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Business Litigator, Mediator
Recent Activity
Mediator Jill Switzer Comments On The Recent Proposal Before The California Law Revision Commission To Loosen Mediation Confidentiality Statutes. On August 30, 2015, I posted that on August 7, 2015, the California Law Revision Commission directed staff “to begin the process of preparing a draft of a tentative recommendation that... Continue reading
Party Wishing To Enforce Right To Have Settlement Agreement Interpreted By Arbitrator Ought To Have Sought Enforcement Before Same Issues Were Submitted To Court For Adjudication On The Merits. The underlying dispute in Kurtin v. Elieff, G049556 (4/3 Sept. 2, 2015) (Rylaarsdam, Aronson, Fybel) (unpublished) was a messy partnership buyout... Continue reading
Court of Appeal’s Jurisdiction To Authorize Publication Expired. Just yesterday, in the preceding post, I reported the Court of Appeal, Second District, Division 8, had authorized publication of SingerLewak v. Gantman, a case offering an excellent discussion of the so-called “public policy exception” that, when it is found it exist,... Continue reading
An Arbitrator Implying A Geographic Limitation Under Bus. & Prof. Code Section 16602 Did Not Violate An Important Public Policy, And Thus Did Not Expose The Arbitral Award To Judicial Review. On July 31, 2015, I posted about SingerLewak, LLP v. Gantman, B259722 (2/8 July 29, 2015; pub. Aug. 31),... Continue reading
Proposed New Exception To Mediation Confidentiality Statutes Would Utilize In Camera Screening Process. On August 7, 2015, the California Law Revision Commission directed staff “to begin the process of preparing a draft of a tentative recommendation that would propose an exception to the mediation confidentiality statutes (Evid. Code sections 1115-1128)... Continue reading
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