California Courts of Appeal
BELEN v. RYAN SECREST PRODUCTIONS, LLC
Kiara Belen, a model, participated in a fashion show that was filmed and aired on television in an episode of the reality series Shahs of Sunset. Belen, who never signed a release authorizing or agreeing to be filmed, sued the show’s production and media companies for filming her while she changed clothes and for airing the footage, which showed her nearly fully nude body on television.
Defendants production and media companies filed an anti-SLAPP motion, arguing that Belen’s claim arose from protected activity (the television show involved issues of public interest) and that Belen was unlikely to prevail on her claims because the changing area was public, there was large filming equipment set-up in the area, and an announcement had been made that an episode was being filmed in that space. Belen countered that the filming was done without her knowledge or consent, as she did not hear any announcement and did not see any signs in the vicinity stating that she would be filmed. She also attested that the changing room was private and that the footage causes her extreme emotional distress. The trial court denied Defendants’ motion, finding that Belen had established a probability of prevailing on the merits of her causes of action (intrusion/right to privacy, tortious appropriation of name or likeness, intentional infliction of emotional distress, and negligence).
The Court of Appeal held that the creation of a television show is an exercise in free speech and, as such, Belen’s claim arose from protected activity. However, based on information set forth by Belen’s Complaint, the Court of Appeal concurred with the trial court and found that Belen had established a reasonable probability of success on her claims.
COA 2nd District, Div. 8. Filed 6/24/21. 65 Cal.App.5th 1145. Opinion by Justice Stratton.
BRIGHTON COLLECTIBLES, LLC v. HOCKEY
Natalie Hockey, a fashion model, had her modeling agency negotiate a contract for her with Brighton Collectibles, LLC (Brighton) in which Brighton agreed to pay Hockey $3,000 for a one-day photoshoot. The agreement also provided that after the photoshoot, the modeling agency would invoice Brighton for Hockey’s work, that Brighton would pay the modeling agency, and that the modeling agency would disperse the funds to Hockey.
A few months after the photoshoot, Brighton paid the modeling agency in accordance with their agreement. Hockey then filed a lawsuit against Brighton for failing to pay her “upon job completion” and sought $90,000 in waiting-time penalties plus attorney fees and costs. At the time the lawsuit was filed, Hockey had filed nearly identical lawsuits against four other businesses that had used her modeling services. Brighton cross-complained for fraud, and Hockey filed an anti-SLAPP motion to strike the cross-complaint. The trial court granted Hockey’s anti-SLAPP motion.
The Court of Appeal explained that granting the anti-SLAPP motion was proper if: (1) Hockey showed that Brighton’s claim arose “from an act…in furtherance of [her] right of petition or free speech,” and (2) Brighton failed to establish a “probability that [it] will prevail on [its] claim.” (Code Civ. Proc., $425.16(b)(1).)
The Court of Appeal held that, even assuming Hockey could show that Brighton’s crossclaim for fraud arose from protected conduct, reversal was required because Brighton had shown a probability that it would prevail on its claim. Specifically, Brighton submitted evidence that: (1) Hockey had made a misrepresentation when she told it to pay for her services upon receipt of an invoice rather than upon job completion, (2) Hockey knew the representation was false and intended Brighton to rely on the misrepresentation given, in part, that it had instructed her to do so in their contract, and (3) reliance on the misrepresentation damaged Brighton by exposing it to waiting time penalties plus attorney fees and costs as well as the costs of defending itself in litigation. As such, the order granting Hockey’s anti-SLAPP motion to strike Brighton’s crossclaim for fraud was vacated.
COA 2nd District, Div. 6. Filed 6/3/21. 65 Cal.App.5th 99. Opinion by Justice Tangeman.
COUNTY OF LOS ANGELES ET AL v. SUPERIOR COURT (JOHNSON & JOHNSON et al)
THIRD PARTY DRUG PRESCRIPTION AND DRUG TREATMENT RECORDS ARE PROTECTED BY THE CONSTITUTIONAL RIGHT OF PRIVACY AND THAT PROTECTION CANNOT BE OVERCOME MERELY BY A SHOWING OF RELEVANCY OR DISCOVERABILITY.
A litigant may assert the privacy rights of a third party where those rights align with the litigant’s and the third party’s rights are likely to be diluted or adversely affected. And even if the litigant fails to adequately raise the constitutional rights of a third party in the trial court, an appellate court may step in and consider those rights when ruling on a discovery issue. Ordinarily, discovery orders are not subject to writ review unless privacy rights are implicated. The permissible scope of discovery from non-parties is narrower than that from parties. Certain types of information, such as psychiatric or drug use/abuse information, may be more sensitive than others and are therefore afforded a higher degree of “robust” protection. Disclosure to a third vendor who will “de-identify” the records before producing them to a litigant, even if not technically a “public disclosure,” is still a violation of privacy. And the mere existence of a protective order does not obviate third party privacy concerns.
THE CALIFORNIA CONSTITUTION PROTECTS THIRD PARTY PRIVACY RIGHTS IN DRUG USE AND TREATMENT RECORDS, AND THESE CANNOT BE DISCLOSED SIMPLY BECAUSE THEY MIGHT BE RELEVANT IN LITIGATION.
This case arose out of the State of California’s lawsuit against manufacturers and distributors of opioids. The case alleged that Johnson & Johnson (J&J) had made false and misleading statements about its opioid products, minimizing their risks and overstating their benefits, resulting in a state-wide public health crisis. J&J subpoenaed records from the counties of Los Angeles and Alameda relating to patients’ use of opioids and treatment for addiction. J&J’s motion to compel production of records to a third party provider which would “deidentify” the records and then produce them to J&J was granted, and the counties appealed. [J&J had earlier lost an appeal for similar records from other state agencies. This was J&J’s attempt at a second bite of the same apple.]
The appellate court applied the test articulated in Hill v. Nat’l Collegiate Athletic Ass’n (1994) 7 Cal. 4th 1 and determined that the information sought by J&J was protected by the constitutional right of privacy, and J&J could not identify sufficient countervailing interests to require disclosure. The Court noted that disclosure to a third party vendor who would “deidentify” the patients was not a sufficient protection because the vendor itself would have access to their identities and there was always a danger of inadvertent or malicious data breaches. Finally, the Court noted that J&J could not directly tie the data to any element of the defenses it would need to assert in the litigation.
COA 4th District, Div. One. Filed 6/15/21. 65 Cal.App.5th 621. Opinion by Justice Aaron.
GENERAL ATOMICS v. SUPERIOR COURT (GREEN)
The “regular time” hours listed on Defendant General Atomics’ wage statements included all overtime hours worked. The “overtime” hours listed on the wage statements were accurate, but because the “regular time” hours listed also included all overtime hours, the wage statements listed the overtime rate at 0.5 times the regular rate, rather than 1.5 times the regular rate. The trial court denied General Atomics’ motion for summary judgment. General Atomics filed a writ, and the Court of Appeal reversed, holding the wage statements complied with Labor Code section 226.
EMPLOYERS MUST PROVIDE EMPLOYEES WITH WAGE STATEMENTS STATING “all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.”
General Atomics paid separate hourly rates to employees depending on the activity being performed.
There was no difference or distinction between conceptualizing the overtime rate as 1.5 times the regular rate of pay and conceptualizing the overtime rate as the regular rate (i.e. 1.0) plus the overtime premium rate (i.e. 0.5). In either event, wages were being paid as required by law.
LABOR CODE SECTION 226 DOES NOT DEFINE THE TERM “ALL APPLICABLE HOURLY RATES,” NOR DOES THE CODE SET A FORMULA FOR CALCULATING AND LISTING “ALL APPLICABLE HOURLY RATES.” UNDER THE COMMONSENSE MEANING OF THAT PHRASE, THE EMPLOYER DECIDES WHAT THE “APPLICABLE HOURLY RATES” ARE.
Here, it was common for employees to have different hourly rates of pay for different activities. Other employers use a similar pay structure. As a result, had General Atomics provided wage statements as the plaintiff argued it should have, employees would have been more confused because they would have to do math to determine whether they were being paid properly.
COA 4th District, Div. 1. Filed 5/28/21. 64 Cal.App.5th 987. Opinion by Justice Guerrero.
IN re MAHONEY
Paul M. Mahoney petitioned the Court for rehearing on a motion and in his petition filed “nine pages of text that more closely resembled a rant than a petition.” Upon receiving the petition, the court issued an order to show cause why Mahoney should not be held in contempt for “impugning the integrity of the court.” The questionable language was Mahoney’s comparison of the court to Thomas Girardi and insinuation that the court’s decision in favor of one party was due to the party’s relationship with a powerful “third party.” In particular, Mahoney said that “society was going down the tubes” and implied to the court that its decisions were based on “their general corruption and openness to political influence.” When responding to the Order to Show cause, Mahoney further asserted that he was only “mention[ing] the obvious things that go on in Orange County which has a lot to do with the Irvine Company, plain and simple.” The court issued two counts of contempt, one for suggesting the court was swayed by the political influence of a third party and one for either comparing its conduct to or accusing it of ignoring the alleged bad acts of Thomas Girardi.
The court noted that Mahoney’s petition failed to conduct a reasoned analysis of the court’s prior decision, either through explaining a factual error by the court or pointing out errors in reasoning. Moreover, for the courts to function effectively in society there must be confidence in the system, which Mahoney’s statement directly contradicted. Attorneys are duty-bound to protect the integrity of the Court. “Respect for individual judges and specific decisions is a matter of personal opinion. Respect for the institution is not; it is sine qua non.”
COA 4th District, Div. 3. Filed 6/10/21. 65 Cal.App.5th 376. Opinion by The Court.
LEVANOFF v. DRAGAS
REGULAR RATE FOR DUAL RATE OF PAY WORKERS CAN BE CALCULATED IN TWO WAYS
Two methods for calculating the regular rate of pay have been developed for employees who work at different rates during a single workweek. (1) The weighted average method establishes the regular rate of pay by “adding all hours worked in the week and dividing that number into the total compensation for the week.” (2) The rate-in-effect method defines the regular rate of pay as the hourly rate in effect at the time the overtime hours began. There is no binding state or federal law requiring the use of a particular method of calculating overtime in dual rate workweeks “in general or in the unique factual circumstances of this case.” The DLSE Manual adopts the weighted average method, but the Manual is accorded no deference.
FEDERAL LAW SETS THE WEIGHTED AVERAGE AS THE DEFAULT METHOD
When a worker is subject to more than one pay rate, federal regulations define the regular rate as the “the weighted average of such rates.” (29 C.F.R. § 778.115; see 29 U.S.C. § 207(g); 29 C.F.R. § 778.109.) Federal law allows the rate-in-effect method if the parties agree in advance.
CALIFORNIA LAW REQUIRES THAT THE RATE OF PAY POLICY BENEFIT THE WORKFORCE AS A WHOLE
California law requires employers to use a method of compensation that is most economically beneficial to the group of employees at issue. Compensation practices must be evaluated based upon the impact on the entire group of employees at issue during the relevant statutory period—not on an employee by employee, day by day, week by week or pay period by pay period basis.
THE RATE-IN-EFFECT POLICY IN THIS CASE WAS LAWFUL BECAUSE IT WAS A NEUTRAL POLICY THAT BENEFITTED THE WORKFORCE
At trial, both Plaintiffs’ expert and Defendants’ expert testified that both class representatives received greater overtime pay under the rate-in-effect method than they would have received under the weighted average method. The experts also agreed that the PAGA group members received net greater overtime time pay because Defendants had used the rate-in-effect method. The trial court found that defendants did not violate California law by using the rate-in-effect method for calculating the overtime rate of pay because it was a neutral policy that generally benefitted workers. The trial court decertified the dual rate overtime subclass and dismissed the PAGA claims. The Court of Appeal affirmed.
COA 4th District, Div. 3. Filed 6/25/21. 65 Cal.App.5th 1079. Opinion by Justice Fybel.
MORENO v. BASSI
AN AWARD OF UNPAID WAGES, HOWEVER SMALL, ENTITLES THE EMPLOYEE TO ALL OF HER REASONABLE ATTORNEYS FEES, AND SHE IS ENTITLED TO HER COSTS EXCEPT TO THE EXTENT THOSE COSTS WERE INCURRED SOLELY IN CONNECTION WITH PLAINTIFF’S CONCURRENT, UNSUCCESSFUL FEHA CLAIMS.
In cases that include both wage and FEHA claims, a loss on the FEHA claims may preclude the plaintiff from recovering costs attributable solely to those unsuccessful claims. However, all reasonable fees should be fully awarded. A loss on the FEHA claims will only result in an award of costs to defendant if defendant can establish that the FEHA claims were frivolous. [Note: This case has interesting commentary on the admission of evidence and commentary regarding related criminal proceedings/outcomes, but those were part of the non-published portions of the decision.]
IN ENACTING LABOR CODE 1194, THE LEGISLATURE INTENDED TO PROTECT AN EMPLOYEE’S RIGHT TO ATTORNEYS FEES EVEN IN CASES WHERE MINIMAL DAMAGES ARE SOUGHT.
Plaintiff Moreno brought claims for (1) unpaid minimum wages (a total of $16 for two hours of alleged farm work); and (2) FEHA violations based upon her alleged rape by Bassi, the supervisor/owner of the farm at which she had briefly worked. [Bassi was criminally charged but not convicted prior to the civil suit.] After a lengthy jury trial (during which the prior criminal proceedings and Moreno’s immigration status came up during voir dire, opening statement, and testimony), the jury awarded Moreno $16 in lost wages (for the two hours she claimed she had worked for Bassi) and $16 in penalties, but ruled against her on all of her FEHA claims. The trial judge then determined that CCP §1031, which by its express terms applies to cases seeking unpaid wages of less than $300, constrained him from awarding Moreno all of her attorney fees and issued an award of fees amounting to 20% of her recovered wages ($3.20). The trial court then concluded that because Moreno had obtained a monetary judgment against Bassi, albeit a small one, she was the prevailing party under CCP §1032(a)(4) and awarded nearly all of her costs.
On appeal, the Fifth District issued a unanimous opinion holding that Moreno’s fee award was not limited by CCP §1031 because the fee provision in FEHA was more specific and post-dated §1031 and remanded to the trial court to determine what her reasonable fees were. The appellate court also noted that because the trial court had already determined Moreno’s FEHA-based claims were not frivolous (in remarks made while addressing Moreno’s new trial motion), Bassi could not recover fees after prevailing on those claims, as Gov. Code §12965(b) now provides. The appellate court also found that any costs related solely to litigating the unsuccessful FEHA claims could not be recovered, even though Moreno was a “prevailing party” under §1031.
CELA INVOLVEMENT
Congratulations to CELA member Estella Cisneros of California Rural Legal Assistance.
COA 5th District. Filed 6/8/21, as modified 6/30/21. 65 Cal.App.5h 244. Opinion by Justice Franson.
PILLAR PROJECT AG v. PAYWARD VENTURES, INC.
Plaintiff Pillar Project AG contracted with a broker to complete a cryptocurrency transaction. Separately, the broker had a contract with Defendant Payward Ventures containing an arbitration clause. Pillar’s claims that Payward was negligent in failing to prevent the theft of 4 million Euros and engaged in false advertisement by promoting itself as the most secure cryptocurrency exchange platform, were not subject to arbitration.
AN AGENCY RELATIONSHIP WILL ONLY BIND A NON-SIGNATORY TO ARBITRATE IF THE AGENT/SIGNATORY HAS AUTHORITY TO ENTER INTO ARBITRATION AGREEMENTS ON BEHALF OF THE PRINCIPAL/NON-SIGNATORY.
A basic rule of agency law is that a principal will not be responsible for an agent’s acts that are outside the course and scope of the agent’s authority. This rule is applied to situations where an agent, such as a securities broker or an attorney, enters into arbitration agreements with third parties without the knowledge or consent of the client or principal. In such a case, arbitration cannot be compelled under agency principles in a dispute between the non-signatory client or principal and the third party signatory.
TO COMPEL ARBITRATION AGAINST A NON-SIGNATORY UNDER THE “INTERTWINED CLAIMS” RULE, THE CLAIMS ASSERTED MUST “EXPRESSLY RELY ON OR REFER TO” THE ARBITRATION AGREEMENT.
The “intertwined claims” rule only applies where the claims made by the non-signatory “expressly rely on or refer to” the arbitration agreement. The claims for negligence and false advertising in this case did not rely on or refer to the arbitration agreement.
A NON-SIGNATORY TO AN ARBITRATION AGREEMENT WHO RECEIVES A “DIRECT BENEFIT” FROM THAT AGREEMENT MAY BE COMPELLED TO ARBITRATION. HOWEVER, THE BENEFIT MUST FLOW DIRECTLY FROM THE AGREEMENT CONTAINING THE ARBITRATION CLAUSE, AND NOT FROM ANY OTHER AGREEMENT.
In some circumstances, a non-signatory to an agreement containing an arbitration clause nevertheless receives a benefit from the agreement. For example, if a husband uses his wife’s Amazon Prime account to make a purchase, Amazon can compel arbitration of any dispute with the husband over the purchase despite the wife being the account signatory. However, this rule only applies where the benefit flows directly from the agreement containing the arbitration clause. In this case, Pillar had a contract with the broker, and the broker had a separate contract with Payward, which contained an arbitration clause. Any benefits to Pillar from the contract between the broker and Payward were only indirect, as the broker’s separate contract with Pillar severed any direct benefit.
COA 1st District, Div. 5. Filed 5/24/21. 64 Cal.App.5th 671. Opinion by Acting Presiding Justice Simons.
REMEDIAL CONSTRUCTION SERVICES, LP v. AECOM, INC.
CONTRACT TERMS MAY BE INCORPORATED BY REFERENCE
Parties may incorporate by reference into their contract the terms of some other document. But each case must turn on its facts. For the terms of another document to be incorporated into the document executed by the parties, the reference must be clear and unequivocal, the reference must be called to the attention of the other party who must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.
ARBITRATION CLAUSE INCORPORATED BY REFERENCE IS NOT ENFORCEABLE IF IT IS HIDDEN AND CONTRADICTED BY OTHER TERMS
Gaviota Terminal Company (“GTC”) owned property and contracted with AECOM to remediate chemicals on the property. The contract defined the scope of the project and compensation. It also contained an arbitration clause stating: “Any dispute or claim, arising out of or in connection with the CONTRACT…will be finally and exclusively resolved by arbitration” in Houston, Texas. Contractor AECOM entered into a subcontract with Plaintiff RECON. The subcontract incorporated the contract between Owner GTC and Contractor AECOM, which included the arbitration clause. However, the subcontract also contained a forum selection clause stating that disputes would be governed by California law and resolved in California.
AECOM failed to meet its burden to establish the existence of an agreement to arbitrate in Texas. It is not reasonable to conclude that an arbitration clause in a 151-page document would override the litigation forum selection provision in the text of the subcontract itself. If the parties’ intent was to arbitrate their disputes, there would have been no need to include a litigation provision in the subcontract. And since the subcontract is governed by California law and is between two California-based companies working on a California construction project, it seems unlikely that RECON would willingly agree to waive dispute resolution in California in favor of arbitration in Texas. If ambiguity exists, the issue of contract interpretation should be resolved in favor of preserving the jury trial right. The trial court’s order denying the motion to compel arbitration was affirmed.
COA 2nd District, Div. 6. Filed 6/15/21. 65 Cal.App.5th 658. Opinion by Justice Perren.
RIOS v. SINGH
Defendant Singh knew a lawsuit had been filed against him, but dodged service for several months. Plaintiff Rios ultimately filed ex parte for an order authorizing service by publication in the Sacramento Bee. The trial court granted the order.
Instead of filing an Answer or other responsive pleading, Singh filed a motion to set aside the order authorizing service by publication. The trial court denied that motion. Over the next several months, Singh filed, but failed to serve, four additional motions to set aside the order authorizing service by publication, along with a motion for relief from default. The trial court denied all motions and entered a default judgment against Singh for more than $4 million. On appeal, the Court of Appeal affirmed in full.
SERVICE BY PUBLICATION IS APPROPRIATE WHERE THE PLAINTIFF CANNOT ACCOMPLISH PERSONAL SERVICE DESPITE DILIGENT EFFORTS. The question is whether the plaintiff took the steps OF a reasonable person who truly desired to give notice of the action.
Rios was diligent, as several unsuccessful attempts at service were made. Rios also sent the Summons and Complaint via certified mail with a Notice and Acknowledgment of Receipt. Moreover, Singh knew of the case, as he actually appeared. The Court of Appeal was not impressed with Singh’s argument that service of process was defective or he was otherwise deprived of due process. The Court also rejected Singh’s argument that a responsive pleading had been filed when he moved, repeatedly, to set aside the order authorizing service by publication. Lastly, the Court held the trial court properly denied Singh’s request for relief from default because there was no inadvertence, mistake, or excusable neglect. The Court reasoned that because Singh deliberately evaded service, the default should not be set aside.
COA, 3rd District. Filed 5/25/21, publication ordered 6/18/21. 65 Cal.App.5th 871. Opinion by Justice Mauro.
Ninth Circuit
EHM v. STARLINE TOURS OF HOLLYWOOD
JAMS arbitrator Hon. Margaret Nagel (Ret.), issued an award in favor of EHM Production, Inc. (TMZ) and against Starline Tours of Hollywood, Inc. After the district court entered judgment confirming the arbitration award, the Ninth Circuit issued Monster Energy Co. v. City Beverages, LLC, which clarified the appropriate standard for vacating an arbitration award when an arbitrator fails to disclose facts perceived to impact their neutrality. In response to the Monster Energy decision, Starline requested that JAMS disclose additional information relating to its business dealing with TMZ. Thereafter, Starline filed a motion for relief under Fed. R. Civ. P.59(e), arguing the JAMS had failed to make disclosures as required under the Monster Energy decision. The district court denied Starline’s motion.
The Ninth Circuit held that the district court did not abuse its discretion in denying Starline’s motion to vacate the arbitration award, which was based on the fact that the arbitrator did not disclose business dealings with TMZ itself or with TMZ and its counsel. The Ninth Circuit held that the Monster Energy rule requires disclosure only when an arbitrator holds an ownership interest in JAMS and JAMS engaged in nontrivial business deadlines with a party to the arbitration. Nontrivial business dealings with a party’s counsel need not be disclosed.
Ninth Circuit. Filed 6/24/21. 1 F.4th 1164. Opinion by Judge VanDyke.
FRANKLIN v. COMMUNITY REGIONAL MEDICAL CENTER
A NON-SIGNATORY TO AN ARBITRATION AGREEMENT CAN ENFORCE THAT AGREEMENT IF THE CLAIMS ASSERTED ARE “INTIMATELY FOUNDED IN AND INTERTWINED WITH” THE RELATIONSHIP BETWEEN THE PARTIES TO THE ARBITRATION AGREEMENT.
In Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782, the California Court of Appeal for the Fourth District held that employers who hire staff through staffing agencies could compel arbitration of employment claims through the employee’s arbitration agreement with the staffing agency because the claims were “intimately founded in and intertwined with” the employment contract between the employee and the staffing agency. The Ninth Circuit concluded that Garcia was directly on point here and required the Court to compel arbitration of the claims against the non-signatory employer.
THE NINTH CIRCUIT WILL NOT OVERRULE A CALIFORNIA APPELLATE COURT ABSENT COMPELLING EVIDENCE THAT THE SUPREME COURT OF CALIFORNIA WOULD DO SO.
Plaintiff Franklin argued that Garcia was wrongly decided and urged the Ninth Circuit to overrule it. The Ninth Circuit declined because the Erie Doctrine required the Court to follow California law. The Court reasoned that creating a divide between California state courts and federal district courts in California would lead to forum shopping and an inconsistent enforcement of state law.
Ninth Circuit. Filed 5/21/21. 988 F.3d 867. Opinion by Judge Bennett.
HANSEN v. LMB MORTGAGE SERVICES, INC.
Under 9 U.S.C. §4, if a district court determines that the enforceability of the arbitration agreement is at issue, then the court “shall proceed summarily to trial thereof.” Here, Defendant LMB maintained a website for refinancing mortgages. In March 2014, a visitor identified as Willena Hansen input information about a property owned by Willena Hansen, Plaintiff Bill Hansen and Plaintiff’s wife. As part of obtaining information about refinancing, the website states that the user agrees to the terms of use, which includes an arbitration agreement. In November 2014, Plaintiff received a text message addressed to Willena about monthly payments on the property. He brought a class action suit and argued that Defendant had violated the Telephone Consumer Protection Act by sending an autodialed text message without his consent.
Finding genuine disputes of fact as to the issue of enforceability, the district court issued a nonfinal order denying Defendant’s Motion to Compel Arbitration. Defendant appealed. The Ninth Circuit took the appeal and addressed whether it had jurisdiction to hear the appeal of the Motion to Compel. Relying on 9 U.S.C. §16, the Court found it had jurisdiction because Section 16 states that an appeal may be taken from an “order” issued under section for regarding proceeding to arbitration—with no distinction between final and non-final orders. Having established jurisdiction, the Court found the denial of the motion to compel premature without a decision as to whether Plaintiff was bound by the arbitration agreement. The Court directed the district court to hold a trial immediately to address the underlying question.
Additionally, Defendant argued that the district court erred in ruling there were disputed issues of material facts about the enforceability of the arbitration agreement. Court, however, declined to address whether the ruling that there were genuine disputes was proper because it had no authority until a trial on the issue occurred. Further, assessing the merits of an appeal prior to the trial would be “a pointless and wasteful burden. . .” of the Court’s resources.
Ninth Circuit. Filed 6/11/21. 1 F.4th 667. Opinion by Judge Ikuta.
Other Significant Decisions
YANEZ v. VASQUEZ
This is an Unlawful Detainer case involving summary judgment issues. The plaintiff/landlord Yanez rented a property to Defendant Vasquez that was not certified for occupancy by the City of Los Angeles, as required by local ordinance. After Vasquez failed to pay rent, Yanez sued for Unlawful Detainer. Vasquez moved for summary judgment but served the motion one day late. Yanez opposed and raised the late service issue but could show no resulting prejudice. The trial court heard the motion and granted it on the grounds that the property was not certified for occupancy as required by law. Yanez appealed.
WHERE A PARTY FAILS TO SERVE A MOTION WITHIN THE REQUIRED TIME LIMIT, THAT PROCEDURAL DEFECT IS WAIVED IF THE OPPOSING PARTY OPPOSES ON THE MERITS AND SUFFERS NO PREJUDICE.
Plaintiff Yanez waived the argument that he received inadequate notice of the hearing on the Defendant Vasquez’s summary judgment motion where he did not claim to have suffered any prejudice in drafting his response or in preparing for the hearing, did not request a continuance, and on appeal, did not argue he was prejudiced by the late notice. Yanez also waived his argument on appeal because he did not obtain a ruling from the trial court on the late notice issue and therefore failed to preserve the issue for appeal.
Appellate Division, Los Angeles Superior Court. Filed 4/22/21. 65 Cal.App.5th Supp. 1. Opinion by Presiding Judge Kumar.