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calmediation
Southern California
Business Litigator, Mediator
Recent Activity
Arbitration, Waiver: US Supreme Court Holds Prejudice Is Not Required To Find Waiver Of Right To Arbitrate
Arbitration Agreements Must Be Placed On Equal Footing With Other Contracts -- So Courts Can't Make Up Special Procedural Rules That Apply Only To Arbitration. In a unanimous opinion penned by Justice Elena Kagan, the Supreme Court holds that courts cannot create arbitration-specific federal procedural rules, such as the rule... Continue reading
Posted yesterday at California Mediation and Arbitration
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Arbitration, Delegation, Unconscionability: CCA 4/3 Affirms Order Denying Motion To Compel Arbitration Because Of Flawed Delegation And Unconscionability
Substantive Unconscionability To Trip Over. This is a tragic case involving the death of a recently graduated UCLA engineering student in the throes of an acute psychotic episode. He was briefly in a care facility where the precariousness of his condition was recognized. Allegedly he required constant supervision, which was... Continue reading
Posted Apr 21, 2022 at California Mediation and Arbitration
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Arbitration, Unconscionability: CCA 2/2 Agrees Adhesive Contract Allowing Unfair Fee Shifting And Drastically Limiting Discovery Is Unconscionable
Joseph Merced Nunez v. Cycad Management LLC, B306986 (2/2 3/18/22) (Lui, Ashmann-Gerst, Chavez). Nunez, a gardener, sued Cycad for employment-related claims. Cycad moved, unsuccessfully, to compel arbitration. The Court of Appeal now holds: "Substantial evidence supports factual findings that the Agreement is adhesive because it was presented to Nunez as... Continue reading
Posted Apr 12, 2022 at California Mediation and Arbitration
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Miscellaneous: Podcast Interview Of Marc Alexander And Mike Hensley On Subject Of California Attorney's Fees
California Appellate Law Podcast. My colleague Mike Hensley and I have published the California Attorney's Fees Blog since 2008. Tim Kowal and Jeff Lewis, the creators of the California Appellate Law Podcast, recently interviewed us on their podcast. Here's a link to the interview on Tim and Jeff's podcast. Thanks,... Continue reading
Posted Apr 12, 2022 at California Mediation and Arbitration
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Arbitration, Waiver: Second District, Div. 8 Refuses To Collapse Test For Waiver Of Right To Arbitrate Into A Single "Prejudice" Test
Suggestion: Don't Wait Two Years To Bring A Motion To Compel Arbitration. The Court of Appeal affirmed the trial court's order denying Appellants' motion to compel arbitration. Akira Kokubu, Plaintiff, Cross-defendant and Respondent, v. Takashi Sudo et al, Defendants, Cross-defendants and Respondents; Park Rolling Hills, LLC, et al., Defendants, Cross-complainants... Continue reading
Posted Apr 8, 2022 at California Mediation and Arbitration
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Arbitration, Internet Commerce: Fourth District, Div. 1 Enforces Arbitration Provision In Sign-In Wrap Contract
Sign-In Wrap Contracts Are Hybrids Of Browserwrap (Hard To Enforce) And Clickwrap (Easier To Enforce) Contracts. B.D., a minor, and his father sued the videogame company Blizzard, contending that the game Overwatch encouraged gambling. Specifically, they alleged Overwatch used “real money” to make in-game purchases of “Loot Boxes”—items that offer... Continue reading
Posted Apr 8, 2022 at California Mediation and Arbitration
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Arbitration, Award: Arbitrator Awards $175M To Monster Energy And Orange Bang
Los Angeles Arbitrator Awards $175M Plus Attorney's Fees Plus Royalty. Daily Journal Staff Writer Federico Lo Giudice reported the award on April 7, 2022 in an article entitled, "Arbitrator awards $175M to Monster in energy drink dispute." The arbitrator is Bruce A. Isaacs. The law firm representing the successful parties... Continue reading
Posted Apr 7, 2022 at California Mediation and Arbitration
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Arbitration Costs: Court Has Jurisdiction To Lift Stay On Litigation If Party In Arbitration Is Indigent
The Problem To Be Solved Is How To Achieve Equal Access To Justice. "Does a trial court that granted a defendant’s petition to compel arbitration have jurisdiction to lift the stay of trial court proceedings where a plaintiff demonstrates financial inability to pay the anticipated arbitration costs? If so, may... Continue reading
Posted Apr 6, 2022 at California Mediation and Arbitration
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Arbitration, Discovery, Appealability: In An Uninsured Motorist Arbitration, The Only Way To Challenge A Discovery Order Before Judgment Is With A Writ
A Case Of First Impression. Unless you practice in this area, you may not know that in an uninsured motorist arbitration between the motorist with uninsured motorist coverage and her insurance company, discovery disputes are addressed to the court, not to the arbitrator. State Farm Mutual Automobile Insurance Company v.... Continue reading
Posted Apr 6, 2022 at California Mediation and Arbitration
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Arbitration, Agents: Residential Care Facility Failed To Establish That Father Was Bound By Son's Signature To Arbitrate
Based On Generally Applied Principles Of Agency, The Care Facility Failed To Establish Son Acted As Father's Agent. An elder care facility argued that aged father, who died of severe sunstroke while in care of facility, was bound to arbitrate by son's signature on Residency Agreement. The basic problem was... Continue reading
Posted Apr 5, 2022 at California Mediation and Arbitration
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Mediation, Confidentiality, Settlement Agreement: CCA 1/2 Agrees Plaintiff Suing Doctor Failed To Perform Settlement Agreement After Mediation
Including Confidentiality Provision In Settlement Of Malpractice Lawsuit Did Not Violate Public Policy, Because Provision Did Not Prevent Reporting To State Medical Board. In Pappas v. Chang and Chang v. Pappas, Nos. A159792 and A160293 (1/2 3/3/22) (Richman, Miller; Kline, conc.), the Court of Appeal affirms the trial court in... Continue reading
Posted Apr 5, 2022 at California Mediation and Arbitration
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Miscellaneous: We Just Exceeded 1000 Posts On This Blog
Blogging About California Mediation And Arbitration Since 2012. I started this blog on California Mediation And Arbitration in 2012. I just noticed that the number of posts recently passed 1000. That's about 100 per year. Readers may have noticed that the formatting of this blog is similar to that of... Continue reading
Posted Apr 5, 2022 at California Mediation and Arbitration
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Arbitration, Internet Commerce: Ninth Circuit Agrees Website Did Not Provide Sufficient Notice Of Agreement To Arbitrate
Clickwrap? Browserwrap? Scrollwrap? Sign-in Wrap? When does one's use of a website result in an agreement to arbitrate? Concurring with the majority, Judge M. Miller Baker candidly observes that this is an "evolving and fact-bound area." Here, Judge Paul J. Watford, writing for the majority, and Judge Baker, concurring, agreed... Continue reading
Posted Apr 5, 2022 at California Mediation and Arbitration
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Arbitration, Jurisdiction: SCOTUS Holds That Federal Courts Do Not Get To Look Through To Underlying Dispute To Determine Jurisdiction When A Motion To Vacate An Award Is Brought
The Rule SCOTUS Applies To Petitions To Confirm Or Vacate Is Different Than The Rule It Applies To Motions To Compel Arbitration. In an 8-1 decision, Justice Elena Kagan, writing for the court majority, explains that federal courts, when determining whether federal jurisdiction exists to decide a petition to vacate... Continue reading
Posted Apr 5, 2022 at California Mediation and Arbitration
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Miscellaneous: On The Exchange Of Briefs In Mediation
Recommended Reading: "Exchanging mediation briefs: the simplest path to success". Mediators often urge that counsel exchange mediation briefs, but an actual exchange seems more to be the exception than the rule. Mediator Robert M. Cohen has a column in the May 24, 2022 Daily Journal advocating for the exchange of... Continue reading
Posted Mar 31, 2022 at California Mediation and Arbitration
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Arbitration, Delegation, Choice Of Law: Sixth District Affirms Denial Of Motion To Compel Arbitration Because There Was No Agreement To Arbitrate
Whether An Arbitration Agreement Exists Was A Gateway Issue For The Court To Decide. Agreeing with the trial court that there was no agreement express or implied to arbitrate, the Court of Appeal affirms the trial court's order denying employer's motion to compel arbitration in a putative class action wage... Continue reading
Posted Mar 10, 2022 at California Mediation and Arbitration
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Arbitration, Unconscionability: Second District Div. 4 Affirms Trial Court's Holding Of Unconscionability, While Disagreeing On One Point With Brethren In Div. 7
The Dispute With District 2, Div. 4, Involved The Reasoning In Patterson v. Superior Court, 70 Cal.App.5th 473 (2021) (Patterson). The Court of Appeal affirmed the trial court's court denying Charter's motion in compel arbitration. Ramirez v. Charter Communications, Inc., B309408 (2/4 3/1/22) (Willhite, Manella, Collins). The Court held that... Continue reading
Posted Mar 5, 2022 at California Mediation and Arbitration
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Arbitration, Appealability, Jurisdiction, Celebrities: Second District, Div. 7 Declines To Consider Interim Award Of Preliminary Injunctive Relief
Interim Rulings By An Arbitrator Are Not Reviewable Until A Final Award Is Issued. Charlotte Kirk, an actress, entered into a confidential settlement agreement in 2017 with four men who were entertainment industry executives. The agreement contained an arbitration clause. Claiming that Kirk violated the settlement agreement, the executives filed... Continue reading
Posted Mar 3, 2022 at California Mediation and Arbitration
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Arbitration, Scope, Stay: Fifth District Agrees Equitable Issues Were Outside Scope Of Arbitration Agreement, And Arbitrable Claims Could Be Stayed
The Arbitration Provision Was Not Ambiguous. The arbitration provision in Eminence Healthcare, Inc. v. Centuri Health Ventures, LLC, et al., F079993 (5th Dist. 2/2/22) (Franson, Hill, Pena), carved out equitable causes of action from arbitration. Because the Court of Appeal agreed the clause was unambiguous, the Court affirmed the trial... Continue reading
Posted Mar 2, 2022 at California Mediation and Arbitration
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Arbitration, Construction Of Scope Of Agreement: Second Dist.Div. 7 Reverses Arbitration Award Because Narrow Scope Of Arbitration Agreement Did Not Cover The Dispute
The Court Of Appeal Construes The Arbitration Provision As "Narrow" Rather Than "Broad." The Court of Appeal reverses confirmation of an arbitration award in Thomas Ahern et al. v. Asset Management Consultants, Inc., et al., B309935 (2/7 2/1/22) (Perluss, Segal, Feuer). The underlying dispute was between a co-tenant, Ahern, who... Continue reading
Posted Mar 2, 2022 at California Mediation and Arbitration
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Arbitration, Nonsignatories, Equitable Estoppel: Ninth Circuit Holds Nonsignatory BMW Could Not Enforce Dealer's Arbitration Agreement With Customer
Nonsignatories Can Sometimes Enforce An Arbitration Agreement Based On A Third-Party Beneficiary Or Equitable Estoppel Theory - But Such Was Not The Case Here. After Kim Ngo purchased a BMW that Ngo alleged was a lemon, BMW sought to enforce an arbitration agreement between the Dealer and Ngo, to which... Continue reading
Posted Jan 18, 2022 at California Mediation and Arbitration
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Arbitration, Unconscionability, Existence Of Agreement, Internet Commerce: Three Recent Cases Affirm Orders Denying Motions To Compel Arbitration
Three Recent Cases Affirm Orders Denying Motions To Compel Arbitration. Anthony De Leon v. Pinnacle Property Management Services, LLC et al., No. 059801 (4/3 Dec. 8, 2021) -- Unconscionability. Superior Court Judge Marks, sitting by assignment, authors the opinion, agreeing with the trial judge's denial of a motion to compel... Continue reading
Posted Jan 13, 2022 at California Mediation and Arbitration
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Employment, Legislation, FAA Preemption: Can California Protect Employees From Mandatory Pre-Dispute Arbitration Agreements And Avoid Federal Preemption?
Paul Dubow And Marc Alexander Have Published An Article About FAA Preemption And California's AB 51. The article, entitled Can California Protect Employees From Entering Into Mandatory Pre-Dispute Arbitration Agreements?, appears in California Litigation, Vol. 34, No. 3 (2021). Paul Dubow is a seasoned mediator and arbitrator in the Bay... Continue reading
Posted Jan 10, 2022 at California Mediation and Arbitration
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Pending Case, PAGA, FAA: Viking Cruises, Inc. v. Moriana Is A Case To Watch
The United States Supreme Court Granted Cert On December 15, 2022. The issue: "Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act." Readers of this blog will know that California courts... Continue reading
Posted Jan 7, 2022 at California Mediation and Arbitration
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Arbitration, Existence Of Agreement, Delegation: Ninth Circuit Holds Formation Of Arbitration Agreement Is To Be Decided By Court, Not Arbitrator
Failure To Communicate . . . Cool Hand Luke. "What we've got here is failure to communicate." Reversing the district court's order to compel arbitration, the Ninth Circuit holds that the issue of formation of the contract to arbitrate should have been decided by the court, despite delegation of issues... Continue reading
Posted Jan 3, 2022 at California Mediation and Arbitration
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