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calmediation
Southern California
Business Litigator, Mediator
Recent Activity
"This Appeal Comes Down To Application Of The Standard Of Review." While I have blogged many times about cases in which the Court of Appeal has reversed an order denying a motion to compel arbitration, this is not one of those cases. T3 Motion, Inc. v Tsumpes, G053654 (4/3 11/14/17)... Continue reading
A Mistake By The Trial Court Did Not Affect The Outcome. Client Nussbaum and attorney Liberty had a fee dispute that they arbitrated pursuant to the Mandatory Fee Arbitration Act (MFAA). The arbitration panel awarded Liberty $75K in fees and $30K in interest. After the notice of the award was... Continue reading
Mediator Dennis S. Klein Makes Case For Creating A Mediation Department In Your Law Firm. In a November 14, 2017 article available through Law360 and LexisNexis, Dennis S. Klein, owner of Miami-based ADR firm Critical Matter Mediation, advocates "The Case For Creating A Mediation Department At Your Law Firm." Mr.... Continue reading
Waiver, Invited Error, And Sharp Practices Doom The Appeal. Justice Ikola grabs the reader by the lapels in the opening lines of Diaz v. Professional Community Management, Inc., G053909 (4/3 certified for pub. 11/8/17) (Ikola, O'Leary, Aronson): "A 'sharp practice' is defined as a 'dealing in which advantage is taken... Continue reading
Trial Judge's Refusal To Continue Hearing On Motion For Summary Judgment Was An Abuse Of Discretion. You know that plaintiff/appellant Richard A. Denton had a very bad day in the trial court when the trial judge says: "Now, what can I do for you?" and the Court of Appeal comments,... Continue reading
What Does "Generally" Mean? Pristine Environments Inc. v. Signet Jewelers Limited et al., D071394 (4/1 10/13/17) (Nares, Benke, O'Rourke) (unpublished) involves an interesting wrinkle to the question: who decides the issue of arbitrability? Case law holds the issue of arbitrability is decided by the Court, absent clear and unmistakable evidence... Continue reading
An Unenforceable Settlement: Vitatech Held Stipulation To Enter Judgment For $300K After Defendant Defaults On One-Time Payment of $75K Is An Unenforceable Penalty. On October 3, 2017, I posted about Vitatech International, Inc. v. Sporn, G053477, a Fourth District, Division Three opinion. Unpublished at the time, the case was certified... Continue reading
But Procedural Unconscionability Was Low. After Diaz and Martinez filed suit for various employment-related claims, their employer Hutchinson moved unsuccessfully to compel arbitration, and appealed. Diaz et al. v. Hutchinson Aerospace & Industry, Inc., et al., B271563 (2/8 10/27/17) (Flier, Bigelow, Rubin) (unpublished). The Court of Appeal followed the template... Continue reading
Sutter County Only Had A Duty To Provide An Opportunity For Arbitration Review Of Termination Decision, Not To Provide Review. Sutter County. January, 1942. Lee Russell, photographer. Marileeann Simpson holds a pan of vegetables freshly gathered from her family's garden at the FSA (Farm Security Administration) farm workers community. Yuba... Continue reading
Court Of Appeal Affirms Trial Court's Order Denying Employer's Motion To Compel Arbitration. Notwithstanding the trend in the SCOTUS, (and as the immediately preceding post demonstrates, in Congress too), to enforce arbitration agreements, many California Courts of Appeal continue to vigilantly scrutinize arbitration agreements for unconscionability. Baxter v. Genworth North... Continue reading
The Congressional Vote Furthers De-Regulation Of Wall Street. In a NYT article entitled, "Consumer Bureau Loses Fight to Allow More Class-Action Suits," Jessica Silver-Greenberg reports about the October 24, 2017 vote in the Senate to roll back a rule written by the consumer bureau and previously intended to go into... Continue reading
Because Application Of State Labor Code Provision Required Interpretation Of The Collective Bargaining Agreement, Federal Preemption Applied, Requiring Adherence To Grievance Procedure In CBA. San Francisco Giants baseball team plays the Chicago Cubs at AT&T ball park in San Francisco, California. 2012. Carol M. Highsmith, photographer. Library of Congress. General... Continue reading
Same Was The Case If The Arbitrator Awarded Nonrecoverable Costs. Without saying the arbitrator made a mistake, the Court of Appeal explains in Dyna, LLC v. GreatCall, Inc., D071003 (4/1 10/10/17) (McConnell, Haller, O'Rourke) (unpublished), "even if the arbitrator erred by ignoring the res judicata effect of a prior arbitration... Continue reading
Epic Systems Corp. And Consolidated Cases Pit FAA Against NLRA. Does the right to arbitrate a case under the Federal Arbitration Act trump the right of employees to engage in concerted activity under the National Labor Relations Act by filing a class action lawsuit against an employer? Oral argument in... Continue reading
Under What Circumstances Could Predispute Arbitration Agreements Properly Subject PAGA Claims To Arbitration? The arbitrability of PAGA claims continues to generate court opinions. In Christman v. Apple American Group II, LLC, B271937 (2/4 10/4/17) (Manella, Epstein, Collins) (unpublished), the Court notes that Iskanian v. CLS Transportation Los Angeles, LLC, 59... Continue reading
Admission Of Liability For Underlying Claims Or For Damages Alleged Might Have Made A Difference. Stipulations to enter judgment upon default for an amount that is larger than an agreed-upon settlement payment continue to confound judges, attorneys, and parties. In Vitatech International, Inc. v. Sporn, G053477 (4/3 9/29/17) (Aronson, Bedsworth,... Continue reading
After Trial Court Found 2013 Agreement To Arbitrate "Unconscionable", Employer Turned To A 2008 Agreement. After employee Hackney left Arbitech and went to work for a competitor, PNH, Arbitech sued Hackney and PNH for misappropriation of trade secrets and other claims, and the defendants cross-complained. Hackney filed an individual and... Continue reading
San Francisco Trolley Operator's Writ Petition And Motion To Vacate Go Off The Rails. San Francisco Trolley on Market St. 2012. Carol M. Highsmith, photographer. Library of Congress. Appellant's procedural quagmire is underscored by the following statement of the Court of Appeal: "In a somewhat puzzling argument, appellant contests his... Continue reading
Oh, And An Attempt At Incorporation By Reference Failed To Create An Arbitration Agreement. Lennar Corporation v. General Security Indemnity Company of Arizona, G053418 (4/3 9/28/17) (Fybel, Aronson, Ikola) (unpublished) involved a dispute between a developer, Lennar, and its excess insurer, General Security, arising after a "drywall product manufactured in... Continue reading
Arbitrator Acted Beyond Powers Because Award Violated Party's Statutory Rights And Clearly Defined Public Policy. Instead of initiating arbitration, a party subject to an arbitration agreement chooses to file a lawsuit when a dispute arises. Has the party breached the arbitration agreement? And if the arbitrator issues an award by... Continue reading
A Couple Of New Tidbits From SCOTUS Blog. Amy Howe posted again in SCOTUSBlog on September 25, 2017, about the upcoming hearing on October 2 of Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, cases requiring SCOTUS to... Continue reading
In Pro Per Appellant Struggled With Appeals Process. Plainitff Denardo, in propria persona, sued Defendant Givens for damages in a dispute arising from a real estate transaction. With the assistance of counsel, Givens and Denardo mediated their dispute and entered into a written settlement agreement. Denardo received an initial settlement... Continue reading
A Cold Draught . . . John Margulies, photographer. 1984. Library of Congress. Did you know that in 2007 California enacted special legislation requiring that when a beer brewer replaces a distributor, the successor brewer's designated replacement distributor must negotiate in good faith, and failing that, arbitrate, "to determine the... Continue reading
Bridge Player Could Not Be Compelled To Arbitrate With American Contract Bridge League. Only yesterday I blogged about another "existence of arbitration agreement" case, Noor v. Katz. Here comes another one, Blakely v. American Contract Bridge League, A150382 (1/1 9/20/17) (Dondero, Margulies, Banke) (unpublished). These cases are actually surprisingly common.... Continue reading
Headline Of Article In The Economist Neatly Sums Up The Stakes: "Can Companies Block Employees' Class-Action Lawsuits?" Steven Mazie has authored an article in the September 20, 2017 online edition of The Economist about the competing interests at stake in the three arbitration cases that SCOTUS will hear on October... Continue reading