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Southern California
Business Litigator, Mediator
Recent Activity
Former Employee Did Not Sign Arbitration Clause, Denied Receiving Letter Where Employer Tried To Create A Ratification, And Subsequent Compensation Program Signature Did Not Evince An Agreement To Arbitrate. The facts of this case were hotly contested. Former employee, after 13 years with employer, was presented with a handbook containing... Continue reading
Different Tracks For Different Parties, Creating Chaos, Was Good Back-Up Reasoning For Denial. In Kim v. Kim, Case No. B283786 (2d Dist., Div. 8 June 13, 2018) (unpublished) (Rogan, J., Orange County Superior Court Judge sitting by assignment, concurred in by Rubin, Acting P.J. and Grimes, J.), defendants (all residential... Continue reading
Losing Plaintiff Claimed Arbitration Award Was “Manifest Disregard Of Law,” But This Was A Federal Standard Rather Than The More Limited State Standard Applicable To Review Of Arbitration Awards. HUB International Ins. Services v. Morales, Case No. E067095 (4th Dist., Div. 2 June 14, 2018) (unpublished) was an imbroglio involving... Continue reading
Marc's Review of Jeffrey Rosen's American Prophet: Louis D. Brandeis, Has Been Published in California Litigation. With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Jeffrey Rosen's book about Justice Louis D. Brandeis and his thought is made available... Continue reading
Appellate Court Accepted Delegation Of Arbitrability Gateway Determination To Arbitrator, But Found Uber’s Arbitrability Assertion Was “Wholly Groundless” Because Dispute Was Patently Beyond The Scope of Parties’ Arbitration Agreement. Smythe v. Uber Technologies, Inc., Case No. A149891 (1st Dist., Div. 3 June 8, 2018) (published) (Siggins, J., concurred in by... Continue reading
It Did Not Matter That Mechanic’s Lien Action Was Separate From Other Action Which Was Potentially Arbitrable. Von Becelaere Ventures, LLC v. Zenovic, Case No. D072620 (4th Dist., Div. 1 June 6, 2018) (published) (McConnell, P.J., concurred in by Huffman, J. and O’Rourke, J.) is an interesting case interpreting the... Continue reading
Rather, Agents Of Statutory Defendant Are Entitled To Benefit Of An Arbitration Agreement. In Hernandez v. AutoZone, Inc., Case No. B280206 (2d Dist., Div. 2) (May 30, 2018) (unpublished; Justice Victoria Chavez, concurred in by Justice Judith Ashmann-Gerst, A.P.J., and Justice Brian M. Hoffstadt), ex-employer AutoZone moved to compel arbitration... Continue reading
Arbitration Clause Was Infirm Because It Was A “Side Agreement” Neither Filed With Nor Approved By California’s Insurance Commissioner. Nielsen Contracting, Inc. v. Applied Underwriters, Inc., Case No. D072393 (4th Dist., Div. 1 May 3, 2018, modified on May 23, 2018) (published) (Haller, J., author, concurred in by McConnell, P.J.... Continue reading
FAA Collective Actions And Related State Law Class Actions Governed By Individualized Arbitration Proceedings Under Employment Contract. On May 21, 2018, the United State Supreme Court issued its decision in Epic Systems Corp. v. Lewis, 584 U.S. __, No. 16-285. SCOTUS decided that the FAA instructed federal courts to enforce... Continue reading
Appellate Court Found That Trial Judge Must Make Determination To Add Alter Ego Nonsignatory, With JAMS Rule Not Dictating A Different Result. Benaroya v. Willis, Case No. B281761 (2d Dist., Div. 4 May 17, 2018) (published) (Willhite, J., concurred in by Epstein, P.J. and Collins, J.) (yes, the matter did... Continue reading
Otherwise, Fees/Costs Recovery Could Be Forfeited; Best Is To Ask For An Interim Award On Merits And Reserve Other Issues For Later Interim Award. The next case really is a stark reminder to litigators to make sure an arbitrator reserves fees and costs issues for decision in a subsequent interim... Continue reading
Failure To Highlight Provision In Multi-Page Employment Handbook And To Notify Employees That Signing The Handbook With The Provision Could Forfeit Their Ability To Participate In The Existing Class Action Cemented The Unconscionability Conclusion. In law school, many of us got introduced to the notion of contractual unconscionability through the... Continue reading
Issue Deals With Whether Generalized Language Was Akin To Silence Under Stolt-Nielsen. In Stolt-Nielsen v. AnimalFeeds International Corp., 55 U.S. 662, 684, 687 (2010), the U.S. Supreme Court (SCOTUS) held that the differences between bilateral and class-action arbitration are too great to presume the parties’ mere silence on the issue... Continue reading
The Options: The Other Side Can Pay Arbitration Fees, Or The Matter Can Move To Court. "In its majestic equality," wrote Anatole France, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." So does this principle of equality mean... Continue reading
$78,154.49 In Unpaid Fees Plus $126,406.25 In Fees Plus $36,681.57 In Costs Plus $133,362.50 In Fees From Court For Motion To Compel And Motion To Confirm Award. On April 28, 2018, my colleague Mike Hensley posted on Caswell v. Jamgotchian, Case No. B271389 (2d Dist., Div. 3 Apr. 24, 2018)... Continue reading
Does Delegation To Arbitrator Of Arbitrability Issue Need To Occur Even If Arbitration Claim Is Wholly Groundless? In the April 18, 2018 on-line issue of ScotusBlog, under "Petition of the Day," Aurora Barnes posts: "Henry Schein Inc. v. Archer and White Sales Inc. 17-1272 Issue: Whether the Federal Arbitration Act... Continue reading
Court Of Appeal Couldn't Find Case Or Rule Preventing This Procedure. EHM Productions, Inc. v. Starline Tours of Hollywood, Inc., B281595 (2/2 3/28/18) (Chavez, Lui, Ashmann-Gerst), presents a situation that arises from time to time in arbitration: a prevailing party seeks to recover attorney's fees, costs, or both, after an... Continue reading
Most Of The Top Companies Have Arbitration Clauses, And More Than Half Have Class Action Waivers. Prof. Imre Szalai, Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law, has published an article entitled "The Widespread Use of Workplace Arbitration Among America's Top 100... Continue reading
Stormy Weather . . . Above: Video/recording: Comedian Harmonists Sing Quand Il Pleut (Stormy Weather/Ohne Dich). 1933. News about our latest reality show, Stephanie Clifford a.k.a. Stormy Daniels a.k.a. Peggy Peterson v. Donald J. Trump a.k.a. David Dennison, and Essential Consultants, LLC, LASC Case No. BC696568 (filed March 6, 2018)... Continue reading
Arbitrator Or Judge? SCOTUSBlog reports today that the Supreme Court has added an arbitration case to its next term: "New Prime Inc. v. Oliveira Docket No. Op. Below Argument Opinion Vote Author Term 17-340 1st Cir. TBD TBD TBD TBD OT 2018 Issues: (1) Whether a dispute over applicability of... Continue reading
Paul J. Dubow Provides Us With The Update. Paul J. Dubow is an experienced mediator and arbitrator in San Francisco. Mr. Dubow writes often about mediation and arbitration topics, serves as an editor for California Litigation, and has authored the arbitration section of the annual update of California law for... Continue reading
Gentry v. Superior Court: It's Alive, It's Alive! Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry) held that class action waiver provisions in a contract are unenforceable, and a motion to compel arbitration may be denied, where the so-called "Gentry factors" are satisfied, and it is determined that a... Continue reading
Washington And California State Law Unconscionability Analysis Are Different. DeGraff v. Perkins Coie California P.C. et al., A148405 (1/1 2/21/18) (Dondero, Humes, Banke ) (unpublished) applies Washington state law to analyze the enforceability of an arbitration provision in a dispute between an attorney and his former law firm. Reversing the... Continue reading
Settlement Agreement Incorporated Arbitration Clause In Licensing Agreement -- But Only Claims Arising Out Of Or In Connection With Any Provision In The Licensing Agreement Could Be Arbitrated. On February 9, 2018, we posted about Cirile v. Petersen-Dean, an unpublished case, in which incorporation by reference was too amorphous and... Continue reading
To Ask The Question Is To Answer It . . . My law professors seemed fond of that old chestnut, "to ask the question is to answer it." Once you know the question presented by the Court of Appeal in Douglass v. Serenivision, Inc., B277574 (2/2 2/18/18) (Hoffstadt, Lui, Chavez)... Continue reading