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Business Litigator, Mediator
Recent Activity
Opinion Clarifies Limited Role Played By Courts In Reviewing Labor Arbitration Awards. In Southwest Regional Council of Carpenters v. Drywall Dynamics, Inc., No. 14-55250 (9th Cir. May 19, 2016) (Berzon, Owens, Marbley), the Ninth Circuit reverses a district court order vacating an arbitration award in a labor case, along the... Continue reading
But Court’s Decision On Fee Award Is Vacated, Because There Was No Reasonable Basis For Assigning Different Hourly Rates To Two Attorneys. Baxter v. Bock, A142372, A142984, A143689 (1/1 May 18, 2016) (Margulies, Humes, Dondero) (unpublished) rather starkly illustrates the application of different standards of review to the arbitration award... Continue reading
Authenticity Of Agreement To Arbitrate Was Called Into Question. The Court of Appeal has affirmed the trial court’s denial of a petition to compel arbitration, concluding “that the trial court did not err in finding that appellants failed to establish that [respondent] signed the employment agreement.” Joyce v. Volt Management... Continue reading
Mandatory Mediation And Conciliation Is A Curio. The reason I post on this case is I thought it a curiosity, for those of use who do not practice in the area of union negotiations, that the California Labor Code, sections 1164 et seq., enables a process of “mandatory mediation and... Continue reading
A Matter Of Discretion. In the Matter of EPD Investment Co., No. 14-56478 (9th Cir. May 9, 2016) (Silverman, Graber, Dorsey) teaches that a core bankruptcy proceeding can take precedence over an arbitration agreement. The Trustee in a Chapter 7 bankruptcy filed an adversary proceeding against defendant Kirkland, an attorney... Continue reading
But Arbitration Panel Did Not Exceed Power In Panoche Energy Center v. PG&E. RIPENESS Advertisement. c1869. Library of Congress. Under California law, parties to an arbitration can contractually limit an arbitrator’s powers, creating opportunities for vacating arbitration awards when the arbitrator exceeds the arbitrator’s powers – something not to attempt... Continue reading
Fish Story Weighed On Scales Of Justice Results In 2-1 Opinion. New Orleans writer and television personality Ronnie Virgets is served the house specialty, ice-cold oysters on the half shell, by Alma Griffin at Casamento's Seafood Restaurant in Uptown New Orleans, Louisiana. Carol M. Highsmith, photographer. Between 1980 and 2006.... Continue reading
Mediation Confidentiality Survived End Of Mediation. Above: Whispering. Masanobu Okumura. 1743. Library of Congress. Based on the confidentiality of communications made in the course of mediation, the Court of Appeal affirms a judgment dismissing a complaint for legal malpractice and breach of fiduciary duty. Biller v. Faber, No. B244232 (2/4... Continue reading
Rule Would Not Apply To Consumer Sectors Outside Bailiwick Of Consumer Financial Protection Bureau Jessica Silver-Greenberg and Michael Corkery, who have reported recently in the NYT about how arbitration clauses are spreading throughout consumer contracts, now report in the May 5, 2016 online edition of the NYT, that the Consumer... Continue reading
The Committee on Mandatory Fee Arbitration of the State Bar of California has two new Advisories on Mandatory Fee Arbitration (MFA) brought under the Business & Professions Code. Advisory 2016-01, replacing Advisory 2011-02, is about the application of the Statute of Limitations for MFAs. Advisory No. 2016-02, replacing Advisory 2003-01,... Continue reading
San Francisco-Based Mediator And Arbitrator Paul Dubow Has Reported On 18 California And Ninth Circuit Cases Related To ADR. In the 2015 Edition of the California Litigation Review, published by the Litigation Section of the State Bar of California, Paul Dubow has reported on “interesting and significant opinions relating to... Continue reading
In a March 29, 2016 post, Debra Cassens Weiss, writing for the ABA Journal, quotes the esteemed appellate judge Richard Posner: “The first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by... Continue reading
Dissent By Justice Rubin Emphasizes That Disclosure Rules Must Be Broader Than Disqualification Rules I have a sidebar category for “disclosures.” Perhaps I should add one for “disqualification”, because as the lengthy dissent of Justice Rubin explains in Safarian, Choi & Bolstad, LLP v. Minassian, No. B262526 (2/8 April 7,... Continue reading
The Exception To Arbitration Simply Restates Existing Law. The California Supreme Court has ruled that an employment agreement providing for arbitration of disputes, but authorizing the parties to seek preliminary injunctive relief in the superior court, does not make the agreement one-sided and substantively unconscionable, even if employers are more... Continue reading
Arbitral Award Was Properly Corrected To Take Into Account That Labor Code Section 1194 Is A One-Way Fee Shifting Award. California Attorney’s Fees posts today on Ling v. P.F. Chang’s China Bistro, Inc., Case No. H039367 (6th Dist. Mar. 25, 2016) (published), an employment law case in which the Court... Continue reading
Court Of Appeal Advises Online MerchantsTo Include Conspicuous Textual Notice With Terms Of Use. Consumers may be bound by arbitration provisions in internet “clickwrap” or “browsewrap” agreements – except when they are not – as was the case in Long v. Provide Commerce, Inc., B257910 (2/3 March 17, 2016) (Jones,... Continue reading
. . . In Which We Inaugurate A New Sidebar Category (Foreign Arbitration) And Petitioners Who Successfully Compelled Arbitration In District Court Lawsuit Concerning Coffee Franchise Dispute Get Roasted On Appeal. Our next case involves a dispute between an Italian corporation seeking to open a coffee franchise in the United... Continue reading
Federal Arbitration Act Did Not Apply Here. Applying a “sliding scale” analysis, the Court of Appeal found that a “moderate level” of procedural and substantive unconscionability required affirming the trial judge’s order denying defendant employer’s motion to compel arbitration. Carbajal v. CWPSC, Inc., G050438 (4/3 Feb. 26, 2016) (Aronson, Bedsworth,... Continue reading
A Different Story If Order Lifting Stay Had Been Accompanied By Appealable Order Or Judgment The scenario in our next case arises from a circumstance that is not so rare: one of the parties to arbitration refuses to pay the costs of arbitration. That can lead to the end of... Continue reading
When Court Dispute Is Bifurcated By Arbitration Agreement, Pay Careful Attention To Scope Of Arbitration Agreement. . . Vlahopouliotis v. Vallarta Properties, LLC, Case No. G069832 (5th Dist. Feb. 1, 2016) (unpublished), presents an interesting scenario: Plaintiff and Defendant, owners of different parcels in a shopping center, ended up in... Continue reading
When Court Dispute Is Bifurcated By Arbitration Agreement, Pay Careful Attention To Scope Of Arbitration Agreement. . . Vlahopouliotis v. Vallarta Properties, LLC, Case No. G069832 (5th Dist. Feb. 1, 2016) (unpublished), presents an interesting scenario: Plaintiff and Defendant, owners of different parcels in a shopping center, ended up in... Continue reading
Also, Elder Abuse Claim Does Not Need To Be Arbitrated, Because That Could Lead To Conflicting Rulings. Nursing homes and assisted living facilities commonly enter into arbitration agreements with their residents. Suits by heirs or personal representatives for claims of wrongful death and elder abuse have spawned litigation concerning the... Continue reading
Under California Law, Where Party Challenges An Entire Contract As Illegal Or In Violation Of Public Policy, The Question Of Enforceability Is For The Court To Decide. A substantial fee dispute between Sheppard, Mullin, Richter & Hampton, LLP and its client J-M Manufacturing Co., Inc., resulted in an arbitrator’s award... Continue reading
DLA Piper Rudnick Gray Cary US LLP Had Standing To Enforce Arbitration Agreement. One of our more prolific sidebar categories is “Nonsignatories.” Quite a few disputes have been spawned when a nonsignatory to an arbitration agreement seeks to enforce it, under various theories that include incorporation by reference, assumption, agency,... Continue reading