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Business Litigator, Mediator
Recent Activity
As Arbitration Clauses Proliferate, So Too Do Motions Concerning Enforcement Of Those Clauses. I have not done a statistical study, but it is certainly my perception that in recent years there is more and more law and motion practice concerning the enforceability of arbitration clauses in California courts. First, the... Continue reading
No Appeal From Order Denying Motion To Vacate Arbitration Award. The Court of Appeal dismissed an appeal without prejudice in Porter v. AG Arcadia, LLC, No. B276183 (2/5 2/28/17) (Turner, Kriegler, Kin) (unpublished). Defendants appealed from an order denying a motion to vacate an arbitration award. The problem? "No appeal... Continue reading
A Variety Of Articles Discuss Mediation And Arbitration In March 20, 2017 Special Report. A March 20, 2016 Special Report of The New York Law Journal covers diverse topics including collaborative divorce, a proposed New York rule that might make arbitration "truly confidential", diversity in ADR, solving interpersonal problems in... Continue reading
Vacating The Award Would Have Required That The Arbitrator Be Actually Aware Of A Ground For Disqualification That The Arbitrator Did Not Disclose. ECC Capital, a former client of Manatt, Phelps & Phillips, LLP (Manatt) appealed from a superior court judgment confirming a final arbitration award of almost $7M against... Continue reading
The Employee Brought A Single Cause Of Action For PAGA Violations. At first blush, Betancourt v. Prudential Overall Supply, E064326 (4/2 March 3, 2017) (Miller, Ramirez, McKinster), another opinion holding that PAGA claims cannot be arbitrated (more about the holding), is unremarkable. However, there are interesting points in the case... Continue reading
Reaching A Result Justice Scalia Would Have Approved By Means He Would Not Have Approved? Edith Roberts is the author of a very interesting March 6, 2017 post in Scotusblog about an otherwise bone dry topic, entitled, "Judge Gorsuch's arbitration jurisprudence." Our takeaway: "[A] look at the arbitration rulings Gorsuch... Continue reading
A Modest Proposal That Mediation May Be The Best Way To Tackle Disputes Among Clients Who Are Jointly Represented. In the latest issue of Orange County Lawyer (March 2017, Vol. 59, No. 3, p. 46), the publication of the Orange County Bar Association, I have written an article entitled, "Mediating... Continue reading
Case Is A Reminder That Ordinary Constitutional Guarantees Of Due Process Do Not Automatically Exist In Private Arbitration. The Court of Appeal's summary of the facts in our next case provides a clear sign that it is headed towards a reversal – the interesting part is how it arrives at... Continue reading
Argument Is Summarized In SCOTUSblog. On February 23, 2017, Professor Ronald Mann of Columbia Law School provided argument analysis in SCOTUSblog of yesterday's oral argument in Kindred Nursing Centers Limited Partnership v. Clark. By the tenor of the argument, which appears to have been hostile to Kentucky's position that the... Continue reading
The Important Distinction Is Whether Fraud In The Inducement Applies To The Contract Or To The Arbitration Clause. Though unpublished, Milder v. Holley, B267974 (2/5 1/31/17) (Kumar, Kriegler, Baker) has facts that neatly clarify an important gateway issue: does a judge or an arbitrator get to decide whether there was... Continue reading
The Arbitration Clause Analyzed By The Court Is Common In Automobile Sales Contracts. The Arbitration Clause analyzed in Raczynski v. Daland Nissan, Inc., et al., A146992 (1/5 2/15/17) (Bruiniers, Jones, Needham) (unpublished), provides that the arbitrator's award "shall be final and binding on all parties, except that in the event... Continue reading
Where Statutory Violations Are Alleged, Presumption Of Arbitrability Applying To Contractual Disputes Arising Out Of A Collective Bargaining Agreement Does Not Apply. Collective bargaining agreements (CBAs) are a different animal requiring close scrutiny when the question of arbitrability arises in an employment dispute. In Vasserman v. Henry Mayo Newhall Memorial... Continue reading
Panel Rejects Employee's Arguments That Six Provisions Are Unconscionable, Requires Severance Of "Judicial Carve-Out" Provision, And Punts On "Reaffirmation Clause" Provision. Poublon v. C.H. Robinson Company, et al., No. 15-55143 (9th Cir. 2/3/17) (Ikuta, Callahan, Bea) is an opinion that employers will likely cite when arguing against employee claims that... Continue reading
Whether Referee Or Trial Court Decided The Case Would Have Made No Difference, Because The Case Was Decided Correctly. It was the last 1 ½ pages of this published 27 page slip opinion that caught our attention, because it referred to appointment of a referee, and reference is one of... Continue reading
Woody Allen Principle: "80% Of Life Is Showing Up." Northeast elevation - Woody Allen Road Bridge, Spanning Oothalooga Creek at County Road 316, Adairsville, Bartow County, Georgia. Library of Congress. In Newman v. The Ramona Terrace Community, LLC, No. E066400 (4/2 2/3/17) (Codrington, Hollenhorst, Slough) (unpublished), the Court holds: "Because... Continue reading
Two Years Later . . . On January 7, 2015, we posted about Montano v. The Wet Seal Retail, Inc., B244107 (2nd Dist. Div. 4 1/13/15) (certified for pub.). This is a Private Attorneys General Act case following the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th... Continue reading
This Is A Railway Labor Act Preemption Case. Alaska Airlines v. Schurke, et al., No. 13-35574 (9th Cir. 1/25/17) is not about the merits of whether a flight attendant gets to use her vacation time to care for her sick child – a Washington state agency had ruled in her... Continue reading
Customer Agreement With Verizon And Samsung Product And Safety & Warranty Agreement In The Box Failed To Bind Plaintiff To Arbitrate. In Norcia v. Samsung Telecommunications America, LLC, et al., No 14-16994 (9th Cir. 10/17/17) (Ikuta, Thomas, Bea), Judge Ikuta provides in depth analysis of whether a 101 page brochure... Continue reading
March 4, 1865 And March 4, 1921. Pres. Abraham Lincoln taking the oath of office at his second inauguration. Library of Congress. VP Calvin Coolidge and Pres. Warren G. Harding. Library of Congress. Continue reading
Ninth Circuit Case of Morris v. Ernst and Young Is One Of The Three Cases. On December 9, 2016, I linked my article on "The Politics of Arbitration" to this blog. In that article, I predicted, "Morris [v. Ernst and Young] could serve as a springboard for sending divergent opinions... Continue reading
A Trap For The Unwary . . . Kum Tat Limited v. Linden Ox Pasture, LLC, No. 14-17472 (9th Cir. 1/13/17) (Hurwitz, Lucero, Graber) presents a trap for the unwary. Plaintiff Kum Tat Limited sued in California state court in connection with its attempted purchase of residential property for approximately... Continue reading
The Setting: Dispute Is More Than Ten Years Old, This Is Second Appeal, And There's Still Plenty Of Fight Left In the Old Boys . . . Early on the Court's opinion oozes frustration: "As much as we are loathe to drag on this protracted litigation any longer, we conclude... Continue reading
Employer Cannot Compel Employee To Arbitrate Individual Aspects Of PAGA Claim While Maintaining Representative Claim In Court. We blogged about Hernandez v. Ross, E064026 (4/2 1/3/17) on December 8, 2016. Hernandez is one more California case holding that a court cannot split a representative PAGA claim into arbitrable and non... Continue reading
Just Because There Is An Arbitration Provision, Don’t Take The Existence Of An Arbitration Agreement For Granted . . . The mere existence of a contractual provision requiring arbitration does not mean that the parties have established the existence of an agreement to arbitrate the claims between the parties. At... Continue reading