Arbitration Agreements

Arbitration Agreements: Delegation Clauses

By on April 13, 2015 - Comments off

Tiri v. Lucky Chances, Inc., (Fourth District, May 15, 2014) 2014 WL 1961845, — Cal.Rptr.3d. —-, 14 Cal.Daily Op. Serv. 5380, 2014 Daily Journal D.A.R. 6103

A woman who was fired from her job as a cook at a card-club casino while on medical leave after undergoing heart surgery, filed an action against her employer for wrongful discharge. The employer filed a petition to compel arbitration based upon an arbitration agreement the woman had been asked to sign three years after she had been hired, which contained a provision delegating questions about the enforceability of the agreement to the arbitrator instead of a court. The plaintiff opposed the petition, contending that the arbitration agreement was unconscionable and that its unconscionability was an issue properly resolved by the trial court.

The trial court denied the petition, finding that the arbitration agreement was both substantively and procedurally unconscionable and therefore unenforceable because the employer had presented the agreement to the plaintiff on a ‘take it or leave it basis’ and the employer had failed to attach AAA employment dispute resolution rules to the arbitration agreement.

The court of appeal reversed, holding that although the trial court’s implied finding that the delegation clause was procedurally unconscionable was correct, its implied finding that the delegation clause was substantively unconscionable was incorrect. The court held that despite the fact the clause was part of a contract of adhesion, it was nevertheless valid, and the question whether the arbitration agreement as a whole or any of its other severable provisions was unconscionable, should be left to the arbitrator: Read the rest »


Arbitration Agreements: Enforceability Determinations

By on October 29, 2008 - Comments off

Ontiveros v. DHL Express (USA), Inc., 164 Cal.App.4th 494, 79 Cal.Rptr.3d 471, 103 Fair Empl.Prac.Cas. (BNA) 1300, 08 Cal. Daily Op. Serv. 8379, 2008 Daily Journal D.A.R. 10,045

An aircraft operations supervisor who left her employment after taking a short-term disability leave filed an action against her former employer, alleging sex/gender discrimination and harassment and retaliation for opposing forbidden practices. The plaintiff further alleged that the defendant had failed to prevent her from being subjected to ongoing severe sexual harassment and retaliation following her promotion, and that the employer had aided and abetted in the harassment.

The employer moved to compel arbitration based upon an arbitration agreement the plaintiff had signed upon being hired, which provided that any disputes relating to the applicability, enforceability or formation of the agreement would be decided by the arbitrator.

The trial court denied the motion to compel arbitration and the court of appeal affirmed, holding that the provision was unconscionable:

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