Filed 10/26/20 Zazueta v. Imperial Heights Healthcare etc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ANA ZAZUETA et al.,

Plaintiffs and Respondents,

v.

IMPERIAL HEIGHTS HEALTHCARE 

& WELLNESS CENTRE, LLC,

Defendant and Appellant.

 D075879

 (Super. Ct. No. ECU09818)

APPEAL from orders of the Superior Court of Imperial County, 

L. Brooks Anderholt and Jeffrey B. Jones, Judges. Reversed with directions.

Wood, Smith, Henning & Berman, Wyeth E. Burrows, Nicholas M. 

Gedo, and Marilyn R. Victor, for Defendant and Appellant.

No appearance for Plaintiffs and Respondents.

Plaintiffs Ana Zazueta, Fernando Hodgers, and Oscar Hodgers 

(collectively, plaintiffs) sued defendant Imperial Heights Healthcare & 

Wellness Centre, LLC (Imperial Heights) for wrongful death, negligence, and 

elder abuse after their mother died at a care facility owned and operated by 

Imperial Heights. Imperial Heights petitioned to compel arbitration based on 
2

a contractual arbitration agreement. Plaintiffs did not oppose, and the trial 

court granted the petition. Later, plaintiffs moved the court “to restore [the] 

case to [the] civil active list and set trial dates” based on Imperial Heights’s 

alleged unwillingness to participate in arbitration. Imperial Heights 

opposed. The trial court granted the motion and rejected Imperial Heights’s 

subsequent attempts to vacate or change the order. 

Imperial Heights appeals. It argues the trial court erred by granting 

the motion because it did not have the power to reinstate the civil action 

based on Imperial Heights’s alleged unwillingness to participate in 

arbitration. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

As noted, in response to plaintiffs’ complaint, Imperial Heights 

petitioned to compel arbitration. Plaintiffs did not oppose, and the trial court 

granted the petition. It appears the parties repeatedly discussed the 

possibility of mediation, and little progress was made to move the dispute 

toward an arbitration hearing. 

More than a year after the order compelling arbitration, plaintiffs filed 

their “motion to restore [the] case to [the] civil active list and set trial dates.” 

They argued that Imperial Heights had waived its right to arbitrate the 

dispute by “fail[ing] to engage and participate” in its resolution. In a 

supporting declaration, plaintiffs’ counsel explained that following the order 

compelling arbitration he had several conversations with Imperial Heights’s 

counsel about the possibility of mediation. They selected a mediator and 

exchanged tentative dates. Imperial Heights then retained new counsel. 

After several months, Imperial Heights’s new counsel agreed that the 

mediator was still acceptable. Dates were confirmed and then cancelled. The 
3

mediation was never completed. According to plaintiffs’ counsel, Imperial 

Heights’s counsel eventually stopped returning telephone calls. 

Imperial Heights opposed the motion. It argued that it had “engaged in 

ongoing efforts to select an arbitrator and set this matter for arbitration.” It 

maintained that it had not waived the right to arbitrate because it “took 

affirmative steps to implement the process and has demonstrated an ongoing 

intent to arbitrate.” In a declaration, Imperial Heights’s counsel stated that, 

two weeks before plaintiffs’ motion was filed, it contacted an arbitration 

provider to initiate the process of scheduling an arbitration. Imperial 

Heights then completed and returned a demand for arbitration. The provider

circulated a list of proposed arbitrators. Imperial Heights’s counsel noted, 

“Upon information and belief, Plaintiffs’ counsel has made no independent 

efforts to coordinate an arbitration hearing as of the date of this writing.” 

The trial court held a hearing on plaintiffs’ motion, but because of a 

calendaring and coverage mistake Imperial Heights’s counsel did not appear. 

The court stated its intention to continue the hearing for 60 days to allow the 

parties to arbitrate the dispute, but after hearing argument it decided to 

restore the matter to the civil active list. It set a trial date six months in the 

future. 

Imperial Heights filed an ex parte application seeking relief from the 

court’s order based on its counsel’s coverage mistake and failure to appear. 

The court agreed that counsel’s failure to appear was due to mistake, 

inadvertence, or excusable neglect. But it found that Imperial Heights had 

not shown the outcome of the hearing would have been different if its counsel 

had attended. It therefore denied the motion. 

Imperial Heights moved for reconsideration or, in the alternative, relief 

from the order based on mistake or inadvertence. It again argued that its 
4

failure to appear at the hearing was based on a coverage mistake. It 

contended that the outcome of the hearing would have been different because 

it would have demonstrated that it did not delay in pursuing arbitration and 

took affirmative steps to begin the arbitration process. It asserted, “Plaintiffs 

have never called or written to defense counsel, much less on an ongoing 

basis, in order to move this matter forward toward arbitration.” It further 

argued that plaintiffs’ motion was inconsistent with the public policy in favor 

of arbitration and Imperial Heights “should not have to forego its right to a 

legally binding contractual right to arbitration because of an inadvertent 

mistake by [its] counsel.” 

At the hearing on Imperial Heights’s motion, the court found that 

Imperial Heights had offered nothing new that would support 

reconsideration. But, the court explained, “since the parties are here and it 

all appears to be in front of the [c]ourt, I’m willing to reconsider my order.” 

On reconsideration, the court again found that Imperial Heights had waived 

the right to arbitrate because it had not engaged in “any diligent or ongoing 

efforts to coordinate arbitration.” 

Imperial Heights appealed. Shortly before its opening brief was due, 

Imperial Heights filed a joint stipulation and proposed order disposing of the 

appeal. The parties explained that they “wish to avoid the delay and return 

the case to the arbitration forum.” Imperial Heights agreed to dismiss the 

appeal, and plaintiffs agreed to pursue their claims in arbitration. They 

asked this court to remand the matter to the trial court with directions to 

vacate its order restoring the case to the civil active list and to reinstate its 

order compelling arbitration. This court denied the parties’ request. (See 

Code Civ. Proc., § 128, subd. (a)(8); further statutory references are to the 

Code of Civil Procedure.)
5

DISCUSSION

I

Appealability

In every appeal, this court must be satisfied it has appellate 

jurisdiction. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Baker v. 

Castaldi (2015) 235 Cal.App.4th 218, 222.) “A reviewing court has 

jurisdiction over a direct appeal only when there is (1) an appealable order or 

(2) an appealable judgment.” (Griset v. Fair Political Practices Commission 

(2001) 25 Cal.4th 688, 696.) We requested that the parties address 

appealability in their respective appellate briefs.1

Imperial Heights contends the order restoring the case to the civil 

active list is appealable under section 1294, subdivision (a), which provides 

that an order dismissing or denying a petition to compel arbitration is 

appealable. It relies primarily on Henry v. Alcove Investment, Inc. (1991) 

233 Cal.App.3d 94 (Henry). In that case, the plaintiff filed suit in civil court, 

and the defendant separately initiated an arbitration proceeding. (Id. at 

pp. 97-98.) The plaintiff brought a motion to stay the arbitration, which the 

trial court granted. (Id. at p. 98.) On appeal, the reviewing court held that 

such an order was appealable under section 1294 because it was the 

functional equivalent of an order refusing to compel arbitration. (Henry, at 

p. 99.) “An order refusing to compel arbitration, if not reviewed immediately, 

would significantly delay arbitration and defeat its purpose. The order would 

1 Plaintiffs have not filed a respondents’ brief. When a respondent fails 

to file a brief, “the court may decide the appeal on the record, the opening 

brief, and any oral argument by the appellant.” (Cal. Rules of Court, 

rule 8.220(a)(2).) The appellant “still bears the ‘affirmative burden to show 

error whether or not the respondent’s brief has been filed,’ and we ‘examine 

the record and reverse only if prejudicial error is found.’ ” (Smith v. Smith 

(2012) 208 Cal.App.4th 1074, 1078.)
6

force the party seeking arbitration to proceed with a potentially lengthy and

costly trial and, if dissatisfied with the result, appeal from the final 

judgment. [Citation.] By the time the Court of Appeal overturned the trial 

court’s order, the value of the right to arbitrate would be significantly 

diminished by the delay and expense of litigation.” (Id. at pp. 99-100.) Henry

explained, “[A]n order staying arbitration is merely the flip side of an order 

refusing to compel arbitration and should be treated the same for purposes of 

appellate review.” (Id. at p. 100; accord, Schimmel v. Levin (2011) 

195 Cal.App.4th 81, 86.)

In MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 

655 (MKJA), this court followed Henry and held that an order lifting a stay of 

litigation and declaring an arbitration provision unenforceable was 

appealable. We explained, “As in Henry, if the trial court’s order were not 

appealable, [defendant] would be forced to proceed with litigation to a final 

judgment, and its alleged right to arbitrate would thus be frustrated.” (Ibid.) 

Later, this court relied on Henry and related authorities to conclude that 

“when an order delays or otherwise interferes with arbitration, it is the 

functional equivalent of an order denying arbitration and appealable under 

section 1294, subdivision (a).” (Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 

705, 714 (Lawson), affd. on other grounds sub nom. ZB, N.A. v. Superior 

Court (2019) 8 Cal.5th 175.) 

Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th 1016, 1022-

1023 distinguished Henry and found that an order lifting the litigation stay 

was not appealable under the circumstances presented there. In Gastelum, a 

dispute was ordered to arbitration, but the arbitration provider terminated 

the arbitration proceeding because the defendant did not pay the required 

arbitration fees. (Id. at pp. 1021-1022.) Plaintiff then filed a motion to lift 
7

the litigation stay, which the trial court granted. (Id. at p. 1021.) Defendant 

appealed, but the reviewing court held that the order was not appealable. 

The court emphasized “there is no pending arbitration. Nor has either 

defendant filed a petition or motion to compel the [arbitration provider] to 

reopen arbitral proceedings.” (Id. at p. 1022.) It therefore dismissed the 

appeal. (Id. at p. 1024.)

Here, unlike Gastelum, an arbitration proceeding was pending, and 

arbitration remained a viable forum to resolve the parties’ dispute. The order 

restoring the case to the civil active list and setting a trial date was premised 

on Imperial Heights’s alleged waiver of the right to arbitrate, and it 

effectively displaced the pending arbitration proceeding. If the order were 

not immediately appealable, it would force Imperial Heights to proceed with 

potentially costly litigation and a later appeal, thereby defeating the purpose 

of arbitration. (See MKJA, supra, 191 Cal.App.4th at p. 655; Henry, supra,

233 Cal.App.3d at pp. 99-100.) The order was functionally equivalent to an 

order denying a petition to compel arbitration and is therefore appealable 

under section 1294, subdivision (a). (See Lawson, supra, 18 Cal.App.5th at 

p. 714.)

II

Motion to Restore

On the merits, Imperial Heights contends the trial court erred because 

it lacked jurisdiction to restore the case to the civil active list and set trial 

dates. Imperial Heights did not make this argument in the trial court. 

However, because it presents a pure legal issue, and in light of the parties’ 

proposed stipulated reversal, we exercise our discretion to consider it. (See In 

re Marriage of Priem (2013) 214 Cal.App.4th 505, 510-511; Sheller v. Superior 
8

Court (2008) 158 Cal.App.4th 1697, 1709; Blake v. Ecker (2001) 

93 Cal.App.4th 728, 738, fn. 9 (Blake).)

“Title 9 of the Code of Civil Procedure, as enacted and periodically 

amended by the Legislature, represents a comprehensive statutory scheme 

regulating private arbitration in this state. (§ 1280 et seq.) Through this 

detailed statutory scheme, the Legislature has expressed a ‘strong public 

policy in favor of arbitration as a speedy and relatively inexpensive means of 

dispute resolution.’ [Citations.] Consequently, courts will ‘ “indulge every 

intendment to give effect to such proceedings.” ’ [Citations.] Indeed, more 

than 70 years ago [our Supreme Court] explained: ‘The policy of the law in 

recognizing arbitration agreements and in providing by statute for their 

enforcement is 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.] ‘Typically, those who enter into arbitration 

agreements expect that their dispute will be resolved without necessity for 

any contact with the courts.’ ” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 

1, 9.)

Under section 1281.2, a trial court must order a pending dispute to 

arbitration if it determines that an agreement to arbitrate the controversy 

exists, unless an exception applies. “ ‘A right to compel arbitration is 

not . . . self-executing. If a party wishes to compel arbitration, he must take 

active and decided steps to secure that right, and is required to go to the 

court where the [other party]’s action [at law] lies.’ [Citation.] Consequently, 

the party seeking to enforce the contractual arbitration clause must file the 

section 1281.2 petition in the action at law (or raise it as an affirmative 

defense in the answer) or else the right to contractual arbitration is waived. 

[Citations.] The party seeking resolution via contractual arbitration must 
9

also file a motion in the action at law to stay it (§§ 1281.4, 1292.8); it will not 

be stayed automatically. [Citation.] This assertion of a contractual 

arbitration agreement constitutes a ‘plea in abatement’ of the action at law.” 

(Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795-1796 

(Brock).)

“[S]ection 1281.4 requires a court to stay an action submitted to 

arbitration pursuant to an agreement of the parties. Beyond that, the court’s 

role is fairly limited. Once a petition is granted and the lawsuit is stayed, 

‘the action at law sits in the twilight zone of abatement with the trial court 

retaining merely vestigial jurisdiction over matters submitted to arbitration.’ 

[Citation.] During that time, under its ‘vestigial’ jurisdiction, a court may: 

appoint arbitrators if the method selected by the parties fails (§ 1281.6); 

grant a provisional remedy ‘but only upon the ground that the award to 

which an applicant may be entitled may be rendered ineffectual without 

provisional relief’ (§ 1281.8, subd. (b)); and confirm, correct or vacate the 

arbitration award (§ 1285). Absent an agreement to withdraw the 

controversy from arbitration, however, no other judicial act is authorized. 

[Citation.] [¶] In the interim, the arbitrator takes over. It is the job of the 

arbitrator, not the court, to resolve all questions needed to determine the 

controversy. [Citation.] The arbitrator, and not the court, decides questions 

of procedure and discovery. [Citation.] It is also up to the arbitrator, and not 

the court, to grant relief for delay in bringing an arbitration to a resolution.” 

(Titan/Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 

482, 487-488 (Titan/Value), fns. omitted.)

Thus, if a party fails to participate in an arbitration proceeding after 

the trial court has compelled arbitration and stayed litigation, an opposing 

party’s “only avenue for redress” is in the arbitration proceeding itself. 
10

(Blake, supra, 93 Cal.App.4th at p. 737; accord, SWAB Financial, LLC v. 

E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1200-1201; Byerly v. 

Sale (1988) 204 Cal.App.3d 1312, 1316 (Byerly).) “ ‘[A]n arbitration has a life 

of its own outside the judicial system.’ [Citation.] The trial court may not 

step into a case submitted to arbitration and tell the arbitrator what to do 

and when to do it: it may not resolve procedural questions, order discovery, 

determine the status of claims before the arbitrator or set the case for trial 

because of a party’s alleged dilatory conduct. It is for the arbitrator, and not 

the court, to resolve such questions.” (Titan/Value, supra, 29 Cal.App.4th at 

p. 489.)

The trial court here ordered the dispute to arbitration and stayed the 

litigation. It therefore had only limited, “ ‘vestigial’ ” jurisdiction over the 

dispute. (Titan/Value, supra, 29 Cal.App.4th at p. 487.) It did not have the 

power to restore the case to the civil active list and set trial dates—effectively 

dismissing the arbitration proceeding—based on Imperial Heights’s alleged 

dilatory conduct. (See Blake, supra, 93 Cal.App.4th at p. 737; Brock, supra, 

10 Cal.App.4th at p. 1808; Byerly, supra, 204 Cal.App.3d at p. 1316; see also 

Titan/Value, at p. 488.) Any such conduct should have been addressed in the 

arbitration proceeding, which was the contractually-agreed forum for 

handling the parties’ dispute.2

In the trial court, plaintiffs relied on Sobremonte v. Superior Court 

(1998) 61 Cal.App.4th 980, but it is inapplicable. Sobremonte considered an 

order granting a petition to compel arbitration, not an order effectively 

terminating arbitration after it had already been compelled. (Id. at p. 983.) 

2 Section 1283.8 additionally empowers a trial court to set a reasonable 

date for completion of the arbitration proceeding, if the time is not fixed in 

the arbitration agreement itself. (Bosworth v. Whitmore (2006) 

135 Cal.App.4th 536, 550.) The order at issue here is not such an order.
11

Sobremonte applied the statutory rule that a petition to compel arbitration 

may be denied where the party seeking arbitration has, by its actions, waived 

the right to enforce the arbitration provision. (Id. at p. 991, citing § 1281.2, 

subd. (a).) It held that the defendant waived its right to enforce an 

arbitration provision, and its petition to compel arbitration should have been 

denied, where the defendant “(1) unreasonably delayed its demand for 

arbitration, (2) engaged in litigation conduct inconsistent with an intent to 

arbitrate, and (3) prejudiced the plaintiffs by causing them to incur costs and 

attorney fees, and lose the benefits of arbitration.” (Id. at pp. 983-984.)

Here, unlike Sobremonte, a petition to compel arbitration was not at 

issue. The trial court had already granted the petition more than a year 

earlier. After the petition was granted, and the litigation stayed, the right to 

arbitrate had already been enforced and the issue of waiver was no longer 

relevant. If plaintiffs believed that Imperial Heights had engaged in dilatory 

conduct after the petition to compel arbitration was granted, plaintiffs were 

required to address that conduct in the arbitration proceeding itself.

Finally, we note that after the petition to compel arbitration was 

granted, it was incumbent upon plaintiffs to pursue their claims in the 

arbitration forum. “It is, after all, the . . . claimant in arbitration, like the 

plaintiff in litigation, who bears the primary responsibility of exercising 

diligence in order to advance progress towards the resolution of its claim 

[citation], and [the defendant] is under no obligation to press for appointment 

of arbitrators when a claimant is himself dilatory.” (Engalla v. Permanente 

Medical Group, Inc. (1997) 15 Cal.4th 951, 980.) 

DISPOSITION

The order restoring the case to the civil active list and setting trial 

dates is reversed. On remand, the trial court shall enter a new order denying 
12

plaintiffs’ motion. Because plaintiffs did not appear, we award no costs on 

appeal. (Blueberry Properties, LLC v. Chow (2014) 230 Cal.App.4th 1017, 

1022.)

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.