California Mediation and Arbitration

Month: December 2013

Arbitration/Disclosures: Fifth District Rules That Plaintiff/Appellant Forfeited His Objections To The Arbitrator’s Initial Disclosure Statement

December 26, 2013 · Arbitration: Disclosures, Arbitration: Section 1286.2 Vacatur

Once Plaintiff Knew of Arbitrator’s Relationship With Defendant, Plaintiff Was On Inquiry Notice To Ask About Details      An arbitrator must make certain disclosures within 10 days of receiving notice of his or her nomination to serve as a neutral arbitrator.  See CCP section 1281.9.  Once the arbitrator makes those disclosures, a party has 15 […]

Arbitration/Settlement/CCP 664.6: Fourth District, Division 2 Affirms Judgments, Finding Settlement Agreement Is Not Too Uncertain To Enforce

December 26, 2013 · Arbitration: Section 664.6

A Roadmap For Drafting An Enforceable Settlement Agreement      In our next case, the factors supporting enforceability of a settlement agreement provide a roadmap for drafting an enforceable agreement.      Defendants appealed two identical judgments entered in related lawsuits, arguing that the trial court should have not enforced a settlement agreement because, among other things, […]

Mediation/Confidentiality: Court Of Appeal Upholds Denial Of JNOV Because Motion To Overturn JNOV Relied Heavily On Inadmissible Evidence Subject To Mediation Privilege

December 25, 2013 · Mediation: Confidentiality

Parties’ Agreement To Extend Mediation Beyond Ten-Day Period Following Communication With Mediator Made Evidence Inadmissible      Boy, does this case, involving a dispute between client (Porter) and attorneys (Wyner) have a history.  After the California Supreme Court ruled in Simmons v. Ghaderi, 44 Cal.4th 570 (2008) that waivers of mediation confidentiality by either implication or […]

Arbitration/Appealability/Vacatur/FAA/Class Action: Ninth Circuit Holds Non-Appealability Clause Relating To Arbitration Award Allocating Fees Among Class Counsel Attorneys Runs Afoul Of the Federal Arbitration Act

December 18, 2013 · Arbitration: Appealability, Arbitration: Class, Arbitration: Federal Arbitration Act, Arbitration: Section 1286.2 Vacatur

At Stake:  Allocation of $28M in Attorney’s Fees Among Plaintiffs’ Attorneys in Wal-Mart Wage and Hour Litigation      The scenario:  Plaintiffs’ class counsel prosecute wage and hour class action against Wal-Mart, plaintiffs’ counsel quarrel concerning proper allocation of $28M fee award, and the fee dispute is submitted to “binding, non-appealable arbitration” before an eminent arbitrator, […]

Waiver: Second District, Division 5 Holds Trial Court, Not Arbitrator, Should Decide Merits Of Waiver Of Arbitration By Litigation Conduct

December 18, 2013 · Arbitration: Waiver

Judicial Expertise And Judicial Economy Weigh In Favor Of Letting The Trial Court Make The Call On This Waiver Issue      In a 3-0 opinion penned by Presiding Justice Turner, the Court of Appeal holds, “[t]he trial court correctly ruled it, rather than an arbitrator, should decide the merits of the waiver by litigation conduct […]

Unconscionability/Preemption/Class/Consumers: Ninth Circuit Upholds Denial Of Arbitration In Two Cases

December 18, 2013 · Arbitration: Class, Arbitration: Consumers, Arbitration: Federal Arbitration Act, Arbitration: Unconscionability

      Ninth Circuit Judge William Fletcher is the author of two recent Ninth Circuit opinions affirming district court denials of motions to arbitrate against class action plaintiffs. Like his mother, the distinguished late Ninth Circuit Judge Betty Binns Fletcher, W. Fletcher was born in the State of Washington, and the next two cases involve Washington […]

Arbitration/Unconscionability/Automobiles: Fourth District, Div. 3 Finds Arbitration Provision In Common Automobile Sales Contract To Be Unconscionable

December 14, 2013 · Arbitration: Automobiles, Arbitration: Unconscionability

  An Opportunity To Enjoy Some Vintage Justice Bedsworth      The unconscionability issue concerning the Retail Installment Sales Contract in the next case is currently pending before the California Supreme Court In Sanchez v. Valencia Holding Co., 201 Cal.App.4th 74 (2011), review granted March 21, 2012 (S199119) and several related cases.  In an opinion authored […]

Mediation/Condition Precedent: Following Its Own Precedent, 4th Dist. Div. 3 Reminds Us To Mediate First If Mediation Is A Condition Precedent For Receiving Attorney’s Fees

December 9, 2013 · Mediation: Condition Precedent

Here, The Prevailing Party Fails To Mediate, And Fails To Recover Attorney’s Fees      In our next case, plaintiffs’ claims arose from mismanagement of their property.  They sued, and obtained a substantial recovery – but no attorney’s fees.  Why?  Because mediation was a precondition in their contract for the prevailing party to receive attorney’s fees, […]

Arbitration/Sanctions: Sixth District Holds CCP 128.7 Sanctions Are Unavailable In Arbitration Where Attorney Has Not “Presented” Pleading To Court

December 6, 2013 · Arbitration: Sanctions

Trial Court’s Order Denying Sanctions Under CCP 128.7 Is Affirmed      In Optimal Markets, Inc. v. Salant, Case No. H038571 (6th Dist. Nov. 26, 2013) (unpublished), the Court explains:  “There is no authority supporting the position that a superior court, after a matter has been stayed and ordered to binding arbitration, may impose section 128.7 […]