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Business Litigator, Mediator
Recent Activity
Under The Circumstances, The Mediator's Decision To Discuss The Mother's Move-Away Request Was "Understandable". In family law, disputes are often resolved through mediation. In Alkebulan v. Dunham, D069434 (4/1 7/20/17) (Benke, O'Rourke, Dato) (unpublished), father, who was unrepresented by counsel, felt blind-sided when mother raised the issue of a move-away... Continue reading
Nor Did District Court's Purported Use Of Twitter Account To Tweet U.S. Attorney's Announcement About Case Establish Appearance Of Impropriety. "A lone home looks stark amid the bare pine trees on a hillside above Pine Valley in Jefferson County, Colorado. The trees are lingering reminders, 14 years later (as of... Continue reading
The Holding Fills A Gap In California Law. Los Angeles Unified School District v. Safety National Casualty Corporation, B275597 (2/8 7/12/17) (Grimes, Bigelow, Sortino) addresses a problem that can bedevil litigators when a party seeks to use California Code of Civil Procedure section 1281.2 to thwart arbitration. Section 1281.2 allows... Continue reading
Ninth Circuit Joins Second And First Circuits. In Portland General Electric Company v. Liberty Mutual Insurance Company, et al., No 16-35628 (9th Cir. 7/10/17) an opinion authored by Senior District Judge Jed S. Rakoff, the 9th Circuit joins the 2nd and 1st Circuits to conclude that "incorporation of the rules... Continue reading
A Hypothetical Question: What If Confidential Information That Could Be The Basis For Disqualifying An Attorney Is Obtained Through Mediation? Gobar v. Gong, D070876 (4/1 6/26/17) (Huffman, Benke, Haller) (unpublished) involves unsuccessful efforts by defendant Gong to disqualify plaintiff Gobar's attorney who earlier represented a law firm seeking to collect... Continue reading
The Issue: Do Employee Agreements To Waive Class Actions And Arbitrate Violate The Right Of Employees To Engage In Collective Action Under The National Labor Relations Act? Amy Howe reports on June 19, 2017, in SCOTUSBlog, that the Office of the Solicitor General, after the change of administration, has done... Continue reading
Trial Court And Court Of Appeal Agreed That The Residential Care Facility For The Elderly Provided Health Care. Hutcheson v. Eskalon Fountainwood Lodge, C074846 (3rd Dist. 6/14/17) (Nicholson, Mauro, Duarte), is one of many cases in which a care facility for the elderly seeks to enforce an arbitration provision after... Continue reading
The Case Is Heimlich v. Shivji, Case No. H042641 (6th Dist. May 31, 2017). Ordinarily, a prevailing party's request for fees and costs in an arbitration is presented to the arbitrator, before an award is rendered, unless the arbitrator and the parties agree to address fees and costs after an... Continue reading
Three Photos From The Blogger's Travels. My astute readers will have noticed that I slacked off a bit in May. I traveled to Petra in Jordan, to Israel, and to Spain. Here are three photos from my travels. In front of Petra's Treasury (Al-Khazneh) in Jordan. View of Baha'i Gardens,... Continue reading
Must Reading For Home Sellers, Brokers And Service Providers Who Want To Understand Their Obligations To Arbitrate. Home sellers sign Residential Listing Agreements (RLAs) with their brokers, and Residential Purchase Agreements (RPAs) with their buyers. Both RLAs and RPAs constantly undergo drafting revisions in California. And both types of standard... Continue reading
Courts Like To Conserve Judicial Resources. In Chango Coffee, Inc. v. Applied Underwriters, Inc., B267358 (2/3 5/26/17) (Johnson (Michael), Edmon, Aldrich), the trial court denied a renewed motion brought by defendant to compel arbitration of a complaint brought by Chango Coffee, Inc. Defendant appealed the order denying a renewed petition... Continue reading
This Case Annulled Workers' Compensation Appeals Board Decision Because Rescission Issue Remained "Factually Open And Unresolved" By Arbitrator. I posted to this blog about Southern Insurance Company v. Workers' Compensation Appeals Board, et al., B278412 (2/2 5/10/17) (Chavez, Hoffstadt, Goodman) on May 16, 2017, at which time the case was... Continue reading
The Decision Was Not A Surprise. Kindred Nursing Centers L.P v. Clark, No. 16-32 (US S.Ct. 5/15/17) (Kagan, J.) holds that Kentucky's "clear-statement rule" violates the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment. Kentucky's "clear-statement rule" provides that, because the Kentucky constitution declares rights of access... Continue reading
As "Joint Employer", Company To Which An Employee Was Assigned Could Take Advantage Of Arbitration Clause In Employee's Contract With Temporary Staffing Agency That Assigned The Employee To The Company. I am happy to report that Garcia v. Pexco, LLC, G052872 (4/3 5/16/17), an opinion I posted about on April... Continue reading
The King vs. Medieval Knights . . . Plaintiff Scott Ehredt, a performer in medieval style games at Medieval Knights, sued claiming that Medieval Knights had misappropriated his likeness in advertising images, notwithstanding a release that he had provided. The matter was arbitrated, and after receiving an adverse award, Mr.... Continue reading
Arbitrator And Appeals Board Did Not Address Whether Rescission Was A Meritorious Defense To Employee's Claim. Southern Insurance Company rescinded an insurance policy based on violation of a representation that covered employer's employees did not travel out of state, after an employee injured out of state made a workers' comp... Continue reading
The Neighbor Feud Had Gone On Since 2002. Wandering Elk, Dakota Indian, smokes peacepipe. c1903. Frank Bennett Fiske, photographer. Library of Congress. The Court of Appeals' reliance on the wisdom of a Croatian proverb offered a strong clue in the first sentence that the Court would enforce peace among feuding... Continue reading
The Unconscionable Provision Permitted Only The Defendant To Seek Equitable And Injunctive Relief In A Court Of Law. In Enyong v. Westlake Services, LLC et al., B275952 (2/5 4/24/17) (Kriegler, Baker, Dunning) (unpublished), the Court of Appeal concluded that an arbitration provision contained only one unconscionable term, which was severable.... Continue reading
Equitable Estoppel And Agency Theories Required The Employee To Arbitrate With The Non-Signatory Company. I suspect that that the facts in our next case are far from unique. In Garcia v. Pexco, LLC, G052872 (4/3 4/24/17) (Ikola, Aronson, Thompson) (unpublished), plaintiff Garcia was hired by Real Time, a temporary staffing... Continue reading
Bon Ton Burlesquers. c1898. Library of Congress. The Court of Appeal applies a de novo standard of review to arbitrator disclosure issues (unless the trial court’s decision is based upon disputed facts, in which case a substantial evidence standard or review applies). In Mitchell Anthony Productions LLC v. Jennifer Hamilton,... Continue reading
There Is A Connection To ADR . . . My review of Professor Catherine L. Fisk's excellent new book, Writing for Hire: Unions, Hollywood and Madison Avenue (Harvard University Press 2016) appears in the latest volume of California Litigation: The Journal of the Litigation Section, State Bar of California (vol.... Continue reading
Nor Is There Federal Arbitration Act Preemption. In a long-awaited and important decision, the California Supreme Court addresses the validity of a provision in a predispute arbitration agreement that waives the right to seek "public injunctive relief" as a statutory remedy in any forum. McGill v. Citibank, N.A., No. S224086... Continue reading
The The Wrinkle Here Is That The Prevailing Party Claimed She Did Not Need To Satisfy The Condition Precedent Because She Never Signed The Contract. Standard real estate purchase and sale agreements in California, e.g., California Association of Realtors forms, include a provision requiring mediation as a condition precedent that... Continue reading
Recommended Reading: Two Articles By Rebecca J. Callahan In The Orange County Lawyer Provide Helpful Tips For Drafting Arbitration Clauses. Mediator and arbitrator Rebecca J. Callahan is the author of two very clear and concise articles about drafting arbitration clauses. "Arbitration Clauses: Hot Questions and Cool Answers", which appeared in... Continue reading
As Arbitration Clauses Proliferate, So Too Do Motions Concerning Enforcement Of Those Clauses. I have not done a statistical study, but it is certainly my perception that in recent years there is more and more law and motion practice concerning the enforceability of arbitration clauses in California courts. First, the... Continue reading