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Southern California
Business Litigator, Mediator
Recent Activity
Washington And California State Law Unconscionability Analysis Are Different. DeGraff v. Perkins Coie California P.C. et al., A148405 (1/1 2/21/18) (Dondero, Humes, Banke ) (unpublished) applies Washington state law to analyze the enforceability of an arbitration provision in a dispute between an attorney and his former law firm. Reversing the... Continue reading
Settlement Agreement Incorporated Arbitration Clause In Licensing Agreement -- But Only Claims Arising Out Of Or In Connection With Any Provision In The Licensing Agreement Could Be Arbitrated. On February 9, 2018, we posted about Cirile v. Petersen-Dean, an unpublished case, in which incorporation by reference was too amorphous and... Continue reading
To Ask The Question Is To Answer It . . . My law professors seemed fond of that old chestnut, "to ask the question is to answer it." Once you know the question presented by the Court of Appeal in Douglass v. Serenivision, Inc., B277574 (2/2 2/18/18) (Hoffstadt, Lui, Chavez)... Continue reading
An Agreement Need Not Expressly Provide For Arbitration But May Do So In A Document Incorporated By Reference. Petersen-Dean appealed from denial of its petition to compel arbitration. The central question on appeal was "whether the mention of the warranty in the contract incorporated the warranty, with its arbitration clause,... Continue reading
Confidentiality and Sexual Harassment. Peter J. Marx, an experienced mediator and arbitrator affiliated with Alternative Resolution Centers (ARC) has written a short article entitled, "Confidentiality: Special Considerations In Sexual Harassment Cases." The article is available on the ARC website at this link. Mr. Marx recounts a mediation involving alleged date-rape,... Continue reading
The Case Includes Good Discussion Of What Constitutes A Judicial Admission. With narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law. One such exception, which was invoked by the Appellant in Shenoi Koes LLP v. Bank of America, et al., B281756 (2/4 1/31/18) (Willhite, Epstein... Continue reading
Emptying The Courtrooms . . . The January 27, 2018 edition of The Economist has two short articles critical of arbitration in the US: "Shut out by the small print" (p. 10) and "Kept out of the courthouse" (p. 61). The articles are somewhat duplicative -- here are a few... Continue reading
Because Federal Courts Are Courts Of Limited Jurisdiction, The Procedures Differ. We posted on December 4, 2017, about Sayta v. Chu, A148823 (1/5 11/29/17) (published), an opinion that "offers an object lesson on the requirements to invoke [Cal. Code of Civ. Proc.] section 664.6 and the consequences of failure to... Continue reading
How Long You Can Wait To Challenge A Judgment Confirming Arbitration Award Depends On Whether Court Compelled Participation In The Arbitration, Or Whether You Simply Allowed The Arbitration To Proceed Without Objection. Appellant waited more than seven years to attack a superior court judgment confirming an arbitration award in FIA... Continue reading
A Textbook Example Of How Difficult It Is To Challenge An Arbitration Award. Our next case involved a family dispute in the California wine industry, following the death of the family patriarch. Nickel v. Far Niente Wine Estates, LLC, et al., A150513 (1/1 12/29/17) (unpublished). Affirming the trial court's denial... Continue reading
New Year Resolutions -- Till They Melt ! Punch. 1913. Library of Congress. Continue reading
And Such An Agreement To Arbitrate Disputes Invoking The Criminal Law Would Be Contrary To Public Policy. The context for our next case is California's Bad Check Diversion Program (Program), created to relieve California courts of the case overload caused by the criminalization of the writing of bad checks with... Continue reading
Your Blogger Has Authored A Review Of Ari Berman's Book About The Voting Rights Act Of 1965. I've written a review of Ari Berman's book, "Give Us The Ballot." The review, which appears in the latest issue of California Litigation, The Journal of the California State Bar, is republished here,... Continue reading
Ninth Circuit Joins Majority Of Circuits On Issue That Divides The Circuits. Based on a reading of the "plain meaning" of the Federal Arbitration Act, specifically, 9 U.S.C. section 7, the Ninth Circuit holds: "[T]he FAA does not grant arbitrators the power to order third parties to produce documents prior... Continue reading
Civil Penalties Or Victim Specific Statutory Damages? Lawson v. ZB, N.A. et al., and ZB, N.A., et al. v. Superior Court of San Diego, D071279 & D071376 (4/1 12/19/17) (Benke, Huffman, Haller), is the latest skirmish in the ongoing battle waged between employers and employees over whether Private Attorney General... Continue reading
But There Is A Dissent . . . Simply Wireless Inc. v. Mobile US Inc ., Nos. 16-1123, 16-1166 (4th Cir. 12/13/17) resulted in an interesting majority opinion authored by Judge Wynn, with Judge Harris, joining, and a dissent by Judge Floyd. As a result, I have strayed beyond my... Continue reading
The General Rule In A California Association Of Realtors Purchase And Sale Agreement Requires Participation In Mediation As A Condition For A Prevailing Party To Recover Fees. The general rule under the standard CAR purchase and sale agreement requires participating in mediation as a condition precedent for fee recovery. The... Continue reading
Employer Ross Stores, Inc. Had Argued That Law Of The Case Required Trial Judge To Order PAGA Claim To Arbitration. In Ross Stores, Inc. v. Superior Court (Rachel Goss, Real Party), A150039 (1/1 12/11/17) (Banke, Margulies, Dondero) (unpublished), the Court of Appeal addressed circumstances in which it had earlier required... Continue reading
JAMS Clause Delegating Validity Issue To Arbitrator Was Not Clear and Unmistakable Delegation Of Legality Issue. Who decides whether an arbitration agreement is part of an enforceable legal services agreement, the judge or the arbitrator? That was the issue addressed by the Hon. Harold E. Kahn in an "Order Denying... Continue reading
Court Of Appeal Rejects Third-Party Beneficiary, Agency, And Judicial Estoppel Arguments Made By U-Haul. Unable to find "any authority addressing precisely analogous circumstances," the Court of Appeal decides a case of first impression in Jensen v. U-Haul Co. of California, E065887 (4/2 12/11/17) (Codrington, McKinster, Slough). The case involves "an... Continue reading
Does The Federal Arbitration Act Implicate "State Action"? "No" is the short answer. However, read on if you want to know about the novel argument made by consumer plaintiffs in Roberts v. AT&T Mobility, No. 16-16915 (9th Cir. 12/11/17) (Tallman, Hawkins, Fletcher). In Roberts, AT&T moved to compel arbitration against... Continue reading
This Case Is For Grammar Afficionados; Or, What A Difference A Comma Makes. Only and exclusive photo of the Vestris as it went down. Fred Hansen, photographer, active 1928. Library of Congress. Mr. Yang, a seaman, died when the fishing vessel he worked on sank because of inadequate repairs and... Continue reading
Defendant Seeking To Compel Arbitration Had Argued That Claim To Be Submitted To Arbitration Accrued Before Rule Changed. This case presents a somewhat unusual situation, in that the Court of Appeal had to construe an arbitration agreement that was not directly between the parties. Instead, the parties independently agreed to... Continue reading
If You Want The Court To Retain Jurisdiction, Ask The Court. "This case offers an object lesson on the requirements to invoke section 664.6 and the consequences of failure to comply with those requirements." Sayta v. Chu, A148823 (1/5 11/29/17) (Bruiniers, Jones, Simons). Plaintiff/Apppellant Sayta settled a tenant dispute with... Continue reading
Deficient Power Of Attorney Was Used For Making Decisions Relating To Health Care. Hutcheson v. Eskaton Fountainwood Lodge, C074846 (3rd Dist. 11/28/17) has been ordered filed on rehearing. We posted earlier about this case on June 15, 2017. The case held that a residential facility for care of the elderly... Continue reading