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California ADR Cases: January 30 to February 10, 2017
By Monty A. McIntyre, Esq.
Mediator, Arbitrator & Referee
For ADR Scheduling: contact Kelsey@adrservices.org
National ABOTA Board Member & Civil Trial Lawyer
California attorney since 1980
Phone: (619) 990-4312 | Email: monty@montymcintyre.com
Web: www.montymcintyre.com
CALIFORNIA COURTS OF APPEAL
Arbitration
Montano v. Wet Seal Retail, Inc. (2015) 232 Cal.App.4th 1214: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration. Plaintiff’s putative class action alleged that defendant failed to offer all required meal and rest periods to its California non-exempt retail employees; failed to provide all regular and overtime pay when due or when employment terminated; and failed to provide accurate semi-monthly itemized wage statements, in violation of the Labor and Business and Professions Codes, Industrial Welfare Commission Wage Order No. 7, and Title 8 of the California Code of Regulations. Plaintiff brought this action on behalf of herself and as a class action. The complaint included a representative claim under the Private Attorneys General Act (PAGA) (Labor Code, section 2699). The trial court properly ruled that the PAGA waiver was invalid and properly applied the arbitration agreement‘s nonseverability provision to conclude the arbitration provision was void and unenforceable. The trial court also properly granted a motion to compel discovery because, when the court ruled on the discovery motion, the motion to compel arbitration was no longer pending and had been denied. Under these circumstances, there was no obligation to stay the action under Code of Civil Procedure section 1281.4. (C.A. 2nd, filed on January 7, 2015, modified on January 13, 2015, reposted on January 30, 2017, upon the lifting of the bankruptcy stay order.)
Vasserman v. Henry Mayo Newhall Memorial Hospital (2017) _ Cal.App.5th _ , 2017 WL 491700: The Court of Appeal affirmed the trial court’s order denying defendant’s motion to compel arbitration in a class action case where plaintiff sued her former employer for violations of the California Labor Code and other statutes relating to meal and rest breaks, unpaid wages, and unpaid overtime compensation. Defendant argued that a collective bargaining agreement between it and the California Nurses Association required arbitration of the claims. The Court of Appeal ruled that, while the collective bargaining agreement required arbitration of claims arising under the agreement, it did not include an explicitly stated, clear and unmistakable waiver of the right to a judicial forum for claims based on statute. The motion to compel arbitration was properly denied. (C.A. 2nd, February 7, 2017.)
Attorney Fees
Leighton v. Forster (2017) _ Cal.App.5th _ , 2017 WL 527320: The Court of Appeal affirmed the trial court’s summary judgment for defendant in an action where an attorney sued for alleged attorney fees owing in excess of $114,000. The trial court properly granted summary judgment because (1) an engagement letter plaintiff emailed to defendant’s husband was not a valid contract because it was never signed (Business & Professions Code, section 6148), and (2) any claim for payment of the reasonable value of plaintiff’s services was barred by the two-year statute of limitations (Code of Civil Procedure, section 339). (C.A. 1st, February 9, 2017.)
Civil Code
Blanchette v. Superior Court (2017) _ Cal.App.5th _ , 2017 WL 541939: The Court of Appeal granted a writ petition and directed the trial court to vacate its order staying a construction defect lawsuit filed by plaintiff pending plaintiff’s compliance with the Right to Repair Act (the Act). (Civil Code, section 895 et seq.) Plaintiff’s compliance with the Act was relieved by defendant builder’s failure to timely acknowledge (within 14 days) receipt of plaintiff’s notice of a claim. (C.A. 4th, February 10, 2017.)
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