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Business Litigator, Mediator
Recent Activity
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
Arbitrators Can Make Mistakes And Here The Record Didn’t Even Show A Mistake Had Been Made. A major attorney’s fees dispute between a law firm and its client hinged on when mediation ended, for the parties agreed that the law firm would receive a five percent contingency fee for a... Continue reading
Failure To Postpone Arbitration Hearing Upon Sufficient Cause May Be Grounds For Vacating Award – But Not When Request For Continuance Is Waived ! Plaintiff sought to postpone an arbitration hearing in a wrongful death/medical malpractice action, because she was studying abroad, and counsel’s medical condition adversely affected his cognitive... Continue reading
Lanois v. Employers Fire Insurance Company, Case No. B251403 (2/1 Jan. 9, 2015) (Chaney, Rothschild, Johnson) (unpublished) involved an underinsured motorist insurance carrier’s challenge to an arbitration award, on the grounds that the award was rendered untimely, and that the arbitrator exceeded her powers by adding interest to a 950K... Continue reading
Unconscionability Challenge To Identical Arbitration Provision In Industry-Drafted Automobile Sales Contract Is Still Pending In Sanchez Before California Supreme Court. Our next case is a fine example of ad hoc justice, for the Court of Appeal concludes that “on balance”, the arbitration provisions in a standard automobile industry sales contract... Continue reading
Court of Appeal Recognizes It Is Bound By Iskanian, Until SCOTUS Resolves Validity Of PAGA Waivers. Montano v. The Wet Seal Retail, Inc., B244107 (2/4 Jan. 7, 2015) (Epstein, Willhite, Manella) (published) is the latest case to follow the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th... Continue reading
Second District, Division 2, Rejects Appellants’ “Tortured” Reading Of Arbitration Provision And Affirms Order Denying Motion To Compel Arbitration. Plaintiffs, investors in an independent bookstore, refused the request of defendants, the bookstore and its prior owner, to arbitrate a business dispute. The key language in the arbitration provision read: “Notwithstanding... Continue reading
Burden Of Proof Shifted To Employer Because Employee Didn’t Remember Signing Arbitration Agreement. Ruiz v. Moss Bros. Auto Group, Inc., E057529 (4/2 Dec. 23, 2014) (King, Hollenhorst, Codrington) is one more reminder of the pitfalls when dealing with electronic signatures. After employer Moss Bros. unsuccessfully petitioned for an order compelling... Continue reading
Court Distinguishes Recent Cases Finding No Waiver Of Right To Arbitrate. In Bower v. Inter-Con Security Systems, Inc., Case No. A135940 (1/3 Dec. 31, 2014) (McGuiness, Pollack, Siggins), the Court of Appeal held that substantial evidence supported the trial court’s finding that defendant waived its right to arbitrate individual claims... Continue reading
The Old And The New. Puck. Library of Congress. Continue reading
Dot I’s and Cross T’s When Relying On An Electronic Signature! In J.B.B. Investment Partners, Ltd. v. Fair, Case Nos. A140232, A141228 (1/2 Dec. 30, 2014) (Kline, Richman, Stewart), the Court of Appeal reversed a trial court’s enforcement of a settlement agreement under CCP section 664.6, because email and voicemail... Continue reading
When Does Trial Commence In “Dual Track” Arbitration/Litigation? The Danger Signal. Currier & Ives. 1884. Library of Congress. Parties routinely avoid exposure to attorneys fees under Cal. Civ. Code section 1717 by voluntarily dismissing their action before “the actual commencement of trial”. The meaning of “the actual commencement of trial”... Continue reading
Court Refuses To Carve Out Judicial Exception To Mediation Privilege While Explaining Why Privilege Simply Didn’t Apply Here. Few are the cases in which courts have pierced the mediation confidentiality privilege, because the courts have said the privilege is almost absolute, refusing to craft judicial exceptions to the statutory privilege,... Continue reading
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