Arbitration Clause

Plaintiffs entered into arbitration agreements with Pacific as part of their agreements for Pacific's cryogenic preservation of their sperm or eggs.  One of the cryogenic tanks in which the specimens were to be preserved failed.  This decision holds that the manufacturer and distributor of the failed tank could not compel arbitration under the plaintiffs' agreements with Pacific to which the… Read More

Defendant employer failed to pay the arbitrator's fees within 30 days.  Accordingly, the trial court correctly granted plaintiff's motion for reconsideration of the order compelling arbitration.  CCP 1287.98 allows a party to avoid arbitration under an employment or consumer contract if the party that drafted the arbitration agreement and moved to compel arbitration does not pay arbitration fees within 30… Read More

This decision holds that an arbitration agreement in an employment contract was unconscionable and therefore unenforceable because (1) it did not explain and separately provide for waiver of the employee's right to sue in court to enforce his individual PAGA claim (as opposed to the non-waivable right to sue under PAGA for the benefit of other employees), and (2) in… Read More

Under Lab. Code 925(a)(1), an employer may not require an employee to agree to adjudicate in another state a dispute arising in California.  This decision holds that the provision does not prohibit a court or arbitrator in another state from adjudicating whether section 925 applies.  Here, Zhang was a full partner of Dentons, so there was ample room for questioning… Read More

Plaintiff sued Road Runner after finding it had charged him an annual fee for its loyalty program for three years after the initial free period.  Road Runner moved to compel arbitration under a clause it added to its website during the last year before plaintiff sued.  This decision holds that plaintiff did not agree to clause.  It was not presented… Read More

Plaintiff appointed nephew as  his health care agent and attorney-in-fact using an advance health care directive and power of attorney for health care decisions form developed by the California Medical Association.  After signing a contract to admit plaintiff to defendant's health care facility, nephew executed an optional arbitration agreement on plaintiff's behalf.  This decision holds that the directive and power… Read More

Despite any delegation clause, a court must always determine whether the parties entered into an arbitration agreement as well as rule on any challenge to the delegation clause specifically.  Here, the court found that the Chickasaw Nation had entered into an arbitration agreement with Caremark.  The Chickasaw Nation did not automatically waive its sovereign immunity by agreeing to arbitration, but… Read More

Following EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, this decision holds that the DFEH cannot be compelled to arbitrate even though the employees, whom it alleges were illegally discriminated against, all signed arbitration agreements. Read More

The FAA applies to an arbitration agreement between defendant, a paratransit provider, and plaintiff, one of its drivers.  Though plaintiff was not an employer "in" interstate commerce since he drove only local, in-state routes not necessarily connected to airports or other modes of interstate commerce, his employer  provided paratransit services mandated by the ADA.  Plaintiff was hired to and did… Read More

Plaintiff's attorney registered to use defendant's website, agreeing to its arbitration clause, before accessing the website's picture of plaintiff and then filing suit for plaintiff, alleging that defendant's commercial use of her picture violated Ohio's right of publicity law.  This decision reverses denial of defendant's motion to compel arbitration, finding there are unresolved questions of fact as to whether the… Read More

The San Diego city attorney sued the owner of Instacart for misclassifying its gig workers as independent contractors seeking an injunction and civil penalties under B&P Code 17200.  This decision holds that defendant cannot compel arbitration of the city attorney's claim.  Like the EEOC in EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, the city attorney here was not… Read More

An airline employee whose duties involved loading and unloading baggage and cargo onto and from airplanes that flew interstate routes was an employee engaged in interstate commerce and thus the FAA did not apply to the arbitration clause in his employment agreement.  9 USC 1 exempts a class of workers--not a class of their employers; so the fact that Southwest… Read More

Despite CCP 1710.40'sopen-ended list of potential defenses to a sister state judgment, under the Full Faith and Credit Clause, the statute does not and cannot create an opportunity to raise defenses to the merits of the underlying claims resolved in the sister state judgment. Thus, defenses based on a contract's arbitration, forum selection and choice of law clause could not… Read More

Despite a broadly worded delegation clause, a court must always decide whether the parties entered into an arbitration agreement.  And, when the defendant appeals from a trial court's decision that it did not satisfy its burden of proving the existence of an arbitration agreement, the appellate court only asks whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2)… Read More

Under St. Agnes Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187, a court cannot hold that the defendant waived the contractual right to arbitrate solely by delayed assertion of that right, absence a showing of prejudice by the opposing party.  Here, defendant waited 13 months after plaintiff filed suit to move to compel arbitration and took plaintiff's deposition… Read More

Defendant residential care facility's arbitration clause was procedurally unconscionable as (i) it was a contract of adhesion, (ii) it incorporated the AAA rules but no copy of them was provided, and (iii) the facility required a patient undergoing an acute psychotic incident, who could not concentrate for more than 10-20 seconds to sign the clause.  The clause was substantively unconscionable… Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that an arbitration clause calling for the arbitration of "any dispute" arising in connection with a contract does not "clearly and unmistakably" call for the arbitrator rather than a court to decide issues of arbitrability.  A provision calling for arbitration in accordance with AAA rules which themselves grant… Read More

Employer's arbitration clause was unenforceable because it was unconscionable.  The clause was a mandatory, non-negotiable requirement of employment.  It was procedurally unconscionable because it was given to plaintiff only in English, which he cannot read, and without a schedule of the arbitration fees he could be charged.  It was substantively unconscionable because it allowed the arbitrator to shift attorney fees… Read More

Defendant's website didn't adequately disclose the nature of the terms of service, and didn't point out either the arbitration clause or the hyperlink to the agreement.  As a form of sign-in wrap, the website failed adequately to show agreement to the defendant's terms when the customer simply hit the "continue" button. Read More

Following but distinguishing Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 543, this decision holds that Blizzard employed a form of sign-in wrap to show consent to its agreement for use of its website and games.  In the context of a continuing relationship to play Blizzard's games, its sign-in wrap adequately informed users that they had to agree to its terms… Read More