Waiver

In Jeffrey Chong v. Bank of Am., N.A., No. 22-00151 JMS-KJM, 2022 U.S. Dist. LEXIS 203101, at *2-5 (D. Haw. Nov. 8, 2022), Judge Seabright found no waiver of arbitration of an FCRA case under the SCOTUS' decision in Morgan. In the Ninth Circuit (until recently), "[a] party seeking to prove waiver of a right to arbitration must demonstrate: (1)… Read More

In Espinoza v. Superior Court, No. B314914, 2022 Cal. App. LEXIS 816, at *10-17 (Ct. App. Sep. 27, 2022), the Court of Appeal found that the defendant's failure to pay an arbitrator's invoice within 30 days barred arbitration, period, even if no prejudice or if there was substantial compliance.  The Court of Appeal stated. The parties do not dispute that… Read More

In Gallo v. Wood Ranch United States, No. B311067, 2022 Cal. App. LEXIS 652, at *3-6 (Ct. App. July 25, 2022), the Court of Appeal addressed the effect of late payment of arbitration fees under the penalties provided for by Civil Procedure Code sections 1281.97 and 1281.99, which obligate a company or business who drafts an arbitration agreement to pay… Read More

In Barbosa v. Midland Credit Mgmt., No. 19-1896, 2020 U.S. App. LEXIS 37174 (1st Cir. Nov. 25, 2020), the First Circuit Court of Appeal affirmed referring a matter to arbitration. A resident of Massachusetts, Barbosa opened a credit card account with Barclays Bank Delaware ("Barclays") in April 2011. The last payment she made on the account was in November 2012.… Read More

The California Legislature enacted SB 708, effective January 1, 2020, as a further attack on arbitration in California.  SB 708 states, in part, that: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the… Read More

In Ngo v. PMGI Financial, et. al., DARRIN NGO, 2018 WL 6618316, at *7–9 (N.D.Cal., 2018), Judge Spero held that a creditor's filing a superior court collection action did not prevent sending the matter to arbitration, but the debtor remained free to assert waiver to the arbitrator. Ngo contends that Defendants waived their right to demand arbitration by filing a… Read More

In Raczynski v. Daland Nissan, Inc. 2017 WL 603869, at *4–5 (Cal.App. 1 Dist., 2017), the Dealer got hit for $358,000 by a JAMS arbitrator.  The customer would not agree to a second arbitration under the RISC's clause allowing one if an award exceeded $100,000, and the trial court refused to order a second arbitration.  The Court of Appeal, in an… Read More

In Goodridge v. KDF Automotive Group, Inc., 2016 WL 142216, at *9-10 (Cal.App. 4 Dist., 2016) (unpublished), the Court of Appeal addressed Plaintiff's continued post-Sanchez fight against arbitration, finding that the standard form RISC was not unconscionable.  The Court of Appeal also found that that the Defendant's litigation conduct did not waive the right to assert it. We conclude Goodridge has not… Read More

In Davis v. CACH, LLC, 2015 WL 913392 (N.D.Cal. 2015), Judge Freeman referred an FDCPA class action to arbitration, finding that the claim was within the scope of the Arbitration, that Arbitration was not inconsistent with the enforcement mechanisms of the FDCPA, and that the Defendant had not waived arbitration by filing a collection action in state court.  Judge Freeman… Read More

In James v. Portfolio Recovery Associates, LLC, 2015 WL 720195 (N.D.Cal. 2015), Judge Whyte found that a debt collector sued in an FDCPA class action could enforce the arbitration clause to send the case to arbitration despite the fact that the debt collector already had sued the the debtor in state court on the debt. James brought this class action… Read More

In Barnes v. Bakersfield Dodge, Inc., 2014 WL 5392963 (Cal.App. 5 Dist. 2014), the Court of Appeal found in an unpublished decision that a previous order finding that a car dealer had waived its right to arbitrate a class-action plaintiffs’ claim did not mean that the car dealer had waived its right to arbitrate the claims of members of the… Read More

In Gonzalez v. Metro Nissan of Redlands, 2013 WL 4858770 (Cal.App. 4 Dist. 2013), an unpublished decision, the Court of Appeal entered the Sanchez fray, and came down on the side of enforcing the arbitration clause in the LawPrinting RISC.   "Because we have no guidance from the Supreme Court, and because we cannot rely on the decisions of our sister courts,… Read More

In Richards v. Ernst & Young, LLP, the Court of Appeals for the Ninth Circuit held in an employment case that the Defendant did not waive its right to compel arbitration by litigating the case during the years before the Supreme Court decided Concepcion.  The Plaintiff could not establish any prejudice from the delay in moving to compel -- one of… Read More

In Gillette v. First Premier Bank, 2013 WL 3205827 (S.D.Cal. 2013), Plaintiff's counsel employed a strategy purportedly designed to secure a waiver of arbitration clause.  Plaintiff filed a small-value Rosenthal Act claim and settled it with the defendant.  However, Plaintiff also had filed a federal class action under Penal Code 632 -- California's call recording statute.  Defendant moved to compel arbitration of… Read More

In Alvarado v. Miller-DM, Inc., 2013 WL 205927 (2013), the California Court of Appeal found, in an unpublished case, that the defendant waived its right to arbitrate the class claims under a standard form automobile RISC.  In the pre-Concepcion petition to compel arbitration, the Defendant had excluded from its petition plaintiff's injunctive relief cause of action; declaratory relief claim; and… Read More

In Flores v. West Covino Auto Group, 2013 WL 139200 (2013), the Court of Appeal for the Second District found that the Defendant auto dealer did not waive arbitration by litigating the case while Fisher remained good law and until shortly after Concepcion was decided.  The dealer's delay in seeking arbitration was justified and the car buyer did not show… Read More

In Gutierrez v. Wells Fargo Bank, NA --- F.3d ----, 2012 WL 6684748 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit rejected a post-trial petition to enforce arbitration, and found partial pre-emption of the UCL to the extent it conflicted with the business of banking in how a bank applies and computes overdraft fees.  The Court of Appeals… Read More

In McNamara v. Royal Bank of Scotland Group, PLC, 2012 WL 5392181 (S.D.Cal. 2012), Judge Lorenz called out a now-frequently employed tactic by Plaintiff’s counsel, who litigate individual collection torts in state court to be able argue waiver of the arbitration clause in a later-filed class action in federal court.  Judge Lorenz ordered a TCPA class action to arbitration, finding… Read More

In Harrier v. Verizon Wireless Personal Communications LP, 2012 WL 3655355 (M.D.Fla. 2012), Judge Moody addressed a petition to arbitrate a TCPA claim.  Plaintiff sued Verizon for emailing her to collect a debt after she received a bankruptcy discharge on Verizon's debt.  Verizon moved to compel arbitration.  Judge Moody denied the petition, holding: Harrier alleges that despite the bankruptcy discharge, Verizon called… Read More