Settlement: Mediator settlement proposals: a perspective
My Perspective.
I've written an article about mediator settlement proposals and it is published in the July 2023 issue of Advocate. For my readers interested in the topic, here is a link to the article: Download Alexander-July23-article
Arbitration, Scope: 9th Circuit Ruled Amazon Arbitration Agreement With Flex Drivers Did Not Apply To Spying On Drivers On Facebook
Two Judge Majority With Judge Susan P. Graber Concurring And Dissenting.
Amazon Flex Drivers sued Amazon for allegedly spying on them in a closed Facebook group where the drivers discussed employment-related issues when they were not working. A panel of the 9th Circuit held that a 2016 arbitration agreement applied, because the employer seems not to have given adequate notice of the terms of a later agreement to the drivers. However, a majority of the panel held that the allegations of spying did not come within the scope of the arbitration agreement; in fact, the drivers' claim that spying and invasion of privacy were wrongful acts would have been wrongful acts even if they had not been drivers. Drickey Jackson v. Amazon, No. 21-56107 (9th Cir. 4/19/23) (Schroeder, Friedland; Graber conc. & dsst.).
Judge Graber concurred that the 2016 agreement applied and that denial of a motion to compel arbitration was appealable. However, she believed that the conduct alleged did arise from the employment relationship, and therefore the drivers should have been required to arbitrate."In sum," Judge Graber wrote, "Defendant allegedly spied on Plaintiff solely because of Plaintiff’s independent contractor relationship with Defendant and in order to defeat, preempt, or combat work-related activities by Plaintiff and other Flex drivers." (emphasis by Judge Graber).
Arbitration, Deadlines, Prompt Payment, Fees: Plaintiff Successfully Exercises Option To Withdraw From Arbitration Because Defendant Employer Was Tardy Paying Arbitration Fees
Courts Have Been Unforgiving In Interpreting An Unambiguous Statute. See CCP § 1281.98.
"A statute gave Milan Cvejic the option to get out of arbitration if Skyview was tardy in paying its arbitration fees. Skyview was tardy in paying its arbitration fee. Cvejic was entitled to get out." Milan Cvejic v. Skyview Capital, LLC, B318880 (2/8 6/28/23) (Wiley, Grimes, Viramontes).
COMMENTS: (1) A panel of three arbitrators got it wrong. (2) Cvejic was smart and did not sit on his rights. "Within about an hour of the call [whereby the arbitration panel set a new deadline for defendant to pay the fees], Cvejic’s counsel wrote the panel to say Cvejic was withdrawing from the arbitration under section 1281.98."
See previous posts about § 1281.98 dated 8/1/22, 12/11/22, 1/2/23, 3/21/23.
Nonsignatories: Second Dist., Div. 7 Holds Ford Motor Company Cannot Compel Arbitration Under Dealership Contract
Second District, Div. 7 Sides With Second Dist., Div. 8, Rejects Reasoning In Third District Case.
Rejecting equitable estoppel and third-party beneficiary theories, the Court of Appeal holds that Ford Motor Company cannot piggyback on to the arbitration provision in a dealership contract, and thus Ford is unable to compel arbitration with the buyer of its vehicle. The plaintiff's claim for breach of express warranty against Ford was not based on or intertwined with the dealership's contract with the buyer. In fact, the dealership contract provided it offered no express manufacturer's warranties, though the manufacturer, Ford, could do so. Rosanna Montemayor et al. v. Ford Motor Company, B20477 (2/7 6/26/23) (Feuer, Perluss, Escalante).
The opinion is in line with the reasoning in the Ford Motor Warranty Cases, 89 Cal.App.5th 1324 (2023) [see my 5/3/23 post] and at odds with the reasoning in Felisilda v. FCA US LLC , 53 Cal.App.5th 486 (2020) [see my 8/29/2020 post].
Arbitration, Vacatur: California Supreme Court Rules 100-Day Deadline Is Not Jurisdictional And Equitable Tolling/Estoppel Could Apply
Missing The 100-Day Deadline For Seeking Vacatur Of An Arbitration Award Was Not The End Of The Story Here.
It is not possible to improve on the California Supreme Court's summary of the case and its holding:
"Law Finance Group, LLC, prevailed in an arbitration against Sarah Plott Key and filed a petition to confirm the award. Key filed a response seeking vacatur of the award, but she did so outside the 100-day deadline prescribed by Code of Civil Procedure section 1288.2. The primary questions now before us are whether, as the Court of Appeal held, this 100-day deadline is jurisdictional and, if not, whether the deadline is subject to the equitable doctrines of tolling and estoppel. We hold that the section 1288.2 deadline neither is jurisdictional nor otherwise precludes equitable tolling or estoppel. We remand for the Court of Appeal to determine in the first instance whether Key is entitled to equitable relief from the deadline." Law Finance Group, LLC v. Key, S270798 (S.Ct. 6/26/23).
Justice Leondra R. Kruger authored the opinion of the court.
Arbitration, Discovery: A “Hearing” Subpoena That Is Functionally A Discovery Subpoena Is Improper In Arbitration
The Court Of Appeal Chose Substance Over Form.
The subpoena provisions of the California Arbitration Act do not give an arbitrator the power to issue “prehearing discovery subpoenas.” Aixtron, Inc. v. Veeco Instruments, Inc., 52 Cal.App.5th 360 (2020).
Tim McConnell v. Advantest America, Inc., D080532 (4/1 filed 5/4/23 pub. 6/15/23) (Do, Huffman, O'Rourke) involves a variation of the facts in Aixtron leading to the same result. In the McConnell matter, an arbitrator issued a hearing subpoena requiring McConnell and other third-parties to produce electronic communications at a hearing some 12 months before the hearing scheduled on the merits in the arbitration. At the merits hearing, the nonparties would be summoned to appear and testify. Provisions were also made allowing the producing party to directly upload documents for the requesting party, a procedure in which the arbitrator did not need to be directly involved. The arbitrator also made a finding that the third parties who were the target of the hearing subpoena "are likely to have discoverable information." (italics added in the Court of Appeal opinion).
"Under the specific facts of this case" the Court of Appeal agreed with the third parties that the subpoena was improper, reversing the superior court judge who had found the subpoena proper. The workaround of subpoenaing the documents to a "hearing" was not successful, because under the specific facts, the subpoena was a discovery subpoena, whatever the label. "If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck."
COMMENT: The result should have been different if the subpoena had been carefully tailored to preserve evidence, rather than broadly to find discoverable information.
Parties in California can incorporate by reference in to their arbitration agreement the broad discovery provisions of the Code of Civil Procedure: "Section 1283.1 – Provisions of section 1283.05 deemed incorporated into agreement. (a) All of the provisions of Section 1283.05 shall be conclusively deemed to be incorporated into, made a part of, and shall be applicable to, every agreement to arbitrate any dispute, controversy, or issue arising out of or resulting from any injury to, or death of, a person caused by the wrongful act or neglect of another. (b) Only if the parties by their agreement so provide, may the provisions of Section 1283.05 be incorporated into, made a part of, or made applicable to, any other arbitration agreement." However, in cases that do not involve injury to a person or death, one party often wants more discovery than its opponent. And if there is no agreement, the default position of the Code of Civil Procedure is to limit third-party discovery.