Arbitration

Following SEIU Local 121RN v. Los Robles Regional Medical Center (9th Cir. 2020) 976 F.3d 849, this decision holds that, at least with respect to delegation of arbitrability questions to the arbitrator, arbitration clauses in collective bargaining agreements are to be interpreted just like arbitration clauses in other types of contracts.  A broad arbitration provision in a collective bargaining agreement … Read More

Neither claim nor issue preclusion applies when the prior judgment was obtained against a person acting in a different capacity than the capacity in which he brings the second suit, at least so long as the second suit is also brought on a different right.  Here, the court applies that principle to hold that an arbitration award and judgment against… 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

Following Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 and distinguishing Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, this decision affirms a judgment confirming an arbitration award in defendant's favor.  Even though one of defendant's lawyers was unlicensed in California when he performed part of the work under… Read More

Under 9 USC 201 et seq. governing foreign arbitrations, federal courts have subject matter jurisdiction to enforce arbitrator-issued subpoenas served on US residents.  The subpoena enforcement action may be filed in any district court where venue is proper under 28 USC 1391, the general venue statute, or 9 USC 204, which allows--but does not require--suit in the district in which… Read More

Under CCP 1281.97-1281.99, the party that drafted a consumer or employee arbitration agreement must pay its share of the arbitration fees within 30 days of the date they are due.  If it fails to do so, the other party is entitled to a mandatory award of attorney fees and costs related to that breach of the arbitration agreement and may… Read More

Under CCP 1281.4, a court may stay an action in court pending arbitration “of a controversy which is an issue involved” in the action.  This decision holds that the statute does not apply unless the court has ordered parties in the judicial action to arbitration, the arbitrable issue arises in the pending court action, and the parties in the arbitration… 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 FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee.  However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 and progeny) insofar as it precludes waiver of the employee's… 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

Assuming federal law governs the issue of waiver of the right to compel arbitration in a case to which the FAA applies, this decision holds that no showing of prejudice to the party opposing arbitration is required to support a finding that the party seeking to compel arbitration has waived the right to do so by its conduct in the… 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

In Vaden v. Discover Bank (2009) 129 S.Ct. 1262, the Court held that under 9 USC 4, to determine whether a federal court has jurisdiction over a petition to compel arbitration, the court should "look through" the arbitration issue and determine whether the court would have jurisdiction of the underlying dispute in the absence of an arbitration agreement.  This decision… Read More