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Southern California
Business Litigator, Mediator
Recent Activity
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
What A Difference A Day Makes . . . Attorney Soni and his client entered into mandatory fee arbitration, and thirty-three days after receiving an award of $2.50 (two dollars and fifty cents) in his favor, the attorney filed a new action in the superior court. Ruling the 30 day... Continue reading
California Supreme Court Opinion Seeks To Promote Accessible And Affordable Procedures To Resolve Wage Disputes. I'm trying to catch up with some published opinions I failed to post on earlier this year. The most important, if only because it is a California Supreme Court opinion, is OTO, L.L.C. v. Kho,... Continue reading
Your Blogger Is Also A Co-Contributor To California Attorney's Fees Blog. My colleague Mike Hensley and I are co-contributors to the blog California Attorney's Fees. We blog about attorney's fees issues in California state courts and the Ninth Circuit, and we have been doing so since 2008. I have an... Continue reading
Useful Advice In An Online Article. A problem sometimes arising in mediation is that while the parties may agree on a settlement amount, the defendant signals it may declare bankruptcy, putting the value of any settlement in doubt. How can bankruptcy risks be minimized in settlement agreements? I found an... Continue reading
College That Wanted To Participate In Intercollegiate Athletics Had No Choice Other Than To Contract With Athletic Association. Bakersfield College et al. v. California Community College Athletic Association et al., C085099 (3d Dist. 10/31/19) (Robie, Duarte, Renner), was described both by the trial court and the appellate court as a... Continue reading
Plaintiff/Appellant Unsuccessfully Argued Following California Commercial Code Required Legal Proceeding, Not Arbitration. Plaintiff/Appellant Prima Donna Development Corporation appealed from a judgment confirming an arbitration award in favor of Wells Fargo Bank, N.A., and challenged an order compelling arbitration and denying its motion to vacate the award. Prima Donna Development Corporation... Continue reading
Judge Friedland Dissents. Billboard for Chero-Cola, a long-defunct soft-drink brand, in Louisville, a town in northeastern Georgia. Carol M. Highsmith, photographer. Library of Congress. Monster Energy, FKA Hansen Beverage Company, designates JAMS as an arbitral forum in its agreements with distributors. So when a dispute arose between Monster Energy and... Continue reading
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