After Employee Questioned The Agreement To Arbitrate, Burden Of Proof Shifted To Employer. Hope Gamboa sued Northeast Community Clinic for employment-related claims. The employer moved to arbitrate. The trial court denied the motion. Affirmed. No agreement to arbitrate existed. Gamboa v. Northeast Community Clinic, No. 394833 (2/7 11/30/21) (Ibarra, Perluss, Feuer). Why couldn't […]
The articles are: Outsourcing the violation of constitutional rights to private parties, Sept. 8, 2021. Do Justices studiously try to avoid deciding cases on the basis of ideology? A review of Justice Stephen Breyer's "The Authority of the Courts and the Peril of Politics," Oct. 19, 2021. NOTE: While I have provided links, they tend […]
Ineffective Delegation Clauses, Fraud In The Execution, And Unconsciconability Result In Reversals. In Najarro v. Sup. Ct. of the County of San Bernardino; Horizon Personnel Services Inc., et al, E076328 (4/2 10/22/21) (Raphael, Codrington, Slough), the court does plenty of slicing and dicing, because there are two arbitration agreements, two sets of employees, […]
Court Declines Invitation To Treat Iskanian As Overruled Sub Silentio. The Third District Court of Appeal joins other California appellate courts ruling that PAGA representative actions are not waveable, and affirms the trial court's order denying employer's motion to compel arbitration. Carllie Williams v. RGIS, LLC, No. C091253 (3rd Dist. 10/18/21). In reaching […]
Mandatory Pre-Dispute Arbitration Provisions Are At Issue. Abha Bhattarai, National Retail Reporter for the Washington Post, reports that 1.6% of employees won in arbitration against employers last year. See "As closed-door arbitration soared last year, workers won cases against employers just 1.6 percent of the time" (October 27, 2021). This statement is based […]
Judge Sandra S. Ikuta Dissents. Section 432.6 of the California Labor Code, which was added by AB 51, forbids employers from requiring an arbitration agreement as a condition of employment, or threatening to retaliate against an employee for refusing to sign an arbitration agreement. A Ninth Circuit panel, by a two person majority, holds […]
Judge Berzon Dissents. Plaintiff Brandon Hodges brought a putative class action against Comcast, challenging its privacy and data-collection practices and seeking injunctive relief. The trial court denied Comcast's motion to compel arbitration, on the ground that Hodges sought public injunctive relief that could not be waived with an agreement to arbitrate. The Ninth Circuit […]
Delivery Truck Driver Had To Arbitrate Anyway. Section 1 of the FAA exempts from the Act’s coverage all “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In Romero v. Watkins and Shepard Trucking, No. 20-55768 (9th Cir. 8/19/21) (Fisher, Watford, Bumatay), the court […]
Parties Could Have Specifically Incorporated Arbitration Limitations In California Labor Code Instead Of Generally Choosing California Law — In Theory. California Labor Code §229 provides, in part, that actions to collect due and unpaid wages may be maintained without regard to the existence of any private agreement to arbitrate. And parties to an employment […]
August 12, 2021 Was A Day Rich In 9th Circuit Arbitration Decisions. Santiago Lim v. TForce Logistics, LLC, No. 20-55564 (9th Cir. 8/12/21) (Smith, Owens, Robreno). This case is about the gateway decision of arbitrability, delegation of that decision, and unconscionability. The panel holds that the delegation and arbitration clauses are procedurally and substantively […]