Appealability: An Order Denying A Renewed Motion To Compel Arbitration Under CCP 1008(b) Is Nonappealable.
Courts Like To Conserve Judicial Resources.
In Chango Coffee, Inc. v. Applied Underwriters, Inc., B267358 (2/3 5/26/17) (Johnson (Michael), Edmon, Aldrich), the trial court denied a renewed motion brought by defendant to compel arbitration of a complaint brought by Chango Coffee, Inc. Defendant appealed the order denying a renewed petition brought under Cal. Code Civ. Proc. section 1008(b) to compel arbitration.
Held: The appeal is dismissed for lack of jurisdiction. An order denying a renewed motion or application under 1008(b) is not appealable. See Tate v. Wilburn, 184 Cal.App.4th 150, 160 (2010).
Pending Cases: Southern Insurance Company v. Workers Compensation Appeals Board Is Now Published
This Case Annulled Workers' Compensation Appeals Board Decision Because Rescission Issue Remained "Factually Open And Unresolved" By Arbitrator.
I posted to this blog about Southern Insurance Company v. Workers' Compensation Appeals Board, et al., B278412 (2/2 5/10/17) (Chavez, Hoffstadt, Goodman) on May 16, 2017, at which time the case was unpublished. I can now report that the case was certified for publication on May 22, 2017.
Arbitration, Federal Arbitration Act: SCOTUS Rules in Kindred Nursing Centers Case That Kentucky’s “Clear-Statement Rule” Violates The FAA By Singling Out Arbitration For Disfavored Treatment
The Decision Was Not A Surprise.
Kindred Nursing Centers L.P v. Clark, No. 16-32 (US S.Ct. 5/15/17) (Kagan, J.) holds that Kentucky's "clear-statement rule" violates the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment. Kentucky's "clear-statement rule" provides that, because the Kentucky constitution declares rights of access to the courts and trial by jury to be "sacred" and "inviolate", an agent can deprive her principal of such rights only if expressly provided in the power of attorney.
Relatives of Joe Wellner and Olive Clark had executed powers of attorney with arbitration clauses on behalf of Joe and Olive before Joe and Olive moved into a nursing home. After Joe and Olive died, their relatives filed suits against the nursing home, alleging substandard care. The issue presented was whether the powers of attorney were invalid because they failed to specifically entitle the representative to enter into the arbitration agreement.
SCOTUS distinguished between the two separate powers of attorney. One was struck down improperly because the Kentucky courts relied on the clear-statement rule to invalidate the arbitration provision, thus colliding with FAA preemption. However, on the facts, it was unclear why the other power of attorney had been invalidated. It is possible that the state courts relied on the clear-statement rule, but it is also possible that the state courts relied on an interpretation that did not implicate the clear-statement rule. Therefore, SCOTUS directed the court on remand dto determine whether it adhered to its prior reading of the second power of attorney in the absence of the clear-statement rule.
As is his wont, Justice Thomas dissented. He has consistently been of the opinion that the FAA does not apply to proceedings in state court.
COMMENT: On February 23, 2017, Professor Ronald Mann of Columbia Law School correctly predicted the outcome. See my February 23, 2017 post.
Arbitration, Equitable Estoppel, Agency, Pending Cases: Garcia v. Pexco, LLC Is Now A Published Opinion
As "Joint Employer", Company To Which An Employee Was Assigned Could Take Advantage Of Arbitration Clause In Employee's Contract With Temporary Staffing Agency That Assigned The Employee To The Company.
I am happy to report that Garcia v. Pexco, LLC, G052872 (4/3 5/16/17), an opinion I posted about on April 26, 2017, when it was still unpublished, has now been published.
Why happy? At the time, I wrote about an interesting aspect of the case:
[W]hile the Court relies on existing case law to apply established rules of equitable estoppel and agency in order to require arbitration, the Court does not rely on any cases involving temporary staffing agencies that assign employees to other companies — probably an increasingly common occurrence in our "gig economy" characterized by a lack of permanent employment. Alas, the case is unpublished as of this date.
Well, now the case is published.
Arbitration: Employment, Public Policy, Standard Of Review: Court Of Appeal Rejects Contentions That Arbitrator Exceeded Powers By Issuing Award In Violation Of California Public Policy
The King vs. Medieval Knights . . .
Plaintiff Scott Ehredt, a performer in medieval style games at Medieval Knights, sued claiming that Medieval Knights had misappropriated his likeness in advertising images, notwithstanding a release that he had provided. The matter was arbitrated, and after receiving an adverse award, Mr. Ehredt appealed. Ehredt v. Medieval Knights, LLC, et al., B275833 (2/8 5/15/17) (Grimes, Rubin, Flier) (unpublished).
The Court of Appeal rejected Mr. Ehredt's argument that the arbitrator exceeded his powers and acted in violation of public policy by validating the employer's actions requiring him, as a condition of employment, to sign a release. Nor did the Court of Appeal accept an argument that the parties had contracted to judicial review of the merits of the award by agreeing that the award could be vacated if "the arbitrator acted in manifest disregard of the law or otherwise exceeded the arbitrator's powers . . . " The "manifest disregard standard" is a federal standard that is narrowly construed. The general rule, of course, is that the court does not vacate an award for a mistake of law or fact.
COMMENT: The arbitrator awarded defendants attorney fees in the amount of $280,000 and costs in the amount of $8,650.26. Though one of the arguments in favor of arbitration is its economy and efficiency, even a three-day arbitration can prove to be very expensive, given the amount of work leading up to the hearing. This debacle brought to mind the Black Knight of Monty Python fame. Hence, the video link above.
Arbitration/Administrative: Ruling of Workers’ Compensation Appeals Board Is Annulled Because Rescission Issue Remained “Factually Open And Unresolved”
Arbitrator And Appeals Board Did Not Address Whether Rescission Was A Meritorious Defense To Employee's Claim.
Southern Insurance Company rescinded an insurance policy based on violation of a representation that covered employer's employees did not travel out of state, after an employee injured out of state made a workers' comp claim. The matter was referred to arbitration. The arbitrator concluded that the insurer could not rescind, the Workers' Compensation Appeals Board affirmed, and the insurer appealed. Southern Insurance Company v. Workers' Compensation Appeals Board, et al., B278412 (2/2 5/10/17) (Chavez, Hoffstadt, Goodman) (unpublished).
Held: "The conclusion is unavoidable that the issue whether Southern's rescission was legally effective remains factually open and unresolved." Accordingly, the decision of the appeals board was annulled, and the matter remanded to the board for proceedings consistent with the opinion.
COMMENT: We would have liked to see a discussion of the standard of review and relevant authority in this opinion.