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Southern California
Business Litigator, Mediator
Recent Activity
Bridge Player Could Not Be Compelled To Arbitrate With American Contract Bridge League. Only yesterday I blogged about another "existence of arbitration agreement" case, Noor v. Katz. Here comes another one, Blakely v. American Contract Bridge League, A150382 (1/1 9/20/17) (Dondero, Margulies, Banke) (unpublished). These cases are actually surprisingly common.... Continue reading
Headline Of Article In The Economist Neatly Sums Up The Stakes: "Can Companies Block Employees' Class-Action Lawsuits?" Steven Mazie has authored an article in the September 20, 2017 online edition of The Economist about the competing interests at stake in the three arbitration cases that SCOTUS will hear on October... Continue reading
Reasonableness Of Award Did Not Need To Be Addressed, Because Entitlement, Which Parties Agreed To, Was The Real Issue. Once a case is settled, some issues need not be litigated, even though the parties may want to do so. Such was the case in Medina v. South Coast Car Company,... Continue reading
Trial Court Order Denying Defendants' Petition To Arbitrate Is Affirmed. This case was about a matter of timing. Plaintiffs sued defendants, alleging defendants failed to build and develop a Web site as agreed to. Defendants move to compel arbitration. The trial court found defendants failed to show that the arbitration... Continue reading
Attorney Charged Discounted Rate, Delayed Collection, And Accepted Hybrid Free Structure Due To Client's Limited Cash. Attorney James D. Daily helped the Stueve Brothers Farms, LLC (Stueve) recover some $20M in property. Stueve and others (Claimants) then sought to arbitrate their fee dispute with Daily. After the arbitrator awarded Daily... Continue reading
Plus The Court Of Appeal could Not Review Merits Of The Dispute, Which Included Legal And Factual Bases Of The Arbitrator's Award. After William Schwartz arbitrated with Joel Schwartz, the arbitrator declared William the prevailing party and awarded William $264,559.89 in fees and costs. The Superior Court confirmed the award,... Continue reading
The Case, Though Unpublished, Is Timely, With California Law Revision Commission Considering Changes In Mediation Confidentiality. Chodosh v. Trotter, et al., D070952 & D070953 (4/1 9/13/17) (Benke, Haller, Dato) (unpublished) offers us a veritable mini-treatise on the mediation confidentiality privilege -- most timely, given ongoing efforts by the California Law... Continue reading
Employee Did Not Ask For A Translation. Plaintiff Zaragoza filed a wage and hour class action against her employer, and the employer moved, successfully, to compel arbitration. Zaragoza appealed, arguing the arbitration agreement was void and obtained by fraud because she could not read English. Zaragoza v. Sela Healthcare, Inc.,... Continue reading
Court Ducks Ruling On The Enforceability Of Agreement To Arbitrate False Claims Claims, Saying It Is Only Ruling "On A Rather Unremarkable Textual Analysis." An interesting issue exists as to whether qui tam claims, brought by a private party (the "relator" or "private attorney general") are arbitrable. The argument against... Continue reading
Trial Court Erred By Ruling It Could Not Grant Equitable Remedies In Motion Under Section 664.6. Plaintiff Mathis settled with defendants by agreeing to purchase property from defendants for $1M, with escrow to close in 120 days. The trial court dismissed the underlying case, while retaining jurisdiction under that convenient... Continue reading
Sixteen Page Majority Decision Draws Fifteen Page Concurrence And Dissent From Justice Segal. If an agreement to arbitrate is unconscionable, why should decisions about arbitrability ever be sent to the arbitrator? Answer: ordinarily, it is presumed that decisions about arbitrability are to be made by the judge, and therefore a... Continue reading
How Do You Like Them Zombie Cookies? "I walked with a Zombie." 1943. The Ninth Circuit granted a petition for a writ of mandamus and vacated the district court's order that had granted Turn, Inc.'s motion to stay a putative class action and compel arbitration with Turn, Inc., the alleged... Continue reading
Arbitration Was Required Under A Collective Bargaining Agreement That Did Not Provide For Class Arbitration. Brushing aside thorny appealability issues, Cortez v. Doty Bros. Equipment Company, B275255 (2/7 filed 8/15, pub. order 9/1/17) (Perluss, Zelon, Segal) treated an employee's appeal as a writ of mandate, enabling the Court to address... Continue reading
My Article, "Confidentiality in Arbitration" Is In The Latest Issue of California Litigation And Available Through This Post. My article on "Confidentiality in Arbitration" and an accompanying MCLE test are published in California Litigation, The Journal of the Litigation Section, State Bar of California, Vol. 30, No. 2 (2017), p.... Continue reading
Frontier Justice: An Alternative Form Of Dispute Resolution. I just finished reading Glenn Frankel's "HIGH NOON: The Hollywood Blacklist and the Making of an American Classic" (Bloomsbury 2017), an enjoyable, very readable and scholarly book about the making of the iconic Western and the scoundrel times of the Hollywood Blacklist,... Continue reading
Unreasonable Delay Supported Trial Court's Finding Of Prejudice, Resulting In Waiver Of Right To Arbitrate. Sprunk, et al. v. Prisma LLC, B268755 (2/1 8/23/17) (Lui, Chaney, Johnson) holds that, under the circumstances, defendant Prisma LLC aka "Plan B", an employer of exotic dancers, waived its right to seek arbitration "by... Continue reading
California Law Requires Both Substantive And Procedural Unconscionability To Avoid Enforcement Of Arbitration Provision. The Court of Appeal's conclusion that it was "disturbed by the manner" in which an arbitration agreement was drafted and presented to an employee for signature, and that an "extraordinarily high degree of procedural unconscionability" existed,... Continue reading
Key Here To Finding Res Judicata (Claim Preclusion) Is Licensee's Derivative Liability. Gold Dredge. Klondike River. May 31, 1915. Library of Congress. A confirmed arbitration award (which, however, was not reduced to judgment 1) enabled George Reed, Inc. to assert res judicata against Cal Sierra Development, Inc. Cal Sierra Development,... Continue reading
Subscript Law Has A Snappy Explainer. Today's SCOTUSBlog mentions that Subscript Law has a nice explainer boiling down three consolidated arbitration cases that the United States Supreme Court will be hearing at the beginning of its new term. The key issue in these cases: can employees sign away their rights... Continue reading
Agreement Between The Parties That Award Could Be Reviewed For Legal Error Made The Difference. In Harshad & Nasir Corporation v. Global Sign Systems, Inc., and related appeals, B269427, B275942, B275947 (2/2 8/15/17) (Rothschild, Chaney, Lui), the Court of Appeal considered three related appeals of parties fighting over allegedly unpaid... Continue reading
ABA Section of Dispute Resolution -- Task Force on Improving Mediation Quality Final Report. In 2008, the ABA Section of Dispute Resolution issued a Final Report on mediation quality. This report is available on-line. The Task Force narrowly focused on mediation quality in private practice civil cases where the parties... Continue reading
My Mini-Comment Is Posted To NYT Website. Anita Hill, who famously testified during Justice Clarence Thomas's confirmation hearing, has written an Op-Ed for the NYT entitled, "Class Actions Could Fight Discrimination In Tech", appearing on-line today, August 8, 2017. She observes, uncontroversially: "Women in tech no doubt have hurdles to... Continue reading
Employers Strive To Close The PAGA Representative Action Escape Hatch From FAA Preemption And Arbitration. Ever since the California Supreme Court held in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014) that Private Attorneys General Act of 2004 (PAGA) representative actions are not subject to arbitration, employers... Continue reading
Even If Oral Listing Agreements Are Generally Forbidden, The Court Adds That The Receipt Of Confidential Information And A Fiduciary Relationship Support The Result. Plaintiff Kalo sued defendant Alam for breach of an oral listing agreement to sell real property, fraud, and breach of fiduciary duty. Kalo alleged that Alam,... Continue reading
Existence Of Agreement Was Established With Affidavit Of A Person With First-Hand Knowledge Of Procedures. Early Example Of Credit Card. Plaintiff Yenko filed a putative class action lawsuit against Crown Asset Management, LLC, a debt buyer that purchased plaintiff's alleged charged-off credit card debt. The trial court held that Crown,... Continue reading