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ArbitrationAdr.com enables the subscriber to identify the most recent cases decided by California and federal courts. The "Updates Section" below summarizes the cases and identifies their location in the text. Citations are omitted but subscribers can easily shift to the text for a complete discussion of the case, its relation to other cases, and cross references between state and federal courts. Many cases are only applications of the general law, and unless establishing a new principle, or overruling a previous case, are not included. Under state and federal law, unpublished cases are not cited as precedent. Accordingly, unless an unpublished case more clearly lays out the law, or may be useful in some contexts, ArbitrationAdr.com does not include the decision. A list of recent updates (to the electronic text, available to members) appears below in order by date. If you want to search for a particular word, press CTRL-F to find a word on this page. Remember, the list below is an abbreviated summary of the updates. The full text of the updates is available in the members. Credit Repair Organizations Act: 15 U.S.C. 1679 et seq.(1/15/2012) provides consumers with extensive protection against unlawful practices but contains no prohibition against arbitration, and the FAA may be enforced if an arbitration clause mandating arbitration and prohibiting litigation (waiver) exists in the contract; CompuCredit Corp. v. Greenwood, 2012 WL 4354 U.S).* See, Text, Ch. I-C : CROA Mutuality of Obligation: (1/15/2012): In enforcing an arbitration clause in an employment contract, the terms must provide for mutuality of obligations between the parties as part of the substantive and procedural test for arbitrability. See, Text, Ch. XVII-C-4-b: Employment Contracts Arbitrable and Non Arbitrable Claims: (11/16/2011) The Supreme Court has ordered state courts to order arbitration of arbitrable claims regardless of nonarbitrable contractual claims in a case within the jurisdiction of the FAA. See, Text, XVII-B: Procedural arbitrability Statement of Decision: (10/21/2011) No statement of decision is required for denial of defendant's petition to compel arbitration; Maria P. v. Riles, 43 Cal.3d 1281 (1987); CCP 1291. A statement of decision resolves facts, and a rule of law is not a factual issue; Maria P. This case was not cited in a recent California Court of Appeals case holding that CCP1291 applies. If requested by counsel, the court must issue a statement of decision resolving a factual dispute in a petition to compel arbitration consistent with CCP 632. aSeend a rule of law is not a factual issue; Maria P. This case was t See, Text, Ch. XXI-J: Statement of Decision Seee Seecited in on to compel tration if requested by counsel consistent with CCP 632. Ambiguity in Arbitration Clause: (10/15/2011) Whether an arbitration clause is “ambiguous” is a question for the trial court. The leading case discussing the role of the court in determining that issue is Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.4th 394 (1996). The California Court of Appeal conceded parol evidence is inadmissible in in interpreting an integrated contract, but oral testimony is admissible to determine the intent of the parties and to resolve disagreement as to the scope of the arbitration clause. (A thin distinction, if any). See, Text, Ch. XVI-F-4-d: Ambiguity in Arbitration Clauses Illegal Contracts: Unlicensed Contractors: (9/15/2011) As a general rule, illegal contracts are voidable. California law requires contractors to be licensed, and if not, they cannot enforce a contract. But the California Court of Appeal has held that rule only applies to licensing during the performance of the contract, not at the time of execution. See, Text, Ch. XVII-C-7: Illegal or Invalid Contracts Exemption from FAA: (8/11/2011) The 9th Circuit has held the court required the judge to determine the clarity of the "delegation clause" and whether the FAA applied ab initio. The FAA excludes “workers engaged in interstate commerce” from the statute and the judge must decide whether the exemption applies as part of the issue of arbitrability. See, Text, Ch. IV-F-h: Delegation of Authority Self Executing Arbitration Agreements: (7/24/2011) The parties to a pre-dispute arbitration clause, or subsequently agreed upon clause, can initiate arbitration without court intervention and no court order is necessary. See, Text, Ch. XII-C: Judicial Jurisdiction (collecting cases) Settlement (Fed. Ct.): (6/29/2011) Federal courts have an extensive set of settlement procedures operated under its own aegis. Parties can also settle outside of court programs, and the enforcement of a settlement under those circumstances is discussed by the 9th Circuit. See, Text, Ch. VIII-A. Settlement Standing: (6/24/2011) Enforcement of an arbitration clause requires a party to establish "standing"-usually in third party cases. In a bankruptcy proceeding, only the trustee has standing to enforce an arbitration clause if the claim was not scheduled. See Text, Standing: Ch. IV-D (Fed.; Ch. XV-B-2 (State) Declaratory Judgments: (6/22/2011) Any conflict between the FAA and the Declaratory Judgment Act (DJA) is resolved in favor of a hearing on the petition to compel arbitration or under the DJA-even if the court orders remand; Ninth Circuit. See, Text, Ch. II-B: Declaratory Judgments Trusts & Arbitration: (6/10/2011) A beneficiary of a trust cannot enforce an arbitration agreement to resolve disputes in the capacity of a third party beneficiary. According to the California Court of Appeal, disputes among trustees and beneficiaries are resolved under statutory law. See, Text, Ch. XVI-F-5-h: Trusts in Arbitration Agreements Delegation of Authority Clause: (5/13/2011) Although the Supreme Court has confirmed the right of the parties to delegate authority to the arbitrator in determining the arbitrability of the arbitration clause in Rent-A-Center, West, Inc. v. Jackson, 130 S.Ct. 2772 ( 2010), the California Court of Appeal denied this delegation in adhesive contracts; See, Text, Ch. XVI-F-4: Delegation of Authority Clause, Arbitrator: Exceeding Powers: (5/12/2011) The arbitrator holds legal and equitable powers not necessarily approved by a court. A California court held the power of an arbitrator to order equitable relief-in this case a demand the Respondent write an apology-is enforceable if the arbitration clause does not restrict this remedy, or the parties’ submission disallows this authority. See, Text, Ch. XXI-F-8-c: Arbitrator Exceeds Powers Non Signatories: (5-11-2011) Whether a non signatory can compel a signatory to join in an arbitration depends on several theories discussed in the text. The burden of proof lies with the non signatory to compel arbitration with signatories under any of these theories. See, Text, Ch. XVI-F-5-g: Non signatories and Signatories Classwide Arbitration: (5-4-2011) The Supreme Court has enforced arbitration clauses in contracts prohibiting consumers from participating in group, class, or collective arbitration. In other words, class arbitration is not viable as a dispute resolution mechanism. According to the Court, the provisions of bilateral arbitration are inconsistent with the complexity of class wide arbitration, and this distinction impedes the expeditious resolution of disputes mandated by the FAA. See, Text, XVII-B-11: Classwide Arbitration; Ch. IV-H- 8 Mandate: (4-9-2011) Although an appeal from an interlocutory order granting a petition to compel arbitration is prohibited by CCP 1294 providing for appealable orders, mandate has been invoked to avoid this restriction. ;Ordinarily, an appeal lies only from an interlocutory order denying a petition to compel arbitration (CCP 1294), but the appellate court may review an order granting a petition to compel arbitration if the issues subject to arbitration fall outside the scope of the arbitration agreement. See, Text, Ch. XIV-J: Mandate
Non Signatories: (Both Parties): 4-9-2011) In determining whether non signatories to a contract, whether named as plaintiff or defendant in litigation, can be compelled to arbitrate, the doctrine of equitable estoppel applies. When a party has signed an agreement to arbitrate but attempts to avoid arbitration by suing non signatory defendants for claims that are ‘based on the same acts and are inherently inseparable’ from arbitrable claims against signatory defendants the doctrine applies. This doctrine was expanded by the court. In a suit brought on contract, a non signatory plaintiff can compel arbitration of a non signatory defendant if the claim (s) is “inextricably intertwined” with the underlying obligations. See, Text, Ch XVI-F-5-f/g: Non Signatories
Judicial Arbitration: TDN (4-9/2011) A non prevailing party in judicial arbitration who files a request for TDN and subsequently withdraws the motion cannot invoke the voluntary dismissal statute (CCP 581) to avoid the arbitration award, and may be subject to an attorney fee award not otherwise available in a court or jury trial. By dismissing the underlying action, the party repudiates its request for a TDN and the award is reinstated. The prevailing party may move to vacate the dismissal and reinstate the award. See, Text, Ch. X-T: Judicial Arbitration: Trial de Novo Attachments: (4/1/2011) Filing an application for an attachment does not waive the right to arbitration; CCP 1281.8 (b) & (d). The court can only grant the application if the award . . . “may be rendered ineffectual without provisional relief;” CCP 1281.8. The test for “ineffective relief” is the equivalent of “irreparable harm” as required for the issuance of an injunction. See, Text, Ch. XVII-E-3-a: Provisional Remedies; Attachments
Construction Defects: (3/11/2011) In California, CC 914 et seq. mandates a statutory non adversarial proceeding between a home builder and the homeowner as a condition precedent to filing any action for construction defects. As an option the builder may present its own non adversarial processes for resolution of a dispute, but if unsuccessful may not subsequently impose the statutory non adversarial provisions recited in the statute. See, Text, Ch. XVII-C-5-a-8): Construction Defects Referees & General References: (2/19/2011) The California Supreme Court has held the potential of multiple actions between signatories to a contract and non signatories is grounds for denying a Reference . (Disapproving Greenbriar Homes Communities, Inc. v. Sup.Ct., 117 Cal.App.4th 337 (2004). See Text, Ch. XXIII-A: Authority of Referee Stay of Arbitration/Litigation: (1/29/2011) If a party has previously petitioned for an order to arbitrate, but its resolution judicially undetermined, the court must stay any action until the earlier petition is resolved, although the court may sever non arbitrable issues from the order to stay litigation; CCP 1281.4; Madden v. Kaiser Foundation Hospitals 17 Cal.3d 699 (1976). The California Court of Appeal has held the purpose of the stay is to protect the jurisdiction of the arbitrator by preserving the status quo until the collateral arbitration is resolved. A stay of the entire action [or pending arbitration] is appropriate when, in its absence, continuation of proceedings . . .would] [disrupt] arbitration and render it ineffective." See, Text, Ch. III-E: Stay of Litigation/Arbitration Mediation Confidentiality: Attorney/Client: (1/14/2011) Communications between attorney and client during mediation are confidential and inadmissible when the former client sued his counsel in a later action for malpractice. The California Supreme Court summarizes its case law on confidentiality in mediation and concludes its policy decision is congruent with Legislative intent. Citation in Text See, Text, Ch. XI-B-2-a
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