DOERS v. GOLDEN GATE BRIDGE HIGHWAY AND TRANSPORTATION DISTRICT (1978)

This is an appeal from an order denying appellants' petition to compel arbitration of a dispute arising from an agreement between respondent Golden Gate Bridge District (hereinafter “the District”) and appellant Amalgamated Transit Union (hereinafter “the Union”). The issue presented is whether the provisions of a collective bargaining contract providing for arbitration of disputes is waived by an employee when he files a lawsuit against his employer regarding the dispute. We hold that the mere filing of a lawsuit does not constitute a waiver of the right to arbitrate. We therefore conclude that the trial court erred in denying appellants' petition to compel arbitration where the employee's lawsuit, filed in federal court, was dismissed for lack of subject matter jurisdiction.

Appellant Lyle Doers was employed by Greyhound Lines in May of 1967 as a baggage clerk. From June of 1970 to January of 1972 he worked at the Santa Rosa Greyhound terminal. During his employment he was a member of the Union. On or about January 1, 1972, respondent District began commute bus service from Santa Rosa to San Francisco. As a result, Greyhound began to cut down on its Santa Rosa terminal service and appellant was reduced from regular employment to relief employment. On or about March 1, 1973, Greyhound Lines converted its Santa Rosa terminal from a company operation to a “commission agency” operation. By agreement with the Union, regular Greyhound employees, excluding Doers, were transferred to positions with Greyhound in San Francisco. Since March 7, 1973, appellant has been employed in the Santa Rosa terminal. An attempt by appellant to obtain employment with the District was unsuccessful.

In connection with the District's operation of bus services it entered into an agreement with the Department of Transportation to receive funds under the Urban Mass Transit Act of 1964 (49 U.S.C. s 1601 et seq.) The District's receipt of funds under that act was conditioned upon the making of fair and equitable arrangements “to protect the interests of employees affected by such assistance.” (49 U.S.C. s 1609(c).) On June 11, 1971, for the purpose of complying with the provisions of the Urban Mass Transit Act, the District entered an agreement with the Union providing job protection for affected employees of existing transportation systems who would be given first opportunity for comparable employment with the District. One provision of that agreement established the right to arbitration of disputes arising under the agreement.

On October 17, 1975, Doers filed a complaint in the United States District Court for the Northern District of California against the District and the Union, asserting grievances which are not necessary to relate to resolve the issues presently before us. The prayer for relief sought a declaration that he was improperly denied the protection set forth in the Urban Mass Transit Act, an injunction to order the District to offer him equivalent employment, and $100,000 in damages for willful violation of federal law and agreements made pursuant thereto.

The action was dismissed for lack of subject matter jurisdiction upon the motion of respondent. Thereafter, Doers and the Union jointly filed a petition in the superior court to compel arbitration pursuant to Code of Civil Procedure sections 1281.2 and 1290. This petition was based on the same grounds which gave rise to the federal action. The trial court denied the petition on the ground that appellants had waived the right to arbitration when Doers brought his action in federal court.^[FN1] The court also concluded that the Union was bound by Doers' waiver because it was proceeding purely in a representative capacity in seeking arbitration.

Code of Civil Procedure section 1281.2 expressly provides that “the court shall order the petitioner (seeking arbitration) and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner . . . ” (Emphasis added.) The petition to compel arbitration in this action alleged the existence of a written agreement to arbitrate and the refusal of the District to submit the controversy to arbitration. There is no dispute over the fact that an agreement to arbitrate existed. The only issue in controversy on this appeal is whether appellants have waived their right to compel arbitration.

Waiver of a contractual right to arbitration is ordinarily a question of fact and determination of this question, if supported by substantial evidence, is binding on an appellate court. (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836, 52 Cal.Rptr. 1, 415 P.2d 816.) Under the general rule this question is left to the trial court where there is substantial evidence to support it. However, in cases where the record before the trial court establishes a lack of waiver as a method of law, the appellate court may reverse a finding of waiver made by the trial court. (See Seidman & Seidman v. Wolfson (1975) 50 Cal.App.3d 826, 123 Cal.Rptr. 873.)

At the outset, we recognize that several recent Court of Appeal cases have either stated or held that a party waives his contractual arbitration right by merely filing a lawsuit. (See, e. g., Maddy v. Castle (1976) 58 Cal.App.3d 716, 130 Cal.Rptr. 160; Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 120 Cal.Rptr. 35; Titan Enterprises, Inc. v. Armo Construction, Inc. (1973) 32 Cal.App.3d 828, 108 Cal.Rptr. 456; Schwartz v. Leibel (1967) 249 Cal.App.2d 761, 57 Cal.Rptr. 831.) However, an examination of the case authorities relied upon by these recent cases reveals a lack of justification or support for the holdings of the recent cases. Rather, examination of those older cases reveals only that waiver occurs when the merits of the dispute have been litigated by the parties.

The court in Maddy v. Castle, the most recent of these unsupported cases, based its holding entirely upon Gunderson v. Superior Court and Schwartz v. Leibel. In both Gunderson and Titan Enterprises, relied upon heavily by respondent, the courts relied solely upon Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385, 35 Cal.Rptr. 218, and Case v. Kadota Fig Assn. (1950) 35 Cal.2d 596, 220 P.2d 912, for their holdings. In Schwartz v. Leibel, also cited by respondent, reliance was placed entirely upon Berman v. Renart Sportswear and Local 659, I. A. T. S. E. v. Color Corp. Amer. (1956) 47 Cal.2d 189, 302 P.2d 294.

In Berman v. Renart Sportswear cited by almost every case finding waiver in the filing of a complaint the Court of Appeal stated, for the first time, that waiver occurs by “bringing suit.” This statement, however, was dictum, since the Berman court denied the petition for arbitration on other grounds. (222 Cal.App.2d at p. 389, 35 Cal.Rptr. 218.) Further, the Berman court relied exclusively on Case v. Kadota Fig Assn. for its articulation of the “bring suit” standard. Accordingly, the authority for the rule applied by the trial court must, if it exists at all, arise out of the Supreme Court decisions in Case v. Kadota Fig Assn., supra, 35 Cal.2d 596, 220 P.2d 912, Local 659, I. A. T. S. E. v. Color Corp. Amer., supra, 47 Cal.2d 189, 302 P.2d 294, and the cases cited therein. But the language contained in all of those cases is readily susceptible to exactly the opposite interpretation. In Seidman & Seidman v. Wolfson, supra, 50 Cal.App.3d 826, 123 Cal.Rptr. 873, for example, the court held that the mere filing of a lawsuit would not constitute a waiver of contractual arbitration rights. In so holding, the court distinguished Local 659 : (In Local 659 )

the court found a mutual rescission of the arbitration provision. Affirmance of the judgment dismissing the petition of arbitration after petitioner had already brought a legal action against defendant was based on more than merely the filing of the legal action. The court found there had been a repudiation of the arbitration provision and acceptance thereof by defendant.

(50 Cal.App.3d at p. 836, 123 Cal.Rptr. at p. 879; emphasis added.) Similarly, the court in Writers Guild of America, West, Inc. v. Screen Gems, Inc. (1969) 274 Cal.App.2d 367, 79 Cal.Rptr. 208, after finding Case v. Kadota Fig Assn. to be “directly in point” (at p. 371, 79 Cal.Rptr. 208), stated in dicta that there could be no waiver until the issue had gone to judgment on the merits (at pp. 372-373, 79 Cal.Rptr. at 208).

Therefore, closer examination of the precedents which are the genesis of the waiver rule is required to resolve the conflict between subsequent, and inconsistent, cases.

Local 659, the most recent Supreme Court case on this issue, involved the alleged breach of an employment contract containing an arbitration clause. Plaintiffs therein filed a criminal complaint with the Labor Commissioner rather than arbitrating the dispute. After judgment in the state proceeding, plaintiffs sought to arbitrate the dispute. The Supreme Court barred them from relitigating the issues, holding that there was a mutual rescission of the arbitration agreement. Without considering the effect of the state proceeding, it was nevertheless noted that

the arbitration provision of a contract may be waived by either or both of the parties by litigating the dispute which would be arbitrable under the provision and not raising the question of the arbitration provision

(47 Cal.2d at p. 194, 302 P.2d at p. 297; emphasis added.) For the above proposition, the court relied upon Case v. Kadota Fig Assn., supra; Jones v. Pollock (1950) 34 Cal.2d 863, 215 P.2d 733; Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 182 P.2d 182; and Landreth v. South Coast Rock Co. (1934) 136 Cal.App. 457, 29 P.2d 225, all of which are discussed infra.

Case v. Kadota Fig Assn. involved a suit by Case, a cannery operator, against Kadota (fig growers) for breach of contract and Yosemite (peach growers) for inducing said breach. Yosemite cross-complained and the case went to judgment in Yosemite's favor. Thereafter, Case attempted to invoke an arbitration agreement between Case and Yosemite. The court held that “the asserted right . . . to arbitration . . . must be considered in connection with the procedural basis of the litigation as a whole.” (35 Cal.2d at p. 605, 220 P.2d at p. 917.) Noting that Yosemite's cross-complaint was inextricably linked with its defense in that action, the court held that “by resorting to litigation, (Case) waived any right it might have had to (arbitration)” (at p. 606, 220 P.2d at p. 918; emphasis added).

The only authority relied upon in support of Case's “resorting to litigation” standard was Jones v. Pollock, supra, 34 Cal.2d 863, 215 P.2d 733. Again, in Jones, the party seeking arbitration had litigated to judgment the claims which it later sought to arbitrate. For its holding that “the right to arbitrate was waived by both parties through the litigation of their rights” (34 Cal.2d at p. 867, 216 P.2d at p. 735; emphasis added), the Jones court relied exclusively upon Trubowitch v. Riverbank Canning Co., supra, 30 Cal.2d 335, 182 P.2d 182. As in Jones, the arbitrable issue had been submitted to and determined by the court in Trubowitch, the court there holding that if plaintiffs had a contractual arbitration right, “they waived it by seeking without reservation a judicial determination of that issue.” (30 Cal.2d at p. 339, 182 P.2d at p. 185.)

In Landreth v. South Coast Rock Co., supra, 136 Cal.App. 457, 29 P.2d 255, the only case relied upon by Trubowitch for its waiver determination, the court held that the party seeking arbitration had waived that right by litigating a judicial action of the same issues to “judgment upon the merits” (at p. 462, 29 P.2d 255.) Indeed, Landreth has recently been interpreted to stand for the proposition that “a party may waive his right to arbitration by allowing the action to go to judgment without objection.” (Northcutt Lumber Co. v. Goldeen's Peninsula, Inc. (1973) 30 Cal.App.3d 440, 445, 106 Cal.Rptr. 353, 356.) Landreth appears to be the first California case finding a waiver of arbitration rights resulting from the litigation of arbitrable issues.

Thus, the relevant early precedents, all of which are traceable to Landreth, support only the proposition that it is the judicial litigation of the merits of arbitrable issues which waives a party's right to arbitration. It follows that the more recent Court of Appeal cases relied upon by respondent erroneously interpreted the prior decisions, all of which spoke in terms of previously litigated issues and which were decided in the context of appeals from judgments upon the merits. Accordingly, those recent cases, having misinterpreted the precedents relied upon, are not persuasive and will not be followed.^[FN2] Because the arbitrable issues in the instant action were never litigated by the parties in the federal court, we find that appellant Doers did not waive his contractual arbitration rights.

The approach taken here is similar to that taken by the federal courts. Under federal law, it is clear that the mere filing of a lawsuit does not waive contractual arbitration rights. The presence or absence of prejudice from the litigation of the dispute is the determinative issue under federal law.^[FN3] (Merrill Lynch, Pierce, Fenner & Smith v. Lecopulos (2d Cir. 1977) 553 F.2d 842, 845; Demsey & Associates v. S.S. Sea Star (8th Cir. 1972) 461 F.2d 1009, 1018; Chatham Shipping Co. v. Fertex Steamship Corp. (2d Cir. 1965) 352 F.2d 291, 293.)

The analogy is significant inasmuch as the basis for the federal rule is the important national policy favoring arbitration. (Carcich v. Rederi A/B Nordie (2d Cir. 1968) 389 F.2d 692, 696; Vatson Y. & F. M. Gr., Inc. v. Saurer-Allma GMBH-Allgauer M. (D.S.C.1970) 311 F.Supp. 68, 73.) Similarly, the courts of this state have repeatedly articulated the “strong public policy in California favoring peaceful resolution of employment disputes by means of arbitration.” (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 622, 116 Cal.Rptr. 507, 516, 526 P.2d 971, 980; Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 180, 14 Cal.Rptr. 297, 363 P.2d 313.) Because arbitration is a highly favored means of settling such disputes, the courts have been admonished to “closely scrutinize any allegation of waiver of such favored right” (Seidman & Seidman v. Wolfson, supra, 50 Cal.App.3d 826, 835, 123 Cal.Rptr. 873, 879), and to “indulge every intendment to give effect to such proceedings” (Pacific Inv. Co. v. Townsend (1976) 58 Cal.App.3d 1, 9, 129 Cal.Rptr. 489, 493; Lewsadder v. Mitchum, Jones & Templeton, Inc. (1973) 36 Cal.App.3d 255, 259, 111 Cal.Rptr. 405.) Accordingly, in the face of conflicting authorities, we should endeavor to reach a result which comports with the “strong public policy” favoring arbitration.

Because we find that Doers did not waive his arbitration rights herein, it is unnecessary to consider appellants' contention that the Union was separately possessed of the right to demand arbitration on his behalf.

The judgment is reversed.

I dissent.

The single issue presented in this appeal is the legal question of whether the mere bringing of suit, not leading to a resolution of the merits of the claim, is sufficient to constitute a waiver of the right to arbitrate the same issue.

Although arbitration is a favored means for resolution of disputes (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 622, 116 Cal.Rptr. 507), this right may be lost. As explained in Maddy v. Castle (1976) 58 Cal.App.3d 716, at page 721, 130 Cal.Rptr. 160, at page 162:

“The contractual right to arbitration, however, may be lost either by lack of proper and timely assertion of the right or by action of a party which is inconsistent with that right. (Gunderson v. Superior Court, supra, at p. 143, 120 Cal.Rptr. 35; Schwartz v. Leibel (1967) 249 Cal.App.2d 761, 763 (57 Cal.Rptr. 831).)

“The proper test as to whether the right to arbitrate has been waived is: do the circumstances of the case indicate an intent on the part of a party to waive his right to arbitrate by seeking the same type of relief in another forum? . . . ‘. . . A waiver of a right may properly be implied from any conduct which is inconsistent with the exercise of that right . . . .’ ”

The majority opinion is based upon the pretext that early Supreme Court case law dealing with the issue can be interpreted as holding that only judicial litigation of the merits of arbitrable issues, rather than the mere filing of a suit, waives a party's right to compel arbitration. (Citing Case v. Kadota Fig Assn. (1950) 35 Cal.2d 596, 606, 220 P.2d 912; Jones v. Pollock (1950) 34 Cal.2d 863, 867, 215 P.2d 723; Trubowitch v. Riverbank Canning Co. (1947) 30 Cal.2d 335, 339, 182 P.2d 182.) However, none of the cited cases dealt with a factual situation in which the waiving party had merely filed a court action, without engaging in further proceedings. Moreover, the language of those cases is equally susceptible to the interpretation which finds that the filing of a court action, without a specific reservation of rights, waives the right to subsequently seek arbitration.^[FN1]

Some cases, in what must be considered dictum, apparently adopted the latter interpretation by specifically stating that a waiver occurs when a party “brings suit without seeking arbitration.” (See Gunderson v. Superior Court (1975) 46 Cal.App.3d 138, 144, 120 Cal.Rptr. 35, 38; Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385, 389, 35 Cal.Rptr. 218.) Of more significance, the conflict in the early case law has been resolved by two recent appellate decisions.

In Titan Enterprises, Inc. v. Armo Construction, Inc. (1973) 32 Cal.App.3d 828, 108 Cal.Rptr. 456, the plaintiff initially filed an action in municipal court. The defendant answered and set forth a counterclaim.^[FN2] Before any further court action was taken, the plaintiff filed a demand with the arbitrator named in the contracts. The defendant objected to this procedure, citing the plaintiff's waiver of arbitration rights. However, the arbitration proceeded to judgment for the plaintiff.

The appellate court vacated the arbitration award and judgment based upon a ruling that the plaintiff had waived its right to arbitration by initially proceeding with an action in municipal court. The court disapproved of the plaintiff's attempt to arbitrate the case after filing a court action:

“In that attempt, he is faced with the general rule that bringing suit on the basic contract, without seeking arbitration, is inconsistent with resort to arbitration thereafter and constitutes a waiver of the contractual provision for arbitration. (Case v. Kadota Fig Assn. (1950) 35 Cal.2d 596 (220 P.2d 912); Berman v. Renart Sportswear Corp. (1963) 222 Cal.App.2d 385, 389, 35 Cal.Rptr. 218.)” Id., page 832, 108 Cal.Rptr. page 459.

The holding was further explained as follows:

“Petitioner attempted neither device, (filing of a demand for arbitration in superior court or a foreclosure proceeding in municipal court coupled with a demand for arbitration) nor did it attempt in any other way to preserve its contractual right to arbitration. We know of no authority which would allow it to proceed as it did here. (Original footnote omitted.) [FN3] The arbitrator was without authority to hear or determine the issues submitted to him; his award should be vacated.” (Id., p. 833, 108 Cal.Rptr. p. 459.)

In Maddy v. Castle, supra, Maddy originally instituted an action in small claims court. Castle filed a complaint in municipal court, to which the entire action was transferred. In municipal court, Maddy demanded arbitration pursuant to the contract clause. The case went to arbitration and judgment.

The appellate court vacated the arbitration judgment by ruling that Maddy had waived his right to arbitration as a matter of law simply by filing initially in small claims court. The court ruled that:

“(R)esort to the court initially, in lieu of the arbitration tribunal, waives the right of the person so doing to obtain arbitration of the controversy thereafter, all (waiver of right to arbitration cases) involve asking the courts or administrative tribunals for exactly the same type of relief, damages which an arbitrator is empowered to grant.” (Schwartz v. Leibel, supra, 249 Cal.App.2d, at p. 763, 57 Cal.Rptr. at p. 833.)

“An individual, once he has chosen a forum other than arbitration to seek relief which is of a type that arbitration could grant, may not thereafter compel arbitration. The fact that Maddy did not sue Castle in a municipal court is of no consequence. By entering small claims court with his claim which could have been satisfied by arbitration, he chose the judicial system as his forum and waived his right to compel arbitration. Waiver is the intentional relinquishment of a known right after knowledge of the facts. Maddy knew his right to arbitration and relinquished it in favor of the proceedings in the small claims court.” (Maddy, supra, 58 Cal.App.3d pp. 721-723, 130 Cal.Rptr. 163.)

Both Titan Enterprises and Maddy resolved the specific issue presented by the case at bench in a manner contrary to that urged by the majority. Moreover, Witkin supports the position taken by Titan Enterprises and Maddy. (See 2 Witkin, California Procedure, 2d edition, 1977 Supp., page 39.)^[FN4] There is, in fact, no appellate case authority which is both factually and legally consistent with the majority opinion.

The recent case of Seidman & Seidman v. Wolfson (1975) 50 Cal.App.3d 826, 123 Cal.Rptr. 873, is favorably cited by the majority. In Seidman & Seidman the appellate court reversed a trial court order which had denied the appellant's petition to compel arbitration, even though the appellant had filed a prior action in superior court. However, Seidman & Seidman is factually distinguishable from the present case.

In that case the appellant's original complaint was filed in superior court with accompanying points and authorities which stated:

“ ‘Seidman & Seidman is not seeking to avoid its agreement to arbitrate . . . if it is not entitled to rescission. If this Court finds that Seidman & Seidman was not induced to enter into the Agreements by the tortious conduct (of the defendants) . . ., and that a material mutual mistake in fact as to the subject matter did not occur, Seidman & Seidman will not be entitled to rescission, and it will be willing to arbitrate.’ ” (P. 836, 123 Cal.Rptr. p. 879.)

The court seized upon this language in the appellant's complaint and based its no waiver holding upon it:

“. . . when the paragraph in the points and authorities is included, the picture is more one of gamesmanship of a lawsuit than the intentional relinquishment of a known right. To the contrary, it shows intent to maintain the possibility of arbitration. While such tactics are hardly to be applauded, neither should they be the basis for a finding of waiver when there has been no unequivocal showing of repudiation. Similarly, appellant's continued skirting of Wolfson's inquiries about arbitration do not constitute refusal to arbitrate. We do not approve of counsel's stalling techniques, but neither can we find a waiver of arbitration therefrom.” (P. 837, 123 Cal.Rptr. 879.)

Clearly, had the appellant not specifically reserved its right to arbitration, the holding in Seidman & Seidman would have been different. This approach is consistent with the previously cited language in Trubowitch and the language and ruling expressed in Titan Enterprises ; both of which imply that arbitration rights will be saved if they are specifically reserved by the complaint filed in court.

In the present case, appellant Doers' original complaint failed to make such a reservation of rights. Doers argues that his amended complaint in federal court reserved the right to arbitrate by including an alternative request that the dispute between the parties be submitted to arbitration. However, though both appellants were obviously aware of Doers' amended complaint, they failed to make that pleading part of the record below, or otherwise call it to the attention of the trial court. As explained in footnote 1 of the majority opinion, the appellants thereby invited the trial court to rule on the basis that no such amendment existed. I therefore agree with the majority that it would now be “unfair to the trial judge and the adverse party to take advantage of an error on appeal when it could have easily been corrected at trial.” (6 Witkin, supra, pages 4264-4265.)

Since the amended complaint must be disregarded in deciding this appeal (see footnote 1 of the majority opinion), Doers waived his right to arbitration by knowingly filing his original complaint in federal court without a reservation of rights. (Maddy v. Castle, supra, 58 Cal.App.3d 716, 721, 130 Cal.Rptr. 160; Titan Enterprises, Inc. v. Armco Construction, Inc., supra, 32 Cal.App.3d 828, 832, 108 Cal.Rptr. 456.) This holding not only conforms to existing California appellate case law, but also provides a more workable solution to the problem of waiver. The majority approach leaves open the crucial question of what point in the course of a lawsuit, if not the filing of a complaint, does a party waive the right to arbitration: after judgment on the merits, after the case is at issue, after discovery or other pretrial motions? Furthermore, if, as decided by the majority, a party does not waive the right to arbitration by filing a court action, how does any further action taken in the suit evidence more of an intention to relinquish the right to seek arbitration of the conflict?

Finally, Doers' waiver was not effectively revoked. A waiver of the right to arbitrate is revocable only where the non-waiving party has done nothing in reliance on that waiver. (Maddy v. Castle, supra, 58 Cal.App.3d 716, 722, 130 Cal.Rptr. 160.) Once the respondent acted in reliance on the waiver by filing a motion to dismiss and/or summary judgment, the waiver was no longer revocable. (Id.) Therefore, Doers irrevocably waived his right to compel arbitration before the instant petition was filed.

Appellants' only remaining contention is that Doers' lawsuit could not cause a waiver of the Union's independent right to arbitrate the issue.

The trial court answered this contention in the following manner: “As to petitioner Amalgamated Transit Union, the court finds that its participation in this proceeding is purely in a representative capacity to assert the rights of petitioner Doers. The controversy which is pleaded in the petition is that between petitioner Doers and respondent. Accordingly, the court concludes that the waiver extends to petitioner Amalgamated Transit Union.”

Appellants' reliance on Butchers Union v. Farmers Markets (1977) 67 Cal.App.3d 905, 913-914, 136 Cal.Rptr. 894, is misplaced. The facts in Butchers Union and the case at bench are clearly distinguishable. In the Butchers Union case, the cause of action filed by the employee was one based on malicious prosecution, attorney's fees, and punitive damages, none of which were arbitrable issues, whereas the cause of action filed by the employee in the present case allegedly arose out of a dispute under the union contract. In other words, the action filed by the employee in the Butchers Union case was not inconsistent with the seeking of arbitration of the alleged wrongful termination of the employee's employment under the union contract. Under such facts, there obviously could be no waiver of the right to arbitrate by the employee. Therefore, whatever rights Butchers Union may have had to arbitrate remained intact, just as the employee's rights to arbitrate remained intact.

In the case at bench, it was the employee rather than the union who chose to initiate the proceedings that gave rise to the waiver of the right to arbitrate. The arbitration provision in the agreement provides that disputes arising “between the District and any employee covered by this agreement, or between any of the union signatories to this agreement and the district . . . may be submitted by any party to the dispute to final and binding arbitration . . . .” (Emphasis added.) It should also be pointed out that the union was a codefendant in Doers' action in federal court. Under the express terms of the collective bargaining agreement, only the parties to the dispute with the District may compel arbitration. The trial court found that a dispute existed only between Doers and the District, and that the union acted only in a representative capacity. The derivative nature of the union's involvement herein is obvious, hence its right to pursue a member's claim should be denied if the member has in fact waived his right to relief by way of arbitration. To rule otherwise would in effect give a member two bites at the apple.

Accordingly, I would affirm the judgment of the trial court.

FOOTNOTES

1.  On December 15, 1975, Doers amended the complaint in federal court to add a prayer for “such other and further relief as the Court may deem just and proper, including but not limited to a possible alternative disposition wherein this entire action be ordered to be submitted to binding arbitration with costs of arbitration to be borne by defendants.” In making its determination, the trial court had no evidence before it of Doers' amendment to the federal complaint. Appellants first sought to raise the issue of the amendment by their motion in this court to take judicial notice and augment the record on appeal. However, they gave no explanation for failing to inform the trial court, either before decision or by post-judgment attack, of the existence of this amendment.As a general rule, documents not before the trial court cannot be included as a part of the record on appeal. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, s 218, pp. 4208-4209.) Although a reviewing court may take judicial notice of matters not before the trial court, including records of another court (Evid.Code, ss 459, subd. (a), 452, subd. (d)), the reviewing court need not give effect to such evidence. “Having taken judicial notice of such a matter, the reviewing court may or may not apply it in the particular case on appeal. The effect to be given to matters judicially noticed on appeal, where the question has not been raised below, depends on factors that are not evidentiary in character . . . For example, the appellate court is required to notice (various decisional and statutory law), but it may hold that an error which the appellant has ‘invited’ is not reversible error or that points not urged in the trial court may not be advanced on appeal . . . ” (Cal.Law Revision Com. comment to Evid.Code, s 459, 29B West's Ann.Evid.Code (1966) p. 423.)“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” (6 Witkin, supra, s 276, pp. 4264-4265.)In the case at bench, both appellants were obviously aware of Doers' filing an amended complaint in federal court and hence had ample opportunity before, during and after the hearing to call the trial court's attention to this pleading for whatever evidentiary or legal persuasion it might have had on it. In effect, appellants invited the trial court to rule on the basis that no such amendment existed. Since appellants have not presented any good or sufficient reason for their failure to inform the trial court of the amendment to the complaint, we deny appellants' motion to augment the record on appeal and disregard the existence of the amended complaint in deciding this appeal.

2.  This view is consistent with the expressed view of the California Law Revision Commission. The Commission, in its report on arbitration provisions, approved of then current case law finding waiver only “if the arbitrable dispute is submitted to a court for decision without contending that it should be arbitrated,” citing Case v. Kadota Fig Assn. and Trubowitch v. Riverbank Canning Co. (Recommendation and Study Relating to Arbitration, 3 Cal. Law Revision Com. Rep. (1961) pp. G-5, G-36.)

3.  We do not preclude the possibility that a waiver could occur prior to a judgment on the merits if prejudice could be demonstrated. No prejudice is demonstrated in the instant case.

1.  The following language in Trubowitch v. Riverbank Canning Co., supra, is especially open to this interpretation: “. . . if (plaintiffs) had (a contractual arbitration right), they waived it by seeking without reservation a judicial determination of that issue.” (Emphasis added.)

2.  Neither pleading referred to the arbitration clause. (Id., page 830, 108 Cal.Rptr. 456.)

3.  The court intimated that the defendant would have preserved the right to arbitration had it exercised either of these options. (Id. at page 833, 108 Cal.Rptr. 456.)

4.  Witkin states: “Where a plaintiff brings suit on the contract without seeking arbitration, and the defendant appears and pleads, so that the cause is at issue, the contractual provision for arbitration is waived, and the plaintiff cannot thereafter demand arbitration. Accordingly, an arbitration proceeding conducted over the defendant's objection is unauthorized, and an award for the plaintiff will be vacated.”

SCOTT, Acting Presiding Justice.

FEINBERG, J., concurs.