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calmediation
Southern California
Business Litigator, Mediator
Recent Activity
Mediation, Condition Precedent: Mediation Is Not A Condition Precedent To A Fee Award Where Parties Merely "Pledge" To Resolve Disputes Amicably Without Litigation
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 We sometimes supplement our diet of published cases with unpublished cases -- especially for mediation decisions, which are few in supply compared to arbitration decisions.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
Posted yesterday at California Mediation and Arbitration
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Arbitration, Internet Commerce: 9th Circuit Tests Limits Of "Reasonably Conspicuous" Provision In Internet Commerce Adhesion Contract
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
Posted yesterday at California Mediation and Arbitration
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Arbitration, Waiver: Employer Waived Right To Compel Arbitration Under A Collective Bargaining Agreement
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
Posted yesterday at California Mediation and Arbitration
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MFAA, Appealibility, Jurisdiction: An Order Denying A Petition To Compel A Mandatory Fee Arbitration Act Arbitration Is Not Appealable
Appealability Under The Mandatory Fee Arbitration Act Is Different Than Appealability Under The California Arbitration Act. The holding of Levinson Arshonsky & Kurtz LLP v Kim (2/1 5/29/19) (Weingart, J.), is that an order denying a petition to compel an MFAA arbitration is not appealable. Therefore, the Court of Appeal... Continue reading
Posted yesterday at California Mediation and Arbitration
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Arbitration, Section 998: California Supreme Court Rules Request For Costs Timely Under Section 998 If Filed With The Arbitrator Within 15 Days Of Final Award
A Question Of Timing: Case Explains How To Handle Costs Under Section 998 In An Arbitration. Heimlich v. Shivji, S243029 (Cal. S.Ct. 5/30/19) (Corrigan, J.) is good news for practitioners, because it settles a timing issue, but it is no help to the hapless appellant who helped make law. Code... Continue reading
Posted May 30, 2019 at California Mediation and Arbitration
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Arbitration, Civil Rights: Ninth Circuit Rules That Racial Discrimination Section 1981 Claims May Be Subjected To Compulsory Arbitration
Chief Circuit Judge Thomas Concurs, But Writes That Earlier Case Law Was Wrongly Decided. The Ninth Circuit has affirmed the district court's order compelling arbitration of racial discrimination claims under section 1981. Lambert v. Tesla, Inc., DBA Tesla Motors, Inc., No. 18-15203 (9th Cir. 5/17/19) (Opn. by Smith, Thomas conc.).... Continue reading
Posted May 20, 2019 at California Mediation and Arbitration
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Reviews: We the Corporations: How American Businesses Won Their Civil Rights
Marc Alexander (This Blogger) Has Reviewed The Book For California Litigation. In the latest issue of California Litigation, Vol. 32, No. 1 (2019), p. 25, I've reviewed Adam Winkler's We the Corporations: How American Businesses Won Their Civil Rights. You can read the review, which is republished with the permission... Continue reading
Posted May 18, 2019 at California Mediation and Arbitration
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Arbitration, FINRA, Rules: Ninth Circuit Reverses District Court's Denial Of Bank's Motion For Prelim Injunction Against Arbitration By FINRA
Bank Likely To Succeed On Merits As To Whether It, Or Its Corporate Trust Department, Was A "Municipal Securities Dealer" Subject To FINRA Arbitration. If your eyes begin to glaze over when reading about the Financial Industry Regulatory Authority (FINRA), Municipal Securities Rulemaking Board (MSRB) rules, conduit municipal bonds, indenture... Continue reading
Posted May 9, 2019 at California Mediation and Arbitration
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Arbitration, Collective Bargaining: Cal Supremes Hold Labor Management Relations Act Does Not Require Arbitration Between Giants And Baseball Security Guards
Dispute Only Required Reference To Collective Bargaining Agreement (CBA), Not Interpretation Of It. I blogged about Melendez v. San Francisco Baseball Associates LLC, on December 18, 2017, when it was still in the Court of Appeal. Baseball security guards had sued the Giants, alleging that the guards were intermittent employees,... Continue reading
Posted May 5, 2019 at California Mediation and Arbitration
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Arbitration, Choice Of Law, Claim Preclusion: 9th Circuit Rules That In Diversity Case, State Law Governs Claim Preclusion As Applied To Confirmed Arbitration Award
An Issue Of First Impression. In NTCH-WA, Inc. v. ZTE Corporation, Inc. v. ZTE Corporation, No. 17-35833 (9th Cir. 4/25/19) (Gould, Paez, Pregerson), the Court of Appeals held that an arbitration award and its confirmation by a district court in Florida, barred plaintiff NTCH-WA from pursuing claims against ZTE Corp.... Continue reading
Posted May 5, 2019 at California Mediation and Arbitration
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News: Two Employment Cases Involving Enforceability Of Arbitration Provisions Reach Different Results
Quinn Emanuel And Spin-off LawFirm Selendy and Gay. Jack Newsham authored an April 24, 2019 article, appearing in New York Law Journal, and entitled, "Judge Dismisses Suit Against Quinn Emanuel by Partners of Spinoff, Sends to Arbitration." Newsham begins by quoting the judge, who wrote, "It is for the arbitrator... Continue reading
Posted May 5, 2019 at California Mediation and Arbitration
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Arbitration, Class Actions, Waiver, Construction of Agreement: SCOTUS Rules That Class Arbitration Is Not Allowed When Agreement Is Ambiguous
Majority Rejects State Law Rule That Ambiguous Contracts Are Interpreted Against The Drafter Because . . . Frank Varela, an employee of Petitioner Lamps Plus, Inc., sued Lamps Plus because a hacker tricked Varela's employer into disclosing tax information about 1,300 employees. Mr. Varela was understandably miffed after a fraudulent... Continue reading
Posted Apr 25, 2019 at California Mediation and Arbitration
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Celebrities: ADR And Peace Comes To Westeros In Game Of Thrones
Alternative Dispute Resolution And Alternative Facts, As Peace Comes To Westeros. Elmo of Sesame Street has provided us with a model for dispute resolution between Queen Cersei and Tyrion Lannaster in Game of Thrones: The best alternative to a negotiated agreement (BATNA) is never a pretty picture in Game of... Continue reading
Posted Apr 21, 2019 at California Mediation and Arbitration
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Employment, Unconscionability: Arbitration Clause Used To Bypass Berman Hearing, Without Providing Low Cost Alternative, Supports Finding Of Unconscionability
First District, Division Two Affirms Trial Court's Order Denying Petition To Compel Arbitration And Stay Proceedings. In many ways, the next case fits the template of a typical case in which unconscionability is found to be a defense to enforcement of an arbitration clause. The Court of Appeal noted that... Continue reading
Posted Apr 18, 2019 at California Mediation and Arbitration
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Arbitration, Employment, Standard Of Review: Employee Who Explicitly Rejects Arbitration Agreement Is Bound By It By Continuing To Work
Justice Segal Dissents. An employee can impliedly accept an arbitration agreement by continuing to work for his or her employer. But what happens when the employee explicitly rejects the arbitration agreement yet continues to work, after the employer has said that continuing to work will bind the employee to arbitration?... Continue reading
Posted Apr 18, 2019 at California Mediation and Arbitration
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Arbitration, Employment, Choice Of Law: California Choice Of Law Provision Does Not Mean Employee Gets To Avoid Arbitration
Choice-Of-Law Provision Is Interpreted To Exclude Special Rules Limiting The Authority Of Arbitrators Where The Federal Arbitration Act Governed The Agreement. California Labor Code section 229 provides that wage disputes "may be maintained without regard to the existence of any private agreement to arbitrate." In Bravo v. RADC Enterprises, Inc.,... Continue reading
Posted Apr 1, 2019 at California Mediation and Arbitration
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Arbitration, PAGA: Second Dist., Div. 2 Sides With Courts Holding PAGA Claim Cannot Be Split
The Splitting Issue Is Also Pending Before The California Supreme Court. Splitting log, tie-cutting camp, Pie Town, New Mexico. Russell Lee, photographer. June 1940. Library of Congress. There are still Private Attorneys General Act of 2004 (PAGA) issues that need to be definitively resolved. One such issue is the subject... Continue reading
Posted Mar 29, 2019 at California Mediation and Arbitration
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Arbitration, Gateway Issues, Delegation, Severability, FAA: Court Had Authority To Adjudicate Enforceability Of Arbitration Agreement, Where Party Specifically Challenged The Arbitration Agreement
Opinion Explains How Contract And Arbitration Agreement Are Treated As Separate Agreements. Jackpot Harvesting, Inc. v. Applied Underwriters, H044953 (6th Dist. 3/28/19) (Danner, Greenwood, Grover), provides a detailed discussion of whether the court or the arbitrator has authority to enforce an arbitration agreement, and how the concept of "severability" helps... Continue reading
Posted Mar 29, 2019 at California Mediation and Arbitration
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Arbitration, Construction Of Agreement, Employment, Enforceability: Court of Appeal Remands Case To Determine If Plaintiff Was Represented By Counsel When She Signed Arbitration Agreement
Language Of Arbitration Agreement Was Sufficient To Require Arbitration, But . . . . In Salgado v. Carrows Restaurants, Inc., B285756 (2/6 2/26/19) (Gilbert, Yegan, Tangeman), the trial court denied employer's motion to compel arbitration, on the grounds that "Defendants have failed to demonstrate that the arbitration agreement applies to... Continue reading
Posted Mar 26, 2019 at California Mediation and Arbitration
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Federal Arbitration Act: Fifth District Holds That Truck Driver Engaged In Interstate Commerce Is Exempt From FAA Arbitration Requirement
Driver Did Not Need To Cross State Lines To Engage In Interstate Commerce. The Federal Arbitration Act contains a statutory exemption for "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. section 1 (italics added). Thus, a truck... Continue reading
Posted Mar 24, 2019 at California Mediation and Arbitration
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Arbitration, Burden Of Proof, Nonsignatory: 6th Appellate District Holds Realtor's Custom And Practice Was Not Enough Here To Show It Agreed To Arbitrate
Evidence Of A Policy Is Not Evidence Of Adherence To The Policy. Plaintiff Juen engaged Alain Pinel Realtors, Inc. (Pinel) to sell his house. Later, Juen sued Pinel, Pinel unsuccessfully moved to compel arbitration, and Pinel appealed. Juen v. Alain Pinel Realtors, Inc., H043230 (6th Dist. 2/6/19) (Grover, Greenwood, Bamattre-Manoukian).... Continue reading
Posted Mar 11, 2019 at California Mediation and Arbitration
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Ethics, Miscellaneous: Fourth District, Div. 3 Opinion Affirms Judgment Denying Attorney's Fees And Refers Attorney To State Bar For Misconduct
Marc Alexander (This Blogger) And Mike Hensley Represented Defendants In Their Successful Response To This Appeal. Today* we stray from our usual beat, California mediation and arbitration, to mention an appeal resulting in a partially published opinion. Why? Because this blogger, Marc Alexander, was involved, and because his long-time colleague... Continue reading
Posted Mar 6, 2019 at California Mediation and Arbitration
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International Arbitration, Jurisdiction: Settlement Agreement May Not Amount To Arbitral Award Under Peculiar Facts
Case Is Remanded So District Court Can Assess Jurisdictional Issue. The plaintiff-appellant Mr. Castro took on a job as a deck hand on ship. His employment agreement contained a mandatory arbitration provision and it required arbitration to occur in and be subject to the procedural rules of American Samoa. After... Continue reading
Posted Feb 27, 2019 at California Mediation and Arbitration
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Arbitration, PAGA, FAA, Waiver, Deadlines: Fourth District, Div. 1 Rules California Courts Are Still Bound By Iskanian, Despite SCOTUS Arbitration Cases
Case Contains Rich Discussion Of Arbitration, PAGA, Federal Preemption, And Divergence Of State And Federal Law. Plaintiffs sued their former employer, alleging wage and hour violations and seeking civil penalties under California's Private Attorney General Act of 2004 (PAGA). Employer successfully petitioned to arbitrate, with one exception: the trial court... Continue reading
Posted Feb 26, 2019 at California Mediation and Arbitration
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Arbitration, Conflicts, Stay & Celebrities: Second District, Div. 7 Rules That Disqualification Motion Was Premature While Motion To Compel Arbitration And To Stay Were Pending
The Code Of Civil Procedure 1281.4 Stay Is Mandatory. Top Kick Productions, Inc., Chuck Norris's production company, sued CBS Broadcasting Inc. over allegations of what might be characterized as Hollywood Accounting. CBS moved to compel arbitration, and to stay the litigation pursuant to CCP 1281.4, while Top Kick had a... Continue reading
Posted Feb 21, 2019 at California Mediation and Arbitration
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