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.)…
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…
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…
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…
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…
THE APPELLATE COURT REVISTS BENJAMIN, WEILL & MAZUR V. KORS A few months ago or last December (see Arbitration Insight No. 16), I discussed Benjamin, Weill & Mazer v. Kors (2010) 189 Cal.App.4th 126 (BW&M), which held that part-time lawyer-arbitrators should disclose their legal involvement in business interests that are similar to the facts of the matter to be arbitrated. In BW&M, one of the arbitrators in a mandatory fee arbitration (MFA) failed to advise…
UPDATE CONCERNING ARBITRATOR DISCLOSURES OF CONFLICTS Two recent cases involving arbitrator failure to disclose potential conflicts, each with its own focus, are the subject of this Arbitration Insight. In La Serena Properties v. Weisbach (2010) 186 Cal.App.4th 893, the American Arbitration Association and its arbitrator successfully demurred to a complaint for damages by an arbitration party who alleged that the AAA and the arbitrator had not disclosed the extent of the arbitrator’s relationship with counsel…
APPEARANCE-OF-PARTIALITY DISCLOSURES BY ARBITRATORS Two very recent cases discuss the parameters of an arbitrator’s obligation to disclose “matters that could cause a person aware of the facts to reasonably entertain a doubt that the … neutral arbitrator would be able to be impartial.” (Code of Civil Procedure section 1281.9, subdivision (a).) Haworth v. Superior Court (2010) 50 Cal.4th 372 is important because it holds that the above appearance-of-partiality standard concerning arbitrator recusal should not be…
MONCHARSH, ARMENDARIZ AND, NOW, PEARSON DENTAL SUPPLIES Eighteen years ago, Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 held that an arbitration award cannot be vacated because of errors of law. Moncharsh recognized, however, “that there may be some limited and exceptional circumstances justifying judicial review of an arbitrator’s decision” such as when “granting finality to an arbitrator’s decision would be inconsistent with the protection of a party’s statutory rights.” (Id at p. 32.) Because…
PARTIES MAY EXPRESSLY AGREE TO JUDICIAL REVIEW OF AN ARBITRATION AWARD Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, which holds that parties to an arbitration may expressly agree to obtain judicial review of an arbitration award, is also significant because it presages a potential change in the Supreme Court’s strong preference that arbitrations be subject only to minimal court supervision or interference. (See, for example, Moncharsh v. Heily & Blase (1992) 3…