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In a single document titled only "order," the district court denied defendant's motion to dismiss as well as its motion to compel arbitration.  This decision holds that while the order denying the motion to compel arbitration is appealable (9 USC 16(a)), the order on the motion to dismiss was not appealable and did not become so by being joined in… Read More

The district court did not err in denying defendant's motion to compel arbitration of plaintiff's claim that defendant discriminated against her in denying her a consolidation loan to combine her two existing student loans.  Defendant was judicially estopped from relying on the arbitration clause in the second loan because at an earlier hearing on whether that clause was unconscionable, defendant… Read More

The district court erred in holding that the delegation clause in the arbitration agreement in this case was unconscionable and therefore unenforceable.  The district court so ruled because the arbitration agreement also provided that if, for any reason, the dispute was not arbitrated, the parties waived a jury trial.  Such a pre-dispute waiver of jury trial is unenforceable under California… Read More

When a plaintiff has brought a PAGA action comprising individual (i.e., violations affecting the plaintiffs) and non-individual (violations affecting only other employees) claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate the non-individual claims on behalf of other employees under PAGA. Read More

Defendant employer did not pay its arbitration fees within 30 days after their due date.  Under CCP 1287.98, plaintiff therefore had and exercised the right to withdraw his claim from arbitration and pursue it in court.  The arbitrator or arbitration administrator had no power to avoid the effect of defendant's nonpayment by extending the due date after defendant's default.  Also,… Read More

This decision holds that a party seeking to vacate an arbitration award must file a petition to vacate or a response (seeking vacatur) to a petition to confirm an arbitration award within 100 days of service of the arbitration award.  (CCP 1288, 1288.2.)  A response seeking to vacate is untimely if filed beyond that 100 day limit even if filed… Read More

An employer's arbitration agreement contained a carve-out provision stating that claims under PAGA are not arbitrable under this agreement.  This decision holds that the plain language of the carve-out excludes from arbitration all PAGA claims--including those individual PAGA claims that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906 are arbitrable (absent the parties' contrary agreement). Hence, the trial… Read More

Under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, the trial court properly denied defendant's motion to compel arbitration because the arbitration clause forbade award of a public injunction in any forum.  Contrary to the defendant's argument, its arbitration agreement did not authorize the arbitrator to award a public injunction.  It provided instead that arbitration is to be “conducted only… Read More

Following Ajamian v. CantorCO2e, LP (2012) 203 Cal.App.4th 771, this decision holds that an arbitration agreement does not clearly and unambiguously delegate arbitrability questions to the arbitrator if the otherwise clear, broad delegation clause is contradicted by a severance provision that recognizes the possibility that a court may determine the arbitration clause or a part of it to be unenforceable. … Read More

Under CCP 1281.91 and the Ethical Standards for Neutral Arbitrators, an arbitrator must disclose pending and prior arbitrations (during the previous 5 years) involving the parties to a dispute referred to him.  The arbitrator must also disclose the results in the prior cases.  However, this decision holds that the arbitrator need not disclose the results in pending cases as those… Read More

In this case, plaintiff obtained a UIM arbitration award for the entire $1 million umbrella policy limit due to emotional distress plaintiff suffered from seeing the underinsured motorist hit her mother who was crossing the street with her.  Before the arbitration award, plaintiff made a 998 offer for a penny less than the umbrella policy limits, which the insurer refused. … Read More

Disagreeing with Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, this decision holding that the arbitration provision in Nissan dealerships' standard employment agreement is not unconscionable.  Though having a high degree of procedural unconscionability due to small print size and lengthy, obscure language, the clause is not substantively unconscionable.  Small print size and obtuse phrasing relate to procedural… Read More

The district court correctly denied Amazon's motion to compel arbitration of a claim by its Flex drivers that Amazon violated state and federal privacy laws by monitoring and wiretapping the drivers’ conversations when they communicated during off hours in closed Facebook groups.  To be arbitrable under Amazon's terms of service, the claim had to arise from or involve the Flex… Read More

Under CCP 1281.9(a)(2), a neutral arbitrator must make disclosures to the parties to an arbitration as required by the Ethics Standards for Neutral Arbitrators in Contractual Arbitration.  Here, the arbitrator did so, and also disclosed that he would accept employment in other disputes as an arbitrator without informing the parties.  In a non-consumer arbitration, the arbitrator is allowed to make… Read More

Although the FAA (9 USC 3) appears to require a district court to stay pending court proceedings when it compels arbitration, binding 9th Circuit precedent holds that, instead, a district court may dismiss the litigation if it compels arbitration of all claims raised in the case.  See Johnmohammadi v. Bloomingdale’s,Inc., 755 F.3d 1072, 1074 (9th Cir. 2014).  The two-judge concurrence… Read More

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