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
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
In this FEHA employment discrimination case, the court holds the employer's arbitration clause was substantively unconscionable because (1) it required the employee to demand arbitration or complain to the employer within the time for filing an administrative complaint with the FEHC, whereas the statute of limitations on the claim would potentially extend two more years, one for the FEHC to… Read More
Following Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619 and disagreeing with Maplebear, Inc. v. Busick (2018) 26 Cal.App.5th 394, this decision holds that an arbitrator's preliminary injunction order is not an "award" and is not reviewable by a California trial court under CCP 1294, and the trial court's order dismissing a petition to vacate the arbitrator's preliminary injunction… 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
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
Following Rittmann v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, this decision holds that drivers who drove goods from in-state warehouses to Domino's franchisees in California are workers engaged in interstate commerce within the meaning of the exception to the FAA's scope. These drivers handled the last stage of transportation of the goods from out-of-state sources to the California… Read More
An adult daughter, who had authority to make health care decisions for her elderly mother and who signed the admissions documents for the mother to be admitted to defendant's residential care facility for the elderly, lacked a power of attorney to act for the mother and so also lacked authority to sign an arbitration agreement on the mother's behalf as… Read More
Comerica sought to vacate an adverse arbitration award on the ground that the arbitrator's disclosure of prior matters with plaintiff's counsel said a prior matter settled before a final award without disclosing that the settlement came after an interim award. This decision holds that even if the disclosure would otherwise have permitted vacatur of the award, Comerica forfeited its challenge… Read More
Affirming an order denying an employer's motion to compel arbitration of the worker's wage and hour, retaliation and discrimination in employment claims, this decision holds the agreement was at least minimally procedurally unconscionable as it was an adhesion contract. It also holds two provisions substantively unconscionable, one requiring any claims to be brought within a year of discovery (despite statutes… Read More
