Arbitration

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

In Vaden v. Discover Bank (2009) 129 S.Ct. 1262, the Court held that under 9 USC 4, to determine whether a federal court has jurisdiction over a petition to compel arbitration, the court should "look through" the arbitration issue and determine whether the court would have jurisdiction of the underlying dispute in the absence of an arbitration agreement.  This decision… Read More

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