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Arbitration Clause

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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

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

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 did not agree to a franchisor's arbitration clause, so the trial court correctly denied the franchisor's motion to compel arbitration.  The arbitration clause was contained in the franchisor's "terms and conditions of service" which were available to the plaintiff only by checking an inconspicuous link on a tablet device handed to plaintiff as she appeared for her monthly massage… Read More

When plaintiffs created their Coinbase accounts, they agreed to the “Coinbase User Agreement,” which contains an arbitration provision. They later opted into the Sweepstakes’ “Official Rules,” which include a forum selection clause providing that California courts have exclusive jurisdiction over any controversies regarding the sweepstakes.  This decision affirms the district court's determination that the arbitration agreement did not delegate to… Read More

This decision holds that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 overrules the cases that followed Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 in holding that pre-dispute arbitration clauses were unenforceable to compel arbitration of the individual PAGA claim(s) of the plaintiff employee.  Viking River held that the individual plaintiff acts in part… Read More

Plaintiffs entered into arbitration agreements with Pacific as part of their agreements for Pacific's cryogenic preservation of their sperm or eggs.  One of the cryogenic tanks in which the specimens were to be preserved failed.  This decision holds that the manufacturer and distributor of the failed tank could not compel arbitration under the plaintiffs' agreements with Pacific to which the… Read More

Defendant employer failed to pay the arbitrator's fees within 30 days.  Accordingly, the trial court correctly granted plaintiff's motion for reconsideration of the order compelling arbitration.  CCP 1287.98 allows a party to avoid arbitration under an employment or consumer contract if the party that drafted the arbitration agreement and moved to compel arbitration does not pay arbitration fees within 30… Read More

This decision holds that an arbitration agreement in an employment contract was unconscionable and therefore unenforceable because (1) it did not explain and separately provide for waiver of the employee's right to sue in court to enforce his individual PAGA claim (as opposed to the non-waivable right to sue under PAGA for the benefit of other employees), and (2) in… Read More

Under Lab. Code 925(a)(1), an employer may not require an employee to agree to adjudicate in another state a dispute arising in California.  This decision holds that the provision does not prohibit a court or arbitrator in another state from adjudicating whether section 925 applies.  Here, Zhang was a full partner of Dentons, so there was ample room for questioning… Read More

Plaintiff appointed nephew as  his health care agent and attorney-in-fact using an advance health care directive and power of attorney for health care decisions form developed by the California Medical Association.  After signing a contract to admit plaintiff to defendant's health care facility, nephew executed an optional arbitration agreement on plaintiff's behalf.  This decision holds that the directive and power… 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

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 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

An airline employee whose duties involved loading and unloading baggage and cargo onto and from airplanes that flew interstate routes was an employee engaged in interstate commerce and thus the FAA did not apply to the arbitration clause in his employment agreement.  9 USC 1 exempts a class of workers--not a class of their employers; so the fact that Southwest… Read More

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