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calmediation
Business Litigator, Mediator
Recent Activity
Arbitration/Employment/Enforcement/ Construction: Signed Acknowledgment of Employee Guidebook Failed to Establish Employee Was Bound By Arbitration Provision in Guidebook
Guidebook Disclaimers Were Self-Destructing In the next case, the Court of Appeal would not let the employer “have its cake and eat it too.” On the one hand, the employee Guidebook provided for arbitration. On the other hand, the employee Guidebook contained disclaimers that relieved the employer of contractual obligations.... Continue reading
Posted Apr 30, 2013 at California Mediation and Arbitration
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Arbitration/Employment/Unconscionability: Second District, Div. 7, Reverses Trial Court, and Finds Employment Agreement Arbitration Requirement Is Not Unconscionable
Court Uses Full Bag Of Tools To Save Arbitration Provision Life boat drill. Between ca. 1910 and ca. 1915. Library of Congress. The Courts of Appeal have many tools for interpreting arbitration provisions, including sliding scales for weighing unconscionability, incorporation by reference, application of the implied covenant of good faith... Continue reading
Posted Apr 28, 2013 at California Mediation and Arbitration
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Arbitration/CCP 1281.2: Allegations Defendants Are Agents of One Another Are Not Necessarily Judicial Admissions that Defendants Can Use to Compel Arbitration
Only Factual Allegations Admitted By The Opposing Party Count As Judicial Admissions Section II of our next case is certified for publication. It addresses the issue of when an allegation in a complaint that defendants are agents of one another is binding on plaintiff. The issue is relevant to arbitration,... Continue reading
Posted Apr 18, 2013 at California Mediation and Arbitration
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Arbitration/Consumers/FAA/Unconscionability: 9th Circuit Holds Arbitration Clause In Consumer Credit Contract Lacking “Holder Rule” Language Is Not Unconscionable, And Doesn’t Fall Under “Public Injunction” Exception to Arb
Posted Apr 12, 2013 at California Mediation and Arbitration
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Arbitration/Employment/Choice of Law/Preemption: Massachusetts Choice of Law Enables Court of Appeal to Uphold Denial of Petition to Arbitrate Employment Discrimination Claims
Waiver of Right to Trial of Employment Claims Was Not Clear and Unequivocal One of the hottest areas of contention concerning arbitration is the waiver of statutory rights through arbitration, and whether such a waiver is preempted under AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). In Harris v. Bingham... Continue reading
Posted Apr 8, 2013 at California Mediation and Arbitration
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Arbitration/Automobiles/Unconscionability: Arbitration Provision In Automobile Purchase Held Procedurally But Not Substantively Unconscionable
“Sliding Scale” Unconscionability Analysis Saves Arbitration Provision In a published decision, the Court of Appeal reverses the trial court’s denial of a petition to compel arbitration based on an automobile purchase contract. Vasquez v. Greene Motors, Inc., Case No. A134289 (1st Dist. Div. 1 March 27, 2013) (Margulies, Acting P.J.,... Continue reading
Posted Apr 7, 2013 at California Mediation and Arbitration
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Arbitration/Construction of Agreement: Agreement Providing Alternative of Arbitration Did Not Require Binding Mediation
Posted Apr 7, 2013 at California Mediation and Arbitration
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Arbitration/Scope/Costs: Arbitrator’s Failure To Declare Prevailing Party And Denial Of Statutory Costs To Winner No Ground For Reversal
Arbitration, Law, and Equity Our next case reminds me of a hoary legal story. Clarence Darrow handles a legal matter for William Randolph Hearst, and telegrams him: “Justice has prevailed.” Hearst’s reply: “Appeal immediately!” Appealing an arbitration result is often a long shot, because arbitration is more geared to equity... Continue reading
Posted Mar 23, 2013 at California Mediation and Arbitration
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Arbitration/Employment/Unconscionability: Second District, Division 8 Tanks Employment Arbitration Provision On Basis of Unconscionability
Main Problem is One-Sidedness of Arbitration Provision Compton v. Superior Court, Case No. BC448343 (2nd Dist. Div. 8 March 19, 2013) (published) starkly presents the conflicting views of judges confronted with deciding whether an employment arbitration provision is unconscionable. Leasa Compton appealed the order granting her former employer, American Management... Continue reading
Posted Mar 23, 2013 at California Mediation and Arbitration
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Mediation/Condition Precedent/Arbitration/Construction of Agreement: Fifth District Refuses To Compel Mediation And Agrees Arbitration Clause Is Unenforceable
Arbitration Clause Did Create Unilateral Right To Compel Arbitration, And There Was No Precedent To Compel Mediation Members of an LLC ended up in a business dispute leading to a lawsuit followed by defendants’ motion to compel mediation and arbitration. The trial court construed an arbitration agreement as insufficient to... Continue reading
Posted Mar 13, 2013 at California Mediation and Arbitration
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Arbitration/1281.2: Fourth District, Division 3 Affirms Denial Of Petition To Arbitrate Based On Risk of Inconsistent Rulings
The Inconsistent Rulings Could Have Resulted In Inconsistent Remedies – A Practical Consideration “The court, in a thorny litigation matter over technology licensing and investment fraud, denied a motion to compel arbitration of the issues arising under a cross-complaint. It held that there was an apparent risk of conflicting rulings... Continue reading
Posted Mar 13, 2013 at California Mediation and Arbitration
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News: NY Times Reports Supreme Court Unsympathetic To Argument That Arbitration Agreement Can Be Invalidated Because It Does Not Permit Class Arbitration Of Federal-Law Claim
The Case Argued On February 27 Is American Express Company v. Italian Colors Restaurant On November 20, 2012, I posted about American Express Company v. Italian Colors Restaurant, the case now before the Supreme Court in which merchants have challenged American Express’s practice requiring them to accept its credit cards... Continue reading
Posted Mar 3, 2013 at California Mediation and Arbitration
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Recommended Reading: Anatomy of a Mediation by James C. Freund
“A Dealmaker’s Distinctive Approach to Resolving Dollar Disputes and Other Commercial Conflicts” James C. Freund, former Skadden, Arps M&A transactional attorney turned mediator, is the author of the engagingly written and interesting new book Anatomy of a Mediation (Practising Law Institute 2012). Mr. Freund’s “anatomy” is a clinical tour, by... Continue reading
Posted Feb 24, 2013 at California Mediation and Arbitration
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Arbitration/Waiver/CCP 1281.2: Six-Year Delay In Seeking Arbitration Results In Waiver Of Right To Arbitrate
Posted Feb 23, 2013 at California Mediation and Arbitration
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Arbitration/Landlord and Tenant/Public Policy: First District, Division 1 Holds That Arbitration Clause In Rental Agreement Is Void As Against Public Policy
As A Result, Tenant Who Wants To Arbitrate Can’t California Code of Civ. Proc. section 1953(a) provides, “Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy:... Continue reading
Posted Feb 23, 2013 at California Mediation and Arbitration
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Mediation/Condition Precedent: Party Successfully Defending On Cross-Complaint Not Required To Mediate As Condition To Receiving Fees
Requirement to Mediate, Found in One Document, Applies to Integrated Transaction With Several Documents The teaching of Darton v. Park Vasona Gas, Inc., Case No. H037499 (6th Dist. Feb. 14, 2013) (Premo, Acting. P.J., author 3:0) (unpublished) is straightforward: if mediating is a pre-condition to collect attorney fees, one should... Continue reading
Posted Feb 16, 2013 at California Mediation and Arbitration
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Arbitration/Unconscionability/Arbitrability: Sixth District Rules Tort Claims, Including Battery, Are Arbitrable
Decision Reversing Trial Court’s Findings of Unconscionability and Non-Arbitrability of Tort Claims is Very Fact Specific – But Ruling On Tort Claims Is Worth Noting Bigler v. The Harker School, Case No. H037450 (6th Dist. February 6, 2013) (Elia, J., author 3:0) (published) is a reminder judicial determinations of unconscionability... Continue reading
Posted Feb 10, 2013 at California Mediation and Arbitration
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Arbitration/Nonsignatories/Equitable Estoppel: Ninth Circuit Puts Brakes On Toyota’s Attempt To Compel Prius Plaintiffs To Arbitrate Their Claims
District Court Could Decide Whether Nonsignatory Could Compel Arbitration Toyota has been enmeshed in arbitration concerning the ABS braking system of its 2010 Prius. In Kramer v. Toyota Motor Corporation, et al., Case No. 12-55050 (9th Cir. January 1, 2013) (Quist, D. J., author 3-0) (published), owners of 2010 Priuses,... Continue reading
Posted Feb 3, 2013 at California Mediation and Arbitration
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Arbitration/Consumers/Fees: Sorry, Wrong Number – Court of Appeal Rejects Cingular Wireless Customer’s Claim That Fees Incurred Successfully Opposing Arbitration Before Concepcion Was Decided Amounted To Damages
Concepcion Looms Large, As Court Summons “Large Animal” and “Tanker of Ink”Images For The Case -- And Its Wake The issue in Selby v. Cingular Wireless LLC, Case No. G045769 (4th Dist. Div. 3 January 29, 2013) (Bedsworth, J., author 3-0) (unpublished), was whether the customer of a cell phone... Continue reading
Posted Feb 3, 2013 at California Mediation and Arbitration
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Arbitration/Public Policy/Standard of Review: Licensing Requirement for Contractors Constitutes Explicit Legislative Expression of Public Policy, That If Not Enforced By Arbitrator, Constitutes Grounds for Judicial Review
Trial Court Must Conduct De Novo Review To Determine Whether Licensing Statute Requires Disgorgement of Compensation By Unlicensed Contractor Our next case addresses an important exception to the general rule that an arbitrator’s award cannot be vacated because of an error of fact or law: the “public policy exception.” The... Continue reading
Posted Jan 27, 2013 at California Mediation and Arbitration
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Arbitration/Construction of Agreements: Fourth District, Division 2 Concludes Subcontract Arbitration Clause Does Not Permit Contractor to Compel Arbitration of Payment Dispute
Result Here Depends Entirely On Contract Construction Of Prime And Subcontracts Our next case is entitled American Water Jetting, Inc., Plaintiff and Respondent, v. Highland Construction, Inc. et al., Defendants and Appellants, Case No. E054004 (Fourth Dist. Div. 2 January 25, 2013) (McKinster, J.) (unpublished). I don’t usually restate the... Continue reading
Posted Jan 26, 2013 at California Mediation and Arbitration
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Arbitration/Homeowners: California Supreme Court’s Pinnacle Museum Tower Association Case Disposes Of Enforceability of Arbitration Provision In CC&Rs In Verano Condominium Homeowners Association Case
Based On Holding of Pinnacle, Fourth District, Division 1 Reverses Order Of The Superior Court That Had Denied Developer’s Request To Arbitrate I posted on May 10, 2012 about Verano Condominium Homeowners Association v. La Cima Development, LLC, a 4th District Division 1 case, in which the Court of Appeal... Continue reading
Posted Jan 26, 2013 at California Mediation and Arbitration
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Arbitration/Disclosures: California Arbitration Act And Ethics Standards Require Arbitrator To Disclose A Lawyer In the Arbitration Is A Member Of The Dispute Provider Resolution Organization
California Code of Civ. Proc. Section 1281.9 Enumerates Specific Instances Where Disclosure Is Always Compelled Plaintiff appealed an adverse judgment affirming a medical malpractice decision in favor of defendant doctor, arguing arbitrator failed to make a necessary disclosure. The neutral arbitrator and defendant’s counsel failed to disclose that defendant’s counsel... Continue reading
Posted Jan 22, 2013 at California Mediation and Arbitration
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Arbitration/Homeowners: Fourth District, Division 1 Reverses Trial Court’s Order And Holds Arbitration Clause In Recorded Declaration Of Covenants, Conditions And Restrictions Is Valid
Pinnacle Museum Tower Association Dictates Result In Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC, 55 Cal.4th 223 (2012), the California Supreme Court held that arbitration clauses in recorded CC&Rs, requiring that a homeowners association arbitrate construction claims against a developer, are enforceable. See my August 16, 2012... Continue reading
Posted Jan 20, 2013 at California Mediation and Arbitration
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Arbitration/Employment/Waiver/FAA: First District, Div. 1, Affirms Judgment Compelling Employee To Arbitrate, Alone, With Macy’s Department Stores, Inc.
Court of Appeal Is Skeptical About Gentry, But Avoids Addressing Gentry Factors, Because Record Was Lacking Macy’s Department Store’s Flagship location in Manhattan, New York. Carol M. Highsmith Collection. Library of Congress. The issue of the enforceability of class action waivers and compulsory arbitration in employment disputes is before the... Continue reading
Posted Jan 20, 2013 at California Mediation and Arbitration
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