The United States Attorney for the Central District of California filed a grand jury indictment against a medical doctor alleging the doctor conspired with another doctor and employees to transplant a liver into the wrong patient. The doctor tendered the defense to the charges to his insurance company, which insurer declined to defend pursuant to Insurance […]
Water Damage Not Covered Under Insurance Policy.
Plaintiff noticed condensation and mold around the windows of his home. Upon inspection, a plumber discovered a slow water leak which pooled under the home. Plaintiff had purchased a “Farmers Next Generation Homeowners Policy” which had limited water damage coverage. The policy described what was not included in the limited water damage coverage: “. . . […]
Trial Court Wrongly Analyzed Rees-Levering Motor Vehicle Sales and Finance Act.
Plaintiff filed a class action pursuant to the Rees-Levering Motor Vehicle Sales and Finance Act [Civil Code section 2981] on behalf of those who had their vehicles repossessed by or voluntarily surrendered to a car dealership. Plaintiff had missed several car payments and voluntarily surrendered her car, whereupon she was sent a Notice of Intention to […]
Arbitration Agreement May Not Delegate Issue Of Arbitrability To The Arbitrator.
In Chin v. Advance Fresh Concepts Franchise Corp. (Cal. App. Second Dist., Div. 4; April 20, 2011) 194 Cal.App.4th 704, [123 Cal.Rptr.3d 547, 2011 DJDAR 5595], an arbitration clause provided that the arbitrator, rather than the court, was to decide issues of arbitrability (delegation clause). But, even if such a clause is unconscionable, the court should nevertheless order arbitration […]
Contract Principles Determine Whether Parties Agreed To Binding Arbitration.
The Goffs were in a fee dispute with a law firm and offered binding arbitration. The law firm declined. Subsequently, the law firm changed its position and agreed to arbitrate, whereupon the Goffs withdrew their request for binding arbitration. The matter went to arbitration and the arbitrator ruled that the parties had agreed to binding arbitration. […]
With Class Action Waiver Under Federal Arbitration Act State May Not Refuse To Enforce Arbitration Contract.
The U.S. Supreme Court held that, where a contract is subject to the Federal Arbitration Act, a court may not refuse to enforce an arbitration clause with a class action waiver on grounds that such a clause is unconscionable. AT&T Mobility LLC v. Concepcion (U.S.Supr.Ct.; April 27, 2011) 131 S.Ct. 1740, [179 L.Ed.2d 742, 79 U.S.L.W. […]
Attorneys May Not Prohibit Client From Settling Without Their Consent.
A client has the right to abandon a suit without the lawyer’s consent. Therefore public policy voids a provision in a contingency fee contract that prohibits the client from settling the case without the consent of the lawyer. In Lemmer v. Charney (Cal. App. Second Dist., Div. 8; May 5, 2011) 195 Cal.App.4th 99, [125 Cal.Rptr.3d […]
Attorneys Cannot Recover Fees Representing Themselves In Breach Of Contract Action.
When their insurer initially refused to defend an action, the insureds, who are attorneys, defended the action in pro per. They subsequently sued the insurer for the value of the attorney services they provided. The trial court granted summary judgment to the insurer. The Court of Appeal affirmed. The insureds did not sustain damages because […]
Not All Venue Selection Clauses Are Contrary To Public Policy.
A wholesale food distributor with its principal place of business in San Diego contracted with a restaurant chain and entered into a “Master Foodservice Distribution Agreement” [MFDA]. The MFDA contained a venue selection clause stating “any litigation related to or arising from this Agreement may be brought in a state or federal court located within Orange […]
Employment Arbitration Agreement Unconscionable.
When plaintiff applied for a job as a property manager, she signed an arbitration agreement which was part of the employment application. It barred class action disputes, provided that all claims had to be filed within one year, was presented on a take it or leave it basis, and stated the employer “has implemented an arbitration […]
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