Deficient Power Of Attorney Was Used For Making Decisions Relating To Health Care. Hutcheson v. Eskaton Fountainwood Lodge, C074846 (3rd Dist. 11/28/17) has been ordered filed on rehearing. We posted earlier about this case on June 15, 2017. The case held that a residential facility for care of the elderly could not enforce an […]
Compulsory Interest Arbitration Withstands Challenges That It Is Unconstitutional And An Improper Delegation Of Legislative Authority. In 2002, California enacted "Mandatory Mediation and Conciliation" (MMC) provisions to facilitate negotiating and completing collective bargaining agreements between agricultural employees and growers. As the label MMC suggests, it is an unusual scheme, since "mandatory" and "mediation" […]
When Is An Agreement To Arbitrate A PAGA Claim Predispute Or Postdispute? Let me begin with what I believe is the punchline of our next case: "[T]he classification of an agreement as 'predispute' or 'post dispute' must be made by reference to the point at which an individual employee acquires the status of […]
"This Appeal Comes Down To Application Of The Standard Of Review." While I have blogged many times about cases in which the Court of Appeal has reversed an order denying a motion to compel arbitration, this is not one of those cases. T3 Motion, Inc. v Tsumpes, G053654 (4/3 11/14/17) (Fybel, Bedsworth, Thompson) (unpublished). […]
A Mistake By The Trial Court Did Not Affect The Outcome. Client Nussbaum and attorney Liberty had a fee dispute that they arbitrated pursuant to the Mandatory Fee Arbitration Act (MFAA). The arbitration panel awarded Liberty $75K in fees and $30K in interest. After the notice of the award was mailed and more than 30 […]
Mediator Dennis S. Klein Makes Case For Creating A Mediation Department In Your Law Firm. In a November 14, 2017 article available through Law360 and LexisNexis, Dennis S. Klein, owner of Miami-based ADR firm Critical Matter Mediation, advocates "The Case For Creating A Mediation Department At Your Law Firm." Mr. Klein […]
Waiver, Invited Error, And Sharp Practices Doom The Appeal. Justice Ikola grabs the reader by the lapels in the opening lines of Diaz v. Professional Community Management, Inc., G053909 (4/3 certified for pub. 11/8/17) (Ikola, O'Leary, Aronson): "A 'sharp practice' is defined as a 'dealing in which advantage is taken or sought unscrupulously. […]
Trial Judge's Refusal To Continue Hearing On Motion For Summary Judgment Was An Abuse Of Discretion. You know that plaintiff/appellant Richard A. Denton had a very bad day in the trial court when the trial judge says: "Now, what can I do for you?" and the Court of Appeal comments, "And it was […]
What Does "Generally" Mean? Pristine Environments Inc. v. Signet Jewelers Limited et al., D071394 (4/1 10/13/17) (Nares, Benke, O'Rourke) (unpublished) involves an interesting wrinkle to the question: who decides the issue of arbitrability? Case law holds the issue of arbitrability is decided by the Court, absent clear and unmistakable evidence of the parties' intent […]
An Unenforceable Settlement: Vitatech Held Stipulation To Enter Judgment For $300K After Defendant Defaults On One-Time Payment of $75K Is An Unenforceable Penalty. On October 3, 2017, I posted about Vitatech International, Inc. v. Sporn, G053477, a Fourth District, Division Three opinion. Unpublished at the time, the case was certified for publication on October 30, […]