ArbitrationAdr.com enables the subscriber to identify the most recent cases decided by California and federal courts.  The "Updates Section" below summarizes the cases and identifies their citations.  Readers can easily shift from the Table of Cases to the text for a complete discussion of the case, its relation to other cases, and cross references between state and federal courts.

Many cases are only applications of the general law, and unless establishing a new principle, or overruling a previous case, are not included.  Under state and federal law, unpublished cases are not cited as precedent.  Accordingly, unless an unpublished case more clearly lays out the law, or may be useful in some contexts, ArbitrationAdr.com does not include the decision.

A list of recent updates (to the electronic text, available to members) appears below by date. If you want to search for a particular word, press CTRL-F to find a word on this page.  Remember, the list below is an abbreviated summary of the updates. The updates are incorporated in the text. The asterisk awaits a formal citation or the case is pending.

Arbitration Rules: (8/1/17): On vacating award summarized.  Application of statutory rules contingeant on factual basis; CCP 1286; Heimlich v. Shivji,

Employment Terms: (12/29/2016) : Failure of employer signature and absence of arbitration rules too ambiguous. [Signature can be implied and absence of arbitration rules absurd]; Flores v. Nature's Best Distribution, 2016 WL 7451142.

PAGA: (11/27/2016):The confusion stirred by Iskanian is evident in Perez v. U-Haul Co. of California, 2016 WL 4938809.* Emphasizing the right of employees to enforce PAGA as a class, the court held the employer cannot compel arbitration of the predicate term an "aggrieved" employee required by the Labor Code.

PAGA: (11/29/2016): The California Supreme Court in Iskanian now avoids class action waivers and allows an individual employee to file PAGA compaints in conjunction with representative claims on behalf of the state (which never knew about it). Tanguilig v. Blomendale’s Inc., 2016 WL 6778788 (Cal.App.).  Another First District case whose judges rarely enforce an arbitration clause.   

NLRA: (9/20/2016/): A 2-1 panel of the 9th Circuit held the NLRA allows collective action of employees, and the FAA does not apply. This absurd decision will be reversed because the NLRA applies to union employees; Morris v. Ernst & Young LLP, 2016 WL 4433080.

Employment Handbooks (8/24/2016):  Another case on whether the arbitration agreement is incorporated in the contract.  The cases are in conflict and contingent on the language of the documents; Esparza v. Sand & Sea, Inc. 2016 WL 4434 737 (2016).

Unconscionable Arbitration Clauses: (8/24/2016): The 9th Circuit wrote an excellent sumary of California law on arbiration in general  and unconscionable arbitration clauses in particular; Tompkins v. 23d and Me, Inc. 2016 WL 4437 615.

Class Arbitration:(8/24/2016): In class arbitration the California Supreme Court decided the arbitrator should decide the issue of arbitrability in the event of disagreement between the parties; Sandquist v. Lebo Automotive. Inc. 1 Cal.5th 233 (2016), but the decision depends on the language of the contract.

Mandamus:  A remedy rarely used in federal court although California cases have employed it in arbitration.  For a federal summary: In re Swift Tansportation Co.,  Inc., 2016 WL 4010054 (C.A.9).

Waiver of Right to Arbitrate: (7/24/2016): .In the the Ninth Circuit, "waiver" is an issue for the court; Martin v. Yasuda, 2016 WL 3924381 (C.A. 9); See, also:  Sovak v. Chugai Pharm. Co., 289 F.3d 615 (9th Cir. 2002); Cox. v. Ocean View Hotel Corp., 539 F.3d 388 (9th Cir.). Determinaton of "waiver" is fact bound but esssentially delay caused by one party.

Arbitration Fees:(6/28/2016): In Tillman v. Tillman, et al. 2016 WL 3343785 (9th Cir.) the court allowed the non paying participant during an arbitration to prove financial inadequacy to pay arbitration fees.  If so, the court will try the case.  

Medical Services: (6/28/2016): Medical Services are not an "economic activity" as a rule and ordinarily not preempted by the FAA requirement of a "commercial" transaction.  That rule is subject to a later California case holding the specific reqirements of CCP 1295 are unlike general contract rules, and, according to the Supreme Court, the FAA prohibits arbitration clauses in contracts not co equal with general contract law. Scott v. Yoho, 2016 WL 3439739.  Whether the contract or its performance is in interstate commerce is irrelevant.

Illusory Contracts (6/28/2016): Employment contracts that include an arbitration clause continue to flood the courts.  In  Harris v. TAP Worldwide LLC, 2016 WL 3439751 the court approved a clause permitting the employer to unilaterally change the terms of the contract.  The court upheld the clause not as illusory because any contractual changes must conform to the rules of good faith and fair dealing.  The 9th Circuit is in accord. See cases on illusory conracts connected in TAP.

Internet Arbitration Clauses (3/21/2016): A commercial purchaser of a product must specifically agree to arbitration instead of an implied agreement. Typing his concurrence must be an express action; Long v. Provide Commerce, Inc., 245 Cal.App.855 (2016).

Unconscionable Contract Clauses (3/28/2016): The California Supreme Court provided a comprehensive review of unconscionable clauses, substantive and procedural, in Baltazar v. Forever 21 Inc., 62 Cal.4th 1237 (2016). 

 

Continuances & Stays: (2/26/2016):CCP 583: 310 imposes a five year statute of limitations on plaintiffs who filed an action against the defendant. Mediation and continuances occur between the parties but in Gaines v. Fidelity v. National Title Ins. Co., 62 Cal.4th 1081 (2016) the court discussed the difference between "stays" and "continuances" in computing the time.  These rules apply in arbitration.

Premption: (12/15/2015): The case of Directv Inc. v. Imbrugia, 136 S.Ct. 463 (2015) is a confirmation of the Supreme Court decision in ATT Moblilty v. Concepcion and preempts California state law despite the arbitration clause denominating California law.

Non signatories and Merger: (12/5/2015:) When a new entity merges with a disappearing entity, the usual practice is its assumption of all prior liabilities and property of the latter.  Whether a former employee, now a non signatory, can avoid the arbitration clause in the diapppearing entity depends on the contractual language of the new entity; Jenks v. DLA Piper, Rudnick et al, 243 Cal. App.1. (2015).

Severance: (12/2/2015): California courts have allowed severance of a procedural or substantively unconscionable arbitration clause unless that issue permeates the contract: Brinkley v. Monterey Financial Services, 242 Cal.App.4th 314 (2015). See, cases below.

FAA Exemption: (11/4/2015): FAA exemption from arbitration for transportation workers in interstate commerce (9 U.S.A.1) invokes CAA to apply under California law and its former enforcement of class action waivers; Garrido v. Air Liquide Industrial U.S. LP, 241 Cal.App. 4th 833 (2015) (on rehearing). Despite Concepcion and Iskanian, this case is highly questionable on the issue of class action waivers.

Arbitrability and Arbitration Service Rules:(8/22/2015): When the arbitration clause names the FAA and the ADR  Service Rules (JAMS; AAA), interpretation of the applicability of the two becomes an issue and the case confusing for the parties-particularly in ruling on arbitrability; Universal Protection Services LP v. Sup.Ct. (Parnow), 239 Cal.App.4th 697 (2015).

Delegation of Authority: (8/16/2015): An arbitration clause can delegate arbitrability to the arbitrator but the language must be clear and unambiguous; Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015).

Unconscionable Arbitration Clauses: (8/6/2015): The California Supreme Court has outlined the scope of the word "unconscionable," agreeing the definition is difficult and contingent on the underlying text of the arbitration clause and the context of the business or entity involved with the consumer, employee, or other party; Sanchez v. Valencia Holding Co., 61 Cal.4th 899 (2015).

Preemption: (7/21/2015): Employees who seek wage and hour claims frequently file litigation in lieu of arbitration, but if the case involves interstate commerce, and the employer includes FAA rules in the arbitration clause, the preemption doctrine applies.  Labor Code 229 prohibiting labor arbitration is inapplicable; Khalatian v. Prime Time Shuttle Inc., 234 Cal.App.4th 651 (2015).

Conflict of Laws: (7/5/2015): A choice of law clause ordering arbitrability in an out of state jurisdiction may be unconscionable if California laws differ; Pinela v. Neiman Marcus Group Inc., 238 Cal App 4th 226 (2015).

FAA Preemption: (5/24/2015):   Supreme Court jurisprudence has preempted numerous California arbitration cases in a variety of categories, including consumer and employment. The FAA excludes certain categories from its application: employment of seamen; railroad employees, or any other class of workers engaged in foreign or interstate commerce, i.e., “workers actually engaged in the movement of goods in interstate commerce;”  Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).  The trial court must make findings on this issue, and if workers are engaged in interstate commerce the exemption applies; Garcia v. Sup.Ct., 236 Cal.App.4th 1138.  Mandamus also approved.  

Evident Partiality: (4/14/2015): Federal and state courts create different rules for disclosure by the arbitrator but essentially the rationale remains the same. In Sussex v. U.S. District Court, 781 F.3d  1065 (9th Cir. 2015) the 9th Circuit discusses the federal rule; 9 U.S.C. 10 (a) (2).  The panel also permits mandamus in certain cases; and, refuses to allow judicial intervention during an arbitration.

Severance: (3/16/2015): Courts of Appeal have interpreted severance of  arbitration clauses differently because the language in the contract differs on whether to sever an illegal or unconscionable clause; Trabert v. Consumer Portfolio Services, 243 Cal.App 4th 1154 (2015) (collecting cases). Serafin v. Balco Properties Ltd LLC, 235 Cal. App.4th 165 (2015) (collecting cases).

Arbitrability and Arbitration Service Providers: (3/6/2015): An arbitration clause designating the arbitrator to decide arbitrability is enforceable; Universal Protection Services v. Sup. Ct., 234 Cal.App.4th 1128 (2015). See, also, Securitas Security Services USA, Inc., v. Sup. Ct., 234 Cal.App.4th 1109 (2015).

  

Judicial Jurisdiction &Arbitration: (2/24/2015): Once the court has ordered arbitration, jurisdiction ends- except for naming an injured or deceased arbitrator, or compelling a witness to attend- until the award phase. Allowing a judge to intervene during the arbitration is disallowed except perhaps for an extraordinary situation; Sussex v. U.S. District Ct., 776 F.3d 1092 (9th Cir. 2015). The federal court warranted the use of mandate in this case.

Arbitrable & Non Arbitrable Issues: (2/21/2015): CCP 1286.2 allows courts to stay litigation and order arbitration or vice versa depending on whether issues are between the same parties or third parties.  If the parties are the same, and there are no non arbitrable issues, the court should order arbitration; Assn. for L.A. Deputy Sheriffs v. County of L.A., 234 Cal.App.4th 459 (2015).

Non Signatories and Signatories:(2/13/2015): An entity acquiring another entity by merger can invoke the arbitration clause

of the acquired company: Marenco v. DirecTV  LLC, 233 Cal. App.4th 1409 (2015).

Illusory Arbitration Clauses (2/13/2015): Arbitration clauses with one sided conditions are enforceable,unless unfettered, as long as the other party is given notice. Cobb v. Ironwood Country Club, 233 Cal.App.4th 760 (2015).

Arbitrator Exceeding Powers: (2/13/2015): Under the general rule, a court cannot vacate an award even if legally incorrect.  but if an arbitrator exceeds contractual powers, or violates statutory rights, the rule is modified.  The grounds for vacatur in the CCP are in the text. Richey v. Auto Nation, 60 Cal.4th 909 (2015).

"Finality" of the Award: (2/13/2015):  Finality of an award fulfills the bargain between the parties to avoid judicial involvement in exchange for the expediency of arbitration; Moncharsh v. Heily & Blaise, 3 Cal.4th 1 (1992); Evans v. CenterStone Development Co., 137 Cal.App.4th 15 (2005). An arbitrator can issue an interim award, reserving jurisdiction to resolve issues of fees, costs, interest or other related matters attributable to the arbitration; Hightower v. Sup.Ct., 86 Cal.App.4th 1415 (2001). An award issued without resolution of related causes of action is not "final"; Vivid Video, Inc. v. Playboy Entertainment Grp., 147 Cal.App.4th 434 (2007); Rubin v. Western Mutual Ins. Co., 71 Cal.App.4th 1539 (1999). Both cases were cited and confirmed in Judge v. Nijjar Realty, Inc., 232 Cal.App.4th 619 (2014).

Electronic Signatures: (12/28/2014):  CC 1633.9 allows electronic signatures if the act of the person is attributable to that person shown in any manner including the efficacy of any security procedure . . . to determine the person to which the electronic record or signature was attributable. Although the evidence is in conflict, in Ruiz v. Moss Bros. Auto Group, 232 Cal.App.4th 836 (2014). The court held the evidence insufficient to corroborate the signature of Ruiz. This decision highly questionable because it seems Moss followed the statute.

Arbitrable Injunctive Relief:(12/26/2014): Several years ago the California Supreme Court held arbitrators could not enforce an action for injunctive relief filed by a consumer alleging false business transactions; Broughton-Cruz cases (citations omitted). In Iskanian v. CLS Transportation, 59 Cal. 4th 348 (2014) the court held under the Private Attorneys General Act, Lab. Code sec. 2698 a consumer could file a comparable action.  The Court of Appeal has now held the California Supreme Court decision in the Broughton-Cruz cases are preempted by the FAA, and the Private Attorney Generals Act did not affect the Broughton-Cruz cases; McGill v. Citibank, N.A., 232 Cal.App. 4th 753 (2014).

Classwide Arbitration: (12/24/2014): If the employee alleges employment violations under the Labor Code, and the arbitration clause is silent on the issue of whether the contract is subject to classwide arbitration, the trial  court decides-not the arbitrator; Garden Fresh Restaurant Corp. v. Sup.Ct., 231 Cal.App. 4th 678 (2014). The court would enforce class action waivers in employment cases, unless the contract specifically addressed the subject of class action.

Employee & Multiple Contracts: (12/24/2014): An employee can sign his own contract and arbitration clause in addition to coverage by a CBA.  in Willis v. Prime Healthcare Services, Inc., 231 Cal.App.4th 615 (2014) the court held this individual practice enforceable if not inconsistent with the CBA.

Arbitrator Exceeding Powers: (12/24/2014): Under CCP 1286 the court can vacate an award if the arbitrator exceeds his powers.  This statute conflicts with arbitration policy forbidding vacating or correcting an award if the arbitrator errs in findings of fact or conclusions of law.  The leading case of Gueyffier v. Summers 43 Cal.4th 1179 (2008) is distinguished in Safari Associates v. Sup.Ct., 231 Cal.App.4th 1400 (2014).        

Demand for Arbitration: (12/11/2014): In Hyundai Amco America, Inc., 232 Cal.App.4th 572 (2014) the court held the petitioner does not need to demand arbitration (give notice) from the litigating party who filed a Complaint despite the arbitration clause in the contract.  See, also, Mansouri v. Sup.Ct., 181 Cal.App.4th 633 (2010).

Arbitrability & Class Actions: (10/15/2014): The question of deciding “arbitrability” remains in contention.  In Network Capital Funding v. Papke, 2014 WL 5035 (Cal.App.(pending) the court held the decision on whether the parties agreed on class action or classwide aarbitration is arbitrable, not procedural, and decided by the court. Contra, Sandquist v. Lebo Automotive, Inc., 228 Cal.App.4th 65 (2014).

Class Action Waivers :  (7/1/2014): In Iskanian v. CLS Transportation Los Angeles, 59  Cal.4th 348, (2014) the California Supreme Court disapproved of its decision in Gentry v. Sup. Ct. prohibiting class actions in employment cases. The Court approved PAGA cases as different from conventional class actions because the statute was enacted for the benefit of the public; Labor Code 2628.

 

Employee "Opt Out" Agreement: An employer who permits an employee to "opt out " of an arbitration agreement can avoid an unconscionability argument; Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198 (9th Cir. 2002). If the employer contractually informs employees they can “opt out” of arbitration, and then notifies them of changes in the contract, an employee who fails to exercise that  option must arbitrate; Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072 (9th Cir. 2014).

Delegation of Authority: (5/27/2014): In some cases the arbitration clause contains a section delegating arbitration, including the delegation clause itself, to the arbitrator.  The the objections to the clause must be specifically addressed. To be enforced, the clause must be clear, unmistakable, and not unconscionable; Tiri v. Lucky Chances, 226 Cal.App.4th 231 ( 2014).

Order to Compel Arbitration and Finality (1/28/2014): Aside from the question whether an appeal from an order denying arbitration divests the district court from jurisdiction, in MediVas LLC v. Marubeni Corp., 741 F.3d 4 (9th Cir. 2014) the court ordered some claims arbitrated but remanded other claims to state court.  The order did not explicitly stay or dismiss the arbitrable claims but implicitly did so  An order compelling arbitration but not dismissing the underlying clams stays the action pending completion of the arbitration. 

Selection of Arbitrator (10/22/2013): In the absence of naming an arbitrator in the arbitration clause, CCP 1286.1 provides for judicial intervention to select an arbitrator if the parties cannot agree on a person or for some other reason (disability; recusal).  The arbitration clause is enforceable against a challenge of unconscionability; HM DG v. Amini, 219 Cal.App.4th 1100 (2013).

Unconscionable Arbitration Clauses & Berman Hrgs.: (10/22/2013) The California Supreme Court has conceded an employer can enforce class waivers of Berman Hearings but the trial court can nevertheless rule on the underlying arbitration clause for unconscionability; Sonic Calabasas A Inc. v. Moreno, 57 Cal.4th 1109 (2013).

Jurisdiction(9/30/2013): The Federal Arbitration Act (FAA) and the California Arbitration Act ( CAA) are similar but both contain substantive and procedural differences.  The language of the arbitration clause in each case can cause confusion.  In Mave Enterprise s Inc. v. The Travelers Indemnity Co. of Connecticut, 219 Cal.App. 1408 (2013) the court explains the differences and their appropriate application.

Referees (9/10/2013): The role, powers and authority of Referees is discussed thoroughly in O'Donoghue v. Sup.Ct., 219 Cal.App.4th 245 (2013).   The court holds the same rules that apply in arbitration also apply to the CCP- including the right to appeal the eventual judgment of the court based on the Referee's factual and legal findings.

Class Actions (8/1/2013): The Supreme Court has repeated its emphasis on the necessity of parties unambiguously agreeing to class arbitration.  In its decision the concurring Justices suggested even agreement to class arbitration may be unenforceable. Oxford Health Plans LLC v. Sutter, 133 S.Ct. 2064 (2013). In this case the arbitrator concluded the parties had agreed to arbitration but if the case had gone to court the trial judge would determine arbitrability.

Pleading: 6/15/2013): Determination of who should decide arbitrability lies with the court in the first instance.  In Smith v. JEM Group, Inc., 737 F.3d 636 (9th Cir. 2013) the court held the absence of a party challenging the arbitration clause in the Complaint could nevertheless be asserted in the reply to a motion by the opposition to compel arbitration.  This case is questionable and may violate Buckley v. Check Cashing, Inc. v. Cardegna, 546 U.S. 440  (2006).

Pleadings and Arbitration (5/28/2013)

When litigation has been filed but the court orders arbitration, the parties often use the pleadings to identify the issues.  In Barsegian v. Kessler and Kessler, 215 Cal.App.4th 446 (2013) the court held judicial admissions inadmissible in arbitration.

Third Party Beneficiaries (5/28/2013)

In Rajagopalan v. NoteWorld, LLC,  719 F.3d 844 (9th Cir.2013) the 9th Circuit reviewed the evidence necessary to warrant whether an arbitration clause was drafted for the benefit of a third party.

Estoppel: (10/26/2012)  

In determining whether an arbitration clause exists, a party can allege estoppel under conventional contract law.  Most cases are fact specific but if a party engages in conduct either implied in fact or estoppel detrimentally relied on by the other party these two defenses are available. In Gorlach v. The Sports Club Co., 209 Cal.App. 4th 1497 (2012) the employee in charge of securing signatures from other employees on company arbitration clauses did not sign it herself.  The facts certainly suggest estoppel but the court concluded her lack of signature invalidated the clause.   

Arbitration of Construction Defects in Condos (8/22/2012)  

A developer routinely includes CC & Rs in the initial contract requiring a HOA and a homeowner to arbitrate any construction defect the latter may have against the former. Including CC& Rs is an effective means of obtaining an agreement to arbitrate an HOA’s construction defect claim against the developer. The California Supreme Court resolved the split among Courts of Appeal, rejected all the arguments against arbitration, held the statutory provisions for arbitration enforceable, and rejected the objection the arbitral terms were unconscionable.

See, Text, Ch. XVII-C-5-a-(8)

Mandate (8/22/2012)  

Although the CCP (Cal.) allows an appeal only for a trial court decision denying arbitration, several courts have allowed mandate under certain unusual or extraordinary circumstances.

See, Text, Ch. XIV-J

Binding Mediation (7/9/2012) 

A California court has approved a dispute resolution method known as "binding mediation." If the parties carefully set forth their agreement to allow a mediator to use the "baseball/high low)" practice the court will approve it as a settlement under local procedural rules.

See, Text, Ch. XI-A: Mediation

Classwide Arbitration (6/6/2012) :  

Federal courts continue to struggle in determining whether the arbitrator or the court should decide interpretation of an arbitration clause silent on class arbitration.   The Supreme Court has clearly expressed a distaste for class arbitration on grounds the FAA does not apply to arbitration of multiple, and in most cases, putative parties.  The 2d Circuit and the 5th Circuit disagree on contractual interpretation.

A California Court of Appeal has held employment arbitration clauses are governed by the AT&T Mobility v. Concepcion case overruling the California Supreme Court Court case on classwide arbitration of employment cases. The 9th Circuit has concurred.

See, Text, Ch. XVII-B-11 State);  Ch. IV-H-8 (Fed.)

Equitable Estoppel (5/31/ 2012)

Despite the requirement in Federal and state courts to only allow enforcement of "written" arbitration clauses, in some cases non signatories can enforce, or be enforced, to participate in arbitration. Equitable estoppel will substitute for the absence of a written contract if the parties are inextricably intertwined in the the contract as agents, alter ego, or third party beneficiaries.  Contract law principles will apply but the vast majority of equitable estoppel cases are fact specific.

See, Text, Ch. XVI-F-5: Arbitrable issues and parties.  And see, Third Party Beneficiaries, below

Choice of Law Clauses (4/26/2012)

Generally speaking, the trial court decides application of a choice of law clause in a contract at the petition to compel arbitration.  Three issues govern choice of law clauses: First: Does the FAA preempt a state choice of law provision?  If the parties specifically designate a state choice of law, the FAA does not preempt even if the decision results in a stay of arbitration unless a particular provision of state law contravenes the goals of the FAA. Second: Is the clause broad enough to include the state law of arbitrability? The California Supreme Court subsequently held a generic choice of law should be interpreted according to the Restatement of Law. Assuming there is a reasonable basis to select out-of-state law, the ultimate issue is whether the state has a "material interest" in refusing to enforce the clause

Third: whether the language of the choice of law clause includes state substantive law, state procedural law, or decisional law of the designated state.

See, Text, Ch. XVII-B-5-Procedural Arbitrability-Choice of Law Clauses

Third Party Beneficiaries (4/26/2012)

Third party beneficiaries are either a creditor beneficiary or a debtor beneficiary. In some cases, third party beneficiaries seek coverage within the terms of an arbitration clause. If so, "standing" to assert participation in arbitration becomes an issue.

See, Text, Ch. XVI-F-5-h: Third Party Beneficiaries

Class Action & Class Arbitration Waivers (3/30/2012)

The 9th Circuit has held the Supreme Court decision in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) barring arbitration clauses requiring parties to waive their right to file class actions or class arbitration is enforceable under the FAA. The only defense to an arbitration clause are unconscionability, duress or fraud.  All cases within the jurisdiction of the 9th Circuit are bound by this decision.

See, Text, Classwide Arbitration, Ch. IV-H-8 (Fed) & Ch. XVII-B-11 (State)

Arbitration Rules (3-8-2012)

According to one California Court of Appeal, the employer must provide the employee with a copy of the arbitrator service provider rules in order to avoid an unconscionable arbitration clause.

See, Text, Procedural Unconscionability, Ch. XVII-C-4-b

Death or Disability of Arbitrator (3-8-2012)

There are few California or federal cases explaining what course of action the parties should take in the event a member of an arbitration panel dies, becomes unavailable for medical reasons, or is disqualified during an arbitration although arbitrator service rules may provide the method. In the absence of any procedure, presumably the parties should petition the court to appoint an arbitrator.  A California Court of Appeals held the panel made arrangements for the arbitrator to hear and consider the evidence in the physical absence of the arbitrator.

See, Text, Ch. XX-P: Death or Disability of the Arbitrator

FAA Preemption (3/1/2012):

The Supreme Court has hardened its commitment to arbitration in reversing a West Virginia state court decision disallowing arbitration of personal injury and wrongful death claims involving a nursing home. The court does not address a contention the alleged negligence occurred in interstate commerce.  This case follows the AT&T Mobility v. Concepcion case mandating arbitration of individual consumer cases without resorting to class actions. 

See, Text, Ch. IV-A: Preemption

Inability of Arbitrator to Serve (2/22/2012)

Parties frequently prepare an arbitration agreement, or stipulate to arbitration, without considering the possible injury, sickness or death of a panelist.  Absent any statutory authority, the California Court of Appeal applied the arbitration service provider rules permitting the arbitrators to proceed in the absence of an arbitrator on account of inability to serve.  

See, Text, Ch. XXII-B: Powers of Arbitrator

Arbitrators and "Undue Means": Vacating an Award (2/18/2012)

Arbitrators in panels of three judges cannot communicate ex parte in discussing the award.  The California Court of Appeal and the 9th Circuit both agree on this point.

See, Text, See Ch. XXIII: Vacation of Awards

Credit Repair Organizations Act 15 U.S.C. 1679 et seq.(1/15/2012)

The statute provides consumers with extensive protection against unlawful practices but contains no prohibition against arbitration, and the FAA may be enforced if an arbitration clause mandating arbitration and prohibiting litigation (waiver) exists in the contract.

See, Text, Ch. I-S : CROA

Mutuality of Obligation (1/15/2012) 

In enforcing an arbitration clause in an employment contract, the terms must provide for mutuality of obligations between the parties as part of the substantive and procedural test for arbitrability.

See, Text, Ch. XVII-C-4-b: Employment Contracts

Arbitrable and Non Arbitrable Claims (11/16/2011)

The Supreme Court has ordered state courts to order arbitration of arbitrable claims regardless of nonarbitrable contractual claims in a case within the jurisdiction of the FAA.

See, Text, XVII-B: Procedural arbitrability

Statement of Decision (10/21/2011)

No statement of decision is required for denial of defendant's petition to compel arbitration; Maria P. v. Riles, 43 Cal.3d 1281 (1987); CCP 1291. A statement of decision resolves facts, and a rule of law is not a factual issue; Maria P. This case was not cited in a recent California Court of Appeals case holding that CCP1291 applies.  If requested by counsel, the court must issue a statement of decision resolving a factual dispute in a petition to compel arbitration consistent with CCP 632. aSeend a rule of law is not a factual issue; Maria P. This case was t

See, Text, Ch. XXI-J: Statement of Decision

Seee Seecited in on to compel tration if requested by counsel consistent with CCP 632.  

Ambiguity in Arbitration Clause (10/15/2011)

Whether an arbitration clause is “ambiguous” is a question for the trial court. The leading case discussing the role of the court in determining that issue is Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.4th 394 (1996). The California Court of Appeal conceded parol evidence is inadmissible in in interpreting an integrated contract, but oral testimony is admissible to determine the intent of the parties and to resolve disagreement as to the scope of the arbitration clause. (A thin distinction, if any).

See, Text, Ch. XVI-F-4-d: Ambiguity in Arbitration Clauses

Illegal Contracts: Unlicensed Contractors (9/15/2011)

As a general rule, illegal contracts are voidable. California law requires contractors to be licensed, and if not, they cannot enforce a contract. But the California Court of Appeal has held that rule only applies to licensing during the performance of the contract, not at the time of execution.

See, Text, Ch. XVII-C-7: Illegal or Invalid Contracts

Exemption from FAA(8/11/2011)

The 9th Circuit has held the court required the judge to determine the clarity of the "delegation clause" and whether the FAA applied ab initio. The FAA excludes “workers engaged in interstate commerce” from the statute and the judge must decide whether the exemption applies as part of the issue of arbitrability.

See, Text, Ch. IV-F-h: Delegation of Authority

Self Executing Arbitration Agreements (7/24/2011)

The parties to a pre-dispute arbitration clause, or subsequently agreed upon clause, can initiate arbitration without court intervention and no court order is necessary.

See, Text, Ch. XII-C: Judicial Jurisdiction (collecting cases)

Settlement (Fed. Ct.) (6/29/2011)

Federal courts have an extensive set of settlement procedures operated under its own aegis. Parties can also settle outside of court programs, and the enforcement of a settlement under those circumstances is discussed by the 9th Circuit.

See, Text, Ch. VIII-A. Settlement

Standing (6/24/2011)

Enforcement of an arbitration clause requires a party to establish "standing"-usually in third party cases. In a bankruptcy proceeding, only the trustee has standing to enforce an arbitration clause if the claim was not scheduled.

See Text, Standing: Ch. IV-D (Fed.; Ch. XV-B-2 (State)

Declaratory Judgments (6/22/2011)

Any conflict between the FAA and the Declaratory Judgment Act (DJA) is resolved in favor of a hearing on the petition to compel arbitration or under the DJA-even if the court orders remand; Ninth Circuit.

See, Text, Ch. II-B: Declaratory Judgments

Trusts & Arbitration (6/10/2011)

A beneficiary of a trust cannot enforce an arbitration agreement to resolve disputes in the capacity of a third party beneficiary. According to the California Court of Appeal, disputes among trustees and beneficiaries are resolved under statutory law.

See, Text, Ch. XVI-F-5-h: Trusts in Arbitration Agreements

Delegation of Authority Clause (5/13/2011)

Although the Supreme Court has confirmed the right of the parties to delegate authority to the arbitrator in determining the arbitrability of the arbitration clause in Rent-A-Center, West, Inc. v. Jackson, 130 S.Ct. 2772 ( 2010), the California Court of Appeal denied this delegation in adhesive contracts;

See, Text, Ch. XVI-F-4: Delegation of Authority Clause,

Arbitrator: Exceeding Powers (5/12/2011)

The arbitrator holds legal and equitable powers not necessarily approved by a court. A California court held the power of an arbitrator to order equitable relief-in this case a demand the Respondent write an apology-is enforceable if the arbitration clause does not restrict this remedy, or the parties’ submission disallows this authority.

See, Text, Ch. XXI-F-8-c: Arbitrator Exceeds Powers

Non Signatories (5-11-2011)

Whether a non signatory can compel a signatory to join in an arbitration depends on several theories discussed in the text. The burden of proof lies with the non signatory to compel arbitration with signatories under any of these theories.

See, Text, Ch. XVI-F-5-g: Non signatories and Signatories

Classwide Arbitration (5-4-2011)

The Supreme Court has enforced arbitration clauses in contracts prohibiting consumers from participating in group, class, or collective arbitration. In other words, class arbitration is not viable as a dispute resolution mechanism. According to the Court, the provisions of bilateral arbitration are inconsistent with the complexity of class wide arbitration, and this distinction impedes the expeditious resolution of disputes mandated by the FAA.

See, Text, XVII-B-11: Classwide Arbitration; Ch. IV-H- 8

Mandate (4-9-2011)

Although an appeal from an interlocutory order granting a petition to compel arbitration is prohibited by CCP 1294 providing for appealable orders, mandate has been invoked to avoid this restriction. ;Ordinarily, an appeal lies only from an interlocutory order denying a petition to compel arbitration (CCP 1294), but the appellate court may review an order granting a petition to compel arbitration if the issues subject to arbitration fall outside the scope of the arbitration agreement.
The California Supreme Court left the door open for mandate if there are "unusual circumstances, particularly if the issue of appealability is unclear" A California Court of Appeal expanded this rule to allow mandate if there is a “novel issue of law.”

See, Text, Ch. XIV-J: Mandate

Non Signatories (Both Parties): 4-9-2011)

In determining whether non signatories to a contract, whether named as plaintiff or defendant in litigation, can be compelled to arbitrate, the doctrine of equitable estoppel applies. When a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing non signatory defendants for claims that are ‘based on the same acts and are inherently inseparable’ from arbitrable claims against signatory defendants the doctrine applies. This doctrine was expanded by the court. In a suit brought on contract, a non signatory plaintiff can compel arbitration of a non signatory defendant if the claim (s) is “inextricably intertwined” with the underlying obligations.

See, Text, Ch XVI-F-5-f/g: Non Signatories

Judicial Arbitration TDN (4-9/2011)

A non prevailing party in judicial arbitration who files a request for TDN and subsequently withdraws the motion cannot invoke the voluntary dismissal statute (CCP 581) to avoid the arbitration award, and may be subject to an attorney fee award not otherwise available in a court or jury trial. By dismissing the underlying action, the party repudiates its request for a TDN and the award is reinstated. The prevailing party may move to vacate the dismissal and reinstate the award.

See, Text, Ch. X-T: Judicial Arbitration: Trial de Novo

Attachments (4/1/2011)

Filing an application for an attachment does not waive the right to arbitration; CCP 1281.8 (b) & (d). The court can only grant the application if the award . . . “may be rendered ineffectual without provisional relief;” CCP 1281.8. The test for “ineffective relief” is the equivalent of “irreparable harm” as required for the issuance of an injunction.

See, Text, Ch. XVII-E-3-a: Provisional Remedies; Attachments

Construction Defects (3/11/2011)

In California, CC 914 et seq. mandates a statutory non adversarial proceeding between a home builder and the homeowner as a condition precedent to filing any action for construction defects. As an option the builder may present its own non adversarial processes for resolution of a dispute, but if unsuccessful may not subsequently impose the statutory non adversarial provisions recited in the statute.
The non adversarial procedure drafted by the builder must be in accord with the doctrine of unconscionable contracts.

See, Text, Ch. XVII-C-5-a-8): Construction Defects

Referees & General References (2/19/2011)

The California Supreme Court has held the potential of multiple actions between signatories to a contract and non signatories is grounds for denying a Reference . (Disapproving Greenbriar Homes Communities, Inc. v. Sup.Ct., 117 Cal.App.4th 337 (2004).
Multiple parties were involved in a dispute. One party had signed a contractual arbitration clause and another party had signed a clause to resolve disputes by appointment of a Referee. The court has discretion to refuse to enforce the arbitration agreement on grounds the two types of alternative dispute resolution may result in different results.

See Text, Ch. XXIII-A: Authority of Referee

Stay of Arbitration/Litigation (1/29/2011)

If a party has previously petitioned for an order to arbitrate, but its resolution judicially undetermined, the court must stay any action until the earlier petition is resolved, although the court may sever non arbitrable issues from the order to stay litigation; CCP 1281.4; Madden v. Kaiser Foundation Hospitals 17 Cal.3d 699 (1976). The California Court of Appeal has held the purpose of the stay is to protect the jurisdiction of the arbitrator by preserving the status quo until the collateral arbitration is resolved. A stay of the entire action [or pending arbitration] is appropriate when, in its absence, continuation of proceedings . . .would] [disrupt] arbitration and render it ineffective." See,

Text, Ch. III-E: Stay of Litigation/Arbitration Mediation Confidentiality:

Attorney/Client (1/14/2011)  

Communications between attorney and client during mediation are confidential and inadmissible when the former client sued his counsel in a later action for malpractice. The California Supreme Court summarizes its case law on confidentiality in mediation and concludes its policy decision is congruent with Legislative intent. Citation in Text See, Text, Ch. XI-B-2-a

Archived 2007 to 2010 cases

 

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