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Business Litigator, Mediator
Recent Activity
Presiding Justice Turner Respectfully Dissents. The Fifth Circuit, Division Two, holds that because a law firm’s cause of action to compel arbitration with its client “admitted the existence of a binding agreement to arbitrate the fee dispute, the trial court’s jurisdiction over the merits of plaintiff’s claims was initially limited... Continue reading
For Preemption Purposes, “Involving Commerce” In The FAA Is Broader Than “In Commerce”, Making It Easy To Find Preemption. Physicians don’t like to defend medical malpractice cases in front of juries, and Scott v. Yoho, B265641 (2/5 6/22/16) (Turner, Kriegler, Kumar) will make it easier for them to arbitrate malpractice... Continue reading
The Daily Journal Has Provided A Link To Louie Castoria’s Article Entitled “Mediation confidentiality: a wall against malpractice claims or a sieve?” Louie Castoria, a partner at Kaufman Dolowich & Voluck LLP, and a mediator, has authored an article suggesting we may take a bit too much for granted about... Continue reading
Nor Was The Agreement Illusory Just Because The Agreement Provided The Employer Could Change It At Any Time. In Harris v. Tap Worldwide, LLC, B262504 (2/5 6/22/16) (Turner, Kriegler, Kumar) (certified for partial publication, except part III(C) covering unconscionability), the Court determined that, notwithstanding that the arbitration agreement was unsigned,... Continue reading
Indiana Forum Clause Was Important Factor In Finding Of Substantive Unconscionability. The Fourth District, Division One, concludes the trial court correctly determined the arbitration provision between an Indiana-based company soliciting business in California, and California residents, who were Licensed Vocational Nurses seeking to become Registered Nurses, was unconscionable. Magno v.... Continue reading
Court Looks At Evolution Of Class Action Waiver Law In California For Help Construing Meaning Of The Contractual Language. In 2011, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) held the Discover Bank rule, invalidating a class arbitration waiver, had been preempted by the Federal Arbitration Act. After Concepcion,... Continue reading
Employer Claimed Appeal Was Based On Entire Record, But Failed To Provide Court With Entire Record. Employer ICC Collision Centers, Inc. appealed the trial court’s order denying its motion to compel its employee Ogannesian to arbitrate his wage/hour claims. The trial court had concluded that the employer waived its right... Continue reading
What Does It Mean For An Arbitration To “Have Been Had In Accordance With The Terms Of The Agreement” When A Party Is Unable To Pay Arbitration Fees? We revisit a recurring problem that occurs in arbitration. In federal court, a party successfully moves to compel arbitration under the FAA,... Continue reading
Arbitrator Made Disclosures “In Abundance of Caution.” One basis for vacating an arbitration award is when the arbitrator’s denial of a postponement results in substantial prejudice. Another basis for vacating an award is when the arbitrator is obligated to disqualify himself and fails to do so. In McElvany, Inc. v.... Continue reading
Brodeur v. Atlas Entertainment, Inc. Makes For Entertaining Reading. Sometimes I stumble across a case having nothing to do with the subject of this blog, yet I feel compelled to share. “The principal issue in this case is whether a statement made by a ‘slightly unhinged’ character in a motion... Continue reading
Second District, Division One Provides In-Depth Discussion Of Whether Arbitration Clause Is Broad Or Narrow. An issue that comes up repeatedly is whether an arbitration clause is broad enough to encompass tort claims. Our next case, certified for publication, is worth reading because it offers an in-depth analysis of how... Continue reading
Course Of Conduct By The Parties Weighed Heavily In Construing Their Conduct. North County Communications of Arizona v. Qwest Corporation, No. 14-35254 (9th Cir. May 31, 2016) (Scannlain, Silverman, Bea) involves two communications carriers, North County and Qwest, in a messy billing dispute, construction of their “interconnection agreement” (ICA), and... Continue reading
Because Defendant Introduced Key Evidence In Supplemental Declaration, Rather Than In Moving Papers, Court Had To Address The Burden Of Proof. Yes, it happens. Sometimes, a published case deserving a post escapes my net. However, Espejo v. Southern California Permanente Medical Group, (2nd Dist. Div. 4 2016) (Collins, Epstein, Willhite),... Continue reading
Court of Appeal Distinguishes Between Service For Purposes Of Notice And Service For Purposes Of Jurisdiction. Claimants appealed a judgment entered after the trial court granted the petition of insurer GEICO to confirm an award in its favor in an uninsured motorist case where there were questions about coverage. GEICO... Continue reading
Tip From Appellate Justices: Address The Basis Of The Trial Court’s Ruling When You Appeal. The trial court sustained a demurrer of respondent Sabet to appellant Kavandi’s first amended cross-complaint, without leave to amend, leading to this appeal. Sabet v. Kavandi, No. G050886 (4/3 May 23, 2016) (Bedsworth, Aronson, Thompson)... Continue reading
Case Involved The Mandatory Fee Arbitration Act. We just posted on Baxter v. Bock on May 22, 2016, a case involving the MFAA and an acknowledged arbitrator’s error that was not a basis for vacating an award, as well as disclosure requirements. We can now report that the case is... Continue reading
Opinion Clarifies Limited Role Played By Courts In Reviewing Labor Arbitration Awards. In Southwest Regional Council of Carpenters v. Drywall Dynamics, Inc., No. 14-55250 (9th Cir. May 19, 2016) (Berzon, Owens, Marbley), the Ninth Circuit reverses a district court order vacating an arbitration award in a labor case, along the... Continue reading
But Court’s Decision On Fee Award Is Vacated, Because There Was No Reasonable Basis For Assigning Different Hourly Rates To Two Attorneys. Baxter v. Bock, A142372, A142984, A143689 (1/1 May 18, 2016) (Margulies, Humes, Dondero) (unpublished) rather starkly illustrates the application of different standards of review to the arbitration award... Continue reading
Authenticity Of Agreement To Arbitrate Was Called Into Question. The Court of Appeal has affirmed the trial court’s denial of a petition to compel arbitration, concluding “that the trial court did not err in finding that appellants failed to establish that [respondent] signed the employment agreement.” Joyce v. Volt Management... Continue reading
Mandatory Mediation And Conciliation Is A Curio. The reason I post on this case is I thought it a curiosity, for those of use who do not practice in the area of union negotiations, that the California Labor Code, sections 1164 et seq., enables a process of “mandatory mediation and... Continue reading
A Matter Of Discretion. In the Matter of EPD Investment Co., No. 14-56478 (9th Cir. May 9, 2016) (Silverman, Graber, Dorsey) teaches that a core bankruptcy proceeding can take precedence over an arbitration agreement. The Trustee in a Chapter 7 bankruptcy filed an adversary proceeding against defendant Kirkland, an attorney... Continue reading
But Arbitration Panel Did Not Exceed Power In Panoche Energy Center v. PG&E. RIPENESS Advertisement. c1869. Library of Congress. Under California law, parties to an arbitration can contractually limit an arbitrator’s powers, creating opportunities for vacating arbitration awards when the arbitrator exceeds the arbitrator’s powers – something not to attempt... Continue reading
Fish Story Weighed On Scales Of Justice Results In 2-1 Opinion. New Orleans writer and television personality Ronnie Virgets is served the house specialty, ice-cold oysters on the half shell, by Alma Griffin at Casamento's Seafood Restaurant in Uptown New Orleans, Louisiana. Carol M. Highsmith, photographer. Between 1980 and 2006.... Continue reading
Mediation Confidentiality Survived End Of Mediation. Above: Whispering. Masanobu Okumura. 1743. Library of Congress. Based on the confidentiality of communications made in the course of mediation, the Court of Appeal affirms a judgment dismissing a complaint for legal malpractice and breach of fiduciary duty. Biller v. Faber, No. B244232 (2/4... Continue reading
Rule Would Not Apply To Consumer Sectors Outside Bailiwick Of Consumer Financial Protection Bureau Jessica Silver-Greenberg and Michael Corkery, who have reported recently in the NYT about how arbitration clauses are spreading throughout consumer contracts, now report in the May 5, 2016 online edition of the NYT, that the Consumer... Continue reading