Ethics, Miscellaneous: Fourth District, Div. 3 Opinion Affirms Judgment Denying Attorney’s Fees And Refers Attorney To State Bar For Misconduct
Marc Alexander (This Blogger) And Mike Hensley Represented Defendants In Their Successful Response To This Appeal.
Today* we stray from our usual beat, California mediation and arbitration, to mention an appeal resulting in a partially published opinion. Why? Because this blogger, Marc Alexander, was involved, and because his long-time colleague Mike Hensley, with whom Marc contributes to the California Attorney's Fees blog, also participated. The case is Martinez v. O’Hara, et al., G054840 (4th Dist. Div. 3 February 28, 2019) (published in part). Justice Fybel, Acting. P.J., authored the opinion, joined by Justices Ikola and Thompson. In an unpublished part of the opinion, the case affirmed a judgment denying attorney's fees to the plaintiff/appellant. In the published part of the opinion, the panel referred plaintiff/appellant's attorney to the State Bar.
The opinion was partially published to send a message: "The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period." The Court was also unhappy that the attorney accused the judicial officer of intentionally not following the law, without evidence.
The case has garnered some attention:
1. Kevin Underhill, the author of the "Lowering the Bar" blog, has blogged about the case under the heading, "Succubustic": Is It a Word You Should Use to Describe a Judge?
2. Debra Cassens Weiss, ABA Journal, Lawyer's 'succubustic' claim should be reported as gender bias to state bar, court concludes.
3. Bloomberg Law, California Lawyer in Hot Water for Sexist Insult of Judge.
4. Law360, Calif. Judges Slam Atty For Gender Remarks: Not OK, Period.
5. Justia, Legal Ethics Opinions.
6. Metropolitan News-Enterprise, Lawyer Who Likened Court Commission To Sex-Crazed She-Demon Is Chastised.
7. David C. Carr, California Legal Ethics, Court of Appeal Cites Lawyer to State Bar for Referring to Female Judge as "Succubistic."
8. Dane S. Ciolino, Louisiana Legal Ethics, Lawyer Sanctioned for Calling Trial Judge "Succubustic."
9. Michael J. Simkin, Legal Secrets, Professionalism Trumps Freedom of speech in the courtroom (which is a good thing) Bus. Code section 6068(b).
10. Heather Stern, Women Lawyers Association of Los Angeles, March 2019-President's Message.
11. William Vogeler, Strategist, Protip: Don't Call a Judge a 'Succubus'.
12. Edward McIntyre, Take Note — Courts Have Dictionaries.
13. 111 North Hill Street, Don't Do This.
14. Brian I. Hamblet, Martinez v. Stratton O'Hara: What you say (to the Court of Appeal) can and will be used against you.
15. California Attorney's Fees.
*This post has been updated since it originally appeared.
Arbitration, Burden Of Proof, Nonsignatory: 6th Appellate District Holds Realtor’s Custom And Practice Was Not Enough Here To Show It Agreed To Arbitrate
Evidence Of A Policy Is Not Evidence Of Adherence To The Policy.
Plaintiff Juen engaged Alain Pinel Realtors, Inc. (Pinel) to sell his house. Later, Juen sued Pinel, Pinel unsuccessfully moved to compel arbitration, and Pinel appealed. Juen v. Alain Pinel Realtors, Inc., H043230 (6th Dist. 2/6/19) (Grover, Greenwood, Bamattre-Manoukian).
The listing agreement was signed by Pinel and its listing agent Smith. A required Code of Civil Procedure notice showed Juen's initials, but the space for Pinel's initials was blank. Now Code of Civ. Proc., section 1298, provides that it is by initialing the arbitration provision that one indicates assent or nonassent to the arbitration provision, and that one agrees to give up rights to a jury trial. Both parties agreed that the arbitration clause was "a bilateral agreement requiring the assent of both parties to be enforceable."
To get around the problem of its missing initials, Pinel argued that its custom and practice was (1) to destroy client files after five years, which it had done here (it obtained a copy from its listing agent to make its motion to compel arbitration); and (2) to review client listing agreements submitted by a listing agent, and if the client initialed the arbitration provision, then the managing broker, rather than the listing agent, would adopt the election of the client and initial the arbitration provision.
The evidence of custom and practice here was not enough to convince the Court of Appeal. There were missing links in the chain of reasoning. A declaration submitted by the realtor did not establish that it had ever received or reviewed plaintiff's listing agreement in particular. The declaration stated a policy existed, "but the existence of a policy is not evidence of adherence to the policy," and evidence was lacking that Pinel's listing had actually been submitted by the listing agent to the managing broker here.
AFFIRMED.
COMMENTS. Ordinarily, contracts can be enforced against the party who signed the contract. The twist here is that the Code of Civil Procedure provides that the assent or nonassent of a party to arbitration in the listing agreement is evidenced by initialing the arbitration provision, and that is why Pinel sought to establish through custom and practice that it had initialed the arbitration provision. There are other cases in which the absence of a signature has not prevented the nonsignatory from enforcing a bilateral arbitration agreement, but the Court factually distinguishes those cases as ones in which there was additional evidence of assent.
Regarding burden of proof, the Court of Appeal points out that where, as was the case here, the trier of fact concludes "the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." Instead, "the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'"
International Arbitration, Jurisdiction: Settlement Agreement May Not Amount To Arbitral Award Under Peculiar Facts
Case Is Remanded So District Court Can Assess Jurisdictional Issue.
The plaintiff-appellant Mr. Castro took on a job as a deck hand on ship. His employment agreement contained a mandatory arbitration provision and it required arbitration to occur in and be subject to the procedural rules of American Samoa. After severely injuring himself, he had surgery for which the employer paid. He then met with a company representative, met with an arbitrator in a public lobby, and signed papers that included a settlement and release, and he received a check. Because the surgery was unsuccessful, Mr. Castro filed a lawsuit, and the employer successfully enforced a purported arbitral award in district court. Castro appealed. Castro v. Tri Marine Fish Company LLC, et al., No. 17-35703 (9th Cir. 2/27/19) (McKeown, Friedland, Bolton).
The award had been enforced pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). But there was a threshold problem: there had been a settlement, and thus no dispute to arbitrate, calling in to question the jurisdiction of the district court. Furthermore, the arbitral agreement provided for arbitration in American Samoa, according to Samoan procedure, and the lobby where Mr. Castro signed documents was in the Philippines.
The Court's conclusion says it all: "We review foreign arbitral awards deferentially, but we do not blind ourselves to reality when presented with an order purporting to be one. To cloak its free-floating settlement agreement in the New York Convention's favorable enforcement regime, Tri Marine asked an arbitrator to wave his wand and transform the settlement into an arbitral award. That is not sufficient to produce an award subject to the Convention.
Fashion waves her magic wand. Library of Congress. 1896.
The case is revered in part, vacated in part, and remanded.
Arbitration, PAGA, FAA, Waiver, Deadlines: Fourth District, Div. 1 Rules California Courts Are Still Bound By Iskanian, Despite SCOTUS Arbitration Cases
Case Contains Rich Discussion Of Arbitration, PAGA, Federal Preemption, And Divergence Of State And Federal Law.
Plaintiffs sued their former employer, alleging wage and hour violations and seeking civil penalties under California's Private Attorney General Act of 2004 (PAGA). Employer successfully petitioned to arbitrate, with one exception: the trial court held that under Iskanian v. CLS Transportation Los Angeles, LLC (2014), the PAGA claim could not be arbitrated, without the consent of the state. A PAGA claim is in the nature of a qui tam action, and the state has a stake in the outcome. Employer appealed the adverse PAGA ruling. Correia v. NB Baker Electric, Inc., D073798 (4/1 2/25/19) (Haller, McConnell, Nares).
The Court of Appeal affirmed. Notwithstanding SCOTUS cases such as Epic and Concepcion, finding that the Federal Arbitration Act (FAA) has broad preemptive scope, the Court of Appeal holds that Iskanian is still good law, because the federal cases did not address the precise question presented by Iskanian, because Iskanian involves a claim for civil penalties brought on behalf of the state, and the enforceability of an agreement barring a PAGA representative action in any forum.
The Court notes that some federal cases have found that, even if an agreement barring a representative action in any forum is unenforceable under Iskanian, Iskanian does not prevent a court from directing a representative action to arbitration. As the Court explains, however, California appellate courts have reached a different conclusion, based on the fact that in a PAGA action, the State of California plays a role.
COMMENT: The Court acknowledges, "[T]here are different ways of viewing a qui tam lawsuit regarding the true claim owner and whether the state and the employee can both be considered to be real parties in interest in the lawsuit for purposes of evaluating an employee's authority to waive rights to bring claims in court." The PAGA claim seems to have a mixed nature, because state authority is required, explicitly or implicitly, for the employee to proceed with the claim, and the state gets 75% of the penalty. On the other hand, the employee brings the claim, and the state does not supervise the litigation. However, the Court explains that at the time of the predispute waiver, the state still retains authority over the claim. Under the Court's reasoning, the state could waive rights to a court forum at the time the dispute arises. Of course, there is no reason to expect that to ever happen.
The opinion also points out a deadline trap for the unwary. The employer argued that plaintiffs' response to its arbitration petition was untimely. Plaintiffs treated the petition as a motion to which a response would be due nine court days before the hearing, but a response is due 10 days after the arbitration moving papers are served. (Code Civ. Proc., section 1290.6). Fortunately for plaintiffs, the Court of Appeal said that it was not clear whether the arbitration petition statute or the general motions statute governed, but in either case, the deadline was not jurisdictional. The safe solution for the practitioner is to calendar the earlier response date.
Arbitration, Conflicts, Stay & Celebrities: Second District, Div. 7 Rules That Disqualification Motion Was Premature While Motion To Compel Arbitration And To Stay Were Pending
The Code Of Civil Procedure 1281.4 Stay Is Mandatory.
Top Kick Productions, Inc., Chuck Norris's production company, sued CBS Broadcasting Inc. over allegations of what might be characterized as Hollywood Accounting. CBS moved to compel arbitration, and to stay the litigation pursuant to CCP 1281.4, while Top Kick had a pending motion to disqualify CBS's attorneys based on conflict of interest. In true kick-ass Walker, Texas Ranger style, Top Kick convinced the trial court to hear the disqualification motion first, and to deny the stay request. Next, CBS obtained a temporary stay in the Court of Appeal, and the Court issued an OSC to determine whether the trial court had abused its discretion by denying the stay. CBS Broadcasting Inc., et al., Petitioners, v. Superior Court of Los Angeles County, Respondent; Top Kick Productions, Inc., et al., Real Parties in Interest, No. B292277 (2/7 2/21/19) (Zelon, Segal, Feuer) (not for publication).
The Court held that the trial court erred, because the 1281.4 stay is mandatory, once a petition to compel arbitration is brought. So now the stay will go into effect, the motion to compel arbitration will be heard, and if the motion is granted, then the arbitrator would get to rule on the disqualification motion.
The Court acknowledged that there are New York state law cases and federal law Second Circuit cases providing disqualification is not a matter for arbitrators to determine, but explains those cases are contrary to California law where disqualification motions have been decided by arbitrators. Furthermore, the Court acknowledges a situation might arise where the issue of disqualification is intertwined with the issue of arbitrability "so that the potentially disqualified lawyer should not be permitted to argue the motion to compel". However, because Top Kick conceded the disqualification motion had nothing to do with arbitrability, the Court did not need to address the issue.
The opening theme to Walker, Texas Ranger, is available on YouTube:
Existence Of Arbitration Agreement: First District, Div. 3 Finds Substantial Evidence Supports Court’s Ruling That Binding Arbitration Took Place
Either Defendants Authorized Their Attorney To Agree To Binding Arbitration Or They Ratified The Agreement.
Defendants and Plaintiffs arbitrated their dispute, the arbitrator's award was in favor of Plaintiffs, and Defendants appealed the judgment confirming the award. Dean v. Amado, A147660 (1/3 2/20/19) (Jenkins, Siggins, Pollak) (not for publication).
Defendants' argument rested on the fact that their attorney, while agreeing in writing to arbitrate, did not believe he was agreeing to binding arbitration, and on Toal v. Tardif, 178 Cal.App.4th 1208 (2009), "in which the attorney's signed agreement to arbitrate, 'standing alone,' was not enough."
However, here, there was more. The parties had previously mediated, so it didn't make much sense to treat the arbitration as another attempt at ADR. The Defendants' attorney had indicated that the parties would not move forward with a trial, because they were going to "binding arbitration." The Defendants paid for the arbitration, and participated in the arbitration. The arbitrator told the parties he would act as a judge and issue a decision, and thereafter issued a final award.
And there was what the trial court characterized as a "credibility gap." If the Defendants' attorney always believed the arbitration was non-binding, he never said so, until Defendants received an unfavorable ruling.
In short, substantial evidence supported the ruling of the Superior Court judge. Affirmed.