California Mediation and Arbitration

Arbitration, Employment, Nonsignatories, Pending Cases: Vasquez v. San Miguel Produce, Inc. Is Now Published

This Case Involves The Ability Of  Co-Employers To Compel Arbitration With Workers Where Workers Have An Arbitration Agreement With The Co-Employer They Do Not Sue, And Do Not Have An Arbitration Agreement With The Co-Employer They Do Sue.

    We blogged about Vasquez v. San Miguel Produce, Inc. on January 4, 2019, at which time it had not been certified for publication. We can report that on January 30, 2019, the case was certified for publication. The case holds that co-employers could compel arbitration with workers under circumstances where a staffing agency had an arbitration agreement with the workers, the workers sued the produce packing company to which they were assigned but not the staffing company, the produce packing company did not have an arbitration agreement, and the produce packing company cross-claimed against the staffing agency. Got that?

 

Arbitration, Nonsignatories, Agents, and Fees: Second District, Div. 7 Explains When Signatory To Arbitration Agreement Can Compel Nonsignatory Parent Of Signatory Subsidiary To Arbitrate

Court Of Appeals Also Distinguishes Between Arbitrator's Power To Deny Attorneys' Fees To Prevailing Party And Court's Error In Denying Attorneys' Fees Incurred In Postarbitration Proceedings.

    The Court of Appeal has done something very useful in this 57-page slip opinion concerning arbitration proceedings, and we like that. The Court has summarized its holding up front: "(1) an attorney does not have standing to petition to compel arbitration of his clients’ claims; (2) a signatory to an arbitration agreement can compel a nonsignatory parent company of a signatory subsidiary on an agency theory where (a) the parent controlled the subsidiary to such an extent that the subsidiary was a mere agent or instrumentality of the parent and (b) the claims against the parent arose out of the agency relationship; (3) the arbitrator did not exceed his authority by substituting the attorney’s clients as the real parties in interest in the arbitration; and (4) the arbitrator did not exceed his authority by denying attorneys’ fees to a party that prevailed in the arbitration. The last holding requires us to part company with DiMarco v. Chaney (1995) 31 Cal.App.4th 1809 (DiMarco) and agree with Safari Associates v. Superior Court (2014) 231 Cal.App.4th 1400." Cohen v. TNP 2008 Participating Notes Program, LLC, and TNP 2008 Participating Notes Program, LLC v. Mark Cohen, B266702 (7/2  1/29/19) (Segal, Perluss, Feuer).

    COMMENT: This case involved an attorney, his law firm, his clients, a parent company used for a real estate investment program, two subsidiaries, and a real estate investment plan that went south. The case is interesting for two reasons. First, some of the persons or entities had signed arbitration agreements, others had not. Therefore, the Court of Appeal delves in depth into when a signatory can bind a nonsignatory, when a principal can bind an agent, when an agent can bind a principal, and when a subsidiary can bind a parent corporation. Second, as Justice Segal explains, the Court parts company with DiMarco v. Chaney on the issue of attorney's fees. The Court holds that the arbitrator, acting in equity, need not award attorney's fees under a prevailing attorney's fees clause, unless the agreement is stated in mandatory terms that limit the arbitrator's discretion. However, post-arbitration fees are a different matter. Cal. Code of Civ. Proc., section 1293.2, provides, "The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code." Under the Code of Civil Procedure, costs must be awarded to the prevailing party, and attorney's fees may be costs. There is a nice blog post on the attorney's fees aspect of the case in the California Attorney's Fees blog today.

Mediation Costs: Our Article On Cost-Shifting In Mediation After Berkeley Cement Ruling Appears in Jan. 29, 2019 Daily Journal

We Expand On Our January 17, 2019 Post About The Berkeley Cement Case.

    Our article entitled "Cost-shifting in mediation after Berkeley Cement ruling" appears today, in the January 29, 2019 Daily Journal. If you subscribe to the Daily Journal, then you can access the article on-line. Or you can read a short post about the case that we did on this blog on January 17, 2019.

Arbitration, FAA, Standard of Review: 9th Circuit Agrees With District Court That Arbitrator's Award Was "Irrational"

"We have become an arbitration nation," says the Court.

    The 9th Circuit affirmed the district court's order vacating an arbitration award under the Federal Arbitration Act, concluding that the arbitrator acted beyond his powers, rendering an award that was "irrational", failing to "draw the essence of the award" from subcontracts. Aspic Engineering and Construction Company v. ECC Centcom Constructors LLC, et al., No. 17-16510 (9th Cir.  1/28/19) (Smith, Nguyen, Restani).

    Aspic, a local Afghan construction company, acted as a subcontractor for the prime contractor, ECC, in support of EEC's contracts with the U.S. Army Corps of Engineers. The subcontracts incorporated obligations that ECC owed to the U.S. government, and Federal Acquisition Regulations governing termination for convenience. (Termination for convenience refers to termination at any time without liability for damages that the other side might suffer). When the U.S. Army Corps of Engineers terminated for convenience its contracts with ECC, ECC did the same with Aspic.

    Aspic sued for damages, and received an award from the arbitrator, who believed "ECC could not expect that ASPIC would be capable of modifying their local business practices to completely and strictly conform to the US governmental contracting practices that were normal to ECC. There was not a true meeting of minds . . . " Apparently, the arbitrator believed it would be unfair to inflict the Federal Acquisition Regulations upon Aspic, and based the award on the damages Aspic had suffered.

    The arbitrator's award was confirmed and modified by a state court, ECC removed to the federal district court, the district court vacated the award, and the 9th Circuit affirmed the district court.

    "We have become an arbitration nation," wrote Judge Smith. "An increasing number of private disputes are resolved not by courts, but by arbitrators. Although courts play a limited role in reviewing arbitral awards, our duty remains an important one. When an arbitrator disregards the plain text of a contract without legal justification simply to reach a result that he believes is just, we must intervene." The court concluded that the arbitrator's award exceeded his authority, failed to draw the essence of the award from the subcontracts, "disregarded specific provision of the plain text" in an effort to prevent an unfair result, and was "irrational."

    COMMENT: Exceeding the powers of the arbitrator is a basis for vacatur in California and federal courts. However, "failing to draw the essence of the award" from the contract is language originating in federal cases in the context of collective bargaining. "[A]n arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). We would not expect to find this language in a California state case involving vacatur of an arbitration award.

 

    

Arbitration, Burden of Proof, Authentication, Employment: Trial Court Found By Preponderance Of Evidence That Employer Failed To Prove Employee Signed Arbitration Agreement

Arbitration Agreement Had Signature With Employee's Name, But Employer Failed To Carry Burden Of Authentication.

    Tropicale appealed the denial of its motion to compel arbitration against employee Garcia. Ana Garcia v. Tropicale Foods, Inc., E069024 (4/2  1/22/19) (Raphael, Miller, Slough) (not certified for publication). The issue was whether Tropicale failed to prove by a preponderance of the evidence that Garcia signed an arbitration agreement. 

    The opinion helpfully lays out the shifting burden of proof: (1) Tropicale met its initial burden by attaching the agreement purportedly bearing Garcia's signature; (2) Garcia denied signing; (3) the burden shifted to Tropicale to produce evidence the signature was authentic.

    Tropicale produced two pieces of evidence: (1) a declaration of its Human Resources Coordinator Jara; (2) comparison of the signature on the agreement with Garcia's signature on a declaration. The declaration of Jara, however, was just an assertion that Garcia signed, without specific details as to any circumstances surrounding the signature. Moreover, it was somewhat self-destructing, because it claimed on the one hand that it had come to the company's attention that Garcia had not signed, and on the other hand, that Garcia's agreement was "executed . . . . in the ordinary course of business . . . " Curious, that.

    As to a comparison of signatures, one included Garcia's middle initial, the other did not. The judge did not have to conclude that the signature was authentic.

    Finally, there were evidentiary objections to Garcia's declaration. Garcia was Spanish speaking, and her attorney had translated her declaration. However, a translator who is unbiased and adequately skilled serves as a "language conduit", so that the translation is considered to be the statement of the original declarant, not that of the translator, thereby escaping the hearsay objection. How the trial court concluded that the attorney/translator was fair and unbiased is somewhat murky. However, the Court of Appeal points out that the trial court does not need to articulate the reasons, and in overruling Tropicale's objections, the trial court "impliedly found" that the attorney was acting as a "language conduit". Apparently the attorney represented that he was "fluent in Spanish" and "accurately translated" Garcia's declaration.

    COMMENT: We have blogged many times on problems enforcing arbitration clauses arising out of the fact that a signature was missing or could not be authenticated, and also, that the employee spoke a foreign language as their primary language. This is an area where, if it is important to enforce the arbitration agreement, it is important to dot the i's and cross the t's. Best practices ought to include getting signatures from both parties at the time the agreement is entered into, having legible signatures, ideally being able to identify and locate a witness to the signatures (otherwise, one can only testify to general business practices, which may or may not have been followed), and translating documents for the foreign language speaker. Authenticating electronic signatures -- not an issue in this case -- can present additional problems. See our June 1, 2016 post on Espejo v. Southern California Permanente Medical Group, concerning authentication, burden of proof, and electronic signatures.

Arbitration, Landlor/Tenant, Vacatur: Arbitrator's Approach To Determining Fair Market Value Of Rental Property Did Not Provide Grounds For Vacatur

Landlord Wanted To Reset Rent From $9,488 Per Month To $26,000 Per Month . . . 

    Commercial leases commonly provide a mechanism for resetting the rent. Ten days after Selective purchased property for $3,425,00, subject to Goodrich's long-term commercial ground lease, Selective sought to increase the rent by $16,512 per month, based on its evaluation that the land value of the lease premises was actually $5.2 million. The matter proceeded to arbitration, pursuant to a lease stating that the rent determination shall not take into consideration the improvements on the subject property. The arbitrator determined that the fair market value of the property was the same as the purchase price, and set the new rent at 6% of the purchase price, or $17,125 per month. Selective, the landlord, appealed. Selective 901 Truman, LLC v. Goodrich & Hops Properties West, B285836 (2/3  1/22/19) (Edmon, Lavin, Dhanidina) (not published).

    The landlord's chief argument was that the superior court should never have confirmed the arbitrator's award, because the arbitrator took the ground lease into consideration, and the lease explicitly provided that the rent determination shall not take into consideration the value of improvements. The arbitrator, the superior court, and the Court of Appeal, however, disagreed with the landlord, with the Court of Appeal noting that the arbitrator pointed out that the lease was silent about encumbrances, as opposed to improvements, and that the ground lease was an encumbrance affecting the value of the property. 

    The Court of Appeal rejected various grounds for vacatur -- that the arbitrator exceeded his authority, failed to hear material evidence, denied the landlord a fair and impartial hearing to its substantial prejudice, and made an award yielding absurd results.  The Court also noted as an aside that the  "absurd results" argument "does not come within the framework of section 1286.2 and thus is not a basis for vacating the award." Affirmed.

Mediation, Costs: Fifth District Holds Costs In Mediation May Be Recoverable Cost Item, Even When The Mediation Is Voluntary

In Its Discretion, Court May Determine That A Voluntary Mediation Was Reasonably Necessary To The Conduct Of The Mediation.

    "Mediation costs are not listed among the costs that are expressly allowable or expressly not allowable. (Code Civ. Proc., section 1033.5, subds. (a), (b).)" Berkeley Cement, Inc., v. Regents of the University of California, F073455, F073586 (5th Dist. 1/7/9) (Hill, Detjen, Snauffer) (slip. op. at 35). However, in its discretion, a court may determine that a cost item is recoverable if "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." Court-ordered mediation, for example, for cases involving less than $50,000, may be the easy case, because if the court orders mediation, then it is reasonably necessary to the conduct of the mediation. And in fact, an earlier case so held. Gibson v. Bobroff, 49 Cal.App.4th 1202 (1996) (cost award for court-ordered mediation could be made under discretionary provision of costs statute, Code of Civ. Proc., section 1033.5, subd. (c)(4)).

    What about the harder case, which Gibson did not decide: "whether a party prevailing after a trial which is preceded by unsuccessful voluntary mediation would be entitled to such costs." Id. at 1209.

    Berkeley Cement now holds that "mediation fees incurred for mediation that was not ordered by the court are not categorically nonrecoverable as 'not reasonably necessary to the conduct of litigation.'" (slip. op. at 37). In other words, it's up to the court, acting within its discretion, to determine based on the facts and circumstances, whether the voluntary mediation was reasonably necessary to the conduct of the litigation. In Berkeley Cement, the mediation fee award included $7,500 to University, representing 1/2 of the $15,000 mediator's fee, for a mediation canceled by Berkeley Cement on short notice, for which the mediator could not fill the time slot with a replacement, making the fee nonrefundable.

    COMMENT: We can see this discretionary rule generating future fee disputes. "Reasonably necessary" based on the facts and circumstances, within the discretion of the court, is not a bright line rule. In the case of a court-ordered mediation, the rule is easier to apply, because the parties, while they can offer input that the court should consider in deciding whether to order the case to mediation, may themselves readily view mediation ordered by the court as reasonably necessary to the conduct of the litigation. 

    Cost-shifting of the mediation fee raises issues for the mediator. Mediator fees can be expensive, and thus, cost-shifting can add to the risk of the unsuccessful party if the mediation fails, or embolden a party that believes it has the upper hand. While attorney fee disputes often end up driving litigation, attorneys and parties may not be focused on cost-shifting of mediator fees and administrative costs incurred in an unsuccessful mediation. So what should the mediator tell the parties, especially if a party is unrepresented. It is not the mediator's role to offer legal advice, but the mediator can certainly educate a party or counsel if that will be helpful to move the matter toward resolution. Perhaps the best rule for the mediator to follow is to consider the facts and circumstances, and educate a party or counsel about the risk of cost-shifting if that seems reasonably necessary (or useful) for resolving the mediation – similar to the rule the court applied for shifting the cost of the mediation fee in Berkeley Cement.

 

 

Arbitration, Delegation, Arbitrability, FAA: Despite Delegation Clause, Court Decides Whether Transportation Worker's Contract Falls Within FAA's Ambit

This Is One Of Those Rare Cases In Which A Delegation Clause Is Not Enforced.

    Generally, a court will decide arbitrability of a dispute unless that issue is clearly and unmistakably delegated to an arbitrator, as was the case here. But there are exceptions, and New Prime Inc. v. Oliveira (S. Ct. 1/15/19) addresses an important exception. (Gorsuch, author, Ginsburg conc.). The case was the subject of an earlier 10/1/18 post.

    The wage dispute involved New Prime Inc., an interstate trucking company, and Dominic Oliveira, who works as one of its drivers, and who, for purposes of this appeal, accepted his status as an independent contractor. Section 1 of the Federal Arbitration Act carves out from its coverage "contracts of employment  of . . . workers engaged in foreign or interstate commerce." Everyone agreed that Mr. Oliveira was a worker engaged in interstate commerce. But was he, as an independent contractor, covered by a "contract of employment." Yes, explains Justice Gorsuch, because when the FAA was enacted in 1925, employees and independent contractors were covered by contracts of employment. The meaning of the word "employment" has wandered over time, so now, an employee - employer - employment relationship has a meaning distinct from that of an independent contractor relationship. But as a textualist, Justice Gorsuch, quoting from another case, reminds us: "[I]t's a 'fundamental canon of statutory construction' that words generally should be 'interpreted as taking their ordinary . . . meaning . . . at the time congress enacted the statute.'" Wisconsin Central Ltd. v. United States, 585 U.S. __, __ (2018) (slip op., at 9). And the statute's sequencing is important, so the courts get to decide the threshold question of whether the section 1 exclusion applies to remove the arbitration clause from the ambit of the FAA.

     COMMENT: This opinion is an interesting exercise in textualism, and as such, involves solving a statutory word puzzle and delving in to mouldy dictionaries. And that's where Justice Ginsburg comes in with her concurrence, agreeing with the proposition in Wisconsin Central Ltd., but taking care to qualify it to acknowledge that Congress may design legislation to govern changing times and circumstances, and that some statutes should be construed flexibly to effectuate remedial purposes. Not really a problem, however, with this specific case, and in fact, Justice Gorsuch writes, "statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included." But here, there is no good reason to depart from the existing meaning of the statute. For a description of the textualism espoused by Justice Scalia, see my recent review of Richard Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.

    It is somewhat refreshing to see that, despite political divisions, SCOTUS can still reach agreement on a case.

    The case does address a question I have been curious about: why did Congress exclude "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce"? Justice Gorsuch writes that "[b]y the time it adopted the Arbitration Act in 1925, Congress had already prescribed alternative employment dispute resolution regimes for many transportation workers."

Arbitration, Gateway Issues: SCOTUS Holds That When Parties Agree Arbitrator Will Resolve Arbitrability Question, There Is No "Wholly Groundless" Exception Allowing Question To Be Decided By Court

First SCOTUS Opinion Authored By Justice Kavanaugh Is Unanimous.

    "Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract." The question presented in Henry Schein, Inc., et al. v. Archer and White Sales, Inc., No. 17-1272 (S. Ct. 1/8/19), is whether courts can decide arbitrability if the basis for arbitration is "wholly groundless", and whether such an exception to delegation of the decision to the arbitrator is consistent with the Federal Arbitration Act. In the first opinion authored by Justice Kavanaugh, the Court unanimously holds that a "wholly groundless" exception is inconsistent with the FAA. 

    COMMENT: The Justices "express no view about whether the contract at issue in this case in fact delegated the arbitrability issue to an arbitrator." So the judgment of the Court of Appeals is vacated and remanded, and the Court of Appeals may address the delegation issue. 

    In some instances, where the gateway decision of arbitrability is delegated to the arbitrator, the basis for delegation is "wholly groundless", and the arbitrator reaches the wrong conclusion, the arbitrator may exceed the arbitrator's powers, leading to "back-end" judicial review, and a waste of time. But SCOTUS is not going to rewrite the FAA.

    

    

Book Reviews: Richard L. Hasen's "The Justice Of Contradictions: Antonin Scalia and the Politics of Disruption"

Marc's Review Of Richard L. Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, Has Been Published in California Litigation.

    With the permission of California Litigation, the journal of the litigation section of the California Lawyers Association, Marc's review of Prof. Richard L. Hasen's book, The Justice of Contradictions: Antonin Scalia and the  Politics of Disruption, is made available by clicking here.