Contracts

California law does not recognize the concept of constructive termination in the context of ordinary commercial contracts between business entities.  The social policies that allow constructive termination in the employment and landlord-tenant contexts do not apply to ordinary commercial contracts.  Also, the contract in this case specifically provided four means of terminating the contract, none of which involved a constructive… Read More

This decision affirms an order denying enforcement of the arbitration clause in USC's employment contract on the ground that it is unconscionable in applying to any dispute (whether or not arising from the employment relationship), in being of perpetual duration (providing that it continued in effect after termination of employment unless both parties agreed otherwise), and lacking mutuality in requiring… Read More

Courts, not arbitrators, must decide which of two contracts between the same parties--one with, the other without an arbitration clause--governs a particular dispute.  This is true even when the arbitration clause in the one contract containing it has a strong delegation clause, leaving to the arbitrator all arbitrability questions.  Here, Coinbase had a basic customer agreement with an arbitration clause… Read More

When  an employer modifies its employment policy to require employees to arbitrate their disputes and clearly communicates to employees that continued employment will constitute assent to an arbitration agreement, the employees will generally be bound by the agreement if they continue to work for the employer.  However, that is not true if, as in this case, an employee promptly rejects… Read More

Even when an arbitration agreement contains a broad delegation clause, the court must first determine whether the parties entered into the arbitration agreement.  Plaintiff who challenges the authenticity of his signature on the arbitration agreement needn't prove it is not authentic but must submit sufficient facts to create a disputed issue of fact, thus shifting the burden back to the… Read More

While clickwrap agreements to terms of use on a website are generally sufficient to form enforceable agreement to the website's terms of use.  However, in this case, the "I accept terms of use" button (which, if clicked on led to separate page with the terms of use) was preceded by text that said only that by clicking the boxes below,… Read More

Disagreeing with Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835 and following Ruiz v. Podolsky (2010) 50 Cal.4th 838, this decision holds that a medical provider's arbitration provision that complies with CCP 1295 requires the patient's survivors (who didn't sign the arbitration clause) to arbitrate their wrongful death claim based on negligent acts of a health care… Read More

Defendant's arbitration agreement required arbitration of all claims and limited the arbitrator's ability to award a public injunction by stating that relief could be awarded only in favor of the individual party seeking relief.  That limitation was unenforcable under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, but though unenforceable, the limitation was not unconscionable.  See Poublon v. C.H. Robinson… Read More

The Game of Thrones Contest website use sign-in wrap,  Immediately below the "Play" button on the initial screen there was a clear, different font color legend saying that by tapping that button the user agreed to the website's terms of service.  The words "terms of service" were linked to the full text of those terms which disclosed in the first… Read More

Plaintiff signed an arbitration agreement when she was initially employed by defendant on an at-will basis.  That period of employment ended.  Plaintiff was rehired four months after terminating her original employment.  On rehiring plaintiff, defendant did not require her to sign a new arbitration agreement or say anything about reviving the old one.  Held, the trial court's conclusion that there… Read More

Under California’s Health Care Decisions Law (Prob. Code, § 4600 et seq.), a principal may appoint a health care agent to make health care decisions when the principal later lacks capacity to make them.  This decision holds that the agent's authority does not extend to signing an arbitration agreement for the principal, at least when the arbitration agreement is a… Read More

Following Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855 and Nguyen v. Barnes & Noble, Inc. (9th Cir. 2014) 763 F.3d 1171, this decision holds that "browsewrap"--meaning a website that displays terms of use but does not require the user to affirmatively indicate his acceptance of those terms--is insufficient to indicate agreement to the terms of use, rendering the… Read More

Bus. & Prof. Code 7735 requires a funeral establishment to hold in trust money paid it under a preneed agreement or an agreement collateral thereto.  Section 7741 exempts from that requirement money paid for merchandise that is delivered as soon as paid for.  This decision holds that constructive delivery--that is granting the purchaser legal title, but retaining possession of the… Read More

Bus. & Prof. Code 7735 requires a funeral establishment to hold money it has received pursuant to a preneed agreement, and “any agreement collateral thereto,” in trust until the funeral establishment performs the contract.  This decision holds that the statute requires even money paid for services or merchandise furnished immediately upon payment to be held in trust if the contract… Read More

Joining a recent string of other cases, this decision refuses to follow Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, and holds instead that a standard California car sale contract with an arbitration clause does not require the car buyer to arbitrate his warranty claims or Song Beverly Act claims against the car's manufacturer. Read More

This decision holds that Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 did not undermine McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 or Blair v. Rent-A-Center, Inc. (9th Cir. 2019) 928 F.3d 819 which held that Rent-A-Center's arbitration clause was unenforceable under McGill.  Viking River Cruises dealt with PAGA suits which are different from public injunctions. Read More

The FAA's exemption for contracts of employment for workers in interstate and foreign commerce applied to plaintiff who worked in a warehouse in California which served as a transhipping depot for Adidas products which arrived at the warehouse from foreign countries, were stored temporarily at the warehouse before being loaded on trucks for distribution to local retailers.  Though plaintiff transported… Read More

This decision holds that the Court of Appeals the de novo standard of review to an order denying a nonsignatory's motion to compel arbitration by invoking equitable estoppel.  It also holds that 14 C.F.R. § 253.10 which forbids air carriers from including forum selection clauses in their contracts of carriage does not forbid an airline from relying on an arbitration… Read More

Through defendant talent agency, plaintiff hired several performers for a rock concert to be held in April 2020.  Under the contract, plaintiff made a $6 million deposit that was non-refundable.  However, the contract had a force majeure clause which defined force majeure broadly enough to include cancellation of the concert due to COVID restrictions.  However, the clause further provided that… Read More

The Song-Beverly Warranty Act requires new car manufacturers to provide restitution of the purchase price to the buyer of a defective car.  (Civ. Code 1793.2(d)(2)(B).)  This decision holds that if the buyer trades in or sells the defective car. the trade in credit or resale price is not deducted from the restitution that the manufacturer must pay, at least when… Read More