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Business Litigator, Mediator
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Dissent Argues That Classwide Arbitrability Is A Gateway Question The Court Should Get To Decide. The courts have treated gateway arbitrability issues concerning the existence of an arbitration agreement and the scope of the agreement as “gateway” issues for the courts to decide, whereas so-called procedural issues are to be... Continue reading
. Panel Holds That Lengthy Amount of Time Litigating In Federal Court “Will Almost Inevitably” Cause Parties To Expend More Time, Money, And Effort Than Had They Proceeded Directly To Arbitration. In Martin v. Yasuda, No. 15-55696 (9th Cir. 7/21/16) (Reinhardt, Wardlaw, Bennet), defendants, a cosmetology school and its principal,... Continue reading
Roger Ailes/Gretchen Carlson Dispute May End Up In Arbitration. Empirical studies support the perceptions of employees that they do better in court than in arbitration. See, for example, the study by Alexander Colvin of Cornell: “An Empirical Study of Employment Arbitration: Case Outcomes and Processes.” Roger Ailes’ defense team knows... Continue reading
Third-Party Non-Signatory Owed Duties Under Labor Code To Plaintiff, Independent Of Plaintiff’s Contract. Zepeda v. Paramount Citrus Packing Company LLC, F071593 (5th Dist. 7/14/16) (Pena, Levy, Smith) (unpublished) distinguishes two situations: (1) a plaintiff whose relationship with a third-party non-signatory merely presumes the existence of a contract; and (2) a... Continue reading
If You Like This Blawg, Please Put In A Good Word For Us With The ABA’s Annual Search For Best Legal Blawgs. Dear Readers: Each year the ABA publishes an annual list of best legal blogs. If you read this blawg and think others should know about it, please let... Continue reading
The Subjects Are Appellate Mediation And Mediating Employment Disputes With Small Business Owners. The July 2016 edition of Orange County Lawyer includes two worthwhile articles about mediation. Rethinking the Impossible: Appellate Mediation. By the time a case is on appeal, many attorneys and their clients view a case as far... Continue reading
Case Held That Arbitration Agreement Between Indiana Based Distance-Learning Partnership And California Licensed Vocational Nurses Was Unconscionable. We can report that on July 8, 2016, Magno v. The College Network, Inc., D067687 (4/1 6/14/16) (McConnell, Nares, O’Rourke), a case we posted about on June 22, 2016, was ordered for publication.... Continue reading
Interview In Orange County Lawyer Is Summarized Today In California Attorney’s Fees Blawg. My colleague Mike Hensley and I publish a blawg about California Attorney’s Fees. A post today (July 10, 2016) in that blawg summarizes highlights of an interview appearing in the July 2016 edition of the Orange County... Continue reading
Notwithstanding the trend in SCOTUS to uphold arbitration agreements, including waiver of class arbitration, our next two unpublished cases show that the California courts look closely at arbitration agreements, sometimes enforcing and sometimes not enforcing arbitration agreements. On the same day, one California Court of Appeal reversed an order denying... Continue reading
The Three Immutable Rules Of Appellate Practice. “When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and... Continue reading
Presiding Justice Turner Respectfully Dissents. The Fifth Circuit, Division Two, holds that because a law firm’s cause of action to compel arbitration with its client “admitted the existence of a binding agreement to arbitrate the fee dispute, the trial court’s jurisdiction over the merits of plaintiff’s claims was initially limited... Continue reading
For Preemption Purposes, “Involving Commerce” In The FAA Is Broader Than “In Commerce”, Making It Easy To Find Preemption. Physicians don’t like to defend medical malpractice cases in front of juries, and Scott v. Yoho, B265641 (2/5 6/22/16) (Turner, Kriegler, Kumar) will make it easier for them to arbitrate malpractice... Continue reading
The Daily Journal Has Provided A Link To Louie Castoria’s Article Entitled “Mediation confidentiality: a wall against malpractice claims or a sieve?” Louie Castoria, a partner at Kaufman Dolowich & Voluck LLP, and a mediator, has authored an article suggesting we may take a bit too much for granted about... Continue reading
Nor Was The Agreement Illusory Just Because The Agreement Provided The Employer Could Change It At Any Time. In Harris v. Tap Worldwide, LLC, B262504 (2/5 6/22/16) (Turner, Kriegler, Kumar) (certified for partial publication, except part III(C) covering unconscionability), the Court determined that, notwithstanding that the arbitration agreement was unsigned,... Continue reading
Indiana Forum Clause Was Important Factor In Finding Of Substantive Unconscionability. The Fourth District, Division One, concludes the trial court correctly determined the arbitration provision between an Indiana-based company soliciting business in California, and California residents, who were Licensed Vocational Nurses seeking to become Registered Nurses, was unconscionable. Magno v.... Continue reading
Court Looks At Evolution Of Class Action Waiver Law In California For Help Construing Meaning Of The Contractual Language. In 2011, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) held the Discover Bank rule, invalidating a class arbitration waiver, had been preempted by the Federal Arbitration Act. After Concepcion,... Continue reading
Employer Claimed Appeal Was Based On Entire Record, But Failed To Provide Court With Entire Record. Employer ICC Collision Centers, Inc. appealed the trial court’s order denying its motion to compel its employee Ogannesian to arbitrate his wage/hour claims. The trial court had concluded that the employer waived its right... Continue reading
What Does It Mean For An Arbitration To “Have Been Had In Accordance With The Terms Of The Agreement” When A Party Is Unable To Pay Arbitration Fees? We revisit a recurring problem that occurs in arbitration. In federal court, a party successfully moves to compel arbitration under the FAA,... Continue reading
Arbitrator Made Disclosures “In Abundance of Caution.” One basis for vacating an arbitration award is when the arbitrator’s denial of a postponement results in substantial prejudice. Another basis for vacating an award is when the arbitrator is obligated to disqualify himself and fails to do so. In McElvany, Inc. v.... Continue reading
Brodeur v. Atlas Entertainment, Inc. Makes For Entertaining Reading. Sometimes I stumble across a case having nothing to do with the subject of this blog, yet I feel compelled to share. “The principal issue in this case is whether a statement made by a ‘slightly unhinged’ character in a motion... Continue reading
Second District, Division One Provides In-Depth Discussion Of Whether Arbitration Clause Is Broad Or Narrow. An issue that comes up repeatedly is whether an arbitration clause is broad enough to encompass tort claims. Our next case, certified for publication, is worth reading because it offers an in-depth analysis of how... Continue reading
Course Of Conduct By The Parties Weighed Heavily In Construing Their Conduct. North County Communications of Arizona v. Qwest Corporation, No. 14-35254 (9th Cir. May 31, 2016) (Scannlain, Silverman, Bea) involves two communications carriers, North County and Qwest, in a messy billing dispute, construction of their “interconnection agreement” (ICA), and... Continue reading
Because Defendant Introduced Key Evidence In Supplemental Declaration, Rather Than In Moving Papers, Court Had To Address The Burden Of Proof. Yes, it happens. Sometimes, a published case deserving a post escapes my net. However, Espejo v. Southern California Permanente Medical Group, (2nd Dist. Div. 4 2016) (Collins, Epstein, Willhite),... Continue reading
Court of Appeal Distinguishes Between Service For Purposes Of Notice And Service For Purposes Of Jurisdiction. Claimants appealed a judgment entered after the trial court granted the petition of insurer GEICO to confirm an award in its favor in an uninsured motorist case where there were questions about coverage. GEICO... Continue reading
Tip From Appellate Justices: Address The Basis Of The Trial Court’s Ruling When You Appeal. The trial court sustained a demurrer of respondent Sabet to appellant Kavandi’s first amended cross-complaint, without leave to amend, leading to this appeal. Sabet v. Kavandi, No. G050886 (4/3 May 23, 2016) (Bedsworth, Aronson, Thompson)... Continue reading