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Business Litigator, Mediator
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Stipulated Judgment May Not Have Contained Magic Words, But It Was Sufficient To Express Parties’ Intent To Waive Confidentiality And Allow Enforcement Daly v. Oyster, B249255 (2/1 July 29, 2014) (Chaney, Johnson, Wiley) (published) deals with that nettlesome situation that sometimes arises after mediation when papers are not filed with... Continue reading
Employer Did Not Waive Its Right To Arbitrate Wage Claim And So Trial Court’s Order Denying Employer’s Motion To Compel Arbitration Is Reversed Fremont Automobile Dealership, LLC, A137266 (1/2 July 23, 2014) (Richman, Kline, Brick) (unpublished) addresses the still somewhat murky relationship between the interaction of an arbitration agreement and... Continue reading
Here, the landlord-tenant dispute arose because the tenant’s husband tragically died in an automobile accident, sometime after which rent payments ceased. The parties arbitrated their claims, and the arbitrator awarded $180,000 to landlord, discounting landlord’s claims of nearly $1.3M in damages chiefly because landlord failed to properly mitigate damages. The... Continue reading
Law Concerning “Gateway Issues” Is Messy Court Of Appeal Also Had To Overcome Procedural Hurdle Of Appealability To Address The “Gateway” Procedural Issue So-called “gateway” issues concerning whether the parties have submitted a particular dispute to arbitration are generally decided by a judge, not an arbitrator, unless the parties have... Continue reading
Trial Judge Refuses To Appoint Retired Judge Who Mediated The Class Action Dispute As Temporary Judge Petitioner Luckey’s mediation of a class action lawsuit with defendants resulted in a settlement agreement pursuant to which the parties stipulated to appoint a temporary judge to hear the matter “until final determination thereof.”... Continue reading
Also, Burdens Upon The Employee Were Not So Great As To Make Arbitration Provision Unconscionable In our next case, the Court of Appeal, in a published opinion, reversed the trial court’s denial of a petition to compel arbitration. Galen v. Redfin Corporation, A138642 (1st Dist. Div. 1 July 21, 2014)... Continue reading
Declarants Lacked Personal Knowledge If you want to compel arbitration, it sure helps to have a signed arbitration agreement, as defendant Wells Fargo discovered in Bachenheimer v. Wells Fargo Bank, N.A., B251980 (2nd Dist. Div. 5 July 21, 2014) (Turner, Mosk, Mink) (unpublished). Plaintiff, who suffered from traumatic brain injury,... Continue reading
In Which The Trial Court Sums It Up Neatly For The Court Of Appeal. In Chan v. Delta Dental of California, A138402 (1st Dist. Div. 2 July 10, 2014) (Kline, Richman, Brick) (unpublished), a dental service provider sought to enforce an unsigned arbitration agreement based on an arbitration agreement that... Continue reading
Just A Matter Of Contract Interpretation Judges must relax a little when they can say, as does Justice O’Leary, the author of the next opinion, “The sole issue presented in this appeal is simply a matter of contract interpretation.” Rebolledo v. Tilly’s, Inc., G048625 (4th Dist. Div. 3 July 8,... Continue reading
Standard Of Review Pretty Much Ordained The Result Here, And Nothing Was Changed By Appealing This is one of those “Cain v. Abel” disputes, in which beneficiaries/brothers (Douglas and Martin Buser), fought over their parents’ family trust. It appears Douglas fought tooth and nail, but unsuccessfully, getting hit with attorney’s... Continue reading
Yesterday, June 23, 2014, the California Supreme Court agreed that an arbitration class action waiver in Iskanian v. CLS Transportation Los Angeles was enforceable. See my June 23 post. On the same day, the Ninth Circuit Court of Appeals agreed that class action waivers are valid – at least in... Continue reading
Iskanian Decision Yields Opinion Of Four, Plus Justice Chin, Concurring, Plus Justice Werdegar, Concurring And Dissenting In a much-awaited decision, the California Supreme Court has ruled that a state's refusal to enforce a class action waiver on grounds of public policy or unconscionability is preempted by the Federal Arbitration Act... Continue reading
Substitution Of New Named Plaintiff To Represent Class Didn’t “Restart The Clock”. In Jacoby v. Islands Restaurants, L.P., No. B250886 (2nd Dist. Div. 5 June 20, 2014) (Turner, Kriegler, Mink) (unpublished), the Court of Appeal ruled that substantial evidence supported the trial court’s finding that defendant employer had waived its... Continue reading
Dissenting Justice Would Have Waited For Further Guidance From Supreme Court On Pending Cases Nine plaintiffs sued their mortgage foreclosure consultant and others for fraud, breach of contract, and other claims, alleging they were duped into signing their agreements and lost money when they paid for services that were never... Continue reading
DOA: Neither Appellant Nor Respondents Were Able To Discover Copy Of A Written Agreement To Arbitrate It was undisputed that in the ordinary course of business, respondents required all employees to sign an arbitration agreement, and it was not clear why the appellant, Mr. Corselli "might have been an exception... Continue reading
Waiver Of Right To Arbitrate Does Not Require Voluntary Relinquishment Of Known Right Plaintiff sued 1-800-GET THIN and several other parties, after undergoing an endoscopic screening procedure for gastric band surgery and allegedly suffering injury. The trial court denied defendants’ petition to arbitrate, noting “delay and denial of discovery”, and... Continue reading
All Things Considered . . . Appellant Akin’s opening brief stated: “All things considered . . . it was assumed that the May 30th arbitration had been cancelled.” The lesson of our next case is that one who fails to show up for a scheduled arbitration hearing had better dot... Continue reading
How About Two Years – Is Two Years Good For You? Brothers appealed from a superior court order denying their petition to vacate several awards of an arbitrator with whom they were dissatisfied. They contended the arbitrator failed to disclose his professional relationship with opposing party’s counsel. In 2011, one... Continue reading
Maricopa County Waived Argument That Evidence Admitted To Show Settlement Should Be Privileged Under Federal Law 87 Yard Punt . . . In Wilcox v. Arpaio, No. 12-16418 (9th Cir. Feb. 2, 2014) (Tashima, Farris, Reinhardt), the Ninth Circuit avoids having to “determine whether a mediation privilege should be recognized... Continue reading
Quotation of the day I know, I know, this has nothing whatsoever to do with the subject of my blawg. And yet I couldn’t resist passing on this tidbit to you from one of yesterday’s unpublished cases decided by our local Court of Appeal: “There is one matter that requires... Continue reading
Recommended Reading: Post-Arbitral Award Investigation Of Bias. Paul J. Dubow, an arbitrator and mediator in San Francisco, asks whether post-award investigation can vacate arbitration awards in “ADR Update”, California Litigation (Vol. 27, No. 1 2014), p. 37. It is easy for an unhappy client’s attorney to do a Google search... Continue reading
Review Of Legal Error Here Was Job For Court Of Appeal Though an error in law or fact is not a basis for overturning an arbitrator’s award, in California, the parties by agreement can make the arbitrator’s award reviewable for legal error. Here, the parties agreed that the award was... Continue reading
Also, California Code of Civil Procedure, Section 1281.2, Did Not Prevent Arbitration, Because Federal Arbitration Act Applied And Preempted State Provision Defendants/appellants in the next case lost a petition to compel arbitration in the trial court. At first blush, they had waived their right to arbitrate, because they delayed bringing... Continue reading
Split Of Opinion In District Two Over Enforceability Of Delegation Clauses Poker game of construction workers at canteen, Shasta Dam. Russell Lee, photographer. 1939. Library of Congress. When Lourdes Tiri, a cook fired by Lucky Chances, a card-club casino and restaurant, sued her employer, the employer petitioned to compel arbitration.... Continue reading
AAA Clause Does Not Contain Required Prevailing Party Language Necessary For Fee Recover Under Civ. Code section 1717 In Fujian Peak Group, Inc. v. Huang, No. D063296 (4th Dist. Div. 1 May 15, 2014) (Huffman, McConnell, O’Rourke) (unpublished), defendant Huang was deleted from an arbitration award because he had neither... Continue reading