Under Armendariz Framework, Court Finds Parties' Arbitration Agreement Is Unconscionable. Constance Ramos, "an experienced litigator and patent practitioner with a doctorate in biophysics" petitioned the Court of Appeal to vacate superior court Judge John Stewart's order granting the motion of her erstwhile employer, Winston & Strawn, to compel arbitration of her employment/FEHA dispute. […]
Different Handbook Versions Seen As Negligent Or, At Worse, Deceptive. This case involved interesting PAGA waiver and severability issues under a very specific factual setting fraught with confusion. The situation went this way: Employer, during the employment of plaintiff hourly employee in Ventura, adopted a policy requiring arbitration of legal claims arising from […]
Washington And California State Law Unconscionability Analysis Are Different. DeGraff v. Perkins Coie California P.C. et al., A148405 (1/1 2/21/18) (Dondero, Humes, Banke ) (unpublished) applies Washington state law to analyze the enforceability of an arbitration provision in a dispute between an attorney and his former law firm. Reversing the order denying the […]
The Unconscionable Provision Permitted Only The Defendant To Seek Equitable And Injunctive Relief In A Court Of Law. In Enyong v. Westlake Services, LLC et al., B275952 (2/5 4/24/17) (Kriegler, Baker, Dunning) (unpublished), the Court of Appeal concluded that an arbitration provision contained only one unconscionable term, which was severable. Therefore, it reversed […]
Panel Rejects Employee’s Arguments That Six Provisions Are Unconscionable, Requires Severance Of “Judicial Carve-Out” Provision, And Punts On “Reaffirmation Clause” Provision. Poublon v. C.H. Robinson Company, et al., No. 15-55143 (9th Cir. 2/3/17) (Ikuta, Callahan, Bea) is an opinion that employers will likely cite when arguing against employee claims that an arbitration clause is substantively […]
Two Years Later . . . On January 7, 2015, we posted about Montano v. The Wet Seal Retail, Inc., B244107 (2nd Dist. Div. 4 1/13/15) (certified for pub.). This is a Private Attorneys General Act case following the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014), that waiver of the […]
Limitations On Discovery Did Not Make Arbitration Unconscionable, Because The Limitations Applied Equally. A vintage downtown beauty parlor, part of the Ackley Heritage Center that also includes an old-time soda fountain as well as prairie houses and farm buildings on the outskirts of town in Ackley, Iowa. 2016. Carol M. Highsmith, photographer. Library of […]
Fees And Costs Provision In Consumer Arbitration Was Unconscionable Here. This case involves a common scenario in which a business sells a good or service that is financed, the business is unable to fully perform, and the lender seeks to enforce an arbitration provision when it gets sued. Here, the Court of Appeal held […]
Severability: General Swallow all-o feasting on a French Fricassee!! William Holland, publisher. May 1799. Library of Congress. Success with Severability: Trabert v. Consumer Portfolio Services. In Trabert v. Consumer Portfolio Services, Inc., Case No. D065556 (4/1 March 3, 2015) (Haller, Aaron, Irion) (published), the Court of Appeal ordered the trial court (1) to […]
Court of Appeal Recognizes It Is Bound By Iskanian, Until SCOTUS Resolves Validity Of PAGA Waivers. Montano v. The Wet Seal Retail, Inc., B244107 (2/4 Jan. 7, 2015) (Epstein, Willhite, Manella) (published) is the latest case to follow the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014), that waiver […]