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Business Litigator, Mediator
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And Application To Compel Arbitration Remains “Undetermined” As Long As Dissatisfied Party Is Pursuing Appellate Review. The Fourth District, Division 2 made short shrift of this case, issuing a peremptory writ of mandate directing the Superior Court of Riverside County to vacate its order denying petitioner Carmax’s motion to stay... Continue reading
Automobile Trade-In Goes Sideways. Above: Old car and truck outside the “Vehicles-You-Deserve” Used Car Dealership in Mesquite, Texas. Photographer: Carol M. Highsmith. 2014. Library of Congress. At first glance, this seems like a fairly common scenario. A daughter trades in her father’s used car for a new one, and payments... Continue reading
“Manifest Disregard Of The Law” Federal Standard For Vacating Award Worked To Employee’s Advantage Here. Our next case involves arbitration issues addressed in three forums: a Labor Management Committee, state courts, and federal district court. Plaintiff/Petitioner Wawock petitioned for a writ of mandate, seeking an order directing the superior court... Continue reading
Failure To Establish Existence Of Actual Agreements To Arbitrate With Any Class Members Dooms Effort To Compel Arbitration. How should one move to compel arbitration with members of a potential class who are parties to arbitration agreements giving them the opportunity to opt out of arbitration? Apparently, not the way... Continue reading
Article By Mediator/Arbitrator Paul Dubow Anticipates Arbitration Issues Arising From California AB 2617 And Proposes Solutions. Paul J. Dubow’s article, “ADR Update: Dealing with AB 2617”, appearing in California Litigation, volume 28, No. 1, 2015, anticipates FAA preemption issues arising from AB 2617, passed by the California Legislature in 2014,... Continue reading
Fourth District, Division Three Ruled Earlier In Citibank v. McGill That “Broughton-Cruz” Rule Fell Prey To Federal Arbitration Act Preemption. Fallen Prey. Circa 1934-39. Library of Congress. Under California’s “Broughton-Cruz” rule, arbitration provisions are unenforceable as against public policy if they require arbitration of Unfair Competition Law, False Advertising Law,... Continue reading
Easter Puck. Louis M. Glackens, artist. 1901. Library of Congress. Continue reading
Mediator Gallup Walloped For Failure To Exhaust Administrative Remedies. Family services mediator Emily Gallup complained to her supervisor and other court management about “insufficient time for mediation appointments, inadequate review of records and gathering of facts, failure to consider criminal histories, failure to advocate for the best interests of the... Continue reading
Deadlines: Lombard Knight v. Rainstorm Pictures, Inc., B253246 (2/1 March 25, 2015). In this case involving agreements to finance the production of motion pictures, Plaintiff sought to “confirm” a multi-million dollar arbitration award, while also asking to dismiss individuals, on the grounds that they had not been properly served, and... Continue reading
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