Dispositional Language Of Prior Appellate Opinion Deprived Trial Judge Of Jurisdiction To Rule On Motion To Compel Arbitration

     On September 26, 2012, we posted about Phillips v. Sprint, a case in which a 2006 denial of a motion to compel mediation was reversed in 2011 only after the United States Supreme Court decided AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S.Ct. 1740 (2011), making it easier to compel arbitration.  The Court of Appeal, First District, Division 3, affirmed the trial judge’s reversal of the earlier denial of the motion to compel arbitration.  In Phillips v. Sprint, the Court of Appeal explained that an earlier effort by Sprint to compel arbitration would have been futile before Concepcion was decided.

     In Ayyad v. Sprint Spectrum, L.P., Case No. A133824 (1st Dist. Div. 5 October 29, 2012) (Needham, J.) (certified for publication), the Court of Appeal, in one of the so-called “Cellphone Termination Fee Cases”, rejected Sprint’s argument that it should be allowed to compel arbitration because an earlier effort to compel arbitration before Concepcion was decided would have been futile.

      The different outcomes in Ayyad v. Sprint Spectrum, L.P. and in Phillips v. Sprint hinge on a procedural/jurisdictional issue:  In Cellphone Termination Fee Cases, 193 Cal.App.4th 298 (2011), the Court of Appeal “affirmed the trial court’s order granting Plaintiffs a partial new trial on the issue of Sprint’s actual damages and the calculation of a setoff to which Sprint might be entitled.  In our disposition, we remanded for further proceedings limited to those issues.” (italics added for emphasis).  Ayyad was a plaintiff in the Cellphone Termination Fee Cases, and thus the trial court was jurisdictionally limited by the directional language in the remittitur to consider the remaining issues, which issues did not include the right to arbitrate.  (In the appellate context, the remittitur is the order by which the Court of Appeal hands back jurisdiction to the trial court to retry the case, or to enter orders in conformance with the appellate court’s directions.  See Cal.Rules of Court, Rule 8.272).

     Does the outcome mean that Sprint was completely deprived of any opportunity to ask the the appellate courts to address the question of arbitrability?  Not entirely.  The Court of Appeal noted a window of opportunity in footnote 6: “While its petition for review was pending, Sprint could certainly have requested that the California Supreme court examine the effect, if any, of Concepcion on this case.”  But once the remittitur issued, the window of opportunity had closed.  Sprint failed to sprint. 

      Evidently the Court of Appeal felt rather strongly about Sprint’s argument.   Saying that it was “extremely troubled by Sprint’s argument” that “rests on a refusal to acknowledge the very obvious limitations our prior opinion imposed on the remand proceedings in this case,” the Court of Appeal called Sprint’s arguments “spurious.”  Ayyad v. Sprint Spectrum, L.P., at footnote 5.    Ouch.