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........................................................Chapter 5: Disposition without Trial
..........................................................A. Arbitration
p.476, add
at bottom of bullet list:
.....o decide
the discovery disputes between parties not in the arbitration
and parties who are subject to arbitration; however, those who
are not parties to an arbitration are entitled to full judicial
review of the arbitrator's orders. Berglund v. Arthroscopic &
Laser Surgery Center of San Diego, 44 Cal.4th 528, 79 Cal.Rptr.3d
370, 187 P.3d 86 (2008).
..... o decide challenges to the entire contract--but
if the challenge is to only the arbitration clause, the court
decides. Winter v. Window Fashions Professionals, Inc., 166 Cal.App.4th
943, 948, 83 Cal.Rptr.3d 89, 92 (2008).
.....Add
new para., at end of penultimate para., after "(1968)"
and before "The":
.....On
the other hand, an award need not be voided, merely because the
arbitrator discloses more than required, out of an abundance
of caution. Luce, Forward, Hamilton & Scripps v. Koch, 162
Cal.App.4th 720, 724-725, 75 Cal.Rptr.3d 869, 871 (2008). Further,
once a case is arbitrated, if there is an incomplete or ambiguous
disclosure, the remedy is to seek disqualification of the arbitrator
before--not after--the arbitration is completed (assuming the
ground is known at that point). Dornbirer v. Kaiser Foundation
Health Plan, Inc., 166 Cal.App.4th 831, 846, 83 Cal.Rptr.3d 116,
127 (2008).
....The
gist of the disclosure requirement is to ensure impartiality.
It is interpreted very narrowly, to ensure public confidence
in the arbitration process. For example, one of the arbitrators
in a woman's case against a cosmetic surgeon failed to disclose
his being censured while on the bench. The reasons included his
sexually explicit remarks, ethnic slurs, and derogatory comments
to or about his female employees and colleagues based on their
physical attributes. In such cases: "Actual bias in an arbitrator
is not required to trigger the disclosure requirements. Rather,
the duty to disclose is measured by an objective, reasonable
person standard. ... [T]he question is whether an ‘average
person on the street’ aware of the facts would harbor doubts
as to the arbitrator's impartiality." Haworth v. Superior
Court, 164 Cal.App.4th 930, ___, 79 Cal.Rptr.3d 800, 805 (2008),
review granted and opinion superseded, 84 Cal.Rptr.3d 37, 193
P.3d 281 (2008).
After
Haworth, add another new para.:
.....Certain
matters may only be arbitrated. For example, there are
often disputes between an insured and an insurer regarding: (a)
whether the insured is entitled to damages from an uninsured
motorist; and/or (b) the amount of such damages. Such issues,
arising under the relevant insurance contracts, must be determined
by arbitration. Cal. Ins. Code § 11580.2(f). But can a non-signatory
underinsured person be a claimant within the meaning of the insurer-insured
contract? See Bouton v. USAA Casualty Insurance Co., 43 Cal.4th
1190, 1201, 78 Cal.Rptr.3d 519, 527, 186 P.3d 1 (2008).
1. Contractual Arbitration
p. 487, Note 2: The California Supreme Court ultimately decided
Cable Connection v. DIRECTV, 44 Cal.4th 1334, 82 Cal.Rptr.3d,
229, 90 P.3d 586 (2008) (5-2 split). Citing Moncharsh,
the majority opinion "adhered" to this earlier opinion
that seemed to prohibit judicial review of an arbirtator's factual
or legal error, by its broadly construed language that "in
the absence of some limiting clause in the arbitration agreement,
the merits of the award, either on questions of fact or law,
may not be reviewed except as provided in the statute."
However, the Cable Connection majority held that the parties
"may expressly agree to accept a broader scope of review."
Also, "to take themselves out of the general rule that the
merits of the award are not subject to judicial review, the parties
must clearly agree that legal errors are an excess of arbitral
authority that is reviewable by the courts." Here, the arbitration
clause provided just that, so the majority relied on general
principles of contract law, deciding that the parties could expressly
agree for judicial review in this circumstance.
.....The
dissent, on the other hand, charged that such "full scale
review" dashed the legislative intent to limit judicial
review to correcting or vacating an award, only as permitted
by statute--particularly since the courts and the legislature
are not parties to the arbitration agreement. For now, the Moncharsh
dissent has prevailed ("the [Moncharsh] majority's
holding requires our trial courts not only to tolerate substantial
injustice, but to become its active agent"). One can expect
that the Cable Connection exception will not be the last
word on this matter.
.....The
Cable Connection court remanded the related matter of
whether classwide arbitration is authorized, where the contract
is silent. Six
months earlier, the U.S. Supreme Court held the contrary in Hall
Street Associates, L.L.C. v. Mattel, Inc., 552 U.S. ___, 128
S.Ct. 1396, 170 L.Ed.2d 254 (2008). But the Federal Arbitration
Act did not pre-empt state laws on this issue.
p.488, add new para. 2, after "1281.2.": An issue subject to arbitration may be mixed
in with one that is not. A single overlapping issue is sufficient
to request a stay of the judicial proceedings. The stay might
be issued regarding only the issue subject to arbitration. The
purpose of a stay is to protect the jurisdiction of the arbitrator
by preserving the status quo until the arbitration is resolved.
Absent a stay, continuing proceedings in the trial court will
likely disrupt the arbitration proceedings and can render them
ineffective. CCP § 1281.4 (single issue); and Heritage Provider
Network, Inc. v. Superior Court, 158 Cal.App.4th 1146, 1152,
70 Cal.Rptr.3d 645, 649-650 (2008).
* p. 507, Note 2, add to Gentry
citation: cert. denied, 128 S.Ct. 1743 (2008).
p. 509, Note 8, add following second
paragraph (at top of p. 509):
Assume that an employer's mandatory arbitration contract provides
that any employment discrimination claim is waived, unless submitted
to arbitration either: (a) within one year from the date the
dispute arose; or (b) from the date plaintiff first became aware
of facts giving rise to the dispute. The arbitrator grants summary
judgment for defendant, on the basis of plaintiff's late claim.
The FEHA, however, provides: "If an accusation [by the agency]
is not issued within 150 days after the filing of a complaint
***, the department shall promptly notify, in writing, the person
claiming to be aggrieved that the department shall issue ***
the right-to-sue notice. This notice shall indicate that the
person claiming to be aggrieved may bring a civil action under
this part against the *** employer *** within one year from the
date of that [right to sue] notice.” This employment contract
reduced the time within which the employee could sue, to only
one year from a dispute or when the plaintiff first became of
aware of the relevant facts. Citing Armendariz, the California
Court of Appeal held that the one-year limitation period in employment
agreement did not unfairly burden employee's opportunity to vindicate
his claim. Does this decision comply with the central Armendariz
theme that statutory rights cannot be waived in an employment
contract? See Pearson Dental Supplies, Inc. v. Superior Court,
166 Cal.App.4th 71, 82 Cal.Rptr.3d 154, review granted and opinion
superseded, 85 Cal.Rptr.3d 693, 196 P.3d 220 (2008).
3. International Arbitration
p. 516, case update: Gueyffier was decided by the California
Supreme Court, holding that an arbitrator does not exceed his
powers when he applies equitable defenses to excuse a party from
performing a material condition of an agreement that provides
the arbitrator may not modify or change any of the agreement’s
material provisions. Gueyffier v. Ann Summers, Ltd., 43 Cal.4th
1179, 77 Cal.Rptr.3d 613, 184 P.3d 739 (2008).
4. Federal Preemption
* p. 518, add new first
bullet entry:
....One
cannot assert a claim under the F.A.A., as if it were a case
arising under federal law. Section 4 of the
Act authorizes district courts to entertain petitions to compel
arbitration. However, the source of subject matter jurisdiction
must otherwise qualify for federal court jurisdiction. The trial
judge may thus "look through" a petition to compel
arbitration to determine whether it has jurisdiction over the
petition. Vaden v. Discover Bank, ___ U.S. ___, 129 S.Ct. 1262,
173 L.Ed.2d 206 (2009).
.........................................................B. Mediation
1. Statutory Regime
p. 521, insert following
last paragraph in subsection 1:
.....The
parties may, of course, create mediation obligations not required
by statute. For example, Paragraph 17A of the standard California
residential property purchase agreement precludes the recovery
of attorney's fees when a party "commences an action without
first attempting to resolve the matter through mediation."
A plaintiff who filed a case without first seeking mediation
thus forfeited the right to recover attorney's fees, which were
otherwise available by contract. Lange v. Schilling, 163 Cal.App.4th
1412, 78 Cal.Rptr.3d 356 (2008).
p. 531, Note 7 update: Simmons was reversed. Citing Foxgate,
the California Supreme Court determined that there can be no
implied waiver by conduct. The mediation statutes require express
waiver. The Court remanded Simmons for further trial court
proceedings in 44 Cal.4th 570, 80 Cal.Rptr.3d 83, 187 P.3d 934
(2008). The defendant physician sought to revoke her consent
to the alleged settlement of their malpractice- based action
for patient's wrongful death. She was not estopped, however,
under the doctrine of estoppel to contest jurisdiction, from
invoking mediation confidentiality to exclude evidence of alleged
oral settlement agreement from breach of contract action.
p. 547, Note 1, add following, just
after "sooner?": Suppose
a plaintiff offers no opposition to a motion for summary judgment.
He instead files a voluntary dismissal of an action, before the
trial court issues a tentative ruling granting the defendant's
motion for summary judgment. Is that dismissal ineffective, because
of the inevitable result? See Gogri v. Jack In The Box, Inc.,
166 Cal.App.4th 255, 264, 82 Cal.Rptr.3d 629, 636 (2008). What
a court granted a motion to compel arbitration, followed by the
plaintiff's voluntary dismissal without prejudice? Is that voluntary
dismissal valid? See Cardiff Equities, Inc. v. Superior Court,
166 Cal.App.4th 1541, 83 Cal.Rptr.3d 699 (2008).
..................................
...............................E. Default Judgment
p. 566, n.5, add following
paragraph: Citing Greenuup,
the Court of Appeal noted that when the amount awarded via default
is greater than that stated in the complaint, the court has the
discretion to allow the plaintiff to amend her complaint. She
cannot, however, obtain a damage award of the $25,000.01 jurisdictional
minimum in an unlimited case. Julius Schifaugh IV Consulting
Service v. Avaris Capital, Inc., 164 Cal.App.4th 1393, 79 Cal.Rptr.3d
910 (2008).
.......................................................................F. Settlement
1. General Procedure
p. 567, insert following at end of first para., after
"(1983).": An agreement is "not lacking consideration,
simply because it is later determined the claim was not well
founded." In re Estate of Bennett,
163 Cal.App.4th 1303, 1310, 78 Cal.Rptr.3d 435, 441 (2008).
2. Settlement Planning
.....(a)
Good Faith Settlement Hearing
p. 581, new n.7: Should a plaintiff retain the unilateral right
to determine which defendant or defendants should be included
in an action, for the limited purpose of allocating the respective
percentages of fault? Henry v. Superior Court, 160 Cal.App.4th
440, 449, 72 Cal.Rptr.3d 808, 812 (2008).
.....(b)
Insolvent Defendants
* p. 581, insert initial
new paragraph:
.....One
of your recurring responsibilities will be to assess whether
a defendant is solvent. She may also suddenly become insolvent,
as a result of your hard fought battle to obtain a sizeable award.
In May 2009, for example, soon after a jury returned a $300,000,000.00
compensatory damage judgment against a C.E.O., the jury was expected
to start the punitive damages phase. But he filed for bankruptcy.
See Gabe Friedman, CEO Files for Bankruptcy a Day After Jury
Awards $300 Million Against Him, Los Angeles Daily Journal (May
13, 2009) p. 1.
3. Offer of Judgment
....(a)
Statutory Regime
p. 586, insert following at end of third para., just after
"998(e))": The offer of judgment statute does not
create an independent right to attorney's fees. A party
may secure that benefit via a contractual agreement under Cal.
Civ. Code § 1717(a), where the contract specifically provides
that attorney's fees and costs incurred to enforce that contract
shall be awarded to the prevailing party--but not by operation
of section 998. Ford Motor Credit Co. v. Hunsberger, 163 Cal.App.4th
1526, 1532, 78 Cal.Rptr.3d 661, 664 (2008).
.....(b)
Judicial Applications
p. 600, Note 1, add following, just after "rule?":
Would a plaintiff's offer of judgment, served with the summons
and complaint be a token offer? See majority and dissenting opinions
in Barba v. Perez, 166 Cal.App.4th 444, 82 Cal.Rptr.3d 715 (2008).
...............................................................G. Summary Judgment
1. Statutory Regime
p. 601, add following
introductory sentence at beginning of first para., just before
"This section":
.....In
your first civil procedure course, you no doubt studied the motion
for summary judgment. Your professor may not have had time to
address summary adjudication. If not, the California Supreme
Court has penned a decision that will fill that gap. North Coast
Women's Care Medical Group, Inc. v. San Diego County, 44 Cal.4th
1145, 1160, 81 Cal.Rptr.3d 708, 720, 189 P.3d 959 (2008) (Part
V).
p. 602, add new penultimate para.,
between "submitted" and "The": A trial judge properly granted summary judgment
for the landlords, based upon the tenants' failure to file a
separate statement of undisputed material facts, although the
case was not complex. Whitehead v. Habig, 163 Cal.App.4th 896,
77 Cal.Rptr.3d 679 (2008).
* p. 603, add new Robinson
case on summary judgment timing: click here.
2. Required Burden
* p. 603, after Aguilar: Robinson (above) covers
the timing of notice and minimum timing before trial, while Kojababian
covers the Separate Statement Requirement. For Kojababian,
click here.
* p. 615, Note 6, add to Google citation:
review granted, 72 Cal.Rptr.3d 112 (2008).
...................................................................H. Reconsideration
p. 622, add new para
(c): Instead of the above part
(b) motion, assume that Pam's lawyer brazenly makes a non-complying
motion for reconsideration with a view toward triggering the
same judge's decision to reverse his original decision. There
is no new fact or law on which to base the fresh motion. While
this obviously defeats the purpose of CCP § 1008, nothing
in the statute or Goel precludes the filing of the above
motion (although it is subject to a finding that it is a frivolous
motion and subject to sanctions). The statute itself "does
not erect a permanent, insurmountable barrier to reconsideration
by the trial court on its own motion." How should the court
react? In re Marriage of Barthold, 158 Cal.App.4th 1301, 1309,
70 Cal.Rptr.3d 691, 696 (2008).
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Reserved for Future Use
...........................................................A. Arbitration
2. Judicial Arbitration
...........................................................B. Mediation
2. Confidentiality
.........................................................................D. Dismissal
1. Voluntary Dismissal
2. Involuntary Dismissal
....(a)
Failure to Prosecute
........................................................................F. Settlement
1. General Procedure
...............................................................G. Summary Judgment
1. Statutory Regime
2. Required Burden
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