Marcus v. Trautman Wasserman 9/30/04 CA1/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A104817

Case Date: 12/22/2004

Preview:Filed 9/30/04 Marcus v. Trautman Wasserman CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE LAWRENCE MARCUS, Plaintiff and Respondent, v. TRAUTMAN WASSERMAN & COMPANY, INC., Defendant and Appellant. RICHARD GOLDSTEIN, Plaintiff and Respondent, v. TRAUTMAN WASSERMAN & COMPANY, INC., Defendant and Appellant. A106306 (San Francisco County Super. Ct. No. CGC-03-424541) A104817 (San Francisco County Super. Ct. No. CGC-03-421042)

In these two consolidated appeals, Trautman Wasserman & Company, Inc. (hereafter TW), appeals from separate orders that denied arbitration of claims asserted by plaintiffs. We reverse both orders. PROCEDURAL AND FACTUAL BACKGROUND 1. Marcus appeal On June 3, 2003, Lawrence Marcus (hereafter Marcus) filed a complaint in the San Francisco Superior Court for breach of contract, Labor Code violations and declaratory relief against TW, his former employer. In response, TW filed a petition to

compel arbitration under the rules of the National Association of Securities Dealers (NASD) as required by a provision in Marcus's employment application, Form U-4 Uniform Application for Securities Industry Registration or Transfer. The trial court granted TW's petition but retained jurisdiction "to determine if the arbitration venue designated by the NASD is proper." Subsequently, Marcus filed a "Motion to Determine Proper Venue," supported by a declaration stating that NASD would not proceed with the arbitration of the claim in California unless Marcus waived the Ethics Standards for Neutral Arbitrators in Contractual Arbitration promulgated by the California Judicial Council (California Ethics Standards). Ruling on the motion, the trial court found that Marcus was unwilling to waive the California Ethics Standards and would not ask NASD to assign him an out-ofstate hearing location. NASD refused to proceed with arbitration in the absence of such a waiver or a request for an out-of-state hearing. Accordingly, the court ruled that Marcus was "relieved of his obligation to arbitrate his claims with the NASD" and could proceed with his state court lawsuit against TW. Properly regarding the ruling as the functional equivalent of an order denying a petition to compel arbitration, TW has filed a timely notice of appeal. (Code Civ. Proc.,

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