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Southern California
Business Litigator, Mediator
Recent Activity
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
And Provides Us With A Legislative Update . . . Molecule Man. Edward R. Roybal Federal Building. Implicit bias is a hot topic that is, or should be, of concern to mediators, arbitrators, judges, attorneys, and clients. Mediator Phyllis Pollack, who also lectures about ADR ethics at the USC Gould... Continue reading
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
To all my readers, Thanks for following along in 2019. Onwards to 2020! Continue reading
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
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
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