Arbitration: Tetrad Of Unpublished Cases Present Issues Concerning Mandatory Fee Arbitration, Res Judicata, Existence Of Agreement, 1281.2, Appealability

Ferguson v. Camarillo Health Care District, B281856 (2/6  11/28/18) (Tangeman, Gilbert, Yegan) (unpublished).

    When a an opinion begins, "Calling it an 'unproductive waste of time,' attorney Ralph T. Ferguson did not participate in mandatory arbitration of a fee dispute with his client Camarillo Health Care District (CHCD). The arbitrators ruled in favor of CHCD," you can make a pretty good guess how it will end.  And you would be right here.

    Attorney Ferguson blew off the Mandatory Fee Arbitration, failed to appeal the judgment on the award or the denial of relief from the judgment. Instead, he collaterally attacked the award in a separate lawsuit, then appealed. No go. The final award, confirmed by the trial court, was res judicata, and Ferguson failed to timely appeal. 

    It was obvious that the Court of Appeal was not amused by the way the attorney handled his fee dispute with his client. "He declined to give CHCD its legal files," writes Justice Tangeman, "asserting they are privileged, or too heavy to lift, or the subject of a ransomware attack on his computer."

    COMMENT: Perhaps the moral is that clients are entitled by statute to arbitrate fee disputes, and the attorney who does not treat mandatory fee arbitration seriously does so at the attorney's risk.

Massicotte v. A-One Janitorial LLC, G055604 (4/3  11/26/18) (Aronson, Bedsworth, Moore) (unpublished).

    The parties entered into an Asset Purchase Agreement under which "the parties agreed an independent accounting firm would render a conclusive and binding decision concerning any disagreement the parties had over a specific accounting issue." The buyers contended this provision did not constitute an arbitration agreement (a) because it did not include the word "arbitration" and (b) because it allowed the determination of the neutral (an accounting firm) to be challenged "for manifest error", as a result of which an award could not be final and binding. 

    The Court of Appeal wasn't buying it. The use of the word "arbitration" is not determinative, and case law is clear about this. If it looks like a duck, swims like a duck, and quacks like a duck, it is a duck. (No, the Court didn't write that, I did.) As to the "manifest error" language, an arbitration decision may be reviewed for legal errors if the parties contractually agreed to judicial oversight.  Cable Connection, Inc.  v. DIRECTV, Inc., 44 Cal. 4th 1334, 1355-1356 (2008).

Doan v. Nhan Hoa Comprehensive Health Care Clinic, Inc., G055323 (4/3 11/26/18) (Bedsworth, Moore, Fybel) (unpublished).

    This is one of the many cases in which an employer seeks to enforce an arbitration agreement against a former employee who did not sign the arbitration agreement. Sometimes those cases arise because of problems obtaining electronic signatures, but that was not the case here. And sometimes those cases arise because an employee who did not sign a change to an employment agreement that included an arbitration clause did not sign the new agreement, but continued to work for a long time, but that was not the case here. Here, the employee straight up didn't sign an arbitration provision that had lines for a date and an employee signature. The final paragraph included an acknowledgment that the agreement had been carefully read and understood, and that binding arbitration would apply, but those darn date and signature lines were blank. And Doan, a new hire, only worked at the company from early May till the end of July 2016. The Court of Appeal concluded that substantial evidence supported the decision of the trial court that the evidence did not establish an intent to be bound by an unsigned document.

Porter v. AG Arcadia, LLC, B285461 (2/5  11/26/18) (Jaskol, Baker, Moor) (unpublished).

    This lawsuit involved a dispute between a patient's relatives and a nursing home after the aged patient "died of sepsis related to her wound from the pressure sore and urinary infections." The arbitrator, the Hon. Judy Chirlin, ret., found that the defendants acted recklessly and awarded damages for elder abuse and wrongful death. The nursing home appealed. The appeal was dismissed under the "one judgment rule", because there was a pending claim for violation of the Patient's Bill of Rights that had not been decided. Thus, the appeal was taken from a non-appealable order.

    COMMENT: Interestingly, the Court of Appeal acknowledges, "we have a sufficient record for writ review and the issues have been fully briefed." Yet the Court concludes that writ review is not appropriate, because it has no information suggesting the Appellants lack of an adequate remedy at law by way of an appeal. The "adequate remedy at law" issue needs to be carefully briefed by appellants seeking writ review. Query whether that was done in this case.