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II DISCUSSION We review de novo the trial court‘s order confirming an arbitration award. (See Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.) The pertinent facts are not in dispute. On appeal, Peleg contends — as he did in opposing the motion to compel arbitration — that the Agreement is illusory because Neiman Marcus retained the unilateral right to amend, modify, or revoke it on 30 days‘ advance written notice, with the change to apply to any unfiled claim. We agree with that contention. ―[Peleg is] attacking the authority of the trial court to compel [him] to submit the matter to arbitration. An order to compel arbitration is an interlocutory order which is appealable only from the judgment confirming the arbitration award, or in certain exceptional situations is reviewable by writ of mandate. . . . ‗A party does not waive his right to attack the order [compelling arbitration] by proceeding to arbitration; the order is reviewable on appeal from a judgment confirming the award.‘‖ (United Firefighters of Los Angeles v. City of Los Angeles (1991) 231 Cal.App.3d 1576, 1581–1582.) ―If a trial court compels arbitration . . . , the party resisting arbitration may seek review of the ruling on appeal from an order that confirms the award. . . . If the arbitration process is found to be invalid, the responsibility for a waste of resources would then lie with the trial court, not the litigant . . . .‘ . . . Thus, ‗[w]ith respect to an order compelling arbitration, the question is not whether an aggrieved party is entitled to appellate review, but when. . . . [N]o immediate, direct appeal lies from an order compelling arbitration. . . . But such an order is subject to review on appeal from the final judgment.‘‖ (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1359, citation omitted.) ―‗The rationale of this rule is that the order compelling arbitration is interlocutory in nature and works no hardship on the litigant because the party who objects to arbitration may win at the arbitration hearing, and if he does not, the issue is reviewable on appeal from the order of confirmation.‘‖ (Maddy v. Castle (1976) 8
58 Cal.App.3d 716, 719–720, disapproved on another point in Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 188.) Under the FAA, ―[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.‖ (9 U.S.C. § 2, italics added.) In general, an arbitration contract consists of the parties‘ mutual promises to arbitrate their claims against each other. (See, e.g., Ticknor v. Choice Hotels Intern., Inc. (9th Cir. 2001) 265 F.3d 931, 944; Hull v. Norcom, Inc. (11th Cir. 1985) 750 F.2d 1547, 1549–1551; Hellenic Lines, Ltd. v. Louis Dreyfus Corporation (2d Cir. 1967) 372 F.2d 753, 758; Clutts v. Dillard’s, Inc. (D.Kan. 2007) 484 F.Supp.2d 1222, 1224, fn. 1; In re Odyssey Healthcare, Inc. (Tex. 2010) 310 S.W.3d 419, 424 (Odyssey Healthcare).) ―Words of promise which by their terms make performance entirely optional with the ‗promisor‘ . . . do not constitute a promise. Although such words are often referred to as forming an illusory promise, they do not fall within the present definition of promise. They may not even manifest any intention on the part of the promisor. Even if a present intention is manifested, the reservation of an option to change that intention means that there can be no promisee who is justified in an expectation of performance.‖ (Rest.2d Contracts, § 2, com. e, p. 10; accord, id., § 77, com. a, p. 195; 1 Corbin on Contracts (rev. ed. 1993) § 1.17, p. 47.) ―One of the most common types of promise that is too indefinite for legal enforcement is the promise where the promisor retains an unlimited right to decide later the nature or extent of his or her performance. This unlimited choice in effect destroys the promise and makes it illusory.‖ (1 Williston on Contracts (4th ed. 2007) § 4:27, pp. 804–805, fns. omitted; accord, 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, §§ 230–231, pp. 264–266.) 9
Page 1 and 2: Filed 4/17/12 CERTIFIED FOR PUBLICA
Page 3 and 4: I BACKGROUND The allegations and ev
Page 5 and 6: (2) ―Violations of any common law
Page 7: attorney of record, Astineh Arakeli
Page 11 and 12: ―But, this difference in treatmen
Page 13 and 14: have exclusive authority to resolve
Page 15 and 16: not ‗clearly and unmistakably‘
Page 17 and 18: arbitrability. Rent-A-Center cautio
Page 19 and 20: the court must then determine wheth
Page 21 and 22: Simply put, Neiman Marcus has a sub
Page 23 and 24: agreement illusory because Hallibur
Page 25 and 26: eimbursements for 10 years, the pha
Page 27 and 28: once published the amendment would
Page 29 and 30: estriction merely delays, for an in
Page 31 and 32: Finally, in Carey v. 24 Hour Fitnes
Page 33 and 34: claims — it does not go far enoug
Page 35 and 36: claim with the AAA within 30 days a
Page 37 and 38: cited or discussed. Kellogg, Nabors
Page 39 and 40: (D.Colo. 2001) 178 F.Supp.2d 1196,
Page 41 and 42: harassment. Nautilus and the indivi
Page 43 and 44: out of [the plaintiff’s] employme
Page 45 and 46: v. Kaplan, supra, 514 U.S. at p. 94
Page 47 and 48: Rothschild, J., dissenting. I respe
Page 49 and 50: concerning the contours of Texas la

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