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Business Litigator, Mediator
Recent Activity
Party Seeking Arbitration Only Has Initial Burden Of Establishing Prima Facie Case Of Existence Of Arbitration Agreement. In a dispute concerning student debt, plaintiff student argued defendant loan servicer failed to establish the dispute was encompassed by the arbitration agreement. Reversed: “In denying defendant’s petition to compel arbitration, the trial... Continue reading
Incorporation By Reference Of AAA Rules Is The Key Here. Plaintiffs, who worked as armed security guards, brought an employment class action against their employers Universal Protection Service, LP and Universal Services of America, Inc. (UPS). After the trial court denied UPS’ motion to compel individual arbitration, while staying the... Continue reading
State Law Unconscionability Principles Are Not Preempted By The Federal Arbitration Act – So Long As They Do Not Uniquely Target Arbitration Agreements. Carlson v. Home Team Pest Defense, Inc., A142219 (1/4 Aug. 17, 2015) (Ruvolo, Reardon, Streeter) (certified for publication) affirms an order denying an employer’s motion to compel... Continue reading
Court Distinguishes Imburgia v. DIRECTV, Inc., Case Pending Before SCOTUS. Automobile purchases and leases have generated quite a few disputes about the enforcement of arbitration clauses. Exhibit 1: The Sanchez case decided by the California Supreme Court on August 3, about which I posted on August 4, 2015. We have... Continue reading
Judgment Confirming Arbitration Award And Postjudgment Order Awarding Attorney Fees Are Reversed. One of this blog’s sidebar categories is “Nonsignatories,” because many cases address whether nonsignatories to arbitration agreements can nevertheless be compelled to arbitrate either because they are third-party beneficiaries of the agreement, or because they have a special... Continue reading
Application of Concepcion Is Decisive. At last, the California Supreme Court has decided Sanchez v. Valencia Holding Company, LLC, S199119 (Cal. Sup. Ct. Aug. 3, 2015) (Liu, J., author). The case has been pending since Defendant and Appellant Valencia filed its petition for review on January 4, 2012. The majority... Continue reading
An Uncertain Future In California: The Arbitrability Of Statutory Representative Actions Brought For The Benefit Of The Public. Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, my article “Can Private Attorney General Actions Be Forced Into Arbitration?” is now available... Continue reading
SingerLewak LLP v. Gantman Contains Excellent Discussion Of The “Public Policy Exception” That Sometimes Permits Judicial Review Of An Arbitrator’s Decision – But Not Here. It is well-established that arbitrators do not exceed their powers just because they assign an erroneous reason for their decision. Therefore, the vast majority of... Continue reading
Rule For Arbitration Awards Is Different From Rule For Judgments In North Beach Partners, LLC v. Sollner, A139893 (1/4 July 27, 2015) (Rivera, Ruvolo, Reardon) (unpublished), a hotly contested real estate dispute, the superior court granted a motion to amend a judgment and add additional judgment debtors as alter egos... Continue reading
“Exotic” Choice Of Law Clause Is The Key To This Case. Stained glass in Neiman Marcus store, San Francisco. Carol M. Highsmith, photographer. 2012. Library of Congress. Neiman Marcus drafted an ingenious choice of law clause that the First District, Division Four, describes as “exotic” – perhaps a euphemism for... Continue reading
Contract Must Be Construed As A Whole So As To Give Effect To Every Part, If Reasonably Practicable Rodriguez v. Oto, 212 Cal.App.4th 1020 (2013) held language unambiguously releasing “all persons” from liability extended to third parties, entitling a stranger to summary judgment that the stranger had been released, in... Continue reading
The Disqualification Outcome Hinges On Whether The Attorney-Settlement Officer Received Confidential Information Bird’s-eye view of the Great Wall of China. Jean E. Norwood, photographer. 1979. Library of Congress. Attorney Banuelos participated as a settlement officer on a “CRASH” panel mediating an employee-employer dispute in Los Angeles Superior Court. “CRASH” stands... Continue reading
The Waiver Of A Right To Assert PAGA Claim In Any Forum Is Unenforceable And The Claim Cannot Be Split. Iskanian v. CLS Transportation Los Angeles, LLC is still binding precedent, and an employee cannot be required to waive a representative PAGA claim in any forum. But can an employee,... Continue reading
14-Month Period From Filing Of Original Complaint To Filing Of Motion To Compel Is Insufficient To Support Waiver, Absent Showing Of Prejudice Khalatian v. Prime Time Shuttle, Inc., Case No. B255945 (2/8 June 9, 2015) (Grimes, author; Bigelow concurring, Flier concurring and dissenting) (published) nicely bookends our penultimate post on... Continue reading
“Less-Than-Candid ‘Chronology of Pertinent Events Underlying Appeal’” Chafes Court. In Oregel v. PacPizza (1/2 June 1, 2015) (Richman, Kline, Stewart) (published), the Court of Appeal had no trouble affirming the superior court’s order denying Appellant PacPizza’s petition to compel arbitration. More than enough evidence of a high level of litigation... Continue reading
Arbitration of Unlawful Group Boycott Claim Under California Cartwright Act Was The Juicy Florida Choice Of Law Law Issue. HCF Insurance Agency v. Patriot Underwriters, Inc., Case No. B257715 (2/5 May 27, 2015) (unpublished) involved a dispute between plaintiff insurance broker, and defendant program administrator/underwriter, partially governed by an arbitration... Continue reading
1991 Amendment To Title VII Facilitates Waiver Of Statutory Remedies In Favor Of Arbitration “Before 1991, ‘Title VII had been interpreted to prohibit any waiver of its statutory remedies in favor of arbitration. Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1304 (9th Cir. 1994). But Congress reversed... Continue reading
From Queen Padmé Amidala To Ruth Bader Ginsburg . . . Every now and then we get the irresistible urge to blog about something that has nothing whatsoever to do with mediation and arbitration. Today, the “off topic” item comes from Amy Howe’s Monday round up on SCOTUSblog, reporting Natalie... Continue reading
Arbitration Provision Clearly Applied To Litigation, But Not To Earlier Transactional Work. Nordman Cormany Hair & Compton, formerly in business for 75 years in Ventura County, appealed an order denying its petition to compel arbitration of a legal malpractice lawsuit. Aggeler v. Nordman Cormany Hair & Compton, B253566 (2/6 April... Continue reading
But Court Of Appeal Does Reject Arguments That Nonsignatories Lacked Standing And That They Waived Right To Compel Arbitration – Before Addressing “Crucial Issue Of Scope In Williams v. Digius, et al., D064183 (4/1 April 24, 2015) (McDonald, McConnell, Haller) (unpublished), the Court of Appeal agreed with appellants, who had... Continue reading
Court Shows No Sympathy For Circumstance Of Defendant/Appellant Whose Party Arbitrator Died. Here, the arbitration panel proceeded with arbitration after the death of defendant/appellant Mitchell’s party arbitrator, refusing to continue the hearing to permit Mitchell to select another party arbitrator. That sounds pretty harsh, but read on: “As troublesome as... Continue reading
Daily Journal Publishes My April 17, 2015 Article On The Perils Of Blogging Published by The Daily Journal on April 17, 2015, my article on the legal perils of blogging will interest those of you who blog, or who are considering blogging. With the permission of the Daily Journal, I... Continue reading
Scope Of Arbitration Provision Was Broad And Unconscionability Was Lacking. This case will be of interest to football fans, and maybe even to lawyers. Hanson v. Cable, A138208 (1st Dist. Div. 3 April 15, 2015) (Jenkins, McGuiness, Pollak) (unpublished). Plaintiff/appellant Randy Hanson sued The Oakland Raiders and its former head... Continue reading
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