Author: calmediation

Arbitration, Medical Malpractice, FAA: Federal Arbitration Act Preempts California’s Statutory 30-Day Rescission Provision Applying To Arbitration Of Medical Malpractice Disputes

June 23, 2016 · Arbitration: Federal Arbitration Act, Arbitration: Section 1295 (Medical Malpractice)

For Preemption Purposes, “Involving Commerce” In The FAA Is Broader Than “In Commerce”, Making It Easy To Find Preemption. Physicians don’t like to defend medical malpractice cases in front of juries, and Scott v. Yoho, B265641 (2/5 6/22/16) (Turner, Kriegler, Kumar) will make it easier for them to arbitrate malpractice cases and avoid juries […]

Mediation Confidentiality: How Ironclad?

June 23, 2016 · Mediation: Confidentiality

The Daily Journal Has Provided A Link To Louie Castoria’s Article Entitled “Mediation confidentiality: a wall against malpractice claims or a sieve?” Louie Castoria, a partner at Kaufman Dolowich & Voluck LLP, and a mediator, has authored an article suggesting we may take a bit too much for granted about mediation confidentiality, and advocating […]

Arbitration, Existence Of Agreement: Second District, Div. 5 Holds Employee Is Bound By Arbitration Agreement He Did Not Sign–He Acknowledged Receipt And Kept On Working

June 22, 2016 · Arbitration: Employment, Arbitration: Enforceability, Arbitration: Existence of Agreement, Arbitration: Nonsignatories

Nor Was The Agreement Illusory Just Because The Agreement Provided The Employer Could Change It At Any Time. In Harris v. Tap Worldwide, LLC, B262504 (2/5 6/22/16) (Turner, Kriegler, Kumar) (certified for partial publication, except part III(C) covering unconscionability), the Court determined that, notwithstanding that the arbitration agreement was unsigned, there was a validate […]

Unconscionability: Arbitration Agreement Between Indiana Based Distance-Learning Partnership And California Licensed Vocational Nurses Determined To Be Unconscionable

June 22, 2016 · Arbitration: Unconscionability

Indiana Forum Clause Was Important Factor In Finding Of Substantive Unconscionability. The Fourth District, Division One, concludes the trial court correctly determined the arbitration provision between an Indiana-based company soliciting business in California, and California residents, who were Licensed Vocational Nurses seeking to become Registered Nurses, was unconscionable. Magno v. The College Network, Inc., […]

Arbitration, Scope, Enforceability, Construction: Employees Get To Litigate Class Action Claims, Because Arbitration Agreement Excluded Class Action Claims From Its Scope

June 22, 2016 · Arbitration: Class, Arbitration: Construction of Agreement, Arbitration: Enforceability, Arbitration: Scope

Court Looks At Evolution Of Class Action Waiver Law In California For Help Construing Meaning Of The Contractual Language. In 2011, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) held the Discover Bank rule, invalidating a class arbitration waiver, had been preempted by the Federal Arbitration Act. After Concepcion, employers frequently insert class […]

Arbitration, Waiver, Record: “Woefully Inadequate” Record Fails To Support Employer’s Appeal From Trial Court’s Order Concluding Employer Waived Right To Enforce Arbitration Agreement

June 20, 2016 · Arbitration: Record, Arbitration: Waiver

Employer Claimed Appeal Was Based On Entire Record, But Failed To Provide Court With Entire Record. Employer ICC Collision Centers, Inc. appealed the trial court’s order denying its motion to compel its employee Ogannesian to arbitrate his wage/hour claims. The trial court had concluded that the employer waived its right to arbitrate by delaying […]

Arbitration, Fees, Stay, FAA: Ninth Circuit Holds That Arbitration Terminated For Party’s Inability To Pay Fees, Had Nevertheless Been Had, So District Court Should Lift Stay On Litigation

June 15, 2016 · Arbitration: Federal Arbitration Act, Arbitration: Fees, Arbitration: Stay

What Does It Mean For An Arbitration To “Have Been Had In Accordance With The Terms Of The Agreement” When A Party Is Unable To Pay Arbitration Fees? We revisit a recurring problem that occurs in arbitration. In federal court, a party successfully moves to compel arbitration under the FAA, and the court stays […]

Arbitration, Vacatur, Continuances, Disclosures: Fifth District Holds Trial Court Properly Confirmed Arbitration Award, Notwithstanding Arbitrator’s Denial Of Postponement And Refusal To Disqualify Himself

June 13, 2016 · Arbitration: Continuances, Arbitration: Disclosures, Arbitration: Section 1286.2 Vacatur

Arbitrator Made Disclosures “In Abundance of Caution.” One basis for vacating an arbitration award is when the arbitrator’s denial of a postponement results in substantial prejudice. Another basis for vacating an award is when the arbitrator is obligated to disqualify himself and fails to do so. In McElvany, Inc. v. Hassan Ahmadi et […]

Miscellaneous: Slightly Unhinged

June 6, 2016 · Miscellaneous

Brodeur v. Atlas Entertainment, Inc. Makes For Entertaining Reading. Sometimes I stumble across a case having nothing to do with the subject of this blog, yet I feel compelled to share. “The principal issue in this case is whether a statement made by a ‘slightly unhinged’ character in a motion picture, American Hustle (Columbia […]

Arbitration, Construction, Scope: Arbitration Agreement Governing “Any Controversy Arising Out Of” Operating Agreement Did Not Cover Malpractice, Breach Of Fiduciary Duty, And Rescission

June 5, 2016 · Arbitration: Construction of Agreement, Arbitration: Scope

Second District, Division One Provides In-Depth Discussion Of Whether Arbitration Clause Is Broad Or Narrow. An issue that comes up repeatedly is whether an arbitration clause is broad enough to encompass tort claims. Our next case, certified for publication, is worth reading because it offers an in-depth analysis of how to determine the scope […]