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Business Litigator, Mediator
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Labor Code Section 229 Expressly Provides Wage Claims Were Not Subject To Arbitration. When state law provides a statutory exemption from arbitration, it’s not enough to assert Federal Arbitration Act preemption: “A party seeking to enforce an arbitration agreement has the burden of showing FAA preemption.” Lane v. Francis Capital... Continue reading
Richard Chernick, Esq. of JAMS Has Written “A Primer On Arbitrability”. I have posted frequently about “gateway” arbitrability issues, including recent developments concerning gateway arbitrability issues in class and representative actions, and distinctions between substantive and procedural gateway arbitrability issues. See my posts of November 17, 2014, and October 13,... Continue reading
PAGA Is A Representative, Not A Class Action, And So Judge Gets To Decide Whether PAGA Action Is Subject To Arbitration. Defendant and employer Garden Fresh Restaurant Corporation petitioned for a writ of mandate seeking a writ directing the trial court to vacate part of an order leaving it to... Continue reading
Where Federal Preemption Applies, The Employee’s Contract Cannot Deprive The Employee Of A Benefit – Such As The Right to File a Lawsuit Instead Of Arbitrating – If The Collective Bargaining Agreement Provides The Benefit. Denying employer’s motion to compel arbitration, and both parties’ sanction motions, the trial judge explained:... Continue reading
Lack Of Consent Is The Problem With The Arbitration Agreement Here. In an opinion authored by Judge Pregerson, the Ninth Circuit reverses the district court’s order dismissing a putative class action and granting Sirius XM Radio Inc.’s motion to compel arbitration. Knutson v. Sirius XM Radio Inc., No. 12-56120 (9th... Continue reading
Legal Rationale Forming The Basis For The Trial Court’s Ruling Has Been Abrogated By Iskanian. The California Supreme Court held in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014) that Gentry v. Superior Court had been abrogated by the SCOTUS decision in AT&T Mobility LLC v. Concepcion,... Continue reading
Consent To Contract Must Be Free, And An “Unsound Mind” Is Related To Concept Of Consent. In an unpublished opinion, the Court of Appeal has affirmed the trial court’s order denying a nursing facility’s petition to arbitrate, because the plaintiff lacked mental capacity to enter into the arbitration agreement. Rodriguez... Continue reading
California Code Of Civil Procedure Section 1298, Applying To Real Estate Purchase Agreements, Is Preempted By The FAA In Transactions Involving Interstate Commerce. Plaintiff Loeffler appealed from a judgment entered after the trial court confirmed an arbitration award in favor of plaintiff Shea Homes Limited Partnership. The award resulted in... Continue reading
The Article Is About Two Extraordinary Cases In Which Judges Exercised The Summary Contempt Power. Thanks to the generous permission of California Litigation, The Journal of The Litigation Section, State Bar of California, “Summary Contempt and Due Process: England, 1631, California, 1888” is now available on my website by clicking... Continue reading
Denying All Discovery In Arbitration Of Professional Malpractice Claims Is Unconscionable. Surgery scalpels. 1878. Library of Congress. The Second District, Division Four, has affirmed the trial court’s finding of unconscionability, but concludes that unconscionability may be cured through severance in an arbitration of professional malpractice claims. Lateral Link Group v.... Continue reading
How To Avoid Drafting An Unconscionable Arbitration Agreement. We usually summarize opinions, but here, the Court of Appeal does a good job itself of summing up how to draft an enforceable arbitration provision in an employment agreement. The case is Woods v. JFK Memorial Hospital, Inc., G050286 (4/3 Oct. 30,... Continue reading
Arbitrator Did Not Exceed Powers Or Commit Misconduct. We see many cases in which a party seeks to vacate an award on the grounds the arbitrator exceeded his or her powers. This is usually an uphill battle, as it was in our next case. The plaintiff received an arbitrator’s award... Continue reading
It Helps To Be Able To Identify The Parties To An Arbitration Agreement ! As the next case illustrates, sometimes the basics can trip one up when it comes to enforcing an arbitration agreement. Plaintiff filed a complaint alleging medical malpractice related to her sister’s death after lap band surgery.... Continue reading
Result Follows Iskanian, And Court Of Appeal’s Disposition Provides Trial Court With Roadmap For Trying The PAGA Claim. The Supreme Court directed the 6th District to vacate its previous decision in Brown v. Superior Court, 216 Cal.App.4th 1302 (2013), and to reconsider in light of Iskanian v. CLS Transportation Los... Continue reading
Waiver Of Arbitration Results In Affirmance Of Denial Of Petition To Arbitrate. The Court of Appeal affirmed denial of a petition to compel arbitration, finding substantial evidence to support appellant’s waiver of a right to arbitrate its dispute. LPT Properties, LLC v. Wystein Opportunity Fund, LLC et al., G048803 (4/3... Continue reading
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