BACKGROUND

Oakmont manages residential retirement communities. The company employed

Doss as a driver and Garcia as a care provider. Doss and Garcia’s first amended

complaint alleges that Oakmont violated various Labor Code provisions, including by

failing to pay overtime compensation, failing to timely pay wages, failing to pay

minimum wages, and failing to provide meal and rest breaks or the premium for missed

breaks. Those alleged violations constitute the unlawful business practices underlying

plaintiffs’ UCL cause of action.

Oakmont moved to compel arbitration of plaintiffs’ UCL claims on an individual

basis. The same motion asked the court to dismiss the UCL class claims. The moving

papers offered evidence that Doss and Garcia had signed identical arbitration agreements.

1 Oakmont of San Antonio Heights and Oakmont Senior Living, LLC are also defendants. We refer to the defendants collectively as “Oakmont.”

2 According to the relevant provisions of the agreement, the parties agreed to settle

nearly all employment-related disputes or claims through binding arbitration “in

accordance with the Federal Arbitration Act (‘FAA’).” The agreement contained an

exception for equitable relief claims. It provided “that either party may file a request of a

court of competent jurisdiction for equitable relief, including but not limited to injunctive

relief, pending resolution of any dispute through the arbitration procedure.” The

agreement also contained a class action waiver, which stated: “[C]lass and collective

action procedures are waived, and shall not be asserted, nor will they apply, in any

arbitration (or dispute adjudicated in any other forum) pursuant to this Agreement.”

Oakmont moved the court to dismiss the UCL class claims on the basis of the class action

waiver.

In opposition, Doss and Garcia argued that Oakmont had not carried its burden of

showing that they signed the arbitration agreement. They also argued that even if

Oakmont had carried its burden, the UCL claims were equitable in nature and thus

exempted from arbitration.

Citing recent case law, Oakmont acknowledged in its reply brief that plaintiffs’

individual UCL claims could proceed in court, because the claims fell within the

exception for equitable relief. (See Eminence Healthcare, Inc. v. Centuri Health

Ventures, LLC (2022) 74 Cal.App.5th 869, 876, 881-882 [holding that UCL cause of

action fell within arbitration agreement’s exception for claims seeking injunctive or other

equitable relief].) However, Oakmont continued to argue that the court should dismiss

the UCL class claims on the basis of the class action waiver.

3 At the hearing on the motion, the trial court denied the motion to compel

arbitration of the individual claims. It continued the motion to dismiss the class claims

and permitted the parties to file supplemental briefs on whether to dismiss those claims.

Doss and Garcia’s supplemental brief argued that the UCL class claims were

equitable and thus exempted from arbitration, so the question was whether Oakmont

could enforce a waiver of the right to bring class actions in judicial proceedings. They

asserted that under Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), the class

action waiver was unenforceable.

The court issued a written tentative ruling denying the motion to dismiss the class

claims. The ruling noted that the court had “previously denied the motion to compel

arbitration . . . but continued the hearing to allow supplemental briefing on the issue

whether the class claims should be dismissed.”2

After the continued hearing, on April 28, 2022, the court adopted the tentative

ruling as its final ruling. The ruling explained that Gentry applied if an action was not

subject to arbitration. And the court ruled that under Gentry, plaintiffs’ waiver of the

right to bring a class action in court was unenforceable. More specifically, Doss and

Garcia offered evidence establishing the Gentry factors. Their declarations showed “the

modest size of the potential individual recovery, the potential for retaliation against

2 The tentative ruling cites the minute order from the first hearing at which the court denied the motion to compel arbitration, but the record on appeal does not contain that minute order.

4 members of the class, [and] the fact that absent members of the class may be ill informed

about their rights.” (Gentry, supra, 42 Cal.4th at p. 463)

Oakmont filed a notice of appeal from the April 28, 2022, order.

DISCUSSION

Oakmont argues that the trial court erred by denying its motion to dismiss the class

claims. Doss and Garcia urge us to dismiss the appeal, because the order denying the

motion to dismiss class claims is not appealable. We agree with Doss and Garcia.

The existence of an appealable order is a jurisdictional issue. (Baker v. Castaldi

(2015) 235 Cal.App.4th 218, 222.) An appeal from a nonappealable order generally will

be dismissed. (Ibid.) An order denying a motion to compel arbitration is an appealable

order. (Code Civ. Proc., § 1294, subd. (a); Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th

1119, 1122 (Reyes).) An order denying a motion to dismiss class claims, however, is an

interlocutory order that is not appealable until final resolution of the case. (Reyes, supra,

at p. 1123; Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 253-

254 (Lacayo).)

Oakmont appeals from the nonappealable order denying its motion to dismiss

class claims. Its arguments to the contrary lack merit. First, Oakmont insists that it is

appealing from the order denying the motion to compel arbitration. Oakmont moved to

compel arbitration and moved to dismiss the class claims in one motion, and the court

ruled on both requests. To the extent that the order denying the motion to dismiss class

claims incorporated the earlier ruling denying the motion to compel arbitration, the

portion of the order denying the motion to compel was appealable. But Oakmont is not

5 challenging that portion of the order. And it does not follow that the remainder of the

order was appealable. “A single order or judgment can be in part appealable and in part

nonappealable.” (Six4Three, LLC v. Facebook, Inc. (2020) 49 Cal.App.5th 109, 113;

accord Lacayo, supra, 38 Cal.App.5th at p. 253 [portion of order denying motion to

compel arbitration of one cause of action was appealable, while portion of order denying

motion to dismiss class claims was not].)

Second, Oakmont argues that courts routinely address the viability of class claims

on appeal from an order denying a motion to compel arbitration. But none of the cases

on which Oakmont relies held that an order denying a motion to dismiss class claims was

appealable. The appealability of such an order was not addressed by the cases.

(Evenskaas v. California Transit, Inc. (2022) 81 Cal.App.5th 285, 297-298; Muro v.

Cornerstone Staffing Solutions, Inc. (2018) 20 Cal.App.5th 784, 792-795; Garrido v. Air

Liquide Industrial U.S. LP (2015) 241 Cal.App.4th 833, 842-843; Brinkley v. Monterey

Financial Services, Inc. (2015) 242 Cal.App.4th 314, 349-354; Franco v. Arakelian

Enterprises, Inc. (2015) 234 Cal.App.4th 947, 959-961.) It is well established that “a

judicial decision is not authority for a point that was not actually raised and resolved.”

(Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 64.) “‘Questions which merely lurk

in the record, neither brought to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute precedents.’” (Canales v. City of

Alviso (1970) 3 Cal.3d 118, 127, fn. 2.) Moreover, only one of the cases on which

Oakmont relies addressed appealability at all, and it explained that an order granting a

petition to compel arbitration and stay or dismiss class claims was appealable, because

6 the order effectively sounded “the “‘death knell’” of the class action litigation.” (Franco,

supra, 234 Cal.App.4th at p. 953, fn. 5.) The death knell doctrine does not apply to the

order here, which allowed the class claims to move forward.

Oakmont further argues that if the order is not appealable, then we should exercise

our discretion to construe the appeal as a petition for writ of mandate. We decline to do

so. Oakmont raises the argument for the first time in its reply brief without a showing of

good cause. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453

[declining to construe appeal as writ petition when appellant first raised the argument in

the reply brief].) It acknowledges that consideration of belated arguments raised in the

reply brief deprives the respondent of the opportunity to counter the arguments. (Ibid.) It

nevertheless contends that Doss and Garcia are not prejudiced here, because they raise

the issue in their respondents’ brief and thus “were fully able to brief it.” Doss and

Garcia did anticipate that Oakmont might make the argument, and they urge us not to

consider it without a showing of good cause. They also assert that there are no unusual

circumstances to justify treating this case as a writ petition. But they were not able to

brief the issue fully without knowing Oakmont’s precise arguments on each of the factors

that courts ordinarily consider when deciding whether to treat an appeal as a writ petition.

(Olson v. Cory (1983) 35 Cal.3d 390, 400-401; Katzenstein v. Chabad of Poway (2015)

237 Cal.App.4th 759, 770.) They had no duty to develop those hypothetical arguments

for Oakmont and then rebut them. Under these circumstances, we will not exercise our

discretion to construe the appeal as a petition for writ of mandate.

7 In sum, Oakmont appeals from a nonappealable order. We therefore dismiss the

appeal from the order denying the motion to dismiss the class claims. To the extent the

order incorporated the ruling denying the motion to compel arbitration, we affirm the

order on the motion to compel.

DISPOSITION

The order denying Oakmont’s motion to compel arbitration is affirmed. The

appeal from the order denying Oakmont’s motion to dismiss the class claims is

dismissed. Doss and Garcia shall recover their costs of appeal. (Cal. Rules of Court,

rule 8.278(a)(1)-(2).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.

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