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calmediation
Business Litigator, Mediator
Recent Activity
A Statement of Decision Couldn’t Have Hurt Appellants Here The facts are somewhat odd here. Defendants/Appellants were involved in a fee dispute with Plaintiff/Respondent, a law firm. Defendants moved to compel arbitration, while arguing that the parties’ agreement, governed by the Los Angeles County Bar Association rules, did not allow... Continue reading
The Divergent Outcomes Are Explained By The Peculiar Facts (Of Course) 1. Cruise v. Kroger Co., B248430 (2/3 Aug. 27, 2014) (Aldrich, Klein – third member of panel unavailable). Employer Kroger Co., parent of Ralphs, which had loaded an arbitration policy with one-sided provisions favoring the employer, moved to compel... Continue reading
It All Depends On What “Waiver” Means In United Health Centers Of The San Joaquin Valley, Inc. v. Superior Court of Fresno County, Case No. FO67763 (5th Dist. Aug. 25, 2014) (Gomes, Kane, Detjen), Dr. Jennifer Vradenburg-Haworth, the Real Party in Interest, sued her employer UHC in a wrongful termination... Continue reading
Mark D. Gough Of The Cornell University School Of Industrial & Labor Relations Has Studied The Outcomes Mark D. Gough has published in the Berkeley Journal of Employment and Labor Law the results of a study of some 700 employment discrimination cases – and the results are striking, whether looked... Continue reading
A Progression: From Shrink Wrap To Browsewrap To Clickwrap Contracts Above: Shrink wrapped helicopters to be shipped to Iraq. US Navy photo, Bart Jackson. Wikimedia Commons. In a case that will be important to e-commerce merchants, and on-line consumers, a Ninth Circuit panel holds that Barnes & Noble’s website provided... Continue reading
Popping Affirmative Defenses Without Adequate Notice Surprised Plaintiffs The employer here tried to gut plaintiff’s efforts to certify a class of 53 individuals in a wage dispute by producing evidence that “44 of those individuals had settled their claims or agreed to arbitrate their claims against the defendant.” The employer... Continue reading
Fair Play and Safe Workplaces Executive Order Is Announced July 31, 2014 One of the impactful judicial trends in recent years has been the expanded use of arbitration in employment disputes. Counter to that judicial trend is the recent Executive Order announced July 31, 2014 by the White House. Section... Continue reading
Opinion Addresses Substantive Versus Procedural Arbitrability – And Who Gets To Decide Kurt Knutsson, aka Kurt the CyberGuy, and his company, Woojivas, Incorporated, filed claims against KTLA, LLC, a television broadcaster, for breach of contract, misappropriating CyberGuy’s name and likeness, unfair business practices, and age discrimination. The company brought a... Continue reading
Court Agreed With Trial Court That Parties’ Arbitration Agreement Expressly Excluded Statutory Claims From The Arbitration Obligation. On July 14, 2014, I blogged about Rebolledo v. Tilly’s, Inc., in which the Court of Appeal, 4th District, Division 3, affirmed the trial court’s order denying an employer’s motion to compel arbitration... Continue reading
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In Which An In Pro Per Defendant/Appellant Takes On Adam Sandler’s Corporation . . . HP, a company owned by Adam Sandler, employed McDonald as a nanny for his children. When her employment ended, she entered into a confidential settlement agreement, and as a result, $48K was paid to her,... Continue reading
Plaintiff Alston, the founder of GB, brought a private equity firm into GB in exchange for the firm’s investment in GB to help build the company. Fast forward -- Alston is terminated by GB as a director, and sues GB and two executives, alleging misrepresentation, declaratory relief, defamation, interference, and... Continue reading
Permeated With Unconscionability, Agreement Did Not Require Severance. Mr. Ryan, an employee in the construction industry, claimed that he was fired in a retaliatory move by his employer. The employer petitioned to compel arbitration. The trial court denied the request, finding the mandatory employment arbitration agreement contained unconscionable provisions, and... Continue reading
Waiver Is Contrary To Public Policy And PAGA Dispute Is Between Employer And The State. “The sole issue presented on appeal is the enforceability of a waiver of the right to bring a representative action . . . under PAGA . . . That issue has recently been resolved against... Continue reading
Stipulated Judgment May Not Have Contained Magic Words, But It Was Sufficient To Express Parties’ Intent To Waive Confidentiality And Allow Enforcement Daly v. Oyster, B249255 (2/1 July 29, 2014) (Chaney, Johnson, Wiley) (published) deals with that nettlesome situation that sometimes arises after mediation when papers are not filed with... Continue reading
Employer Did Not Waive Its Right To Arbitrate Wage Claim And So Trial Court’s Order Denying Employer’s Motion To Compel Arbitration Is Reversed Fremont Automobile Dealership, LLC, A137266 (1/2 July 23, 2014) (Richman, Kline, Brick) (unpublished) addresses the still somewhat murky relationship between the interaction of an arbitration agreement and... Continue reading
Here, the landlord-tenant dispute arose because the tenant’s husband tragically died in an automobile accident, sometime after which rent payments ceased. The parties arbitrated their claims, and the arbitrator awarded $180,000 to landlord, discounting landlord’s claims of nearly $1.3M in damages chiefly because landlord failed to properly mitigate damages. The... Continue reading
Law Concerning “Gateway Issues” Is Messy Court Of Appeal Also Had To Overcome Procedural Hurdle Of Appealability To Address The “Gateway” Procedural Issue So-called “gateway” issues concerning whether the parties have submitted a particular dispute to arbitration are generally decided by a judge, not an arbitrator, unless the parties have... Continue reading
Trial Judge Refuses To Appoint Retired Judge Who Mediated The Class Action Dispute As Temporary Judge Petitioner Luckey’s mediation of a class action lawsuit with defendants resulted in a settlement agreement pursuant to which the parties stipulated to appoint a temporary judge to hear the matter “until final determination thereof.”... Continue reading
Also, Burdens Upon The Employee Were Not So Great As To Make Arbitration Provision Unconscionable In our next case, the Court of Appeal, in a published opinion, reversed the trial court’s denial of a petition to compel arbitration. Galen v. Redfin Corporation, A138642 (1st Dist. Div. 1 July 21, 2014)... Continue reading
Declarants Lacked Personal Knowledge If you want to compel arbitration, it sure helps to have a signed arbitration agreement, as defendant Wells Fargo discovered in Bachenheimer v. Wells Fargo Bank, N.A., B251980 (2nd Dist. Div. 5 July 21, 2014) (Turner, Mosk, Mink) (unpublished). Plaintiff, who suffered from traumatic brain injury,... Continue reading
In Which The Trial Court Sums It Up Neatly For The Court Of Appeal. In Chan v. Delta Dental of California, A138402 (1st Dist. Div. 2 July 10, 2014) (Kline, Richman, Brick) (unpublished), a dental service provider sought to enforce an unsigned arbitration agreement based on an arbitration agreement that... Continue reading
Just A Matter Of Contract Interpretation Judges must relax a little when they can say, as does Justice O’Leary, the author of the next opinion, “The sole issue presented in this appeal is simply a matter of contract interpretation.” Rebolledo v. Tilly’s, Inc., G048625 (4th Dist. Div. 3 July 8,... Continue reading
Standard Of Review Pretty Much Ordained The Result Here, And Nothing Was Changed By Appealing This is one of those “Cain v. Abel” disputes, in which beneficiaries/brothers (Douglas and Martin Buser), fought over their parents’ family trust. It appears Douglas fought tooth and nail, but unsuccessfully, getting hit with attorney’s... Continue reading
Yesterday, June 23, 2014, the California Supreme Court agreed that an arbitration class action waiver in Iskanian v. CLS Transportation Los Angeles was enforceable. See my June 23 post. On the same day, the Ninth Circuit Court of Appeals agreed that class action waivers are valid – at least in... Continue reading
Iskanian Decision Yields Opinion Of Four, Plus Justice Chin, Concurring, Plus Justice Werdegar, Concurring And Dissenting In a much-awaited decision, the California Supreme Court has ruled that a state's refusal to enforce a class action waiver on grounds of public policy or unconscionability is preempted by the Federal Arbitration Act... Continue reading