Review: Significant ADR Cases In 2013

Sixteen Cases – And We Posted About Twelve Of Them . . . Plus One More Supreme Court Case . . .

     On January 10, 2014, I attended a meeting of the Orange County Bar Association Litigation Section.  The law firm of Connor, Fletcher & Hedenkamp LLP made a presentation on new statutes, new rules, and new cases, including a review of sixteen published ADR cases.  As it turns out,  I posted about twelve of the sixteen ADR cases in 2013.  Here are the cases, links to my posts and to the cases, and the holdings.

• Acquire II Ltd. v. Colton Real Estate Group, 213 Cal.App.4th 959 (2013) (reversal of trial court’s denial of motion to compel arbitration under Cal. Code Civ. Proc. section 1281.2).
• Ahdout v. Hekmatjah, 213 Cal.App.4th 21 (2013) (licensing requirement for contractors constitutes explicit legislative expression of public policy that if not enforced by arbitrator constitutes grounds for judicial review).  January 27, 2013 post.
• American Express Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) (the Federal Arbitration Act does not permit courts to invalidate a contractual waiver of class arbitration just because the plaintiff’s cost of individually arbitrating a federal statutory claim exceeds the potential recovery).  June 25, 2013 post.
• Avery v. Integrated Healthcare Holdings, Inc., 218 Cal.App.4th 50 (2013) (“patchwork of documents” prevented enforceability of arbitration agreement).  July 28, 2013 post.
• Barsegian v. Kesller & Kessler, 215 Cal.App.4th 446 (2013) (nursing home’s petition to arbitrate for lack of evidence that husband delegated authority to arbitrate to wife).  April 18, 2013 post.
• Gray v. Chiu, 212 Cal.App.4th 1355 (2013) (California Arbitration Act And ethics standards require arbitrator to disclose a lawyer in the arbitration is a member of the dispute provider resolution organization).  January 22, 2013 post.
• HM DG, Inc. v. Amini, 219 Cal.App.4th 1100 (2013) (holding arbitration agreement valid notwithstanding absence of agreed method for appointing arbitrator).  November 2, 2013 post.
• Hong v. CJ CGV America Holdings Inc., 222 Cal.App.4th 240 (2013) (trial court, not arbitrator, should decide merits of waiver of arbitration by litigation conduct).  December 18, 2013 post.
• Mave Enterprises Inc. v. The Travelers Indemnity Co. of Connecticut, 220 Cal.App.4th 780 (2013) (publication order with link to case) (state court first obtaining subject matter jurisdiction over dispute retains jurisdiction to confirm award, notwithstanding petition to vacate brought in federal court).
• Mt. Holyoke Homes LP v. Jeffer Mangels Butler & Mitchell LLP, 219 Cal.App.4th 1299 (2013) (arbitrator’s reliance on attorney at party’s law firm as a reference raised reasonable suspicion of bias, resulting in vacation of arbitration award).
• O’Donoghue v. Superior Court of the County of San Francisco, 219 Cal.App.4th 245 (2013) (judicial reference agreement held enforceable despite failure to specifically mention waiver of jury trial).
• Optimal Markets Inc. v. Salant, 221 Cal.App.4th 912 (2013) ( Code of Civ. Proc. section 128.7 sanctions are unavailable in arbitration where attorney has not “presented” pleading to Court.)  December 8, 2013 post.
• Peng v. First Republic Bank, 219 Cal.App.4th 1462 (2013) (failure to attach AAA rules, and ability of employer to unilaterally modify arbitration agreement did not result in substantive unconscionability).  November 1, 2013 post.
• Roldan et al. v. Callahan & Blaine et al., 219 Cal.App.4th 87 (2013) (plaintiffs, each of whom were subsequently granted permission to proceed in forma pauperis in the trial court, could likewise be excused from the obligation to pay fees associated with arbitration).  August 28, 2013 post.
• Serpa v. California Surety Investigations, Inc., 215 Cal.App.4th 695 (2013) (arbitration agreement, including unilateral amendment clause, held not unconscionable – covenant of good faith and fair dealing reins in ability to make unilateral changes).  April 28, 2013 post.
• Sonic-Calabasas A Inc. v. Moreno, 57 Ca.4th 1109 (2013) (Federal Arbitration Act preempts a state law rule “categorically prohibiting waiver of a Berman hearing in a predispute arbitration agreement imposed on an employee as a condition of employment”; however, the agreement requiring that a Berman hearing to be bypassed in favor of arbitration “may be unconscionable if it is otherwise unreasonably one-sided in favor of the employer”).  November 5, 2013 post.

     To the above list of significant ADR cases, I would add Oxford Health Plans LLC v. Sutter, 569 U.S. __, 133 S.Ct. 2064 (2013), in which the U.S. Supreme Court held that an arbitrator does not “exceed his powers” under section 10(a)(4) of the Federal Arbitration Act where the parties agreed that the arbitrator should decide whether their contract authorized class arbitration, and he determined that it did.  Because the arbitrator construed the contract, he did not “exceed his powers”, and it does not matter whether the arbitrator construed the parties’ contract correctly.  June 15, 2013 post.

     It was a busy year!