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calmediation
Business Litigator, Mediator
Recent Activity
When Court Dispute Is Bifurcated By Arbitration Agreement, Pay Careful Attention To Scope Of Arbitration Agreement. . . Vlahopouliotis v. Vallarta Properties, LLC, Case No. G069832 (5th Dist. Feb. 1, 2016) (unpublished), presents an interesting scenario: Plaintiff and Defendant, owners of different parcels in a shopping center, ended up in... Continue reading
When Court Dispute Is Bifurcated By Arbitration Agreement, Pay Careful Attention To Scope Of Arbitration Agreement. . . Vlahopouliotis v. Vallarta Properties, LLC, Case No. G069832 (5th Dist. Feb. 1, 2016) (unpublished), presents an interesting scenario: Plaintiff and Defendant, owners of different parcels in a shopping center, ended up in... Continue reading
Also, Elder Abuse Claim Does Not Need To Be Arbitrated, Because That Could Lead To Conflicting Rulings. Nursing homes and assisted living facilities commonly enter into arbitration agreements with their residents. Suits by heirs or personal representatives for claims of wrongful death and elder abuse have spawned litigation concerning the... Continue reading
Under California Law, Where Party Challenges An Entire Contract As Illegal Or In Violation Of Public Policy, The Question Of Enforceability Is For The Court To Decide. A substantial fee dispute between Sheppard, Mullin, Richter & Hampton, LLP and its client J-M Manufacturing Co., Inc., resulted in an arbitrator’s award... Continue reading
DLA Piper Rudnick Gray Cary US LLP Had Standing To Enforce Arbitration Agreement. One of our more prolific sidebar categories is “Nonsignatories.” Quite a few disputes have been spawned when a nonsignatory to an arbitration agreement seeks to enforce it, under various theories that include incorporation by reference, assumption, agency,... Continue reading
His Opinion Analysis Is Titled, “Justices rebuke California courts (again) for refusal to enforce arbitration agreement” -- And That About Says It All. On December 14, 2015, the United States Supreme Court decided DirecTV v. Imburgia, The SCOTUS syllabus states the holding: “Because the California Court of Appeal’s interpretation is... Continue reading
Ninth Circuit Panel Blames Employer For Not Making Good Faith Effort To Address Merits Of Dispute. SEIU United Health Care Workers-West v. Los Robles Regional Medical Center, No. 13-55672 (9th Cir. Dec. 3, 2015) (Pregerson, Parker, Nguyen) holds “that it is a breach of the duty of good faith performance... Continue reading
Relying On Common Law Principles Of Contract Formation, The Court Of Appeal Ducks Deciding Whether Failure To Comply With Statutory Provision Requiring Spanish Translation Of Contract Resulted In Unconscionability. Ordinarily, one who signs a contract without understanding its contents will nevertheless be bound by it, just as one who fails... Continue reading
Fees And Costs Provision In Consumer Arbitration Was Unconscionable Here. This case involves a common scenario in which a business sells a good or service that is financed, the business is unable to fully perform, and the lender seeks to enforce an arbitration provision when it gets sued. Here, the... Continue reading
“Have We Lost A Constitutional Right In The Fine Print?” On the November 12, 2015 edition of Fresh Air, Dave Davies interviews New York Times reporter Jessica Silver-Greenberg, co-author of the New York Times Special Report on arbitration. I have blogged about the series, as well as the retort by... Continue reading
U.S. Chamber Of Commerce Is Not Amused. On November 1 and 2, I reported on the NYT Special Report about arbitration – articles highly critical of the spread of arbitration. While the report is one-sided in its approach, it does serve to highlight the revolution that is quietly occurring in... Continue reading
Keep On Truckin’ . . . In Arbitration. We have posted before about the “Berman hearing”, named after Congressman Howard Berman, and providing workers with a procedure intended to provide “a speedy, informal, and affordable method of resolving wage claims” with the California Labor Commissioner. Under California law, it cannot... Continue reading
Yesterday I reported that the New York Times has kicked off its special report on arbitration with Part I, an article entitled “Arbitration Everywhere, Stacking the Deck of Justice.” The NYT has now moved on with Part II, “Privatizing Justice,” and Part III, “In Religious Arbitration, Scripture Is The Rule... Continue reading
The Article Is Critical of Enforcement Of Individual Arbitration In Situations Where Only A Class Action Can Be Economically Prosecuted. Jessica Silver Greenberg and Robert Gebeloff have authored a special report appearing in the New York Times online edition on October 31 and November 1, 2015, under the title: “Arbitration... Continue reading
A Circuitous Route To Publication. I posted about SingerLewak v. Gantman on July 31, August 31, and September 1, 2015. This is an interesting case discussing the so-called “public policy exception” that will sometimes justify review of an arbitral award by the superior court – though in the end, not... Continue reading
California Law Revision Commission Revisits Mediation Confidentiality At Its October 8, 2015 Meeting. I have previously posted about efforts to permit the introduction of evidence currently protected by mediation confidentiality. See my posts of August 30, 2015, and September 11, 2015. The California Law Revision Commission met on October 8,... Continue reading
ScotusBlog Analyzes Oral Argument Under Caption, “Justices have scorching criticism for California court’s refusal to enforce arbitration agreement, but debate their authority to correct it.” Columbia Law Professor Ronald Mann has authored both an October 2, 2015 preview of arguments in DIRECTV v. Imburgia and an October 7, 2015 analysis... Continue reading
Panel Holds the Federal Arbitration Act Did Not Preempt The California Rule Announced In Iskanian. By a 2-1 majority, a Ninth Circuit panel has reversed a district court’s order that had granted an employer’s motion to compel arbitration of claims and dismissed claims for civil penalties under the Private Attorney... Continue reading
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