We granted a hearing in this case in order to resolve a conflict between Court of Appeal opinions in this and earlier cases. After an independent study of the issue, we have concluded that the thoughtful opinion of Justice Scott (Acting P.J.) for the Court of Appeal, First Appellate District, in this case correctly treats the issues, and that we
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).
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. § 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. § 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
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 court in Maddy v. Castle  based its holding entirely upon Gunderson v. Superior Court and Schwartz v. Leibel. In both Gunderson and Titan Enterprises  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 Corp., 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.) Further, the Berman court relied exclusively on Case v. Kadota Fig Assn. for its articulation of the "bringing suit" standard. Accordingly, the authority for the rule applied by the trial court must, if it exists at all, arise out of  [our] decisions in Case v. Kadota Fig Assn., supra, 35 Cal.2d 596, Local 659, I.A.T.S.E. v. Color Corp. Amer., supra, 47 Cal.2d 189, 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, 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, italics 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), stated in dicta that there could be no waiver until the issue had gone to judgment on the merits (at pp. 372-373).
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.
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.) 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, italics added.)
The only authority relied upon in support of Case's "resorting to litigation" standard was Jones v. Pollock, supra, 34 Cal.2d 863. 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, italics added), the Jones court relied exclusively upon Trubowitch v. Riverbank Canning Co., supra, 30 Cal.2d 335. 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.)
In Landreth v. South Coast Rock Co., supra, 136 Cal.App. 457, the only case relied upon by Trubowitch for its waiver determination, the court
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 [namely, Maddy v. Castle, supra, Gunderson v. Superior Court, supra, Titan Enterprises, Inc. v. Armo Construction, Inc., supra, and Schwartz v. Leibel, supra] 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
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.
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. (End of Court of Appeal opinion.)
The judgment is reversed.
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, § 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, §§ 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, § 459; 29B West's Ann. Evid. Code (1966 ed.) 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, § 276, pp. 4264-4265.) [Italics added.]
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.