Vivid Video, Inc. v. Playboy Entertainment Group, Inc.

Defendants, Playboy Entertainment Group, Inc. (the group) and Playboy Enterprises, Inc., purport to appeal from a June 23, 2006 "Order on Motion to Compel Arbitration." Defendants expressly limited their motion to compel arbitration to the question whether it was for the court or the arbitrators to decide the arbitrability of the claims of plaintiffs, Vivid Video, Inc. and Vivid Video International, Inc. Defendants did not ask the trial court to decide whether any one or more of the causes of action in the complaint were subject to arbitration. Defendants argued the arbitrators, not the court, were to decide any question of arbitrability. In other words, defendants only sought an order compelling arbitration of the arbitrability question. The order under review does not resolve the issue of whether some or all of the claims in plaintiffs' complaint were to be arbitrated. We conclude that because the issue of whether any claims are to be arbitrated remains unresolved, no appealable final judgment within the meaning of Code of Civil Procedure section 1294, subdivision (c) has been entered. Hence, we dismiss the appeal.

On July 6, 2001, plaintiffs and the group entered…

Defendants, Playboy Entertainment Group, Inc. (the group), and Playboy Enterprises, Inc., purport to appeal from a June 23, 2006 “Order on Motion to Compel Arbitration.” Defendants expressly limited their motion to compel arbitration to the question whether it was for the court or the arbitrators to decide the arbitrability of the claims of plaintiffs, Vivid Video, Inc., and Vivid Video International, Inc. Defendants did not ask the trial court to decide whether any one or more of the causes of action in the complaint were subject to arbitration. Defendants argued the arbitrators, not the court, were to decide any question of arbitrability. In other words, defendants only sought an order compelling arbitration of the arbitrability *437 question. The order under review does not resolve the issue of whether some or all of the claims in plaintiffs’ complaint were to be arbitrated. We conclude that because the issue of whether any claims are to be arbitrated remains unresolved, no appealable final judgment within the meaning of Code of Civil Procedure section 1294, subdivision (c) has been entered. Hence, we dismiss the appeal.

On July 6, 2001, plaintiffs and the group…

I respectfully dissent.

In article 8 of their agreement (Article 8), the parties agreed to arbitrate “any controversy, dispute or claim under, arising out of, in connection with or in relation to this agreement,” including disputes relating to the “interpretation, construction, coverage, [or] scope” of that agreement. The parties incorporated into their agreement to arbitrate the Commercial Arbitration Rules of the American Arbitration Association (AAA), which provide in rule 7(a) that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” The parties also specified that the Federal Arbitration Act (FAA) ( 9 U.S.C. § 1 et seq.) would govern their arbitration agreement. Because these proceedings are in a California state court, generally California procedural law, including state law governing appealability, applies. (Muao v. Grosvenor Properties, Ltd. (2002) 99 Cal.App.4th 1085, 1090-1093 [ 122 Cal.Rptr.2d 131 ].)

Plaintiff filed an action against defendants in the Los Angeles Superior Court. Defendants then commenced an arbitration and moved in the…