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Business Litigator, Mediator
Recent Activity
Amis v. Greenberg Traurig LLP Acknowledges Supreme Court’s “Near Categorical Prohibition Against Judicially Crafted Exceptions To The Mediation Confidentiality Statutes” Amis v. Greenberg Traurig LLP, No. B248447 (2/3 March 18, 2015) (Kitching, Aldrich, Lavin) (published) holds “a malpractice plaintiff cannot circumvent mediation confidentiality by advancing inferences about his former attorney’s... Continue reading
Also Rejected: Contentions The Agreement Was Unconscionable. The Court of Appeal affirmed the judgment against an employee, including rulings that her claims were subject to arbitration, in Serafin v. Balco Properties Ltd., LLC, Case No. A141358 (1/4 March 16, 2015) (Ruvolo, Reardon, Rivera). COMMENT: The Court’s analysis of appellant’s arguments... Continue reading
Placement and Prominence Requirements Are Key To Implementing Statutory Disclosure And Knowing Waiver Objectives In Anna-Becky Redlich v. Reliance Management Group, Inc., Case No. A140313 (1/2 March 11, 2015) (Banke, Margulies, Dondero) (unpublished), the Court of Appeal agreed with the trial court that arbitration provisions between plaintiff homeowner, and defendants... Continue reading
Severability: General Swallow all-o feasting on a French Fricassee!! William Holland, publisher. May 1799. Library of Congress. Success with Severability: Trabert v. Consumer Portfolio Services. In Trabert v. Consumer Portfolio Services, Inc., Case No. D065556 (4/1 March 3, 2015) (Haller, Aaron, Irion) (published), the Court of Appeal ordered the trial... Continue reading
Agreement to AAA’s Employment Rules Necessarily Includes Agreement To AAA Class Action Rules. On February 28, 2015, I posted about an unpublished case holding that a reference to AAA Commercial Rule R-7 ambiguously delegates power to the arbitrator, because it gives the power to rule to the arbitrator, without saying... Continue reading
AAA Delegation Rule Did Not Preclude Trial Court From Ruling On Unconscionability, But Trial Court Is Reversed, Because The Arbitration Agreement Is Not Unconscionable. After her criminal law professor allegedly said, “"Many women in the field look like dykes, just like you, Anna," Anna Eakins sued Corinthian Colleges, its college... Continue reading
Contention That There Was Error In Confirming The Award Was Not Before The Court. To quote the late Steve “The Crocodile Hunter” Irwin, “Crikey!”. On appeal, defendant Porter argued that the arbitrator exceeded his authority, as a result of which confirmation of the arbitration award was error, citing Cal. Code... Continue reading
Arbitration Clause In Operating Agreement Did Not Cover Statutory Request To Copy And Inspect In Sachs v. GP/T Holdings, LLC et al., B254289 (2/5 Feb. 20, 2015) (Turner, Krieger, Goodman) (unpublished) plaintiff, alleging rights to copy and inspect documents under the Corporations Code, petitioned to compel defendants to produce documents... Continue reading
Split Between State And Federal Blanket Enforcement Of Arbitration Agreements Far From Resolved The February 19, 2015 issue of the Los Angeles Daily Journal includes an article by John Roemer entitled “9th Circuit to test arbitration ruling.” This “test” concerns the California Supreme Court’s holding in Iskanian v. CLS Transportation... Continue reading
The Parties Had Agreed To Mediate. Efforts to avoid mediation can be costly. For example, in real estate disputes, the standard California Association of Realtors purchase and sale agreement requires mediation before litigation – and participation in mediation becomes a precondition to collecting attorneys fees for a prevailing party. In... Continue reading
Parties Agree Trial Court Is Best Positioned to Resolve Procedural Issues. After ruling in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014) that the Federal Arbitration Act did not preempt a state law rule prohibiting waiver of Private Attorney General Act of 2004 representative actions, the California... Continue reading
California Attorney’s Fees has a short post dated February 18, 2015, with tips for successful enforcement of arbitration clauses in fee retainers found in a recent article in the Daily Report, authored by Randy Evans and Shari Klevens of McKenna Long. Continue reading
“Judicial Economy Was Not . . A Proper Basis For Delaying Arbitration.” What’s a judge to do when confronted with the possibility of compelling thousands of individual grievances to arbitration, versus staying the arbitration of arbitral issues, while one case is tried? Here, the trial judge expediently stayed the individual... Continue reading
State Of The Record And Substantial Evidence Of Waiver Result In Affirmance. Defendants appealed the trial court’s order denying First American Title Insurance Company and First American Title Company’s motion to compel individual arbitration of plaintiffs’ claims. Kaufman v. First American Title Insurance Company, No. B248689 (2/5 Feb. 2, 2010)... Continue reading
By Suing DirectTV For Unpaid Wages, Employee Acknowledged Existence Of An Employment Relationship With Entity That Survived Merger. May a nonsignatory defendant enforce an arbitration agreement between a signatory plaintiff and a corporation that was acquired by the nonsignatory defendant, which assumed all rights and obligations of the acquired corporation?... Continue reading
The Pros And Cons Of Creative Ambiguity. Lawrence Wright has written a fascinating book about the thirteen days of intense negotiations at Camp David in 1979 leading to a peace agreement between Egypt and Israel. Earlier, Wright earned a Pulitzer Prize for his book The Looming Tower about events leading... Continue reading
Sometimes Unilateral Changes To Agreement Are Protected By Covenant of Good Faith And Fair Dealing – But Not Here. I have posted about employment cases in which the covenant of good faith and fair dealing allowed an employer to unilaterally change an arbitration provision without the contract being illusory, because... Continue reading
Plaintiffs’ Pleading Allegations Didn’t Help Their Argument. The somewhat anomalous circumstances in this case allowed a nonsignatory defendant to arbitrate its claims with a nonsignatory plaintiff. O’Donnell Strategic Industrial REIT v. Super. Ct., G049498 (4/3 Jan. 28, 2015) (Thompson, Bedsworth, Moore) (unpublished). In a dispute concerning the setting up and... Continue reading
Damn Those Hyperlinks That Rot In Cyberspace ! Jill Lepore, Professor of American History at Harvard, has written a fascinating article in the January 26, 2015 edition of the The New Yorker. Her subject, which interests and plagues every blogger, is archiving the Internet before the information vanishes into cyberspace.... Continue reading
California Supreme Court Leaves Employer’s “Honest Belief Defense” Unsettled. This case fits under the rubric “no harm, no foul.” Plaintiff Richey sued his employer AutoNation, Inc., for terminating his employment after he went out on sick leave, thereby violating his right to reinstatement under the California Family Rights Act (CFRA).... Continue reading
Court Concludes Trial Court Correctly Denied Petition To Compel Employee To Arbitrate His PAGA Claims. On January 20, 2014, we blogged that SCOTUS had denied petitioner’s writ of certiorari in the United States Supreme Court (petition for cert filed Sept. 22, 2014, No. 14-341). That denial of cert is already... Continue reading
Same As Before – Only This Time A Third Judge Signs On To The Opinion I blogged about this very same case in a post on August 27, 2014. So I was puzzled at first as to why another published opinion was issued following rehearing on January 20, 2015. Cruise... Continue reading
PAGA Issue Will Continue To Percolate Through Federal Courts. The United States Supreme Court today denied the petition for a writ of certiorari brought by CLS Transportation Los Angeles, LLC, No. 14-341. Left intact, for now, is the California Supreme Court’s holding in Iskanian v. CLS Transportation Los Angeles, LLC,... Continue reading
Is A Class Action Waiver Different From A Representative Action Waiver? On January 7, 2015, I posted that on September 22, 2014, a cert petition was filed in the SCOTUS to consider the PAGA/FAA preemption issue in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014). This is... Continue reading
Fourth District Says When Agreement Is Silent, Judge Decides; Second District Says Arbitrator Decides – So The California Supreme Court Will Have To Decide. GATEWAY. Carol M. Highsmith, photographer. 2013. Library of Congress. When the arbitration agreement is silent, who gets to decide whether the arbitration agreement allows for class... Continue reading