A trustee who is a lawyer and was a lifelong friend of the plaintiffs, a large family, allegedly teamed up with another lawyer and a law firm to “drain off” $25 million from a composite family estate. The family brought an action against the lawyers for fraud, intentional and negligent misrepresentation, fraud by concealment, constructive fraud, breach […]
Waiver: Trial Court, Not The Arbitrator, Decides Whether Party Waived Right To Arbitrate By Pursuing Litigation.
The trial court denied defendant’s petition to compel arbitration. On appeal, defendant contended that whether or not a party has waived the right to arbitrate by pursing litigation in the trial court should be decided by the arbitrator. Defendant cited language appearing in Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, [123 S.Ct. 588; […]
Arbitration Term Unenforceable.
The Ninth Circuit decided an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act [FAA; 9 U.S.C. § 10(a)], is not enforceable. (In re Wal-Mart Wage and Hour Employment Practices Litigation (Ninth Cir.; December 17, 2013) (Case No. 11-17718).
No Request For Correction Means No General Or Punitive Damages Against Dr. Phil.
In a petition for writ of mandate, the real party in interest is the host of a television show. Petitioners are two men who are residents of Aruba who were questioned in connection with the 2005 disappearance of Natalee Holloway, an American teenager who disappeared while on a high school trip on Aruba. Real party’s television […]
Arbitration: But Don’t Click On The Orange Button!
Class action plaintiffs claimed they were scammed on the internet after giving their credit card information. Allegedly unbeknownst to plaintiff, instead of making a one-time purchase, he somehow agreed to pay $19.95 a month. The internet company moved to compel the matter into arbitration, contending that the named plaintiff “agreed to arbitration by clicking the orange […]
Read The Contract Under ERISA!
The plaintiff filed a claim for long term disability benefits with an insurance company in a plan covered by ERISA [Employee Retirement Income Security Act of 1974; 29 U.S.C. § 1132(a)(1)(B)]. ERISA does not specify a statute of limitations for filing suit, but a cause of action does not accrue until the plan issues a final […]
Late Filing Of Undertaking Causes Employer’s Appeal To Be Dismissed.
A welder prevailed before the Labor Commissioner, and the employer filed a notice of appeal which is the statutory prerequisite for obtaining a trial de novo in superior court. The welder filed a motion to dismiss the employer’s appeal on the ground the employer failed to timely post an undertaking as is required by Labor Code […]
Not Cruel And Unusual Punishment To Sentence Juvenile 45 Years To Life In Prison.
A 17-year-old broke into a family home while the family slept. He shot and wounded one of the occupants. On appeal, he contended his 45-year-to-life sentence is cruel and unusual punishment within the meaning of the Eighth Amendment. The appellate court noted that in September 2013, Penal Code section 3051 was amended. The amended statute “requires the […]
Use Of Property Easement Limited To Its Historic Use.
The same piece of property is the subject of both a lease and an easement. Plaintiffs own the property and defendants park their garbage trucks and place their storage bins on the property. The trial court ruled that, assuming the 22-year-old lease was valid, it had been abandoned because defendant “clearly disregarded the lease as soon […]
Federal Arbitration Act (FAA) Grounds To Review Arbitration Awards Are Exclusive And Non-Waivable.
In In re Wal-Mart Wage and Hour Employment Practices Litigation, (Ninth Cir.; December 17, 2013) (Case No. 11-17718) the class action plaintiffs’ attorneys quarreled over how to allocate a $28 million fee and agreed to submit the dispute to “binding, non-appealable arbitration.” After the arbitrator rendered his award, some of the attorneys remained dissatisfied and moved to […]
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