Author: calmediation

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 […]

Employment: Fourth District, Div. 3 Upholds Trial Court’s Order That Employee Must Arbitrate Individual Claims And Dismisses Class Claims Without Prejudice

December 6, 2013 · Arbitration: Class, Arbitration: Employment, Arbitration: Enforceability, Arbitration: Unconscionability, Arbitration: Waiver

Court Summarizes Fractured Opinion About Gentry Rivera v. Hilton Worldwide, Inc., Case No. G047644 (4th Dist. Div. 3 Nov. 26, 2013) (unpublished) is one more wage and hour case in which the employee is ordered to arbitrate individual claims and the Court upholds dismissal of class claims without prejudice. The Court finds that […]

Arbitration/Miscellaneous/MFAA: California State Bar Offers Arbitration Advisories Under Auspices Of The Committee On Mandatory Fee Arbitration

November 21, 2013 · Arbitration: MFAA, Miscellaneous

Useful Resource for Mandatory Fee Arbitration The California State Bar offers a useful collection of “Arbitration Advisories” that I wanted to share with my readers. These advisories come with the following disclaimer: “Points of view or opinions expressed in this document are those of the Committee on Mandatory Fee Arbitration. They have […]

Arbitration/Employment: One More Opinion Weighs In That Representative PAGA Claim Cannot Be Compelled To Arbitration

November 15, 2013 · Arbitration: Employment, Arbitration: Public Policy, Arbitration: Waiver

PAGA Claims Are Representative, Not Individual Claims, Fourth District, Division 3 Explains Here, the arbitration agreement required plaintiff to arbitrate “claims for wages or other compensation due or penalties . . . [and] violation of statute.” But she could not be compelled to litigate her California Private Attorney General Act claim as an individual, […]

Arbitration/Rules: AAA Adopts Optional Appellate Arbitration Rules Effective November 1, 2013

November 15, 2013 · Arbitration: Rules

Grounds For Appeal Go Beyond Those Allowed By Existing State And Federal Statutes Perhaps the greatest risk with arbitration is that errors of fact and law are not grounds for appeal. The American Arbitration Association has now addressed that risk by adopting Optional Appellate Arbitration Rules effective November 1, 2013. These optional rules […]

Arbitration/Disclosures/Vacatur//Waiver: Fifth District Holds That Arbitrator’s Adverse Relationship In Litigation With Law Firm Representing Losing Party In Arbitration Did Not Require Vacating The Award Here

November 12, 2013 · Arbitration: Disclosures, Arbitration: Section 1286.2 Vacatur, Arbitration: Section 1286.6 Correction by Court, Arbitration: Waiver

The Purported Conflict Did Not Come Within Any Of Those Specifically Listed Matters That Must Be Disclosed Plaintiff Diamond Manufacturing & Engineering Co. (Diamond) obtained a favorable arbitration award against defendant Equipment Parts Wholesale, LLC (EPW). When Diamond petitioned the trial court to confirm the award, EPW requested – unsuccessfully – that the […]