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Southern California
Business Litigator, Mediator
Recent Activity
The Case Held That Judgment Creditor's Release Of Judgment Debtor Does Not Preclude Creditor's Attorney From Pursuing Contingency Fee And Costs From Judgment Debtor. We posted about Mancini & Associates v. Jason Schwetz, B290498 (2nd Dist. Div. 6) (Gilbert, J.) on September 5, 2019. This is an unusual case in... Continue reading
California's Labor Code Provides For A Mandatory Mediation And Conciliation (MMC) Process To Promote The Collective Bargaining Process In Agricultural Labor Relations. When collective bargaining between the United Farm Workers Union and Gerawan Farming, Inc. reached an impasse, the UFW requested, and the California's Agricultural Labor Relations Board ordered the... Continue reading
Collection Efforts Case Was Not Related To International Arbitration Agreement Or Award, And So Belonged In State Court. The District Court for the Western District of Washington denied plaintiff Cerner's motion to remand to state court an action that defendants had removed to federal court on the basis that it... Continue reading
Was Delay In Requesting Arbitration Simply A "Strategic Convenience" For Defendants? Spracher v. Paul M. Zagaris, Inc. [Zagaris], and Higashi v. Disclosure Source, A1952941, A152962 (1/3 9/17/19) (Petrou, Siggins, Fujisaki), is a consolidated appeal brought by defendants in a class action in which plaintiffs alleged that defendants schemed to defraud... Continue reading
The Practical Consequence Is That There Is No Private Right Of Action Under Section 558 To Collect Civil Penalties, And Hence Such A Claim Is Not Arbitrable. The California Supreme Court granted an employer's petition for review in ZB, N.A. v. Superior Court, S246711 ((Cal. Sup. Ct. 9/12/19) (Cuéllar, J.),... Continue reading
An Order Denying A Judicial Reference Is Not Appealable, Even When Coupled With An Order Denying Arbitration, Which Is Appealable. A frequent source of confusion with motions to arbitrate is an arbitration provision that refers to both the Federal Arbitration Act (FAA) and California law. Indeed, that was the source... Continue reading
The Trial Judge Thought Something Didn't Seem Right. An opinion from the Second District, Division 6, begins snappily: "Of course, on occasion, a client may not fully appreciate the excellent result achieved by her or his attorney." And of course, the author is Justice Gilbert. Mancini & Associates v. Jason... Continue reading
The Book Reviews Are In The Current Issue Of California Litigation. California Litigation, the journal of the California Lawyers Association, has published an article with three of my book reviews in its current issue, Vol. 32, No. 2, 2019. With the permission of California Litigation, I am making the article... Continue reading
Daughter's Signature Did Not Bind Her Individually Or As Successor In Interest. Nursing home arbitration agreements continue to generate plenty of cases. In fact, we have posted about arbitration and nursing homes a number of times. See, for example, our posts of 3/27/2012, 5/21/2012, 11/5/2013, 8/5/2016, 11/1/2016, 2/23/2017, and 7/25/2019.... Continue reading
Employee's Claims Arose Before He Signed Arbitration Agreement. Is an arbitration agreement enforceable when the employee's claim arises before he signs the arbitration agreement? Yes, says the Court of Appeal in Franco v. Greystone Ridge Condominium, et al., G056559 (4/3 8/27/19) (Fybel, Aronson, Thompson). In this case, "[t]he parties' arbitration... Continue reading
Intervening Supreme Court Law Means Earlier Ninth Circuit Law Is No Longer Good Law. ERISA claims may be the subject of mandatory arbitration: that's the holding and threshold issue in Dorman v. Charles Schwab Corp., 18-15281 (9th Cir. 8/20/19) (Pearson, Gould, Ikuta). To reach this result, the panel needed to... Continue reading
Court Of Appeal Distinguishes The Broughton-Cruz Rule. Clifford v. Quest Software, Inc., G055858 (4/3 8/14/19) (Aronson, O'Leary, Goethals) addresses, "whether an employee's claim against his employer for unfair competition under Business and Professions Code section 17200 (the UCL) is arbitrable." Assuming the arbitration clause is valid and enforceable, the Court... Continue reading
Fourth District, Division 1 Agrees With Conclusions Of Lawson and Zakaryan Courts. The employer in Mejia v. Merchants Building Maintenance, LLC, D074620 (4/1 8/13/19) (Aaron, Benke, Huffman), tried to do what other employers have attempted: compel arbitration of the "victim-specific" relief portion of a PAGA claim. Appellate courts are divided... Continue reading
And The Court Explains How The Stipulated Judgment Could Have Been Structured So As To Be Enforceable. "The principal issue in this appeal is whether the stipulated judgment constitutes an unenforceable penalty." Red & White Distribution, LLC, et al. v. Osteroid Enterprises, LLC and cross-complaint, B291188 (2/4 8/9/19) (Currey, Manella,... Continue reading
The Details Here Make The Difference . . . Lacayo v. Catalina Restaurant Group Inc., et al., E069833 (4/2 8/1/19) (Miller, Fields, Menetrez) provides an in-depth discussion of the appealability of orders granting individual arbitration and delegating the issue of the availability of a class action suit to an arbitrator... Continue reading
Trial Judge Parsed Declaration To Determine Whether Statements Were Made By Judge DickranTevrizian (Ret.) In Capacity As Mediator, Arbitrator, Or Director. When an opinion begins, "Leo Tolstoy famously observed that every unhappy family is unhappy in its own way," you can be sure that you are in for a dismal... Continue reading
And Prospect Of Inconsistent Results Meant Father's Claims Could Not Be Arbitrated While Children's Claims Were Litigated. Nursing homes continue to be a fertile source of cases concerning the enforcement of arbitration clauses. This is not surprising, because a patient, especially an elderly patient, who enters a nursing facility may... Continue reading
We Took A Break From Blogging . . . I have been absent for a couple of weeks, during which time I traveled to Italy for a family wedding. Fortunately, there has been a dearth of California opinions on mediation and arbitration during my absence. Here are two photos from... Continue reading
Also, Arbitrator’s Religious Affiliation Is No Reason For Disqualification, With Jewish Affiliation Not Showing Any Inherent Bias Against Homosexuals. Bogue v. Anesthesia Service Medical Group, Inc., Case No. D073518 (4th Dist., Div. 1 July 17, 2019) (unpublished) (McConnell, P.J.; Benke, J.; and Irion, J.) is a case where a former... Continue reading
McGill v. Citibank Held Agreement To Waive Right To Seek Public Injunctive Relief Is Unenforceable. In McGill v. Citibank, N.A. (2017), the California Supreme Court held that a contract purporting to waive a party's right to seek public injunctive relief in any forum is unenforceable under California law. The key... Continue reading
A "Participation Waiver" Is Not Exactly The Same As A Waiver Of The Right To Sue Or A Bar Against Bringing A Class Action. Ari J. Stiller, an attorney with Kinglsey & Kingsley, has an article in the June 26, 2019 issue of the Daily Journal entitled, "Participation waivers test... Continue reading
Justice Bedsworth On Civility; SCOTUS On The Takings Clause. I've published two recent articles that have nothing to do with California Mediation and Arbitration. The June 18, 2019 Daily Journal published my article, "4th District Court of Appeal Justice William Bedsworth on civility." Justice Bedsworth wrote an opinion worth reading,... Continue reading
The Court Distinguishes Mandatory Mediation Language Of Frei v. Davey. We sometimes supplement our diet of published cases with unpublished cases -- especially for mediation decisions, which are few in supply compared to arbitration decisions. Ocean Tomo, LLC v. PatentRatings, LLC v. Patent Ratings, LLC, G055429 (consol. with G056063, G056829)... Continue reading
Plaintiff Had To Jump Through Hoops To Get To Arbitration Clause. For our next case, we add a new sidebar category: "Arbitration: Internet Commerce." "This case tests the outer limits of what constitutes a 'reasonably conspicuous' provision as part of the terms of usage so prevalent in the adhesion contracts... Continue reading
Trial Court's Ruling That Delay And Prejudice Resulted In Waiver Is Affirmed. Nunez v. Nevell Group, Inc., G056585 (4/3 5/2/19) (Fybel, Bedsworth, Goethals), addresses an employer's waiver of right to compel arbitration of violations of a wage order under a Collective Bargaining Agreement. The Court affirms the trial court's order... Continue reading