned to
compel arbitration. (Engalla, supra, 15 Cal.4th at p. 982.) Thus, the waiver question is
not decided by an arbitrator. A petition to compel arbitration is resolved in a summary
proceeding where the trial court sits as the trier of fact. (Id. at p. 972.) The determination

9.
of whether a waiver occurred generally is a question of fact. (St. Agnes, supra, 31
Cal.4th at p. 1196.) Where the facts are undisputed and only one reasonable inference
can be drawn from those facts, the determination of waiver is a question of law. (Ibid.)
The party opposing a petition to compel arbitration “bears the burden of proving
by a preponderance of the evidence any fact necessary to its defense,” which includes
waiver. (Engalla, supra, 15 Cal.4th at p. 972.)3 Notwithstanding the preponderance of
the evidence standard of proof set forth in Engalla, our Supreme Court has stated that
waivers of the right to arbitration “are not to be lightly inferred and the party seeking to
establish a waiver bears a heavy burden of proof. [Citations.]” (St. Agnes, supra, 31
Cal.4th at p. 1195.) In St. Agnes and the cases cited therein for this principle, the issue
was whether to infer a waiver based on the petitioner’s conduct—specifically, its
participation in litigation. Viewed in that context, we interpret the statement in St. Agnes
as applying to cases involving a waiver inferred from a party’s conduct during the
litigation and not as replacing or modifying the principles used to interpret a bilateral,
written agreement that purportedly waived a party’s right to arbitration in exchange for
other consideration.
3. Standard of Review
When an appellate court reviews a trial court’s factual findings relating to waiver,
it determines whether those findings are supported by substantial evidence. (Engalla,
supra, 15 Cal.4th at p. 983.) Conversely, where the trial court’s waiver determination
resolves a question of law, the appellate court conducts a de novo review without
deference to the trial court’s determination. (St. Agnes, supra, 31 Cal.4th at p. 1196.)

3 Thus, a party contending the right to arbitrate was waived is not subject to the rule
of law specifying the standard for proving a waiver in other contexts. Under that rule, the
party claiming a waiver of a right has the burden of proving it by clear and convincing
evidence. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31; see Evid. Code,
115 [burden of proof].)

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 B. Principles Governing Interpretation of the Stipulation
When a court interprets a stipulation, “the rules applied are those applied to the
interpretation of contracts.” (Harris v. Spinali Auto Sales, Inc. (1962) 202 Cal.App.2d
215, 219.) “It is not the province of the court to add to the provisions thereof [citations];
to insert a term not found therein [citations]; or to make a new stipulation for the parties.”
(Ibid.) In this appeal, defendants acknowledge that stipulations are construed as any
other contract and quote Cuenca v. Cohen (2017) 8 Cal.App.5th 200 (Cuenca) for the
following principles. First, the interpretation of a contract presents a question of law
unless the interpretation turns on the credibility of extrinsic evidence. (Id. at p. 222.)
Where a question of law was decided, the appellate court conducts a de novo review.
(Ibid.) Second, the mutual intention of the parties at the time the contract is formed
governs its interpretation. (Ibid.; see Civ. Code, § 1636.) Third, if possible, such intent
is to be inferred solely from the written provisions of the contract. (Cuenca, supra, at p.
222; see Civ. Code, § 1639.) Fourth, the language of the contract governs its
interpretation where the language is clear and explicit. (Civ. Code, § 1638; Cuenca,
supra, at p. 222.) Fifth, the words of the contract are given their ordinary and popular
meaning, unless the parties have used them in a technical sense. (Civ. Code, § 1644,
Cuenca, supra, at p. 222.) Sixth, “ ‘if the meaning a layperson would ascribe to contract
language is not ambiguous, we apply that meaning.’ ” (Cuenca, supra, at p. 222.)
The principles of contract interpretation identified in defendant’s brief are not the
only principles we consider when determining the meaning of the joint stipulation. Other
principles of California contract law apply. For instance, the existence of mutual consent
(i.e., mutual intent) generally is determined by applying an objective standard to the
outward manifestations or expressions of the parties and ascertaining the reasonable
meaning of their words and their conduct. (Alexander v. Codemasters Group Limited
(2002) 104 Cal.App.4th 129, 141; see Civ. Code, § 1581.) Thus, evidence of a party’s
unexpressed intentions or expectations is irrelevant to determining the meaning of

11.
contractual language. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166, fn. 3.) Also,
California’s objective standard refers to what a reasonable person would be led to believe
by the outward manifestations or expressions of the parties. (Bustamante v. Intuit, Inc.
(2006) 141 Cal.App.4th 199, 208.) Thus, California contract law holds a party
responsible for the objectively reasonable expectations created by the words and actions
communicated to the other party. (Merced County Sheriff’s Employee’s Assn. v. County
of Merced (1987) 188 Cal.App.3d 662, 670.) Based on this objective standard, we
interpret the reference in Cuenca to “the meaning a layperson would ascribe to contract
language” to mean a hypothetical reasonable layperson is used to determine the meaning
of the parties’ expressions, not an attorney or a person with specialized training. (See
E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 471; see Reserve
Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 807.)
C. Determination of Joint Stipulation’s Meaning
1. Words Used
In accordance with the principle that the parties’ mutual intent is to be inferred, if
possible, solely from the written provisions of the contract, we begin by setting forth the
relevant written provisions of the stipulation. (Cuenca, supra, 8 Cal.App.5th at p. 222;
see Civ. Code, § 1639.) The stipulation was titled “JOINT STIPULATION RE
WAIVER OF DEFENSES BASED ON THE DISMISSAL OF PATRICK FRASER’S
DLSE COMPLAINT” and was signed by defendants, Fraser, and counsel for all parties.
The first three recitals describe Fraser’s DLSE complaint, plaintiffs’ lawsuit, and
the August 15, 2019 hearing set by the DLSE. The fourth recital states “the Parties wish
to proceed with the Plaintiffs’ civil action in the Superior Court instead [of] before the
DLSE without prejudicing in any way Plaintiffs’ claims or rights.” Following the
recitals, the parties agreed:

“Fraser will dismiss his DLSE Complaint against RV Country Inc. without
prejudice by no later than August 14, 2019, in exchange for RV Country

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 Inc.’s agreement that it will not raise any defenses of any kind nor
arguments of any kind against either Fraser’s claims or Wight’s claims in
the civil action. Further, Fraser’s dismissal of the DLSE complaint will not
serve as a bar, collateral estoppel, res judicata, or retraxit against any
current or future claims that either Fraser or Wight may now or ever choose
to advance against any of the named parties in this lawsuit including Doe
Defendants. Dismissal of the DLSE Complaint will not give rise to
payment to Defendant parties of any sums of money for costs or fees.
Dismissal of the DLSE Complaint will not be admissible for any purpose at
trial in this case. Again, the dismissal of the DLSE Complaint by Fraser
will not adversely impact in any way the Plaintiffs’ in this lawsuit.”
As noted by defendants, the joint stipulation makes no explicit reference to
arbitration whatsoever. In particular, it does not (1) mention the existence of an
agreement to arbitrate or (2) state any party waived the right to compel arbitration. The
only place the term waiver or any of its variants appear is in the stipulation’s title.
Conversely, the parties did not explicitly stipulate to having the question of arbitration
raised and resolved in the superior court.
Initially, we conclude an explicit provision stating defendants “waived” any right
to compel arbitration is not the exclusive way to express an intent to relinquish the right
to compel arbitration of the dispute. Other words could express that intent. For example,
an agreement stating the parties intend to resolve the merits of their dispute in court
necessarily implies they do not intend to arbitrate the merits of the dispute.
2. Analysis of the Stipulation’s Text
Here, the joint stipulation sets forth “RV Country Inc.’s agreement that it will not
raise any defenses of any kind nor arguments of any kind against either Fraser’s claims or
Wight’s claims in the civil action.” First, we consider the verb phrase “will not raise.”
We conclude an objectively reasonable layperson would interpret this phrase to mean that
the party has waived (i.e., relinquished) the items following that phrase. Interpreting the
phrase as waiving the items following it is consistent with the use of the term “WAIVER
OF DEFENSES” used in the joint stipulation’s title. (See Civ. Code, § 1641 [contract

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must be read as a whole]; CACI No. 317 [in deciding the meaning of a contract’s word,
the jury “should consider the whole contract, not just isolated parts”].)
Having concluded that defendants waived something, our next task is to determine
whether that something encompasses arbitration. The items waived are identified by the
phrase “any defenses of any kind nor arguments of any kind” and the extent of the waiver
is limited by the clause “against either Fraser’s claims or Wight’s claims in the civil
action.” Based on this contractual language, we consider whether an objectively
reasonable layperson would conclude the right to arbitrate is a “defense” or “argument”
“against” plaintiffs’ claims “in the civil action.”
The noun “defense” is defined to mean “the act or action of defending”; “a
defendant’s denial, answer or plea”; “an argument in support or justification” and “the
collected facts and method adopted by a defendant to protect himself against a plaintiff’s
action.” (Merriam-Webster’s Collegiate Dict. (10th ed. 1999) p. 302, col. 1.)4 The word
“argument” means “a reason given in proof or rebuttal” and a “discourse intended to
persuade.” (Merriam-Webster’s Collegiate Dict., supra, p. 62, col. 1.) The stipulation
modifies both “defenses” and “arguments” with the prepositional phrase “of any kind.”
“[T]he word ‘any’ is defined to mean ‘of whatever kind’ or ‘without restriction.’
(Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 53, col. 1.)” (Zabrucky v.
McAdams (2005) 129 Cal.App.4th 618, 628.)
We conclude the foregoing are ordinary and popular meanings of “defense,”
“argument” and “any” that an objectively reasonable layperson would adopt in construing
the joint stipulation. Furthermore, we conclude that in the context of this case, the word

4 The California Supreme Court has stated that “[w]hen attempting to ascertain the
ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition
of that word.” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111,
1121–1122.) We recognize, of course, that the process of interpreting a contract involves
more than looking up dictionary definitions and stitching together the results. (See
Hodges v. Superior Court (1999) 21 Cal.4th 109, 113.)

14.
“against” and the phrase “either Fraser’s claims or Wight’s claims in the civil action” are
unambiguous. They refer to defenses and arguments raised in opposition to plaintiffs’
causes of action in Fresno County Superior Court case No. 19CECG01717.
Applying these definitions to the circumstances presented, we conclude
defendants’ attempt to compel arbitration of the dispute was an attempt to prevent the
dispute from being resolved in the superior court civil action. Thus, defendants’ petition
to compel arbitration “raise[d]” a “defense” or “argument” against plaintiffs’ claims in
the civil action. Stated another way, defendants’ assertion of the right to arbitrate
constitutes “an argument in support [of] or justification” for stopping plaintiffs’ civil
action (Merriam-Webster’s Collegiate Dict., supra, p. 302, col. 1 [definition of defense])
and is a “reason given in … rebuttal” of plaintiffs’ right to proceed with the lawsuit
(Merriam-Webster’s Collegiate Dict., supra, p. 62, col. 1 [definition of argument].)
Defendants argue this provision of the joint stipulation should be limited solely to
defenses based on Fraser’s dismissal of his DLSE complaint. This contention contradicts
the plain language of the provision, which refers to “any” defense or argument and does
not include the limitation defendants are attempting to insert. Defendants’ assertion that
“there is no competent evidence in the record suggesting that waiver of arbitration was
ever contemplated by the parties” overlooks the verb phrase “will not raise” and the
repeated use of the word “any” in describing the defenses and arguments that would not
be raised. The general term “any” is broad and encompasses the defense of arbitration
even without a specific reference to arbitration or the right to arbitrate.5
Our view of the objective meaning of the words used in the joint stipulation is
supported by more than dictionary definitions. The idea that the assertion of the right to

5 This interpretation of “any” has not been directly addressed by defendants. For
instance, defendants have cited no authority interpreting the word “any” in a fashion that
would result in the phrase “any defenses of any kind” to mean “defenses of whatever
kind except arbitration.”

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arbitrate is a “defense” has existed in California case law for at least 60 years. In 1956,
our Supreme Court referred to “a waiver of the right to insist on arbitration as a defense
to an action on the contract.” (Local 659, I.A.T.S.E. v. Color Corp. Amer. (1956) 47
Cal.2d 189, 195, italics added; see Brunzell Constr. Co. v. Harrah’s Club (1967) 253
Cal.App.2d 764, 779 [quoting same].) Similarly, a secondary authority addressing
affirmative defenses treats the right to arbitrate as a defense. (3 Schwing & Carr,
California Affirmative Defenses (2019) ch. 68, pp. 339–435.) Section 68:12 of chapter
68 of Schwing & Carr is titled “Waiver of Defense.” (Id. at p. 423, italics added.) In this
title, defense refers to the right to arbitrate a dispute.
In summary, we conclude the agreement not to “raise any defenses of any kind nor
arguments of any kind against either Fraser’s claims or Wight’s claims in the civil action”
constitutes of waiver of any contractual right to compel arbitration of the claims of Fraser
or Wight.
D. Prejudice to Plaintiff
Defendants cite St. Agnes and Iskanian v. CLS Transportation Los Angeles, LLC
(2014) 59 Cal.4th 348 for the principles that a party opposing a petition to compel
arbitration must establish prejudice will result if the waiver is not enforced. In Iskanian,
the court stated: “We have said that ‘prejudice … is critical in waiver determination.’ (St.
Agnes Medical Center, supra, 31 Cal.4th at p. 1203.)” (Iskanian, supra, at pp. 376–377.)
Iskanian, like St. Agnes and the cases cited in St. Agnes to support the statement about
prejudice, involves a claim of waiver based on a party’s conduct during litigation. These
cases did not involve the interpretation of a written agreement in which the right to
arbitrate is relinquished in a bargained for exchange. As a result, those cases do not stand
for a principle limiting the parties’ freedom of contract. More specifically, those cases do
not hold that a contractual agreement to proceed in court overrides an earlier agreement
to arbitrate if and only if the party seeking to enforce the agreement to proceed in court

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would be prejudiced by being required to arbitrate. “Language used in any opinion is of
course to be understood in the light of the facts and the issue then before the court, and an
opinion is not authority for a proposition not therein considered.” (Ginns v. Savage
(1964) 61 Cal.2d 520, 524, fn. 2; see generally, 9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 509, pp. 572–573 [ratio decidendi and dicta].) Consequently, we conclude that
an agreement to proceed in court rather than arbitrate a dispute is enforceable even if the
party attempting to proceed with the civil action has not shown he or she would be
prejudiced if required to arbitrate the dispute.
DISPOSITION
The order denying the petition to compel arbitration is affirmed. Plaintiffs shall
recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

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