Guidebook Disclaimers Were Self-Destructing In the next case, the Court of Appeal would not let the employer “have its cake and eat it too.” On the one hand, the employee Guidebook provided for arbitration. On the other hand, the employee Guidebook contained disclaimers that relieved the employer of contractual obligations. The employer could […]
Sometimes “May” Means “Shall” and Sometimes “May” Means “May” When does an ADR provision that provides for arbitration require arbitration? Truplug, the inventor of a product used as an emergency plug for boat leaks, sued Forespar, which had exclusive rights to market the product, for misrepresentation and negligence in marketing the Truplug product. […]
Arbitration Clause Did Create Unilateral Right To Compel Arbitration, And There Was No Precedent To Compel Mediation Members of an LLC ended up in a business dispute leading to a lawsuit followed by defendants’ motion to compel mediation and arbitration. The trial court construed an arbitration agreement as insufficient to allow one party to […]
Decision Reversing Trial Court’s Findings of Unconscionability and Non-Arbitrability of Tort Claims is Very Fact Specific – But Ruling On Tort Claims Is Worth Noting Bigler v. The Harker School, Case No. H037450 (6th Dist. February 6, 2013) (Elia, J., author 3:0) (published) is a reminder judicial determinations of unconscionability and arbitrability are often […]
Result Here Depends Entirely On Contract Construction Of Prime And Subcontracts Our next case is entitled American Water Jetting, Inc., Plaintiff and Respondent, v. Highland Construction, Inc. et al., Defendants and Appellants, Case No. E054004 (Fourth Dist. Div. 2 January 25, 2013) (McKinster, J.) (unpublished). I don’t usually restate the full caption of a […]
Disneyland of Construction: Involvement In Project Versus Involvement In Dispute Is The Issue Here Carol M. Highsmith, photographer. Between 1980 and 2006. Library of Congress. Subcontractor Pacific Westline, Inc. sued contractor C.W. Driver, alleging Driver refused to pay for additional work on a hotel at Disneyland. Driver successfully petitioned to compel arbitration, and Pacific […]
“In particular, we do not find unconscionable a provision in the arbitration agreement allowing either party to seek provisional remedies . . . “ For the practitioner, Baltazar v. Forever 21, Inc., Case No. B237173 (2nd Dist. Div. 1 Dec. 20, 2012) (Mallano, J.) (published), is worth reading because it provides employers and employees […]
Incorporation By Reference Argument Fails Freedom Films, LLC sued Nu Image, Inc., and M3 Media, Inc. for breach of contract, accounting, and fraud, adding doe defendants later as alleged alter egos. Defendants moved to compel arbitration under an arbitration provision. The trial court denied the motions on the ground that the parties had not […]
Denial of Motion to Compel Arbitration Hinges on Burden of Proof and Existence of Statutory Rights One of the “hot topics” we have posted about is whether the right to sue in court can be waived when the rights at issue are statutory rights. See our June 5, 2012 post on Iskanian v. CLS […]
Parties’ Agreement To Litigate In Superior Court Proved Fatal To Prevailing Party’s Fee Recovery Plaintiff Mari sued Defendant Hawkins for professional negligence in connection with a survey, and prevailed in the trial court. However, the trial court denied Plaintiff’s request for attorney’s fees, because the fee provision was part of an arbitration provision […]