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 […]
Denying All Discovery In Arbitration Of Professional Malpractice Claims Is Unconscionable. Surgery scalpels. 1878. Library of Congress. The Second District, Division Four, has affirmed the trial court’s finding of unconscionability, but concludes that unconscionability may be cured through severance in an arbitration of professional malpractice claims. Lateral Link Group v. BLA Schwartz, Case […]
The Divergent Outcomes Are Explained By The Peculiar Facts (Of Course) 1. Cruise v. Kroger Co., B248430 (2/3 Aug. 27, 2014) (Aldrich, Klein – third member of panel unavailable). Employer Kroger Co., parent of Ralphs, which had loaded an arbitration policy with one-sided provisions favoring the employer, moved to compel arbitration of an employment […]
Permeated With Unconscionability, Agreement Did Not Require Severance. Mr. Ryan, an employee in the construction industry, claimed that he was fired in a retaliatory move by his employer. The employer petitioned to compel arbitration. The trial court denied the request, finding the mandatory employment arbitration agreement contained unconscionable provisions, and refusing to sever […]
Sixth District Does Agree That Federal Arbitration Act Preempts California Consumers Legal Remedies Act, So Class Action Waiver In Arbitration Clause Is Enforceable Jalopy that has seen better days. Carol M. Highsmith, photographer. Library of Congress. An arbitration clause that is “permeated with unconscionability” need not be enforced. Here, the scorecard in […]
Also, Court Refuses To Sever Because Of Lack Of Mutuality No sooner did I post about McElroy v. Tenet Healthcare Corporation, a case reversing an order denying arbitration to a healthcare organization sued by a nurse, than I came across our next case, decided on the same day, and affirming an order denying […]
The Issue Is Also Pending In The California Supreme Court The latest in the crop of cases concerning car sales contracts and petitions to compel arbitration is Natalini v. Import Motors, Inc., Case No. A133236 (1st Dist. Div. 1 January 7, 2013) (Simons, J., author) (unpublished). The Court had no trouble affirming the denial […]
Court of Appeal Rejects Employer’s Contention that AT&T Mobility v. Concepcion Overruled Armendariz Unconscionability Analysis Plaintiff Erika Brenner, an attorney, sued her “employer” Glenn Johnson Law, LLP and its principal, attorney Glenn Johnson, for wrongful discharge and other employment-related claims. Defendants moved to compel arbitration under a contractual arbitration provision. Brenner opposed, arguing […]
In Which the Dream of A Bed and Breakfast Becomes A Dog’s Breakfast “A partnership to run a bed and breakfast in Nicaragua soured.” Not an auspicious beginning. Plaintiff Lawler sued his partners, the Caseys, and their former corporation (collectively Casey) in California for fraud and related causes of action. Casey moved to compel […]
Fifth District Explains That By Submitting A Dispute to An Arbitral Forum, A Party Does Not Necessarily Forgo Substantive Statutory Rights Plaintiff Ruth Chappell (replaced by her trustee Bickel after she died) sued an assisted living facility, Sunrise Assisted Living, for Elder Abuse. Chappell’s written agreement with Sunrise included an arbitration clause specifying […]