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Business Litigator, Mediator
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But Iskanian’s Analysis Of PAGA Representative Action Waivers Remains Intact Under This Court’s Analysis. The California Supreme Court developed the “Broughton-Cruz” rule, under which arbitration provisions are unenforceable as against public policy if they require arbitration of Unfair Competition Law, False Advertising Law, or Consumer Legal Remedies Act injunctive relief... Continue reading
Wells Fargo Bank, N.A. v. The Best Service Co., Inc., Case No. B253861 (2/5 Dec. 17, 2014) (Turner, Mosk, Kriegler) (published). In Wells Fargo Bank, N.A. v. The Best Service Co., Inc., the Court of Appeal dismissed defendant’s appeal of an order denying its motion to stay the action pending... Continue reading
Court of Appeal Only Found Fee-Shifting Provision To Be Substantively Unconscionable. The trial judge, the Hon. Mary Ann Murphy, found the employer-employee arbitration Agreements to be unconscionable and unenforceable because JAMS rules were not referenced, a fee-shifting provision permitted an award of fees to the prevailing defendant on employee’s FEHA... Continue reading
Fourth District, Division 3 Publishes To Distinguish Mansouri v. Superior Court. California Code of Civil Procedure, section 1281.2 requires that a party seeking to compel arbitration allege, “the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy.” The question in... Continue reading
Famous Family, Simple Legal Principles. Though the opinion opens with a fanfare announcing, “George R. Hearst, Jr. . . scion of the wealthy Hearst family,” the facts and legal points are actually pretty simple. George and Susan Hearst married in 1998, and entered into a marital property agreement (MPA) in... Continue reading
Arbitration Provision Failed Armendariz Tests. Nelson v. Tucker Ellis, LLP is somewhat atypical, because it was the former attorney, rather than his former law firm, who “seized the bull by the horns”, initiating suit, and contending that the law firm released attorney Nelson’s privileged work product to other counsel, thereby... Continue reading
Court Of Appeal Affirms Order Denying Policy Holder’s Petition To Compel Arbitration Of Appraisal Dispute. Despite countervailing considerations that favor arbitration, California courts continue to deny petitions to compel arbitration for the simplest of reasons: the dispute is beyond the scope of the arbitration agreement. Such was the case in... Continue reading
Strong Policy In Favor Of Arbitration Yields To Court’s Independent Review Of What Parties Intended By Their Contractual Language. In Backflip Software, Inc. v. Cisco Systems, Inc., No. H040382 (6th Dist. Dec. 3, 2014) (Bamattre-Manoukian, Elia, Mihara) (unpublished), the Court concludes, based on its independent review of contractual language, the... Continue reading
Court Does Not Decide Whether Contractual Provision Limiting Arbitrator’s Power To Apply Definition Of “Prevailing Party” Other Than Found In Agreement Would Be Unenforceable As Violative Of Public Policy. Does an arbitrator who applies the statutory definition of “prevailing party” found in Civil Code Section 1717(b)(1), rather than than the... Continue reading
Justice Werdegar Concurs and Dissents. The California Supreme Court held today, “that when hearing an administrative appeal from discipline imposed on a correctional officer, an arbitrator may rule upon a discovery motion for officer personnel records, commonly referred to as a Pitchess motion.” Riverside County Sheriff’s Department v. Stiglitz, S206350... Continue reading
Post-Termination Of License Royalties Were Part Of $128.3M Arbitration Award. In Amkor Technology, Inc. v. Tessera, Inc., A139596 (1/3 Nov. 25, 2014) (Pollak, Siggins, Jenkins) (unpublished), the Court of Appeal affirmed part of a larger arbitration award for $128.3M. Procedural hurdle. Appellant Amkor stumbled on a procedural hurdle: Its petition... Continue reading
Plaintiffs Manage To Distance Themselves From Discovery Response, Allowing Them To Avoid Having To Arbitrate Their Malpractice Claims. By a deft interrogatory, Defendant tried to corner Plaintiffs into having to arbitrate their malpractice claims in LADT, LLC v. Greenberg Traurig, LLP, B246649 (2/1 Nov. 25, 2014) (Miller, Rothschild, Johnson) (unpublished).... Continue reading
Court Enforces The Settlement Agreement. Plaintiff Jing Jing Dan sued Rambla Vista Enterprises, LLC and Joichi Gushiken alleging sexual harassment and unwelcome sexual advances by Gushiken, followed by termination of employment after she objected to her treatment. Four days after a mediation, the parties entered into a stipulation for settlement,... Continue reading
Labor Code Section 229 Expressly Provides Wage Claims Were Not Subject To Arbitration. When state law provides a statutory exemption from arbitration, it’s not enough to assert Federal Arbitration Act preemption: “A party seeking to enforce an arbitration agreement has the burden of showing FAA preemption.” Lane v. Francis Capital... Continue reading
Richard Chernick, Esq. of JAMS Has Written “A Primer On Arbitrability”. I have posted frequently about “gateway” arbitrability issues, including recent developments concerning gateway arbitrability issues in class and representative actions, and distinctions between substantive and procedural gateway arbitrability issues. See my posts of November 17, 2014, and October 13,... Continue reading
PAGA Is A Representative, Not A Class Action, And So Judge Gets To Decide Whether PAGA Action Is Subject To Arbitration. Defendant and employer Garden Fresh Restaurant Corporation petitioned for a writ of mandate seeking a writ directing the trial court to vacate part of an order leaving it to... Continue reading
Where Federal Preemption Applies, The Employee’s Contract Cannot Deprive The Employee Of A Benefit – Such As The Right to File a Lawsuit Instead Of Arbitrating – If The Collective Bargaining Agreement Provides The Benefit. Denying employer’s motion to compel arbitration, and both parties’ sanction motions, the trial judge explained:... Continue reading
Lack Of Consent Is The Problem With The Arbitration Agreement Here. In an opinion authored by Judge Pregerson, the Ninth Circuit reverses the district court’s order dismissing a putative class action and granting Sirius XM Radio Inc.’s motion to compel arbitration. Knutson v. Sirius XM Radio Inc., No. 12-56120 (9th... Continue reading
Legal Rationale Forming The Basis For The Trial Court’s Ruling Has Been Abrogated By Iskanian. The California Supreme Court held in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014) that Gentry v. Superior Court had been abrogated by the SCOTUS decision in AT&T Mobility LLC v. Concepcion,... Continue reading
Consent To Contract Must Be Free, And An “Unsound Mind” Is Related To Concept Of Consent. In an unpublished opinion, the Court of Appeal has affirmed the trial court’s order denying a nursing facility’s petition to arbitrate, because the plaintiff lacked mental capacity to enter into the arbitration agreement. Rodriguez... Continue reading
California Code Of Civil Procedure Section 1298, Applying To Real Estate Purchase Agreements, Is Preempted By The FAA In Transactions Involving Interstate Commerce. Plaintiff Loeffler appealed from a judgment entered after the trial court confirmed an arbitration award in favor of plaintiff Shea Homes Limited Partnership. The award resulted in... Continue reading
The Article Is About Two Extraordinary Cases In Which Judges Exercised The Summary Contempt Power. Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, “Summary Contempt and Due Process: England, 1631, California, 1888” is now available on my website by clicking... Continue reading
Denying All Discovery In Arbitration Of Professional Malpractice Claims Is Unconscionable. Surgery scalpels. 1878. Library of Congress. The Second District, Division Four, has affirmed the trial court’s finding of unconscionability, but concludes that unconscionability may be cured through severance in an arbitration of professional malpractice claims. Lateral Link Group v.... Continue reading
How To Avoid Drafting An Unconscionable Arbitration Agreement. We usually summarize opinions, but here, the Court of Appeal does a good job itself of summing up how to draft an enforceable arbitration provision in an employment agreement. The case is Woods v. JFK Memorial Hospital, Inc., G050286 (4/3 Oct. 30,... Continue reading