Contracts

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

Under B&P Code 17918, a party that regularly transacts business in California for profit under a fictitious business name may not maintain an action on a contract made in the fictitious business name until a fictitious business name statement is filed.  The statute abates the action but does not invalidate the contract.  This decision holds that a motion to compel… Read More

Plaintiff sued Road Runner after finding it had charged him an annual fee for its loyalty program for three years after the initial free period.  Road Runner moved to compel arbitration under a clause it added to its website during the last year before plaintiff sued.  This decision holds that plaintiff did not agree to clause.  It was not presented… Read More

Following SEIU Local 121RN v. Los Robles Regional Medical Center (9th Cir. 2020) 976 F.3d 849, this decision holds that, at least with respect to delegation of arbitrability questions to the arbitrator, arbitration clauses in collective bargaining agreements are to be interpreted just like arbitration clauses in other types of contracts.  A broad arbitration provision in a collective bargaining agreement … Read More

(In Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, the Supreme Court held that a non-party to a contract make invoke it as a third party beneficiary only if it established all three of the following:  (1) it would in fact benefit from performance of the contract, (2) providing that benefit to it was a motivating purpose of the parties… Read More

The settlement agreement in this case provided that defendant "shall pay" plaintiff $3 million as full and final settlement of plaintiff's cliam.  The next sentence stated that payment of the $3 million "will be paid out of escrow" from a specific sale of a piece of real property.  This decision holds that the settlement was not conditional and was not… 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

Following EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, this decision holds that the DFEH cannot be compelled to arbitrate even though the employees, whom it alleges were illegally discriminated against, all signed arbitration agreements. Read More

Fraud in factum, in execution or in the inception differs from promissory fraud, which is a false promise.  Fraud in execution occurs when the defendant causes the plaintiff to execute a contract that has materially different terms from those on which the parties orally agreed.  To allege a claim for fraud in execution, the plaintiff must allege facts showing the… Read More

(Plaintiff could not allege a breach of contract claim based on a letter of intent that differed from the terms of the written agreement that the parties later signed.  The letter of intent clearly indicated it was not binding but rather was a mere proposal.  See SCC Acquisitions v. Central Pacific Bank (2012) 207 Cal.App.4th 859.) 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

Google sent emails to contributors to Google Maps stating that they could "unlock" benefits like a free terabyte of storage by making further contributions to Google Maps as Local Guides.  This decision holds that the emails did not constitute enforceable unilateral offers of a terabyte of storage because the emails did not say how much content the offerees had to… Read More

Plaintiff, a jewelry store, stated a viable breach of contract action against Sotheby's.  Plaintiff owned $4 million in diamonds which it had obtained from Rechnitz as security for his debt.  Plaintiff and Rechnitz met with a Sotheby's agent, giving him the diamonds to have appraised for possible auction at Sotheby's.  Sotheby's form contract referred to only a single consignor, but… Read More

Plaintiff leased a commercial property from defendant.  The lease gave plaintiff an option to buy the property at its fair market value.  Plaintiff exercised the option but the parties disagreed about the fair market value.  After much litigation, the trial court set the price and ordered the parties to perform, but before they could  do so, the Department of Transportation… Read More

Plaintiff, who was not a licensed real estate agent or broker, adequately alleged facts that could give rise to an estoppel to plead the statute of frauds as a defense to her claim for breach of an oral contract to pay her a finder's fee in connection with the sale of real property.  Plaintiff alleged that in reliance on the… Read More

The trial court correctly granted defendant summary judgment in this slip-and-fall injury suit in an exercise facility's sauna room.  The release of claims in the fitness center's membership agreement absolved the fitness center of liability for ordinary negligence.  Plaintiff failed to submit evidence creating a triable issue of fact as to gross negligence.  She claimed to have fallen because the… 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

Disagreeing with Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, this decision holds that a co-tenancy clause in a shopping center lease, which allowed the tenant to drastically reduce its rent if less than 60% of the shopping center's space was leased to other tenants, was enforceable.  Failure of the shopping center to meet… Read More