Filed 2/9/22 Sanchez v. Shimmick Construction Co. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

WILLIAM SANCHEZ, 

Plaintiff and Appellant,

v.

SHIMMICK CONSTRUCTION 

COMPANY, INC./FCC 

CONSTRUCCION S.A./IMPREGLIO 

S.P.A.,

Defendant and Respondent.

 B311536

 (Los Angeles County

 Super. Ct. No. 19STCV04676)

APPEAL from an order of the Superior Court of 

Los Angeles County. Kenneth R. Freeman, Judge. Affirmed.

Alexander Morrison + Fehr, Tracy L. Fehr; The Nourmand 

Law Firm, Michael Nourmand and James A. De Sario for 

Plaintiff and Appellant.

Jackson Lewis, Leonora M. Schloss, Scott P. Jang, Dylan B. 

Carp and Rassa L. Ahmadi for Defendant and Respondent.

______________________________
2

Plaintiff and appellant William Sanchez (Sanchez) brought 

a wage and hour type case against defendant and respondent 

Shimmick Construction Company, Inc./FCC Construccion 

S.A./Impreglio S.P.A.1 The trial court granted defendant’s motion 

to compel arbitration of all five of Sanchez’s claims pursuant to 

the terms of a collective bargaining agreement. Sanchez appeals, 

claiming only that his third cause of action for failure to pay 

wages upon termination in violation of Labor Code sections 201,

202, and 203,

2 and his fifth cause of action for unfair competition 

(Bus. & Prof. Code, § 17200) based thereon are not arbitrable.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Parties

Defendant is an employer-contractor on the Gerald 

Desmond Bridge Replacement Project in Long Beach, California 

(the project). Sanchez is a former nonexempt employee of 

defendant, with the job description of “pile driver/carpenter.” 

During his employment, Sanchez was a member of the United 

Brotherhood of Carpenters Local Number 2375, also known as 

the piledrivers union.

The Collective Bargaining Agreements

Two collective bargaining agreements are relevant to the 

issues raised in this appeal. First, defendant and the piledrivers 

1

The complaint also named Shimmick Construction 

Company, Inc., as a defendant. Sanchez later dismissed that 

entity, and it is not a party to this appeal.

2

All further statutory references are to the Labor Code 

unless otherwise indicated.
3

union were parties to the project labor agreement. The project 

labor agreement sets the minimum terms of employment for 

workers performing construction craftwork at the project, 

including terms regarding wages, benefit rates, and grievance 

procedures. It specifically provides that contractor employers 

“recognize the Unions as the sole and exclusive collective 

bargaining representative for all employees engaged in Project 

Work.”

The project labor agreement further provides that other 

local collective bargaining agreements of the signatory unions 

were incorporated by reference into the project labor agreement 

and apply to all work covered by the project labor agreement. 

Where a subject is covered by a provision in a local collective 

bargaining agreement and not the project labor agreement, the 

terms of the local agreement prevail.

The second agreement, the carpenters master labor 

agreement (the CMLA), was negotiated by Southwest Regional 

Council of Carpenters on behalf of the members of the local 

affiliated unions, including the piledrivers union. All contractors 

working on the project who employed covered union member 

carpenters, like defendant here, are bound by the terms of the 

CMLA. The CMLA sets uniform rates of pay, hours of 

employment, working conditions, and grievance procedures for 

members of the piledrivers union. 

The CMLA’s Arbitration Provision

The CMLA requires arbitration on an individual basis 

under Appendix M, titled “Grievances of Disputes.” It explains 

that “federal law and policy favors the use and finality of 

arbitration procedures established through collective bargaining 

agreements to resolve[] all nature of disputes affecting the 
4

employee-employer relationship.” It continues: “The Parties to 

this Agreement recognize that arbitration pursuant to the 

grievance procedure affords numerous benefits including 

expedited resolution of disputes; reduced cost and expense as 

compared to litigation; potentially greater monetary relief to 

individual employees; benefit of the arbitrator’s knowledge and 

expertise with the bargaining parties, the employment 

relationships governed by the collective bargaining agreement, 

and the practices of the construction industry; less restrictive 

rules of evidence; and less formal procedures.”

To carry out these purposes, the CMLA mandates: “[A]ll

employee disputes concerning violations of, or arising under 

Wage Order 16 (except as noted in the immediately preceding 

paragraph), the California Labor Code Section[s] identified in 

California Labor Code section 2699.5 as amended, the California 

Private Attorneys General Act (Labor Code section 2698, et seq.), 

and federal, state and local law concerning wage-hour 

requirements, wage payment and meal or rest periods, including 

claims arising under the Fair Labor Standards Act (hereinafter 

‘Statutory Dispute’ or ‘Statutory Disputes’) shall be subject to and 

must be processed by the employee pursuant to the procedures 

set forth in this Appendix M as the sole and exclusive remedy. To 

ensure disputes are subject to this grievance procedure in 

accordance with the intended scope of coverage set forth herein, 

Statutory Disputes also include any contract, tort or common law 

claim concerning the matters addressed in the foregoing laws 

(other than a claim of violation of the [CMLA] which are deemed 

Contractual Disputes). This Appendix shall not apply to claims 

before the National Labor Relations Board, the Employee Equal 

Opportunity Commission, the Department of Fair Employment
5

and Housing, and the California Division of Workers’ 

Compensation.”

The balance of Appendix M sets forth the procedure for 

handling statutory disputes, including binding arbitration on an 

individual basis.

Sanchez’s Complaint

On February 13, 2019, Sanchez filed a complaint on behalf 

of himself and all others similarly situated against defendant, 

alleging five causes of action: (1) failure to pay overtime wages, 

in violation of sections 510, 1194, and 1199; (2) failure to pay 

minimum wages, in violation of sections 1194, 1194.2, and 1197; 

(3) failure to pay all wages upon termination, in violation of 

sections 201, 202, and 203; (4) failure to provide accurate wage 

statements, in violation of section 226; and (5) unfair competition, 

in violation of Business and Professions Code section 17200. 

While the complaint made class allegations, it did not make 

Private Attorneys General Act (PAGA) allegations.

Defendant’s Motion to Compel Arbitration

On October 9, 2020, defendant moved to compel binding 

individual arbitration of all of Sanchez’s causes of action. 

Defendant argued that Sanchez’s employment was covered by 

two collective bargaining agreements (the project labor 

agreement and the CMLA) that required him to submit “any and 

all claims to binding individual arbitration.”

Sanchez’s Opposition

Sanchez filed an opposition, limiting his claim to the third 

cause of action (failure to pay wages upon termination) and that 

portion of the fifth cause of action (unfair competition) based 

thereon. He asserted that these two causes of action were not 

covered by the arbitration provision in the CMLA because the 
6

CMLA did not explicitly, clearly, and unmistakably require him 

to arbitrate these causes of action.

Trial Court Order

After entertaining oral argument, the trial court granted 

defendant’s motion, compelling arbitration of all causes of action. 

In so ruling, the trial court reasoned that the CMLA explicitly, 

clearly, and unmistakably required Sanchez to arbitrate all of his 

causes of action. After all, the CMLA specifically requires 

Sanchez to arbitrate all disputes identified in section 2699.5,3

which in turn identifies sections 201, 202, and 203, the statutory 

provisions governing the third cause of action. The trial court 

also noted that the CMLA requires Sanchez to arbitrate all 

disputes concerning violations of “‘federal, state and local law 

concerning wage-hour requirements, wage payment and meal or 

rest periods,’” as well as “‘any contract, tort or common law claim 

concerning the matters addressed in the foregoing laws.’”

Appeal

Sanchez’s timely appeal ensued.

DISCUSSION

I. Standard of review and relevant law

“A petition to compel arbitration should be granted if the 

court determines that an agreement to arbitrate the controversy 

exists.” (Cortez v. Doty Bros. Equipment Co. (2017) 15 

3

Section 2699.5 lists numerous statutes to which section 

2699.3, which sets forth the requirements for commencement of 

civil actions under section 2699, applies. As is relevant to this 

issues in this appeal, section 2699.5 provides: “The provisions of

subdivision (a) of Section 2699.3 apply to any alleged violation of 

the following provisions: . . . Sections . . . 201, . . . 202, 203.”
7

Cal.App.5th 1, 11 (Cortez).) “Fundamental to this inquiry is 

whether the parties have agreed to arbitrate their dispute.” 

(Ibid.) “A union representative may agree on an employee’s 

behalf as part of the collective bargaining process to require the 

employee to arbitrate controversies relating to an interpretation 

or enforcement of a [collective bargaining agreement].” (Ibid.) 

Specifically, “a union representative in negotiating a [collective 

bargaining agreement] in good faith may waive the employee’s 

right to pursue in a judicial forum an action for a statutorily 

protected right,” as “the decision to fashion a [collective 

bargaining agreement] to require arbitration of statutory claims 

is ‘no different from the many other decisions made by parties in 

designing grievance machinery.’” (Id. at p. 12.) “[T]he United 

States Supreme Court has made clear that waiver of the right to 

prosecute a statutory violation in a judicial forum is only effective 

if it is explicit, ‘“clear and unmistakable.’”” (Ibid.; see also 14 

Penn Plaza LLC v. Pyett (2009) 556 U.S. 247, 251 (14 Penn Plaza) 

[a collective bargaining agreement that explicitly, clearly, and 

unmistakably required union members to arbitrate claims arising 

under the Age Discrimination and Employment Act was 

enforceable], id at pp. 254, 256–257; Vasquez v. Superior Court

(2000) 80 Cal.App.4th 430, 434 [a requirement to arbitrate 

statutory claims must be particularly clear].)

We apply “de novo review to the trial court’s interpretation 

of an arbitration agreement that does not involve conflicting 

evidence.” (Cortez, supra, 15 Cal.App.5th at p. 12.)

II. Analysis

Applying these legal principles, we conclude that the trial 

court properly granted defendant’s motion to compel arbitration 

of the third and fifth causes of action. The CMLA explicitly, 
8

clearly, and unmistakably requires Sanchez to arbitrate all of his 

causes of action. Regarding the third cause of action (failure to 

pay wages upon termination), the CMLA specifically requires 

Sanchez to arbitrate that claim by referencing section 2699.5, 

which in turn identifies sections 201, 202, and 203, the applicable 

statutes. Regarding the derivative fifth cause of action (unfair 

competition), it too is subject to arbitration because it depends 

upon the alleged violation of sections 201 through 203. (See, e.g., 

Cortez, supra, 15 Cal.App.5th at p. 15.)

Cortez is instructive. In that case, the Court of Appeal held 

that a collective bargaining agreement required arbitration of the 

plaintiff’s causes of action for violating sections 204, 226, 226.7, 

510, 512, 1174, 1174.5, 1194, and 1198, simply by citing Wage 

Order 16, even though the wage order itself did not identify any 

specific Labor Code section. (Cortez, supra, 15 Cal.App.5th at 

p. 14 [an “agreement to arbitrate claims ‘arising under’ Wage 

Order 16 is clear and unmistakable. Although the Labor Code is 

not specifically mentioned, we cannot disregard the reality that 

an employee may enforce the protections of the wage order in 

court only by bringing a claim under the Labor Code”].) Rather, 

it was enough that the wage order identified the substantive 

rights protected by the Labor Code sections at issue. (Ibid.)

Here, the CMLA specifically cites section 2699.5, which 

identifies the precise statutes under which Sanchez is suing. 

Applying the principles set forth in Cortez, that is enough.4

4

As Sanchez points out, Cortez held that the plaintiff’s cause 

of action for failure to pay wages in a timely manner following 

termination in that case was not subject to arbitration because it

did “not arise under Wage Order 16, which makes no mention of 

payment upon the employee’s separation from employment, much 
9

In addition, Sanchez’s claims are subject to arbitration as 

statutory disputes under the terms of the CMLA. As set forth 

above, the CMLA defines statutory disputes as disputes 

concerning violations of, or arising under, “federal, state and local 

law concerning wage-hour requirements, wage payment and meal 

or rest periods.” Where a collective bargaining agreement 

explicitly requires arbitration of statutory claims, it may identify 

the covered claims by description rather than by rote 

enumeration. (See, e.g., Darrington v. Milton Hershey Sch. (3d 

Cir. 2020) 958 F.3d 188, 190–191, 195–196 [the arbitration 

provision’s reference to any dispute alleging discrimination under 

federal or state law clearly and unmistakably includes the 

plaintiffs’ claims under Title VII and the Pennsylvania Human 

Relations Act]; Aleman v. Chugach Support Servs., Inc. (4th Cir. 

2007) 485 F.3d 206, 209–210, 216–217 [collective bargaining 

agreement required arbitration of all claims of discrimination 

under Title VII and all other federal, state, and local 

antidiscrimination laws covered the plaintiffs’ claims under 42 

U.S.C. § 1981 and Maryland law]; Thompson v. Air Transp. Int’l 

L.L.C. (8th Cir. 2011) 664 F.3d 723, 726.) Sanchez directs us to 

no legal authority to support his claim that the CMLA is not clear 

because it does not specifically cite Labor Code and/or that the 

reference to section 2699.5 is insufficient.

Sanchez’s argument notwithstanding, the CMLA is not 

confusing. First, the fact that the agreement uses the singular 

less statutory penalties for failure to do so.” (Cortez, supra, 15 

Cal.App.5th at p. 15.) Here, unlike Cortez, the CMLA specifically 

references section 2699.5, which in turn references sections 201 

through 203. Thus, Cortez does not compel reversal.
10

“Section” as opposed to the likely intended plural “Sections” does 

not render the CMLA confusing. And, other than labeling the 

CMLA confusing, Sanchez offers no supporting explanation as to 

why. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 

836, 852.) Second, the fact that the arbitration provision 

references two PAGA statutes does not render the CMLA 

confusing; Sanchez does not allege a PAGA claim in this lawsuit. 

Finally, even though the CMLA refers to section 2699 “as 

amended,” there is no indication in the statute’s legislation that 

the inclusion of sections 201 through 203 ever changed. 

Sanchez’s speculation as to how section 2699.5 “will continue to 

evolve” or how it will affect “an employee attempting to assess his 

rights in late 2022” is insufficient to demonstrate that the 

agreement is too confusing to be enforceable. (See, e.g., Covina 

Residents for Responsible Development v. City of Covina (2018) 21 

Cal.App.5th 712, 729 [speculation does not constitute substantial 

evidence].)

Urging us to reverse, Sanchez argues that the trial court 

erroneously held that he “waive[d] the waiting time penalties or 

unfair competition claims.” Not so. All the trial court held was 

that he had to arbitrate these claims. It did not find waiver.

Bartlett v. All Am. Asphalt (C.D.Cal. Oct. 16, 2020) 2020 

U.S. Dist. LEXIS 192277 (Bartlett), upon which Sanchez relies,

does not compel a different result. In Bartlett, the district court 

considered removal jurisdiction; it did not consider arbitrability. 

Admittedly, Bartlett made the following brief comment: 

“‘“[W]hen a [collective bargaining agreement’s] grievance and 

arbitration procedure does not directly reference the statutes at 

issue, courts have concluded that the agreement does not contain 

a clear and unmistakable waiver” of an employee’s right to a 
11

judicial forum.’” (Id. at pp. *21–*22.) At best, that one sentence 

is dicta given the context in which arose. Regardless, Bartlett

does not mention the United States Supreme Court’s decision in 

14 Penn Plaza. And it predates Cortez, a California Court of 

Appeal decision directly on point.

Choate v. Celite Corp. (2013) 215 Cal.App.4th 1460 (Choate) 

also does not aid Sanchez for at least two reasons. First, it did 

not concern a collective bargaining agreement’s requirement of

arbitration of individual statutory claims. Rather, the Choate

court considered whether an employee’s rights under section 

227.3 [payment for vested vacation time on termination of 

employment] had been waived in a collective bargaining 

agreement. (Choate, supra, at p. 1465.) In finding that the 

agreement did not waive the plaintiffs’ rights under section 

227.3, the court held that a collective bargaining agreement 

“abrogates an employee’s statutory right under section 227.3 to 

immediate payment for vested vacation time only if the 

agreement clearly and unmistakably waives that right.” (Choate, 

at p. 1462.) Because arbitration cases are distinguishable (Ehret 

v. WinCo Foods, LLC (2018) 26 Cal.App.5th 1, 7), so too is 

Choate.

Second, as evidenced by the aforementioned language, 

Choate reaffirms the principle that a waiver of rights in a 

collective bargaining agreement must be clear and unmistakable. 

As set forth above, the CMLA is. (See also Ehret v. WinCo Foods, 

LLC, supra, 26 Cal.App.5th at p. 3 [because a collective 

bargaining agreement’s waiver of an employee’s claim for 

violating section 512, subd. (a) [meal periods], was clear and 

unmistakable, the defendant was entitled to summary 

judgment].)
12

Vasserman v. Henry Mayo Newhall Memorial Hospital

(2017) 8 Cal.App.5th 236 too is distinguishable. In that case, the 

collective bargaining agreement only required arbitration of 

claims arising under the collective bargaining agreement itself. 

(Id. at p. 240.) In fact, the agreement in that case explicitly 

limited the arbitrator’s jurisdiction to claims arising under the 

collective bargaining agreement. (Ibid.) Because the plaintiff 

sued the defendant for claims under the Labor Code, not for 

violating the collective bargaining agreement, the appellate court 

easily concluded that the collective bargaining agreement’s 

arbitration provision did not apply. (Id. at pp. 246–250.)

As set forth above, that is not the case here; the CMLA 

expressly provides for arbitration of statutory disputes, including 

statutes specifically mentioned (like § 2966.5, which in turn 

identifies §§ 202-204), and those described by subject matter.5

As defendant rightly points out, the arbitrability of causes

of action under PAGA has nothing to do with the question of 

whether Sanchez must arbitrate his third and fifth causes of 

action. Sanchez did not plead a cause of action under PAGA. For 

that reason, any discussion of section 2699.6 is irrelevant.

Finally, Sanchez contends that pursuant to Livadas v. 

Bradshaw (1994) 512 U.S. 107, 125 (Livadas), there is an 

5

For the same reasons, Mendez v. Mid-Wilshire Health Care 

Center (2013) 220 Cal.App.4th 534, 546, briefly mentioned in 

Sanchez’s opening brief, is distinguishable. In that case, the 

collective bargaining agreement simply said that employees must 

arbitrate “grievances,” without defining that term. (Id. at p. 538.) 

At the risk of sounding redundant, the arbitration provision here 

explicitly mentions section 2699.5 as well as state law concerning 

wage and hour requirements.
13

undefined “heightened standard” for requiring arbitration of 

claims for violating sections 201 through 203. Livadas did not so 

hold. In any event, subsequent United States Supreme Court 

cases have expressly held that a collective bargaining agreement 

may require arbitration so long as the agreement is explicit, 

clear, and unmistakable. (See 14 Penn Plaza, supra, 556 U.S. at 

pp. 257, 264 [noting that Livadas, which followed Alexander v. 

Gardner-Denver Co. (1974) 415 U.S. 36, did not “control the 

outcome where, as is the case here, the collective-bargaining 

agreement’s arbitration provision expressly covers both statutory 

and contractual . . . claims”].)

DISPOSITION

The order is affirmed. Defendant is entitled to costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ