Arbitration Clause

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

Despite CCP 1710.40'sopen-ended list of potential defenses to a sister state judgment, under the Full Faith and Credit Clause, the statute does not and cannot create an opportunity to raise defenses to the merits of the underlying claims resolved in the sister state judgment. Thus, defenses based on a contract's arbitration, forum selection and choice of law clause could not… 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

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

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

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

Plaintiff purchased a commercial condominium as an investment from defendants under a purchase agreement and at the same time entered into a management agreement under which one of the defendant companies would manage the condominium.  Only the management agreement contained an arbitration clause, and it was narrow, not broad, applying only to disputes arising in connection with the interpretation and… 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