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calmediation
Southern California
Business Litigator, Mediator
Recent Activity
Arbitration Awards: Time To Change "Award" And Add Attorneys Fees Did Not Expire, Because Award Was Not Final Award
This Case Is Must Reading For Determining Whether An Arbitrator's Ruling Is An Award. "As this case highlights, whether an arbitrator's ruling constitutes an 'award' is a significant event." Lonky v. Patel, B295314 consolidated with B297632 (2/2 7/2/20) (Hoffstadt, Lui, Chavez). Indeed. The arbitrator can continue to issue interim rulings... Continue reading
Posted 6 days ago at California Mediation and Arbitration
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Happy Independence Day 2020!
July 4th Fireworks In Washington, D.C. July 4, 2008. Carol M. Highsmith, photographer. Library of Congress. "A republic, if you can keep it." - Benjamin Franklin. Continue reading
Posted Jul 4, 2020 at California Mediation and Arbitration
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International Arbitration, Nonsignatories, Equitable Estoppel: SCOTUS Holds Enforcement Of Arbitration Agreement By Nonsignatory May Be Consistent With New York Convention
The US Supreme Court Was In Agreement About This One. The Supreme Court has held unanimously, with Justice Sotomayor concurring, that the "New York Convention does not conflict with the enforcement of arbitration agreements by nonsignatories under domestic-law equitable estoppel doctrines." GE Energy Power Conversion France SAS v. Outokumpu Stainless... Continue reading
Posted Jun 2, 2020 at California Mediation and Arbitration
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Arbitration, MFAA: CCA 1st Dist. Div. 4 Holds That A Malicious Prosecution Cannot Rest On An MFAA Arbitration, Reversing Trial Court
And Because The Malicious Prosecution Plaintiff Cannot Win, An Anti-SLAPP Motion By Defendant Succeeds. The holding of Dorit v. Noe, A157433 (1/3 5/26/20) (Brown, Pollak, Tucher) is that a malicious prosecution cause of action cannot be based on a mandatory fee arbitration act (MFAA) arbitration. Along the way to its... Continue reading
Posted May 29, 2020 at California Mediation and Arbitration
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Arbitration, Waiver: Failure To Affirmatively Seek Stay And Move To Compel Arbitration Results In Waiver Of Right To Arbitrate
A party that wishes to pursue arbitration must take “ ‘active and decided steps to secure that right’ . . ." Why? Because an arbitration agreement is not self-executing. In Fleming Distribution Company v. Alfons Younan, A157038 (3/1 5/15/20) (Petrou, Fujisaki, Jackson), Defendant/Appellant Fleming appealed from a trial court order... Continue reading
Posted May 28, 2020 at California Mediation and Arbitration
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Memorial Day: May 30, 1920, Cimetière Américain de Suresnes
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Posted May 25, 2020 at California Mediation and Arbitration
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Arbitration, Vacatur: CCA 2nd Dist Div 1 Affirms Trial Court, Refusing To Vacate Judgment
The Majority Opinion Is Chiefly A Reminder Of The Court's Limited Ability To Vacate An Arbitration Award. VVA-Two LLC v. Impact Development, Case No. B291330 (2/1 5/12/20) (Rothschild, Bendix; Chaney, dsst.), serves chiefly as a reminder of how limited the power of the court is to vacate an arbitration award.... Continue reading
Posted May 24, 2020 at California Mediation and Arbitration
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My Interview With Dean Erwin Chemerinsky About Governmental Powers And Covid-19 Now On YouTube
Because Covid -19 Is On Our Minds . . . My interview with Dean Erwin Chemerinsky of the University of California Berkeley School of Law about the constitutional and statutory powers of the government to address covid-19 streamed on YouTube on April 30. It is now available as a recording... Continue reading
Posted Apr 30, 2020 at California Mediation and Arbitration
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Arbitration, PAGA: Second District Div. 2 Affirms Order Granting Injunctive Relief To Prevent Arbitrating PAGA Claim
Did The Plaintiff Ask For Relief In His Individual Or Representative Capacity? Brooks v. Amerihome Mortgage Company, B298132 (2/6 4/9/20) (Tangeman, Gilbert, Perren), is one more case upholding the rule that employers cannot compel the arbitration of a Private Attorneys General Act of 2004 (PAGA) claim. The employer acknowledged that... Continue reading
Posted Apr 14, 2020 at California Mediation and Arbitration
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Reviews: The Second Founding By Historian Eric Foner
Your Blogger Has Reviewed Professor Eric Foner's Book, The Second Founding: How The Civil War And Reconstruction Remade The Constitution, in California Litigation. I've reviewed Eric Foners' book, The Second Founding. The book is about the legislative and political history of the 13th, 14th, and 15th Amendments, and the post-Civil... Continue reading
Posted Apr 7, 2020 at California Mediation and Arbitration
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International Arbitration: California Supreme Court Allows Service Of Process By FedEx On Chinese Company Where Parties Waived Formal Service Requirements Of Hague Service Convention
The Hague Service Convention Between The US And China Did Not Apply Because . . . The first sentence of an opinion is often an arrow pointing to where the court is headed. So it is in Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd., S249923 (Cal.... Continue reading
Posted Apr 7, 2020 at California Mediation and Arbitration
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I'm Mediating Via Videoconference During The Coronavirus Crisis
Mediating While Social Distancing -- I Am Doing It By Videoconferencing. During this difficult public health emergency, we have watched as courthouses have limited intake of cases to emergencies, and lawyers have turned to telecommuting. However, efforts to resolve cases through mediation have continued. I mediate state and federal cases,... Continue reading
Posted Apr 6, 2020 at California Mediation and Arbitration
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Arbitration, Unconscionability: Two Trial Courts Deny Motions To Compel Arbitration, Two Courts Of Appeal Affirm
Elders In Both Cases . . . Arbitration And An Elder Abuse Act Case. Dougherty v. Roseville Heritage Partners, et al., C087224 (3rd Dist. 3/30/20) (Krause, Murray, Hoch) is another of the many elder care facility cases in which the enforceability of an arbitration clause is at issue. Here, the... Continue reading
Posted Apr 5, 2020 at California Mediation and Arbitration
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Prof. Carrie Menkel-Meadow Speaks To The OC Bar ADR Section About Negotiating The US Constitution
In The Room Where It Happens . . . Howard Chandler Christy's Scene at the Signing of the Constitution (1940). Wikipedia article. Public domain. Prof. Carrie Menkel-Meadow, Distinguished and Chancellor's Professor of Law at UCI, spoke to the ADR Section of the Orange County Bar on February 24, 2020, about... Continue reading
Posted Feb 26, 2020 at California Mediation and Arbitration
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Reviews: Our Blogger Reviews McMillion$ In The Daily Journal
Review Of McMillion$ Appears In February 21, 2020 Issue Of Daily Journal. After watching the first two episodes of the HBO documentary mini-series, McMillion$, I reviewed it for the Daily Journal under the heading, "‘McMillion$’ evokes nostalgia for burgers, fries and mere millionaires." The documentary is about McDonald's "Who Wants... Continue reading
Posted Feb 26, 2020 at California Mediation and Arbitration
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Arbitration, Nonsignatories: 2nd District Div. 8 Holds Nonsignatory Is Able To Compel Another Nonsignatory To Arbitrate Based On "Stipulation"
A Critical Letter Provided The Evidentiary Linchpin. The Court of Appeal in Gamma Eta Chapter of PI Kappa Alpha, B25667 (2/8 2/6/20) (Wiley, Bigelow, Grimes), reversed the trial court's order denying a motion to compel arbitration and remanded so that the trial court could grant the motion and stay the... Continue reading
Posted Feb 11, 2020 at California Mediation and Arbitration
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Arbitration, Vacatur, Public Policy: Second Dist., Div. 6 Holds Arbitrator Award Violated Public Policy in HOA/Developer Dispute
And Now There Is A Split Between The 4th District, Div. 3, And The 2nd District, Div. 2. In Branches Neighborhood Corp. v. CalAtlantic Group, Inc., 26 Cal.App.5th 743 (2018), a homeowner's association began a construction defects arbitration with a developer without first getting a vote of 51% of its... Continue reading
Posted Feb 7, 2020 at California Mediation and Arbitration
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Settlements: 9th Circuit Takes Negotiation Strategy Into Account In Case Where Trial Judge Slashed Fees Because Plaintiff Settled for 10% Of Claim
The Majority Opinion Acknowledges That Parties Can Start High When Staking A Claim. In today's Daily Journal, I have an article about Vargas v. Howell et al., 2020 DJDAR 905 (9th Cir. Feb. 5, 2020), entitled: 'Mechanical' analysis of attorney fees award in civil rights case results in partial reversal'.... Continue reading
Posted Feb 7, 2020 at California Mediation and Arbitration
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Arbitration: Equitable Estoppel And Third Party Beneficiary Theories Required Additional Insured To Arbitrate Coverage Claims
Additional Insured Had Tried To Avoid Arbitration By Arguing It Was Not A Party To Arbitration Agreement. Philadelphia Indemnity Insurance Company v. SMG Holdings, Inc., No. C082841 (3rd Dist. 12/31/19) (per curiam), "concerns whether a binding arbitration clause in an insurance policy issued by plaintiff Philadelphia Indemnity Ins. Co., applies... Continue reading
Posted Feb 2, 2020 at California Mediation and Arbitration
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Ethics/Bias/Legislation: Mediator Phyllis Pollack Spoke About Implicit Bias To USDC Central District Mediators
Posted Jan 9, 2020 at California Mediation and Arbitration
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Reviews: The Browns Of California
Your Blogger Has Reviewed Miriam Pawel's Book, The Browns of California, in California Litigation. I've reviewed Miriam Pawel's book, The Browns of California: The Family Dynasty That Transformed a State and Shaped a Nation. The review appears in California Litigation, the journal of the California Lawyers Association, Vol. 32, No.... Continue reading
Posted Jan 8, 2020 at California Mediation and Arbitration
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Happy New Year !
Posted Dec 31, 2019 at California Mediation and Arbitration
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Legislation: Judge Halts California Law Banning Pre-Dispute Employment Arbitration Agreements
Governor Brown Earlier Vetoed Legislation Banning Mandatory Employment Arbitration Based On FAA Preemption Concerns. Laurence Darmiento, Staff Writer for the LA Times, has authored an article dated December 30, 2019, and entitled: "Judge halts California law banning forced arbitration at the workplace." Darmiento writes, "U.S. District Judge Kimberly Mueller ruled... Continue reading
Posted Dec 31, 2019 at California Mediation and Arbitration
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Internet Commerce: Ninth Circuit Holds A Mobile App Failed To Provide Constructive Notice Of Arbitration Agreement
An Issue Of First Impression -- Did A Smartphone App Impart Constructive Knowledge Of An Arbitration Agreement? The Ninth Circuit has decided an issue of first impression for the court: "[U]nder what circumstances does the download or use of a mobile application ('app') by a smartphone user establish constructive notice... Continue reading
Posted Dec 31, 2019 at California Mediation and Arbitration
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Arbitration, Employment, Burden of Proof, Nonsignatories: Fourth District, Div. 1 Rules Employer Failed To Prove Employee Electronically Signed Arbitration Agreement
Authentication Of Electronic Signatures Continues To Generate Case Law And Stymie Employers. We have blogged before about the problems employers have had authenticating employees' electronic signatures on arbitration agreement. On January 4, 2015, we blogged about Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal.App.4th 836 (2014), a leading case... Continue reading
Posted Dec 13, 2019 at California Mediation and Arbitration
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