California Mediation and Arbitration

Author: calmediation

Arbitration, CCP 1281.2, Construction Of Agreement, Scope: Plaintiff’s Equitable Claims Were Outside Scope Of Arbitration Agreement

January 6, 2015 · Arbitration: Construction of Agreement, Arbitration: Scope, Arbitration: Section 1281.2

Second District, Division 2, Rejects Appellants’ “Tortured” Reading Of Arbitration Provision And Affirms Order Denying Motion To Compel Arbitration.      Plaintiffs, investors in an independent bookstore, refused the request of defendants, the bookstore and its prior owner, to arbitrate a business dispute.  The key language in the arbitration provision read:  “Notwithstanding the foregoing, no arbitrator […]

Arbitration, Burden Of Proof, Enforceability, Employment, CCP 1281.2: Petition To Compel Arbitration Fails Because Employer Is Unable To Authenticate Electronic Signature.

January 4, 2015 · Arbitration: Burden of Proof, Arbitration: Employment

Burden Of Proof Shifted To Employer Because Employee Didn’t Remember Signing Arbitration Agreement.      Ruiz v. Moss Bros. Auto Group, Inc., E057529 (4/2 Dec. 23, 2014) (King, Hollenhorst, Codrington) is one more reminder of the pitfalls when dealing with electronic signatures.  After employer Moss Bros. unsuccessfully petitioned for an order compelling arbitration of employee Ruiz’s […]

Arbitration, Waiver, Standard of Review: Awareness Of Right To Arbitrate, Actions Inconsistent With Arbitration, And Prejudice Add Up To Waiver Of Right To Arbitrate

January 1, 2015 · Arbitration: Standard of Review, Arbitration: Waiver

  Court Distinguishes Recent Cases Finding No Waiver Of Right To Arbitrate.      In Bower v. Inter-Con Security Systems, Inc., Case No. A135940 (1/3 Dec. 31, 2014) (McGuiness, Pollack, Siggins), the Court of Appeal held that substantial evidence supported the trial court’s finding that defendant waived its right to arbitrate individual claims with plaintiff in […]

Section 664.6: Court Of Appeal Refuses To Enforce Settlement Because Email Failed Electronic Signature Test

December 31, 2014 · Arbitration: Section 664.6

Dot I’s and Cross T’s When Relying On An Electronic Signature!      In J.B.B. Investment Partners, Ltd. v. Fair, Case Nos. A140232, A141228 (1/2 Dec. 30, 2014) (Kline, Richman, Stewart), the Court of Appeal reversed a trial court’s enforcement of a settlement agreement under CCP section 664.6, because email and voicemail messages failed to […]

Arbitration, Attorney’s Fees: Voluntary Dismissal Of Court Action Comes Too Late To Avoid Attorney’s Fee Exposure Once Evidence Has Already Been Presented In Dual-Track Arbitration

December 30, 2014 · Arbitration: Fees

  When Does Trial Commence In “Dual Track” Arbitration/Litigation?     The Danger Signal. Currier & Ives.  1884.  Library of Congress.      Parties routinely avoid exposure to attorneys fees under Cal. Civ. Code section 1717 by voluntarily dismissing their action before “the actual commencement of trial”.  The meaning of “the actual commencement of trial” presented a […]

Mediation, Confidentiality: Court of Appeal Holds Mediation Privilege Does Not Protect Confidentiality Of Financial Disclosure Statements Mandated By Family Code

December 21, 2014 · Mediation: Confidentiality

  Court Refuses To Carve Out Judicial Exception To Mediation Privilege While Explaining Why Privilege Simply Didn’t Apply Here.      Few are the cases in which courts have pierced the mediation confidentiality privilege, because the courts have said the privilege is almost absolute, refusing to craft judicial exceptions to the statutory privilege, Evid. Code sections […]

Arbitration, Public Policy: Fourth District, Division 3 Holds AT&T Mobility v. Concepcion Preemption Sweeps Away Broughton-Cruz Rule That Prohibited Arbitration Of UCL, FAL, And CLRA Injunctive Relief Claims Brought For The Public’s Benefit

December 18, 2014 · Arbitration: Public Policy

But Iskanian’s Analysis Of PAGA Representative Action Waivers Remains Intact Under This Court’s Analysis.      The California Supreme Court developed the “Broughton-Cruz” rule, under which arbitration provisions are unenforceable as against public policy if they require arbitration of Unfair Competition Law, False Advertising Law, or Consumer Legal Remedies Act injunctive relief claims brought for the […]

Arbitration, Appealability, Jurisdiction: Two-Fer: Courts Of Appeal Find Orders Unappealable In Disputes Raising Arbitration Issues

December 18, 2014 · Arbitration: Appealability, Arbitration: Employment, Arbitration: Jurisdiction, Arbitration: PAGA

Wells Fargo Bank, N.A. v. The Best Service Co., Inc., Case No. B253861 (2/5 Dec. 17, 2014) (Turner, Mosk, Kriegler) (published).      In Wells Fargo Bank, N.A. v. The Best Service Co., Inc., the Court of Appeal dismissed defendant’s appeal of an order denying its motion to stay the action pending arbitration, because the stay […]

Arbitration, Employment, Unconscionability Severability: Substantively Unconscionable Arbitration Provision Is Saved By Severability Clause

December 17, 2014 · Arbitration: Employment, Arbitration: Severability, Arbitration: Unconscionability

Court of Appeal Only Found Fee-Shifting Provision To Be Substantively Unconscionable.      The trial judge, the Hon. Mary Ann Murphy, found the employer-employee arbitration Agreements to be unconscionable and unenforceable because JAMS rules were not referenced, a fee-shifting provision permitted an award of fees to the prevailing defendant on employee’s FEHA claims without factual findings […]