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Business Litigator, Mediator
Recent Activity
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 Sept. 19, 2014) (Mihara, Elia, Grover) (unpublished).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
Mark D. Gough Of The Cornell University School Of Industrial & Labor Relations Has Studied The Outcomes Mark D. Gough has published in the Berkeley Journal of Employment and Labor Law the results of a study of some 700 employment discrimination cases – and the results are striking, whether looked... Continue reading
A Progression: From Shrink Wrap To Browsewrap To Clickwrap Contracts Above: Shrink wrapped helicopters to be shipped to Iraq. US Navy photo, Bart Jackson. Wikimedia Commons. In a case that will be important to e-commerce merchants, and on-line consumers, a Ninth Circuit panel holds that Barnes & Noble’s website provided... Continue reading
Popping Affirmative Defenses Without Adequate Notice Surprised Plaintiffs The employer here tried to gut plaintiff’s efforts to certify a class of 53 individuals in a wage dispute by producing evidence that “44 of those individuals had settled their claims or agreed to arbitrate their claims against the defendant.” The employer... Continue reading
Fair Play and Safe Workplaces Executive Order Is Announced July 31, 2014 One of the impactful judicial trends in recent years has been the expanded use of arbitration in employment disputes. Counter to that judicial trend is the recent Executive Order announced July 31, 2014 by the White House. Section... Continue reading
Opinion Addresses Substantive Versus Procedural Arbitrability – And Who Gets To Decide Kurt Knutsson, aka Kurt the CyberGuy, and his company, Woojivas, Incorporated, filed claims against KTLA, LLC, a television broadcaster, for breach of contract, misappropriating CyberGuy’s name and likeness, unfair business practices, and age discrimination. The company brought a... Continue reading
Court Agreed With Trial Court That Parties’ Arbitration Agreement Expressly Excluded Statutory Claims From The Arbitration Obligation. On July 14, 2014, I blogged about Rebolledo v. Tilly’s, Inc., in which the Court of Appeal, 4th District, Division 3, affirmed the trial court’s order denying an employer’s motion to compel arbitration... Continue reading
In Which An In Pro Per Defendant/Appellant Takes On Adam Sandler’s Corporation . . . HP, a company owned by Adam Sandler, employed McDonald as a nanny for his children. When her employment ended, she entered into a confidential settlement agreement, and as a result, $48K was paid to her,... Continue reading
Plaintiff Alston, the founder of GB, brought a private equity firm into GB in exchange for the firm’s investment in GB to help build the company. Fast forward -- Alston is terminated by GB as a director, and sues GB and two executives, alleging misrepresentation, declaratory relief, defamation, interference, and... Continue reading
Permeated With Unconscionability, Agreement Did Not Require Severance. Mr. Ryan, an employee in the construction industry, claimed that he was fired in a retaliatory move by his employer. The employer petitioned to compel arbitration. The trial court denied the request, finding the mandatory employment arbitration agreement contained unconscionable provisions, and... Continue reading
Waiver Is Contrary To Public Policy And PAGA Dispute Is Between Employer And The State. “The sole issue presented on appeal is the enforceability of a waiver of the right to bring a representative action . . . under PAGA . . . That issue has recently been resolved against... Continue reading
Stipulated Judgment May Not Have Contained Magic Words, But It Was Sufficient To Express Parties’ Intent To Waive Confidentiality And Allow Enforcement Daly v. Oyster, B249255 (2/1 July 29, 2014) (Chaney, Johnson, Wiley) (published) deals with that nettlesome situation that sometimes arises after mediation when papers are not filed with... Continue reading
Employer Did Not Waive Its Right To Arbitrate Wage Claim And So Trial Court’s Order Denying Employer’s Motion To Compel Arbitration Is Reversed Fremont Automobile Dealership, LLC, A137266 (1/2 July 23, 2014) (Richman, Kline, Brick) (unpublished) addresses the still somewhat murky relationship between the interaction of an arbitration agreement and... Continue reading
Here, the landlord-tenant dispute arose because the tenant’s husband tragically died in an automobile accident, sometime after which rent payments ceased. The parties arbitrated their claims, and the arbitrator awarded $180,000 to landlord, discounting landlord’s claims of nearly $1.3M in damages chiefly because landlord failed to properly mitigate damages. The... Continue reading