18 Dec: Arbitration Insight No. 26

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 26 APPEALING AN ARBITRATION AWARD The question whether an arbitration award is final or appealable is answered by Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334 and Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665. Moncharsh holds, “It is the general rule that, with narrow (statutory) exceptions (such as arbitrators exceeding their powers), an arbitrator’s…

18 Dec: Arbitration Insight No. 25

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 25 RULES OF EVIDENCE AT ARBITRATION There is uncertainty about the application of the rules of evidence at arbitration. Some attorneys believe that arbitration should be an informal process while others think it should be more structured. The Arbitration Act does not resolve that conflict. Code of Civil Procedure section 1282.2, subd. (d) merely provides, in part, that “The parties to the arbitration are entitled to be heard, to…

18 Dec: Mediation Message No. 139

EIGHTH ANNUAL YEAR-END REVIEW This year’s eleven Mediation Messages and one Arbitration Insight include observations about mediation processes, the appealing of arbitration awards, employment law, evidence and civil procedure. Refer to my website (www.marcusmediation.com) for the Mediation Messages and Arbitration Insight identified below if the following summaries do not suffice. Mediation “Basic Introductory Remarks at Mediation” (March; Mediation Message no. 131): If a plaintiff, defendant or representative of either is unfamiliar with the mediation process,…

08 Dec: Arbitration Insight No. 24

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 24 YOU CAN NEVER BE TOO CAREFUL Mt. Holyoke Homes, LP, et al. v. Jeffer Mangels Butler & Mitchell, LLP (2013) 219 Cal.App.4th 1299 sends the message that arbitrators can never be too careful when disclosing possible conflicts to potential parties and their counsel. Mt. Holyoke Homes et al. sued Jeffer Mangels Butler and Mitchell (JMBM) for legal malpractice. JMBM cross-complained for its legal fees. The arbitrator disclosed that…

22 May: Arbitration Insight No. 23

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 23 THE MFAA AND AN ATTORNEY’S DEMAND TO ARBITRATE THE FEE DISPUTE Rosenson v. Greenberg Glusker Fields Claman & Machtinger LLP (2012) 203 Cal.App.4th 688 is required reading for all attorneys who have a fee or costs dispute with a client. In Rosenson, Greenberg Glusker and its client initially participated in nonbinding arbitration pursuant to the Mandatory Fee Arbitration Act. (MFAA; Bus. and Prof. Code section 6200 et seq.)…

30 Jul: Arbitration Insight No. 23

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 23 THE MFAA AND AN ATTORNEY’S DEMAND TO ARBITRATE THE FEE DISPUTE Rosenson v. Greenberg Glusker Fields Claman & Machtinger LLP (2012) 203 Cal.App.4th 688 is required reading for all attorneys who have a fee or costs dispute with a client. In Rosenson, Greenberg Glusker and its client initially participated in nonbinding arbitration pursuant to the Mandatory Fee Arbitration Act. (MFAA; Bus. and Prof. Code section 6200 et seq.)…

23 Jul: Arbitration Insight No. 22

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 22 WAIVER OF THE RIGHT TO ARBITRATE Not infrequently, where an arbitration agreement exists, a defendant will move to compel arbitration when a plaintiff has filed a complaint in the trial court. (An action to compel arbitration is in essence a suit to compel specific performance of a contractual term. [See Freeman v. State Farm Mutual Automobile Ins. Co. (1975) 14 Cal.3d 473, 479].) Plaintiffs, who don’t want to concede…

23 Jul: Arbitration Insight No. 21

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 21 RETIREMENT DOES NOT WAIVE ARBITRATION CLAIM The question whether a disciplined employee’s contractual claim for relief at arbitration survives despite his/her retirement was answered in Service Employees International Union, Local 1021 v. County of San Joaquin (2011) 202 Cal.App.4th 449. In that matter, San Joaquin County terminated the employee because he had stolen $250 worth of County-owned recyclables. The disciplined employee, who had the right, pursuant to a…

23 Jul: Arbitration Insight No. 20

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 20 BUSINESS REPRESENTATIVES CANNOT BE EXCLUDED AT ARBITRATION      The number of business representatives entitled to be present at an arbitration was addressed in Hoso Foods, Inc. v. Columbus Club, Inc. (2010) 190 Cal. App.4th 881. In Hoso Foods, a catering business leased an assembly hall, refurbished it, then learned it could not use the hall’s liquor license and was unable to obtain one on its own. In the…

23 Jul: Arbitration Insight No. 19

MICHAEL D. MARCUS’S ARBITRATION INSIGHT NO. 19 ARBITRATORS NEED NOT DISCLOSE BACKGROUND FACTS IRRELEVANT TO THE CASES BEFORE THEM It is accepted that arbitrators have a duty, pursuant to Code of Civil Procedure section 1281.9(a), to disclose matters that could cause a person to reasonably entertain a doubt about their impartiality but Rebmann v. Rohde (2011) 196 Cal.App.4th 1283 (hearing denied September 14, 2011) holds that this disclosure duty does not extend to information about…