Arbitration

Although the FAA (9 USC 3) appears to require a district court to stay pending court proceedings when it compels arbitration, binding 9th Circuit precedent holds that, instead, a district court may dismiss the litigation if it compels arbitration of all claims raised in the case.  See Johnmohammadi v. Bloomingdale’s,Inc., 755 F.3d 1072, 1074 (9th Cir. 2014).  The two-judge concurrence… Read More

Following Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, this decision affirms an order denying arbitration after the defendant refused to pay all arbitration costs.  Substantial evidence supported the trial court's finding that Daniel Hang was indigent when he died while in defendant's care.  His son brought suit for elder abuse and negligent hiring and supervision as Hang's successor-in-interest. … Read More

Reaching the same result as Galarsa v. Dolgen California, LLC (2023) 2023 Cal. App. LEXIS 129, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated.  However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff are not subject to arbitration,… Read More

Substantial evidence supported the trial court's decision finding that the defendant care facility's arbitration agreement was unenforceable against a patient's heirs because the patient, who had suffered a stroke days before signing the agreement, lacked the mental capacity to contract when he signed the form. Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that an arbitration clause that merely calls for arbitration of all disputes arising under the agreement but does not specifically mention disputes about arbitrability issues fails to meet the "clear and unmistakable" standard for delegation of arbitrability questions to the arbitrator.  It also follows Ajamian in folding that… Read More

This decision tries to make sense of arbitration of PAGA claims in light of Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906.  It holds that an arbitration clause's waiver of the right to bring PAGA claims is still unenforceable as against public policy, but that waiver can be severed from the rest of the arbitration clause, leaving the… Read More

The district court properly enforced defendant’s arbitration clause.  The online terms of use adequately identified defendant as a party to the agreement by referring to its dba.  The terms of use were presented on the website in a manner that was between click wrap and browse wrap but adequately informed the user of the terms' existence and availability for review… Read More

Post-Morgan v. Sundance, prejudice to the plaintiff is no longer a factor to be considered in determining whether a defendant waived arbitration by litigating a dispute in court.  The burden of proving waiver is no longer heavy either.  The plaintiff need only show (1) the defendant's knowledge of an existing right to compel arbitration and (2) intentional acts inconsistent with… Read More

Vandenberg v. Superior Court (1999) 21 Cal.4th 815 nixes only nonmutual collateral estoppel from an arbitration award.  Here, the same parties to the arbitration award, or individuals in privity with them, raised the same issues that the arbitrator had adjudicated, in court in connection with a post-confirmation (and post appeal from the confirmation) motion to amend the judgment to add… Read More

The trial court abused its discretion in denying plaintiff's motion to amend the judgment (which confirmed an arbitration award in plaintiff's favor against two LLCs) to add two individual defendants as the LLCs' alter egos.  Two elements are needed to prove alter ego statues:  unity of interest and ownership and inequity resulting from treating the acts of the corporate entities… Read More

This split decision holds that under Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708, an employer waived the right to compel arbitration against class member employees who signed a 2002 arbitration agreement even though they became parties to the lawsuit only late in the case when a class was certified.  Though the named plaintiff had not signed the arbitration agreement,… Read More

Disagreeing with Gavriiloglou v. Prime Healthcare Management, Inc. (2022) 83 Cal.App.5th 595, this decision holds that an arbitrator's award finding that the employer did not violate the Labor Code as the employee alleged in his individual wage and hour claims operates as collateral estoppel, barring the employee's PAGA claims based on the same alleged violations, for lack of standing. )… Read More

The trial court properly enforced an employer's arbitration clause.  The clause was only minimally procedurally unconscionable, being presented on a take-it-or-leave-it basis by the employer which wielded greater economic power.  However, the clause was on a separate page.  It was short and clearly titled.  The page also warned the employee to read the clause closely. The clause was not substantively… Read More

The court, not the arbitrator, decides whether the parties entered into an agreement to arbitrate even if the supposed arbitration agreement contains a broad delegation clause.  Here, the trial court correctly determined that plaintiff had not agreed to arbitrate.  Defendant produced no agreement signed by plaintiff.  The credit card application he signed did not reference any agreement, let alone an… Read More

The 2022 amendment to the FAA exempting from its enforcement of arbitration agreements pre-dispute agreements to arbitrate sexual assault or harassment claims does not apply retroactively to suites filed before the amendment's effective date.  Nevertheless, arbitration should not have been compelled here because the agreement is unconscionable.  Procedurally, the employer did not disclose at the time of agreement which arbitration… Read More

Plaintiff was hired by Intelex but also worked simultaneously for five other firms that were jointly owned and operated with Intelex.  Intelelex's employment agreement contained an arbitration clause, but didn't mention the other employing companies or make them third party beneficiaries of the arbitration clause.  The other employers' motion to compel arbitration of plaintiff's wrongful termination claims was properly denied. … Read More

A party seeking to correct or vacate an arbitration award must petition to correct or vacate or raise the issue in answer to the opposing party's petition to confirm the award during the shorter of (a) 100 days from issuance of the arbitration award or (b) 10 days after the petition to confirm is served.  The 10 day limit may… Read More

This decision affirms a trial court order vacating an arbitration award in favor of an unlicensed contractor.  An award to an unlicensed contractor is in excess of the arbitrator's powers and contrary to public policy, providing grounds for vacatur of the award.  The trial court reviews the licensure issue de novo.  The contractor bears the burden of proof on the… Read More

Plaintiff bought a set of tires from WalMart.com, agreeing to its online terms which included an arbitration agreement.  He sent the tires to a local WalMart to be installed on his car.  While in the store, plaintiff bought WalMart's "lifetime" service contract for tire rotation and balancing.  That service contract did not include an arbitration clause.  This decision affirms the… Read More

In a case governed by federal law, the arbitrator not the court decides whether the defendant has waived arbitration at least by acts other than participation in litigation.  But under California law, the court decides issues of waiver.  (CCP 1281.2(a).)  In this case, despite a choice of FAA law in the arbitration clause, California law governed this issue because plaintiffs'… Read More