Arbitration

Defendant waived her right to compel arbitration by waiting for 2 years into the litigation before moving to compel arbitration.  Though prejudice to the opposing party is an important factor to consider in deciding whether arbitration has been waived, waiver can be found even without a showing of prejudice.  Anyway, long delay in bringing a motion to compel arbitration may… 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

If a party to an arbitration agreement claims it cannot afford to pay the arbitration fees, the trial court require that party to prove his inability to pay, and may hold an evidentiary hearing to consider the evidence on that question.  If the trial court finds that the party actually cannot pay the arbitration fees, it must let the other… Read More

In most arbitrations, the arbitrator decides any issues regarding discovery.  Not so in uninsured/underinsured motorist arbitrations under Ins. Code 11580.2(f).  The court decides discovery issues in those types of arbitration proceedings.  This decision holds that the trial court's discovery rulings cannot be challenged on an appeal from an order confirming the arbitration award because error in discovery rulings by a… Read More

The trial court properly denied a residential care facility's motion to compel arbitration.  The facility's arbitration agreement was signed by the admitted resident's son, not the resident.  The resident was not mentally incompetent at the time of admission, and he had not designated his son his attorney in fact, or agent.  The resident didn't ratify the arbitration agreement by not… Read More

An employee did not agree to the employer's arbitration policy that was stated only in an employee handbook which the employee acknowledged receiving but did not sign anything agreeing to the employer's policies, particularly as the acknowledgement of receipt of the handbook didn't reference arbitration and the handbook itself said it was not an agreement.  The fact that the handbook… Read More

By failing to raise, in its opening memo on the motion to compel arbitration, the fact that the arbitration agreement contained a delegation clause that provided for the arbitrator to decide arbitrability issues, the defendant waived its right to rely on the delegation clause, and the court properly decided the arbitrability issues.  Waiting to raise delegation until the reply memo… Read More

Following Ahlstrom v. DHI Mortgage, Inc. (9th Cir. 2021) 21 F.4th 631, this decision holds that the court must always decide whether the party opposing arbitration entered into the agreement containing the arbitration clause.  That issue cannot be delegated to the arbitrator because the delegation clause itself is invalid if the opposing party didn't enter into the agreement containing it. Read More

In this FEHA employment discrimination case, the court holds the employer's arbitration clause was substantively unconscionable because (1) it required the employee to demand arbitration or complain to the employer within the time for filing an administrative complaint with the FEHC, whereas the statute of limitations on the claim would potentially extend two more years, one for the FEHC to… Read More

Following Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619 and disagreeing with Maplebear, Inc. v. Busick (2018) 26 Cal.App.5th 394, this decision holds that an arbitrator's preliminary injunction order is not an "award" and is not reviewable by a California trial court under CCP 1294, and the trial court's order dismissing a petition to vacate the arbitrator's preliminary injunction… Read More

The parties' arbitration provision said that "except for claims seeking injunctive or other equitable relief," the parties agreed to arbitrate any dispute between them.  Plaintiff filed suit including among others claims for specific performance, rescission, and violation of the UCL.  This decision holds that all of those claims are equitable or seek equitable relief and thus are not arbitrable under… Read More

BMW, the manufacturer, could  not compel arbitration of the car buyer's breach of express warranty, Magnuson-Moss Act and Song-Beverly Act violations based on the arbitration clause in the retail installment sale contract that the plaintiff signed to buy the car.  BMW was not a third party beneficiary of the arbitration agreement because while the agreement covered claims against non-signatory third… Read More

Plaintiff had no arbitration agreement with Essential Seasons, by which she was employed in 2017.  During that year Expert Staffing provided payroll services to Essential Seasons. In 2019, Expert Staffing hired plaintiff, and she signed its arbitration agreement which provided for arbitration of all claims against Expert Staffing and all related entities including entities where employees are sent to work. … Read More

Even when an arbitration agreement delegates arbitrability issues to the arbitrator, the court must decide whether an agreement to arbitrate was formed.  Formation issues may not be delegated to the arbitrator.  Here, no agreement to arbitrate was formed because the agreement purported to be between plaintiff and the corporate parent of plaintiff's employer, yet the arbitration agreement never referred to… Read More

Following Rittmann v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, this decision holds that drivers who drove goods from in-state warehouses to Domino's franchisees in California are workers engaged in interstate commerce within the meaning of the exception to the FAA's scope.  These drivers handled the last stage of transportation of the goods from out-of-state sources to the California… Read More

An adult daughter, who had authority to make health care decisions for her elderly mother and who signed the admissions documents for the mother to be admitted to defendant's residential care facility for the elderly, lacked a power of attorney to act for the mother and so also lacked authority to sign an arbitration agreement on the mother's behalf as… Read More

Comerica sought to vacate an adverse arbitration award on the ground that the arbitrator's disclosure of prior matters with plaintiff's counsel said a prior matter settled before a final award without disclosing that the settlement came after an interim award.  This decision holds that even if the disclosure would otherwise have permitted vacatur of the award, Comerica forfeited its challenge… Read More

Affirming an order denying an employer's motion to compel arbitration of the worker's wage and hour, retaliation and discrimination in employment claims, this decision holds the agreement was at least minimally procedurally unconscionable as it was an adhesion contract.  It also holds two provisions substantively unconscionable, one requiring any claims to be brought within a year of discovery (despite statutes… Read More

On a motion to compel arbitration, the moving party bears a slight initial burden of proving the existence of an arbitration agreement and can satisfy that burden simply by attaching the signed agreement to the motion to compel, without authenticating it.  However, if the plaintiff disputes that he or she entered into the agreement and submits a declaration saying he… Read More

The trial court correctly excluded most of a declaration by Synchrony Bank's litigation assistant which attempted to show that plaintiff had agreed to the arbitration provision of the bank's credit card agreement.  Though the declaration attached copies of account statements and different versions of the credit card agreement containing the arbitration clause, it did not attach any record showing the… Read More