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calmediation
Business Litigator, Mediator
Recent Activity
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
Material Amendment To A Footnote? On September 11, 2016, we posted about the Uber Drivers cases, Mohamed v. Uber Technologies, Inc., et al., and Gillette v. Uber Technologies, Inc., Nos. 15-16178 and 15-16181 (9th Cir. 9/7/16). The 9th Circuit opinion penned by Judge Clifton held that the issue of arbitrability... Continue reading
Ordinarily, Denial Of A Motion To Compel Arbitration Is Appealable – But Not Here, And The Court Explains Why . . . Hayward Renaissance Walk Corporation v. Olson Urban Housing, LLC, A148372 (2/1 12/20/16) (Margulies, Humes, Dondero) (unpublished) does something satisfying that we like cases to do: it makes sense... Continue reading
Two Separate Agreements, Rather Than One Fully Integrated Agreement, Governed The Relationship Between The Parties. Pacific Interventionalists, Inc. v. Pedes Orange County, Inc., G052815 (4/3 12/116/16) (O’Leary, Fybel, Ikola) (unpublished) delves into the application of the parol evidence rule to an agreement containing a promise to arbitrate. In order to... Continue reading
The Key: Close Reading Of Provision Providing For Arbitration If Reference Became “Legally Unavailable.” The short but interesting opinion in Freeman v. Froehlich Signature Homes, Inc., F073374 (5th Dist. 12/15/16) (Levy, Gomes, Kane) (unpublished), merits close reading, because it reads like a finely-worded exam question. In a construction defect lawsuit,... Continue reading
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Limitations On Discovery Did Not Make Arbitration Unconscionable, Because The Limitations Applied Equally. A vintage downtown beauty parlor, part of the Ackley Heritage Center that also includes an old-time soda fountain as well as prairie houses and farm buildings on the outskirts of town in Ackley, Iowa. 2016. Carol M.... Continue reading
How Liberal And Conservative Justices On The US Supreme Court Have Parted Ways Over Arbitration Cases. My article entitled, "The Politics of Arbitration", appears in California Litigation, The Journal of the Litigation Section, State Bar of California, Vol. 29, No. 3, 2016. As my article explains, arbitration has become one... Continue reading
In The Fifth Circuit, D.R. Horton Inc. v. NLRB, 737 F.3d 344, Is Dispositive. In an unpublished opinion, Citigroup Technology, et al. v. NLRB, 15-60856 (5th Cir. 12/8/16) (per curiam), the Fifth Circuit grants Citigroup’s Petition for Review, and reverses the NLRB’s decision adverse to Citigroup, which seeks to enforce... Continue reading
Hernandez v. Ross Stores Lines Up With Other California Cases Refusing To Split PAGA Claims Into Arbitrable And Non-Arbitrable Parts. In Hernandez v. Ross Stores, Inc., No. E064026 (4/2 12/7/16) (Miller, Hollenhorst, Slough) (unpublished), the Court of Appeal upholds the trial court’s denial of an employer’s motion to compel arbitration... Continue reading
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Court Describes Appeal As “A Tempest In A Teapot.” Teapot with cherry or plum blossoms. Between 1750 and 1850. Library of Congress. California has a convenient procedure for enforcing settlement agreements: Code of Civil Procedure, section 664.6. This allows a court to retain jurisdiction of a dismissed case for the... Continue reading
NYT Article Describes Bank’s Use Of Arbitration With Customers Complaining About Creation Of Sham Accounts. Above: Wells, Fargo & Co.'s Express Office, C Street, Virginia City. 1866. Library of Congress. The NYT, which ran a series of articles in 2015 critical about the spread of arbitration, has published an article... Continue reading
It’s Not Exactly The Same As Skipping Mediation In A Home Sale Purchase In California . . . . California courts have established that the consequence of not requesting mediation before suing for breach of a California Association of Realtor’s residential purchase agreement is that the plaintiff will not recover... Continue reading
Absence Of A Record Was A Major Problem For Appellant. Law Offices of Mark Waecker, APC v. Pius Kim, B268212 (2/5 12/1/16) (Turner, Kriegler, Kumar) (unpublished) illustrates the proposition that an arbitrator’s decision is generally not reviewable for factual or legal errors. Moncharsh v. Heily & Blase, 3 Cal.4th 1... Continue reading
Acknowledgment Of Employee Handbook Is Not Necessarily Agreement To All Its Contents. Courts apply the rule requiring resolution of ambiguities against the drafting party “with peculiar force in the case of a contract of adhesion.” That’s what happened in Rollins v. Stack & Associates, CPAs, No. D069390 (4/1 11/30/16) (Nares,... Continue reading
Dealer Wanted To Go To Three-Arbitrator Panel After Receiving Adverse Arbitration Award, And Everyone Agreed That ADR Arbitral Forum Lacked “Appellate” Rules. So? Plenty of arbitration disputes arise from arbitration clauses in auto sales contracts and leases – hence our sidebar category, “Automobiles.”. Here’s an unusual one, based on fairly... Continue reading
Employer Sought To Distinguish Its Case Based On Specific Language Of Arbitration Clause . . . No Go. Williams v. Superior Court, 237 Cal.App.4th 642 (2015) recognizes that a representative action waiver of a PAGA claim is ineffective because the PAGA claim is not divisible into separate individual and representative... Continue reading
Mediation Of Dispute Between Brothers Drew Our Attention To This Case. Jogani v. Jogani, B268162 (2/1 11/25/16, mod. 11/28/16) (Chaney, Rothschild, Johnson) (unpublished) is about attorney disqualification and conflicts. The underlying dispute among the Jogani brothers appears to have been sliding up and down the California courts for fifteen years,... Continue reading
There Is No Absolute Bar To Discovery Of Information Designated Confidential In A Settlement Agreement. In 2007, Younan Properties entered into a settlement agreement with its CFO Thompson requiring confidentiality. Thompson had claimed that Younan Properties had engaged in unfair business practices, and wrongfully discharged him. In 2014, investors sued... Continue reading
Key Issue: Who Is A Third Party Within The Meaning of 1281.2(c)? Reger v. Glaser Weil Fink Howard Avchen & Shapiro, LLP, G052352 (4/3 11/22/16) (Aronson, Bedsworth, Ikola) (unpublished) shows how a party with an otherwise valid arbitration clause can be thwarted from arbitrating through the application of Cal. Code... Continue reading
Obama Administration Has Sought Change In Law To Prevent Educational Institutions Getting Federal Funds From Requiring Students To Sign Pre-Dispute Arbitration Clauses. Jillian Berman reports on July 22, 2016 in MarketWatch that students were able to sue Trump University in the courts because the students were not required to sign... Continue reading
The European Commission Has Deemed The Privacy Shield Framework Adequate To Enable Data Transfers To US Under EU Law. On July 12, 2016, the European Commission adopted the EU-U.S. Privacy Shield. I am blogging about this because it relates to transfer of data from the EU to the U.S., and... Continue reading
Mark D. Gough’s Study Seeks To Correct For Systematic Differences In Case Characteristics Between Arbitral And Court Forums. Back on August 19, 2014, I posted about Mark D. Gough’s study of arbitration outcomes arising from his research comparing employment discrimination cases heard in arbitration and civil litigation. At the time,... Continue reading