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Business Litigator, Mediator
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Also, Settlement Documents May Be Admitted For Purposes Other Than Proving Liability. While documents subject to the mediation privilege may be inadmissible as evidence, an error in admitting the documents into evidence will not matter to the Court of Appeal, if admission of the evidence resulted in harmless error. That... Continue reading
Arbitrator Did Not Exceed Jurisdiction Because Awards Ruling On Access To Records Did Not Violate Public Policy. Sometimes the Court’s weariness with a dispute drips onto the page as in this description of an appeal from judgments entered after the trial court denied petitions “to vacate the most recent arbitration... Continue reading
A Failed Mediation: Report from The Times of India In what is described as “a scene straight out of a curry western,” in the October 13, 2014 edition of The Times of India, rival gang members met at a gym in South-east Bangalore for a “mediation,” but “soon things started... Continue reading
Fourth District, Division Three Disagrees With U.S. Supreme Court Decision That Found Class Arbitration Question Is A Procedural Issue For Arbitrators To Decide Affirming a trial court’s order denying an employee’s petition to compel class arbitration of his wage and hour claims, the Court of Appeal in Network Capital Funding... Continue reading
Private Attorneys General Act of 2004 Claims Brought By Parties Suing In Representative Capacity Do Not Have To Be Arbitrated On An Individual Basis. I posted on March 16, 2014 about Ybarra v. Apartment Investment and Management Company, B245901 (2nd Dist. Div. 2, March 13, 2014) (Ashmann-Gerst, Boren, Ferns) (Ybarra).... Continue reading
The Context: Arbitral Award Against LLC, Jury Trial Against Members Of LLC. Following a default prove-up, plaintiff listing broker CB Richard Ellis, Inc. obtained a substantial arbitral award from an LLC owing CBRE a commission for the sale of real property. Because the LLC had no assets, CBRE then sued... Continue reading
Arbitrator Focused On Risk Incurred By Counsel And Degree Of Success Achieved Above: Ever-vigilant Canadian mounted policeman. ca. 1917. Library of Congress. Shawn Irving and Catherine Gleason-Mercier of the Canadian law firm Osler, Hoskin & Harcourt LLP reported on September 30, 2014, that an arbitrator has awarded $10.45 M to... Continue reading
But Federal Law Is Not So Clear The issue in Operating Engineers Local Union No. 3 v. City of Porterville, Case No. F067635 (5th Dist. Oct. 2, 2014) (Kane, Levy, Detjen) (unpublished) is whether an agreement between a city and a union to submit an employment dispute to advisory arbitration... Continue reading
An Episode Of “Real Real Estate Owners Of Orange County” . . . The opening paragraph clues us that the panel found this appeal tiresome: “This case is the result of a business relationship gone so bad that the arbitrator likened it to ‘a highly contested family law dissolution replete... Continue reading
Arbitrator Did Not Exceed His Powers By Enforcing Oral Fee Splitting Arrangement Attorneys Cohen and Sheinkopf had an oral agreement to split client fees: 75% to Cohen, 25% to Sheinkopf. After the two attorneys went their separate ways, they arbitrated a fee dispute in which the arbitrator enforced their oral... Continue reading
Judgment Confirming Arbitration Award Is Reversed, And Appeal From Sanction Order Is Dismissed. Wendy Kronick appealed from the trial court’s judgment confirming an arbitration award in favor of her former family law attorney, Debra A. Opri. Kronick v. Opri, B241510 (2/1 Sept. 30, 2014) (Ashmann-Gerst, Chavez, Ferns) (unpublished). Ms. Kronick... Continue reading
The Party Allowed To Keep A $500,000 Deposit Was The Appellant SSIC, LLC, the seller of a mobile home park with serious financial problems, received an arbitral award allowing seller to keep a $500,000 deposit from buyer Kleege. Not content with retaining the deposit, the seller appealed, arguing that a... Continue reading
Also, JAMS Rules Did Not Enlarge Arbitrator's Powers To Correct Final Award. Cooper v. Lavely & Singer, Case No. B251508 (2/4 Sept. 26, 2014) (Manella, Epstein, Willhite) (published) offers a very instructive discussion about correction of an arbitration award. Perhaps the best lesson here is for arbitrators – be careful... Continue reading
Maxim of Equity: “No one can take advantage of his own wrong.” (Civ. Code, section 3517). Defendant/Appellant Donn Zellet appealed from a judgment confirming an arbitration award for $376,418 in damages, contending the arbitrator exceeded her powers in grossly miscalculating damages, and the superior court erred in not correcting the... Continue reading
Guerra v. Aurora Loan Services, LLC, HO38331 (6th Dist. Sept. 19, 2014) (Mihara, Elia, Grover) (unpublished). Chairez and Guerra entered into a “LEASE AGREEMENT with OPTION TO PURCHASE & EXTEND” (agreement) relating to a property at which Chairez and Guerra lived. Chairez borrowed $1.1 million against the property and defaulted... Continue reading
Inadequate Record Is Basis For Affirmance The trial court orders the signatories to an arbitration agreement to arbitrate, while staying the matter as to the nonsignatory plaintiffs’ sole claim for attorney malpractice. Defendants appeal from the order staying the nonsignatory plaintiffs’ attorney malpractice claim until after arbitration. Defendants appeal. Mouradian... Continue reading
No Good Deed Goes Unpunished . . . Here, the Court of Appeal reverses the order affirming the arbitrator’s award because the arbitrator, distinguished retired judge Eli Chernow, failed to timely disclose that he had attended the memorial service for attorney Steven Knowles, who “was directly implicated in the legal... Continue reading
Appellants’ Argument That There Was An “Implied Oral Understanding” Didn’t Cut It With The Court Of Appeal The arbitration clause in our next case began: “NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE ‘ARBITRATION’ PROVISION DECIDED... Continue reading
Want A Postponement? Gotta Ask For It An arbitrator’s failure to timely disclose a basis for disqualification and an arbitrator’s failure to grant a reasonable continuance in the proceedings may be grounds for vacating an arbitration award. Both issues were at play in Lawyers’ Mutual Insurance Company v. Law Offices... Continue reading
Court of Appeal Was Unable To Find Precedent On Whether CCP 1284.3, Pertaining To Consumer Arbitrations, Applies To Employer-Employee Arbitrations, And Reaches Its Own Conclusion On March 12, 2014, I posted about an earlier Court of Appeal decision involving the same parties and the same arbitration agreement as here, in... Continue reading
Also,There Was No Basis Here For Sending The PAGA Representative Claims To Arbitration Rather Than Court In Jones v. J.C. Penney Corporation, Inc., Case No. B246674 (2/4 Sept. 5, 2014) (Edmon, Willhite, Manella) (unpublished), plaintiff brought a representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA),... Continue reading
Beware The Pleading Admission! “ "Beware the Jabberwock, my son! The jaws that bite, the claws that catch!” Plaintiffs/Respondents alleged Defendants/Appellants misrepresented they could raise sponsorship financing necessary for Plaintiffs to produce reality television shows, produced the show entitled “The Players Club” at considerable expense, and learned the financing was... Continue reading
A Statement of Decision Couldn’t Have Hurt Appellants Here The facts are somewhat odd here. Defendants/Appellants were involved in a fee dispute with Plaintiff/Respondent, a law firm. Defendants moved to compel arbitration, while arguing that the parties’ agreement, governed by the Los Angeles County Bar Association rules, did not allow... Continue reading
The Divergent Outcomes Are Explained By The Peculiar Facts (Of Course) 1. Cruise v. Kroger Co., B248430 (2/3 Aug. 27, 2014) (Aldrich, Klein – third member of panel unavailable). Employer Kroger Co., parent of Ralphs, which had loaded an arbitration policy with one-sided provisions favoring the employer, moved to compel... Continue reading
It All Depends On What “Waiver” Means In United Health Centers Of The San Joaquin Valley, Inc. v. Superior Court of Fresno County, Case No. FO67763 (5th Dist. Aug. 25, 2014) (Gomes, Kane, Detjen), Dr. Jennifer Vradenburg-Haworth, the Real Party in Interest, sued her employer UHC in a wrongful termination... Continue reading