A WITNESS DECLARATION EVIDENCE PRIMER This discussion addresses some of the more common issues in lay witness declarations: A lay witness must have personal knowledge of the matter which he or she is declaring about. (See Evid. Code sec. 702, subd. (a).) If the witness did not experience (in other words, hear or see) the matter, it should not be discussed. Unfortunately, that is not often what occurs. Even if the declarant has personal knowledge…
By Michael Marcus Arbitration
ARBITRATORS, WITHOUT SPECIFIC AUTHORITY, CANNOT ORDER THIRD PARTY DISCOVERY Aixtron, Inc. v. Veeco Instruments Inc. (July 16, 2020) 2020 DJDAR 7407; 2020 Cal. App. LEXIS 667 (Aixtron) impacts arbitration discovery, both intended and unintended: The intended, obvious aspects are its holdings that an arbitrator does not have the authority to order nonparty or third party discovery under the California Arbitration Act (CAA) and the Federal Arbitration Act (FAA), unless the parties have conferred that authority…
By Michael Marcus Arbitration
ARBITRATION OF NONSIGNATORIES – UPDATED Arbitration Insight no. 27 (May 2018) discussed the application of Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 and Benaroya v. Willis (2018) 23 Cal.App.5th 462 on nonsignatories to an arbitration agreement. Garcia holds that equitable estoppel and agency are exceptions to the general rule that “one must be a party to an arbitration agreement to be bound by it or invoke it.” (Id. at pp. 785-786, 788.) Under the…
By Michael Marcus Arbitration
UNCONSCIONABILITY ANALYSIS AND THE ARBITRATION OF UNPAID WAGE CLAIMS OTO, LLC v. Kho (Cal. Supreme Court, August 2019) No. S244630; 2119 Cal. Lexis 6241 does not change the standards for determining unconscionability in an arbitration agreement, but it is very important nevertheless because of how it applies the existing standards to the facts at hand, particularly if the employee’s claim involves unpaid wages. In OTO, a human resources porter for One Toyota of Oakland…
By Michael Marcus Arbitration
ARBITRATION AND NONSIGNATORIES The role of nonsignatories to an arbitration agreement is a frequent issue. Two recent cases, Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 and Benaroya v. Willis (2018) B281761; 2018 Cal.App. LEXIS 450; 2018 DJDAR 4634, consider that problem, Garcia as to whether a nonsignatory can compel arbitration and Benaroya as to who can order a nonsignatory into arbitration. In Garcia, Real Time, a staffing company, hired Garcia as an employee and…
By Michael Marcus Arbitration
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…
By Michael Marcus Arbitration
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…
By Michael Marcus Arbitration Mediation Other Writings
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,…
By Michael Marcus Arbitration
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…
By Michael Marcus Arbitration
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.)…