References: Any Error In Ordering a Section 638 General Reference Is Harmless When The Referee Gets Matters Right
Whether Referee Or Trial Court Decided The Case Would Have Made No Difference, Because The Case Was Decided Correctly.
It was the last 1 ½ pages of this published 27 page slip opinion that caught our attention, because it referred to appointment of a referee, and reference is one of this blog's sidebar categories. Stella v. Asset Management Consultants, Inc., et al., B269207 (2/7 filed 1/17, pub. 2/6/17) (Perluss, Zelon, Segal).
Plaintiff/Appellant Stella appealed from a judgment of dismissal entered after a judicial referee sustained without leave to amend all demurrers to Stella's amended complaint based on the statute of limitations. The Court of Appeal agreed that the statute of limitations barred all causes of action.
Stella's last argument was that it was erroneous to order a general reference. As the Court of Appeal explained, any error was harmless, because whether a referee or a trial court sustained the demurrers "could not possibly have affected the outcome of the case."
Arbitration/Review: Fourth District, Division Two Affirms The Woody Allen Principle
Woody Allen Principle: "80% Of Life Is Showing Up."
Northeast elevation – Woody Allen Road Bridge, Spanning Oothalooga Creek at County Road 316, Adairsville, Bartow County, Georgia. Library of Congress.
In Newman v. The Ramona Terrace Community, LLC, No. E066400 (4/2 2/3/17) (Codrington, Hollenhorst, Slough) (unpublished), the Court holds: "Because Newman agreed to arbitration of his claims but refused to participate in the arbitration as ordered, we affirm the judgment." (slip op. at 2).
An arbitrator's decision is generally not subject to judicial review, because a mistake of law or fact is not a basis for overruling it. "The superior court denied Newman's petition to vacate the arbitration award, in which Newman accused the arbitrator of suffering from dementia." Alas, the Court of Appeal explained, "Newman has not provided any reasoned argument or evidence supporting reversal."
BONUS: From the Seinfeld episode, "The Big Salad":
Elaine: "Perhaps there's more to Newman than meets the eye."
Jerry: "No, there's less."
PAGA, Severability: Second District, Division 4 Reposts Montano PAGA Opinion Upon Lifting Of Bankruptcy Stay
Two Years Later . . .
On January 7, 2015, we posted about Montano v. The Wet Seal Retail, Inc., B244107 (2nd Dist. Div. 4 1/13/15) (certified for pub.). This is a Private Attorneys General Act case following the holding in Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014), that waiver of the employee’s right to litigate representative claims is unenforceable. Two years later, we can now report that as of 1/13/17, the case was reposted upon the lifting of a bankruptcy stay, with a slight modification made on 1/13/15 deleting footnote 7.
Collective Bargaining: Ninth Circuit Rules That Railway Labor Act Requires Flight Attendant To Resort To Arbitral Mechanism Required By Collective Bargaining Agreement Instead Of Washington State Labor Agency
This Is A Railway Labor Act Preemption Case.
Alaska Airlines v. Schurke, et al., No. 13-35574 (9th Cir. 1/25/17) is not about the merits of whether a flight attendant gets to use her vacation time to care for her sick child – a Washington state agency had ruled in her favor on the merits. Rather, the case is about who gets to decide: the State of Washington, or the System Adjustment Board established pursuant to a collective bargaining agreement.
The collective bargaining agreement set up an “arbitral mechanism” providing for a grievance procedure, mediation, and arbitration for union members. Existing case law holds that the Railway Labor Act (which, incidentally, applies to airlines too) requires the use of the dispute resolution mechanism set up by collective bargaining agreements rather than resort to a state agency. But existing case law also holds that the Railway Labor Act sometimes does not preempt state dispute resolution. The legal art requires that federal courts discern whether the situation does or does not require federal preemption of state procedures.
Here, in a majority opinion penned by Judge Kleinfeld, the panel held that the district court got it wrong and preemption did apply. So, reversed and remanded.
Judge Kleinfeld’s opinion is notable for its candid acknowledgment that this is an exercise in fuzzy line-drawing:
“What we wind up with from all these cases is the need to exercise judgment, not a mechanical rule. Our three part test and words and phrases establish only a ‘hazy’ and indeterminate line between independent state rights and state rights inextricably intertwined with the collective bargaining agreement. In this case, the sounder view is that the state law right and the collective bargaining agreement are indeed inextricably intertwined.”
Judge Christen dissents, arguing that the flight attendant’s complaint with the Washington Department of Labor & Industries involves a right that exists, if at all, by virtue of state law, and that the right asserted is not substantially dependent on analysis of the collective bargaining agreement. Judge Christen agrees with the district court that the Washington forum is not preempted by the Railway Labor Act.
Best Line In The Case (quoting late Harvard Law Professor Thomas Reed Powell): “”If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” Bonus Trivia: A former student of Thomas Reed Powell recalled he was, “vexatious and nasty and snide and, consequently somehow, stimulating.” John Braeman, “Thomas Reed Powell On The Roosevelt Court”, Constitutional Commentary, vol. 5:143 (1988), p. 144.
Enforcement Of Arbitration Agreement, Non-Signatories: Ninth Circuit Affirms Order Denying Samsung’s Motion To Compel Arbitration Of Class Complaint Filed By Purchaser Of Galaxy S4 Phone
Customer Agreement With Verizon And Samsung Product And Safety & Warranty Agreement In The Box Failed To Bind Plaintiff To Arbitrate.
In Norcia v. Samsung Telecommunications America, LLC, et al., No 14-16994 (9th Cir. 10/17/17) (Ikuta, Thomas, Bea), Judge Ikuta provides in depth analysis of whether a 101 page brochure containing an arbitration provision and placed in the box containing a purchaser’s Galaxy S4 phone bound Daniel Norcia to arbitrate. For a number of reasons, the panel concludes that Mr. Garcia was not bound to arbitrate. He had not signed the brochure, the box did not state that opening it meant he agreed to the terms found in the brochure, generally, “silence or inaction does not constitute acceptance of an offer” (Golden Eagle Ins. Co. v. Foremost Ins. Co., 20 Cal.App.4th 1372, 1385 (1993), and the brochure stated that Norcia was entitled to “the benefits of the Limited Warranty” regardless whether he opted out of the arbitration agreement. As the party seeking to compel arbitration, Samsung bore the burden of proving the existence of an arbitration agreement, and it failed to carry its burden.
Samsung also argued that Norcia agreed to arbitrate by signing a Customer Agreement with Verizon, an argument that Judge Ikuta dismissed in three paragraphs as “meritless.” Samsung was not a signatory, nor was there evidence that Samsung was intended as a third-party beneficiary of the Verizon agreement.
COMMENT: The Federal Arbitration Act, embodying the national policy favoring arbitration, applies to this case. However, the parties agreed that California law governs the issue of contract information, and thus Judge Ikuta applies basic principles of California contract law.
Samsung sought to rely on several cases involving licenses and warranties, arguing that those cases are analogous to the brochure in the box. Because the panel’s analysis involves contract law, the opinion examines differences between contract, license, and warranty cases. For example, a shrink-wrap license imposing limits on the number of authorized licenses has been held to be enforceable in California. Wall Data Inc. v. L.A. Cty. Sheriff’s Dep’t, 447 F.3d 769, 782 (9th Cir. 2006). Such a license states that by opening a package or wrapper, the user agrees to the terms of the license. In Wall Data Inc., the court avoided the issue of contract formation. Norcia explains it makes sense that a user who opens a box with notice of a shrink-wrap license cannot do more than what the license permits — say, installing software on 6,007 computers when the license is only for 3,663 computer. In Norcia, “the outside of the Galaxy S4 box did not notify the consumer that opening the box would be considered agreement to the terms set forth in the brochure.”
Miscellany: On The Eve Of An Inauguration, We Glance At Inaugurations Past . . .
March 4, 1865 And March 4, 1921.
Pres. Abraham Lincoln taking the oath of office at his second inauguration. Library of Congress.
VP Calvin Coolidge and Pres. Warren G. Harding. Library of Congress.