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Southern California
Business Litigator, Mediator
Recent Activity
Zoller v. GCA Advisors Lays Out Rules For Determining Whether Statutory Claims Can Be Arbitrated. Zoller v. GCA Advisors, No. 20-15595 (9th Cir. 4/14/21) (Wallace, Smith, Restani), reverses the district court's denial of defendants' motion to compel arbitration of statutory employment discrimination and civil rights claims. Shannon Zoller, a corporate... Continue reading
Because Enrollment Process Was Handled By CalPERS, Statutory Requirements That Notice Of Arbitration Be Conspicuous in a Health Plan Did Not Apply. Edward William Kuntz's wife, children, and estate sued Kaiser for Elder Abuse and other claims, and Kaiser move successfully to compel arbitration of the Elder Abuse claim and... Continue reading
Ninth Circuit Agrees With District Court That Labor Dispute Was Not Arbitrable And That Arbitrability Was Properly Decided By The Court. In Tramon Wilson-Davis v. SSP America, et al., B306781 (2/3 4/9/21) (Edmon, Lavin, Egerton), a dishwasher sued his employer, individually and behalf of a putative class, for wage and... Continue reading
The Book Is Journalist Jim Newton's Man of Tomorrow: The Relentless Life of Jerry Brown. For those of you who enjoy reading about California politics and politicians, I've written a review of Jim Newton's new book about former Governor Jerry Brown. The review, which appears in California Litigation, Vol. 34,... Continue reading
Justice Tangeman, Who Concurred Before, Now Dissents After Rehearing. We posted on February 2, 2021 about Breslin v. Breslin, B301382 (2/6 1/26/21) (Gilbert, Yegan, Tangeman), an opinion authored by Justice Gilbert in which Justices Yegan and Tangeman concurred. The case held the party receiving notice of a mediation ordered by... Continue reading
The Majority Looks At The Amount-In-Controversy In The Underlying Dispute, And The Concurring Opinions Looks At The Amount Involved In The Discovery Dispute. The panel in Maine Community Health Options v. Albertsons Companies, Inc., No. 20-35931 (9th Cir. 3/31/21) (Hurwitz, Fletcher; Watford concurring) determines how "the amount-in-controversy requirement in 28... Continue reading
Can US Federal Courts Allow Discovery For Private International Arbitrations? As set forth in SCOTUSBlog, this is the issue before the Supreme Court in Servotronics, Inc. v. Rolls-Royce PLC: "Whether the discretion granted to district courts in 28 U.S.C. § 1782(a) to render assistance in gathering evidence for use in... Continue reading
Who Decides Illegality Of A Contract, The Arbitrator Or The Court? Michael Bacall, an actor, was represented by Jeffrey Shumway, an attorney, who provided "legal/management services and [Chief Content Officer] services." Bacall alleged Shumway failed to disclose he was "inactive" with the State Bar, and Bacall terminated the contract with... Continue reading
Do You Know What Information Zoom Has About Your Communications? Mediators, arbitrators, litigators, and parties are rightly concerned about the confidentiality of communications. Mediators rely on the mediation confidentiality protections in the California Evidence Code, sections 1119 et seq, and litigators and arbitrators rely on confidentiality agreements. Today, many of... Continue reading
Efforts By Employers To Have An Arbitrator Decide A Dispositive Part Of A PAGA Claim Continue To Founder. The wreck of the Atlantic. c1873. Currier and Ives. Library of Congress. The Court of Appeal holds that the delegation of the question whether plaintiffs are "aggrieved employees" to an arbitrator frustrates... Continue reading
A Case Of First Impression. Section 998 offers belong to the armamentarium of litigators engaged in settling cases, because the potential of such offers to shift costs can be a source of negotiating leverage. Hence, our blog about ADR has a sidebar category "Section 998 (Settlements)". In Varney Entertainment Group,... Continue reading
Years Earlier, The Parties Had Agreed To The Appointment Of A Particular Arbitrator. Brothers Harry and Ted Soussos fought over control of family business interests. Harry moved to compel arbitration, and Ted timely objected. The arbitrator refused to recuse himself, and Harry obtained an award in his favor. The rub... Continue reading
Automobile Dealerships Are Subject To A Narrow Exception To Arbitration -- But The Exception Did Not Apply Here. 1958 Subaru 360. Licensed under the Creative Commons Attribution-Share Alike 3.0 Unported, 2.5 Generic, 2.0 Generic and 1.0 Generic license. Author: Mytho88. Who knew? Automobile dealer franchises are subject to a narrow... Continue reading
Arbitration Provision Allowing For Public Injunctive Relief Does Not Violate McGill Rule. The so-called McGill rule states California’s legal requirement that contracts allow public injunctive relief. So what happens if a contract requires arbitration of disputes, provides for all remedies in arbitration, and further provides that the claimant cannot act... Continue reading
An Addition To My February 4, 2021 Post About Videoconferencing: Tips For Using Zoom For Remote Mediations. In what could have been an Abbott and Costello routine, had those comedians been born into the Age of the Internet and Zoom, a Texas judge and a hapless attorney had to grapple... Continue reading
McGill Is Still Good Law. The action in Joe Maldonado v. Fast Auto Loans, Inc., G058645 (4/3 2/8/21) (O'Leary, Aronson, Thompson) centered on whether McGill v. Citibank, N.A., 2 Cal.5th 945 (2017) is still good California law and whether it has been preempted by the Federal Arbitration Act. McGill, which... Continue reading
Motion To Compel Arbitration Should Have Been Granted, And One Substantively Unconscionable Provision Was Severable. In Erendira Cisneros Alvarez v. Altamed Health Services Corp., B305155 (2/8 2/4/21) (Stratton, Bigelow, Grimes), the Court of Appeal reversed a trial court's order denying a motion to compel arbitration. The arbitration provision, which is... Continue reading
Tips For Using Zoom For Remote Mediation Since the beginning of the pandemic, I have been conducting remote mediations with Zoom. Based on my experience with Zoom, I have collected tips for mediators, attorneys, clients, and other persons who will be participating in remote mediations conducted via Zoom. While a... Continue reading
Potential Beneficiaries Of Trust Received Notice, But Failed To Participate. After Don Kirchner died in 2018, the successor trustee of Kirchner's living trust found a document listing 24 charities with handwritten notes appearing to be percentages for distributing the estate. The probate court confirmed the successor trustee and ordered mediation... Continue reading
The Court Avoided Deciding Whether The McGill Rule Applied. The Cabatits entered into a solar power lease agreement, and sued Sunnova Energy Corporation, alleging roof damage. The Court of Appeal affirmed the trial court's order denying Sunnova's motion to compel arbitration, because the arbitration provision was unconscionable. Cabatit v. Sunnova... Continue reading
Complaint Filed November 11, 2016 And Motion To Compel Arbitration Filed November 20, 2018. Given two years elapsed between the time Plaintiff filed his putative class action wage and hour lawsuit, and the time Defendant filed its motion to compel arbitration, Defendant was going to have an uphill battle convincing... Continue reading
Court Distinguishes Baltazar. Plaintiff Sabid Ali sued Daylight Transport, LLC, claiming he had been misclassified as an independent contractor, and alleging various California labor violations. Daylight move to compel arbitration, failed, and appealed. Sabid Ali v. Daylight Transport, LLC, No. A157104 (1/2 12/31/20) (Kline, Richman, Miller) (partial pub.). In the... Continue reading
The Partnership Deed With The Arbitration Clause Was Entered Into In India, But The Court Applied US Federal Substantive Law To The Equitable Estoppel Issue. Incense for sale in Bangalore. Author: Meanest Indian. Creative Commons License. Appellant/Defendant Shrinivas Sugandhalaya LLP (SS Mumbai), in a lawsuit with Appellees/Plaintiffs (SS Bangalore), sought... Continue reading
Library of Congress. December 30, 1908. Albert Levering, artist. The Puck magazine illustration shows Father Time departing, and taking Thomas C. Platt with him. Platt was a two-term member of Congress and a three-term Senator from New York. According to Wikipedia: "Upon his death, the New York Times stated that... Continue reading
A SCOTUS Case Effectively Overruled An Earlier Ninth Circuit Opinion. In Damian Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. 12/29/20) (Bumatay, Parker, Watford), the court holds, "the voluntary dismissal of claims following an order compelling arbitration does not create appellate jurisdiction." The rule had been otherwise in the... Continue reading