87 F3d 1317 Carstens Inc v. McKenzie

87 F.3d 1317

CARSTENS, INC., dba Carstens Health Industries, Inc., an
Illinois corporation, Plaintiff-Appellant,
v.
Jane McKENZIE, individual, Defendant-Appellee.

No. 95-15824.

United States Court of Appeals, Ninth Circuit.

Submitted June 14, 1996.*
Decided June 19, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: SNEED, PREGERSON and KOZINSKI, Circuit Judges.

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1

MEMORANDUM**

2

The arbitration clause did not cover McKenzie's claims. FEHA claims and intentional torts are neither "dispute[s] concerning interpretation of" nor "transaction[s] contemplated by" the contract. Nor is McKenzie's status as an employee or an independent contractor subject to arbitration because it isn't a question governed by the terms of the contract. Rather, it turns on a multi-factor, factual determination governed by California law. See Cal.Lab.Code § 3353; Cal.Code Regs. tit. 2, § 7286.5(b); S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal.3d 341, 349 (1989).

3

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3