Dismissal of CCP 998-settled case where agreement silent on plaintiff's statutory claim of attorney fees does not preclude award

Does a dismissal with prejudice after a case settles under California Code of Civil Procedure section 998 preclude an award of attorney fees because the case did not proceed to "judgment?" This is the principal question raised in the Court of Appeal, Fifth Appellate District, case of Wohlgemuth v. Caterpillar, Inc. (filed July 23, 2012, F061981). The short answer is no.

The plaintiffs purchased a new motor home, the engine of which was manufactured and warranted by defendant. After there had been numerous attempts by defendant to repair what plaintiffs claimed were engine defects, plaintiffs sued under the Song-Beverly Warranty Act (Civil Code section 1790 et seq.), which entitles a prevailing consumer to attorney fees and costs in addition to damages.

Shortly before trial, defendant made a "998" offer to compromise by paying plaintiff $50,000 in exchange for a dismissal with prejudice and standard release of all claims. Plaintiffs accepted the offer, which was silent on attorney fees and costs, dismissed the action and then moved to recover their attorney fees and costs under Civil Code section 1794, subdivision (d). Defendant opposed the motion. The trial court granted the motion awarding $117,625 in attorney fees and $7,737 in costs.

Case law is clear that where a CCP 998 offer is silent on costs and fees, the prevailing party is entitled to costs and, if authorized by statute or contract, attorney fees." (Engle v. Copenbarger & Copenbarger, LLP (2007) 157 Cal.App.4th 165, 168.) Defendant's primary argument both in the trial court and on appeal was plaintiffs could not recover attorney fees and costs because there was no judgment entered in plaintiff's favor. This argument cites the language of 1794(d): a buyer who prevails in any action under the Song-Beverly Act is entitled to recover attorney fees and costs "as part of the judgment."

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Plaintiffs alleging separate acts of sexual battery by physician are not properly joined in single action

physician.jpgIn Moe v. Anderson (filed July 11, 2012) 2012 DJDAR 9523, the Court of Appeal, Third Appellate District, distinguishes between joinder of plaintiffs against an offending physician defendant sued for separate sexual batteries, and joinder in the same lawsuit of those plaintiffs against the physician's employer for the negligent hiring and supervision of that physician. In the former joinder was found improper, in the latter proper.

Plaintiffs Paula and Edelmira were treated by defendant Anderson for their separate workers' compensation injuries. In May 2009, Paula alleges that Anderson made sexual advances and touched her breasts and vagina, absent her consent. Between July and September 2009, Edelmira alleges that, without her consent, Anderson committed numerous forcible sexual acts against her including oral copulation, sexual intercourse, and sodomy. They jointly filed an action against Anderson and his employer, defendant Healthworks.

In the trial court, both defendants demurred arguing plaintiffs were improperly joined because each plaintiff alleged events that constituted different conduct and transactions. Plaintiffs responded that their claims arose out of the same series of transactions and that they shared a common interest including that each of their employers referred them to the same medical facility; additionally they both sued a common codefendant, Healthworks. The trial court sustained the demurrers without leave to amend; the ruling was without prejudice to plaintiffs' filing new and separate complaints. Plaintiffs appealed.

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Work product privilege: recorded witness statements get at least qualified protection; identity of witness not automatically protected

Work.jpgThe California Supreme Court has offered some clarification to the divergent appellate court opinions written in recent years on the subject of protection of an attorney's work product in Coito v. Superior Court (filed June 25, 2012) 2012 DJDAR 8713. To the extent there was a split of authority, the court has drawn the line.

Plaintiff Coito, the mother of a teenager who drowned in Tuolomne River, sued the City of Modesto and State of California for wrongful death. Six juvenile witnesses were interviewed by investigators for State's attorneys, who recorded the interviews. In discovery, plaintiff demanded the names of the interviewees and production of the taped interviews. State claimed work product protection from disclosure and production. At a motion to compel, the trial court denied plaintiff's motion, except to the extent that State had used the recording during a deposition. On petition for writ of mandate, the Court of Appeal, Fifth Appellate District, majority disagreed, determining these matters did not come within the work product privilege. A dissent/concurrence written by Justice Kane concluded the interviews were at least entitled to qualified privilege and the list of interviewed witnesses must be produced unless an adequate showing established privilege. The Supreme Court granted review and essentially agreed with the Kane opinion.

The state high court concluded the witness statements constituted work product protected by Code of Civil Procedure section 2018.030. It was not a matter of what each witness said standing alone, but rather what the attorney-directed questions suggested. The statements are matters of absolute privilege when inextricably intertwined with the attorney-directed statements that suggest the attorney's impressions of the witness and/or theories of the case. But witness statements procured by an attorney will not always reveal the attorney's thought process. An in camera hearing provides an adequate way of showing whether the absolute privilege applies.

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Loss of consortium may lie for pre-marriage acts causing latent injury: a lesson that appellate authority may not carry the day

marriage.jpgJohn Leonard was first diagnosed with mesothelioma after his marriage to Sandra Leonard in 2001. This progressive and fatal disease allegedly resulted from John's exposure to asbestos between 1958 and 1995 caused by John Crane, Inc. In Leonard v. John Crane, Inc. (filed June 13, 2012) 2012 DJDAR 7862, Sandra's lawsuit for loss of consortium was dismissed by the San Francisco Superior Court when it sustained Crane's demurrer without leave to amend. The trial court relied upon Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal.App.4th 26, which held that a loss of consortium claim is cognizable only if the plaintiff was married to the injured spouse at the time of defendant's wrongful conduct. The Court of Appeal, First Appellate District, Division Five, reversed on appeal, after having denied an earlier petition for writ review.

On appeal, defendant argued that the Zwicker holding was "binding" on the trial court. Plaintiff disagreed, arguing not only that Zwicker was bad law, but also that the case was distinguishable and the purported holding was dicta. Both parties agreed that the focus should be the date of the "injury" to the spouse. Defendant insisted the injury occurred at the time John was exposed to asbestos; plaintiff urged that her claim arose only once John had appreciable and actionable injury.

The appellate court declined to apply Zwicker. First, it agreed with plaintiff that a valid loss of consortium arises when a latent and unappreciated injury initially becomes manifest, which in this case was during marriage. Zwicker involved a medical malpractice claim that became manifest prior to the marriage; the ruling was correct on that point, but is factually distinguishable. Second, the Zwicker court went beyond the facts of its case to state a broader principle: that a loss of consortium necessarily arises at the time the wrongful conduct occurred; the Leonard court found this broadly stated principle to be incorrect.

In reaching its decision, the court discussed the split of authority on this question in other jurisdictions. Now California too has a split of appellate authorities. The court noted that another appellate district, the Second District Court of Appeal recently reached the same conclusion as it had. (See Vanhooser v. Superior Court (Hennessy Industries) (June 1, 2012) ___ Cal.App.4th ___.) Thus the Third District Court of Appeal holding in Zwicker is now at odds with these holdings in two other districts.

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General contractor not liable for workplace injury claim of employee of subcontractor premised on negligent coordination of various subs

contractor.jpgIn Brannan v. Lathrop Construction Associates, Inc. (filed May 21, 2012, certified for publication June 12, 2012) 2012 DJDAR 7743, plaintiff was working for a masonry subcontractor at a school site when he slipped on wet scaffolding and injured his back. He sued defendant, the general contractor, on the theory that defendant negligently sequenced and coordinated the various subs working on the project; in particular, that plaintiff slipped and fell due to the presence of the plastering subs scaffolding, dampened by the rain, interfering with the masonry work. Defendant moved for summary judgment. The Contra Costa Superior Court granted the motion, dismissing the case, based on the Privette-Toland doctrine (Privette v. Superior Court (1993) 5 Cal.App.4th 689), Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253. On appeal, the Court of Appeal, First Appellate District, Division One, affirmed.

The undisputed facts established it was understood that the plastering work would be done first, and the plaster scaffold would be removed before the masonry work started. However the scaffold was left behind at the request of the framing sub who wished to use it; the masonry sub never requested it. The masonry foreman (Garcia) was to make sure the site was safe for the masonry workers; he had the authority to call of the workers, if he saw something unsafe. Garcia observed on the date of the accident that it was raining, but had no safety concern about the wetness or the presence of the scaffolding (he had asked defendant when the scaffold would be removed.) Plaintiff was trying to cross over the scaffold to lay masonry in the area underneath when he stepped onto the second rung of the scaffold believing there was no other way to gain access. He slipped and fell, causing his injury.

The appellate court summarized the Privette-Toland doctrine: that injured employees of independent contractors normally cannot sue the hirer because the employer is implicitly expected to ensure his employees safety and workers' compensation was available should the employee be injured. The exception is found in Hooker v. Department of Transportation (2002) 27 Cal.4th 198: the hirer may be held responsible if it retained control of the work but negligently exercised its control. But merely retaining control over safety conditions is not enough; the hirer must have affirmatively contributed to the employee's injury.

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Public policy considerations no longer a bar to enforcement of class action waiver in employment arbitration agreement

publicpolicy_forum_300x300px.jpgAT&T Mobility LLC v. Concepcion (2011) __ U.S.__ [131 S. Ct 1740] changed the legal landscape concerning class arbitrations. The United States Supreme expressly overturned the California Supreme Court ruling in Discover Bank v. Superior Court (2005) 36 Cal.4th 153, which had held that class action waivers in contracts of adhesion subject to arbitration are unenforceable.

A more recent California Supreme Court opinion--Gentry v. Superior Court (2007) 42 Cal. 4th 443--is not referenced in Concepcion. having lead some to believe Gentry is still viable. (See Kinecta Alternative Financial Solutions, Inc v. Superior Court (Malone) (2012) __Cal.App.4th__.) Gentry determined that, under some circumstances, a class arbitration waiver would impermissibly interfere with an employee's ability to vindicate unwaivable rights concerning overtime laws, and that such a waiver was contrary to public policy. The case to be discussed, Iskanian v. CLS Transportation, LLC (filed June 4, 2012) 2012 DJDAR 7371, finds that the Concepcion decision conclusively invalidates Gentry.

Plaintiff Iskanian worked as a driver for the defendant transportation company. After about 9 months of employment, in December 2004 he signed an arbitration agreement that any and all claims arising out of employment would be submitted to binding arbitration and that class claims could not be asserted. The employment concluded in August 2005, and plaintiff filed a break/wage-and-hour class action lawsuit in August 2006. The order appealed from is the trial court's order compelling arbitration and dismissing class claims. Plaintiff claims he can meet the Gentry test to invalidate the class waiver, or alternatively he should not be compelled to arbitrate. The Court of Appeal, Second Appellate District, Division Two found Gentry inapplicable and affirmed.

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No duty of machine manufacturer to warn when hazardous material is used with otherwise nonhazardous machine

Earlier this year, the California Supreme Court determined that a manufacturer has no duty to warn about another manufacturer's dangerous product even if it is foreseeable that the products will be used together. (O'Neil v. Crane Co. (2012) 53 Cal. 4th 335, 361; see Jan. 31, 2012 blog.) The sued manufacturer there was the maker of pumps that had been specified by the government to use asbestos gaskets (later-determined harmful). Repairpersons were exposed to harmful fibers when they removed the gaskets to work on the pumps. Otherwise nothing in the pumps' ordinary operation caused such exposure.

An arguably slightly different scenario is presented by the operation of grinders used in automotive shops to reshape brake parts. When such grinders were operated to reshape asbestos-containing brake parts, the interaction would cause the brake parts to emit harmful respirable asbestos dust. Richard Barker suffered such exposure as an auto mechanic from 1967 to 1995. He died of asbestos-related lung cancer in December 2008. Among the parties sued by Barker's survivors was Hennessey Industries, Inc. the manufacturer of the grinders. Hennessey moved for summary judgment arguing it owed no duty to warn about the asbestos-containing products that were used with its machines. The Los Angeles County Superior Court agreed and dismissed the case against this defendant.

The Barker family appealed in Barker v. Hennessy Industries, Inc (filed May 22, 2012) 2012 DJDAR 6633. The Court of Appeal, Second Appellate District, Division Two, affirmed, finding that the instant facts fall squarely within O'Neil v. Crane Co. Among the findings made by the two justices in the majority was the inference that the Hennessey products could not cause the harm because they did not themselves contain asbestos (and the machines could and did grind non-asbestos parts); thus even though their use with asbestos-containing brake parts was foreseeable, Hennessey had no duty to warn.

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The difficult question of when a disabling psychiatric condition is employment related: don't bank on unrefuted expert evidence

Court House.jpgThis issue more often arises in the workers' compensation context. In Valero v. Board of Retirement (filed May 1, 2012) 2012 DJDAR 5698, plaintiff contended in a petition for writ of mandate that the Board of Retirement of the Tulare County Employees erroneously denied him disability retirement benefits under California Government Code section 31720. Under subdivision (b), to qualify, ones injurious incapacity arises out of and "in the course of the member's employment" and "contributes substantially to such incapacity." The Tulare Superior Court found against plaintiff and the Court of Appeal, Fifth Appellate District affirmed.

Plaintiff contended his interaction with angry clients as a health and human services office assistant substantially contributed to his permanently disabling panic disorder. As the appellate court describes it, plaintiff "bore the burden to affirmatively show a real and measurable connection between his psychiatric disability and his employment."

Four doctors provided evidence. Plaintiff argued that because three doctors concluded the panic disorder were caused by his experience in the workplace and the other did not opine that there was no causal connection between work and the disorder, the trier of fact was required to rule in his favor.

Not so, said the Court of Appeal. It found that, assuming plaintiff's characterization of the evidence is correct, the medical evidence was not of such character and weight as to leave no room for judicial determination that it was insufficient to support the finding. It did not disturb the trial court's conclusion that the medical evidence was not persuasive based on the undocumented and uncorroborated self-reporting about plaintiff's encounters with clients causing his panic attacks.

The lesson to be learned from this is that you cannot always rely upon uncontested expert evidence to carry the day. After all, an expert's testimony is only as good as the factual input upon which the opinion is derived.

Slander of title cause of action may be maintained where the only pecuniary loss consists of attorney fees and costs incurred to clear the slandered title

Thumbnail image for Real Estate.jpgFor more than 20 years, homeowners at Sumner Hill, an isolated subdivision on the bluffs overlooking the San Joaquin River, enjoyed the privacy of living in a remote, rural location behind a locked security gate. They also enjoyed unrestricted access to the river on a dirt road within the subdivision known as Killkelly Road. Because Killkelly Road was inside the gated subdivision, river access by that route was available to Sumner Hill homeowners but not the general public. These amenities - a private gated community and unrestricted river access - were part of what they purchased when they bought their lots in the subdivision.

A developer, Rio Mesa Holdings, LLC, purchased the surrounding land and announced plans to develop a massive residential and commercial development that would include opening the Sumner Hill subdivision to the general public and allowing public access to the San Joaquin River directly through the subdivision using Killkelly Road. The developer installed a locked gate restricting the homeowners' access to Killkelly Road. The developer also recorded a document entitled "Notice of Permission to Use Land" in the County recorder's office, which stated that Rio Mesa Holdings, LLC was the owner of Killkelly Road, the general public had a right to use the road for recreational purposes during daylight hours, and no vehicles were allowed on the road. The developer also hired private security guards to patrol the subdivision and prevent vehicular access to the river. Some of the homeowners were accosted by the security guard when they attempted to use Killkelly Road.

These events caused the homeowners to file suit against the developer, seeking a judicial determination of their right to maintain Sumner Hill as a private, gated subdivision and to have unrestricted use of Killkelly Road for access to the San Joaquin River. They also sought damages for slander of title, and related tort causes of action. The developer cross-complained, claiming that the public had a right of access to the river from Killkelly Road.

In a bifurcated trial, the trial court, sitting in equity, resolved the main issues in the homeowners' favor, by determining the private (nonpublic) character of the gated subdivision, confirming the homeowners' easement rights to use Killkelly Road and denying the developer's claim of public access to the river. A jury then heard the tort causes of action and awarded $803,951 in compensatory damages to the homeowners for slander of title and nuisance and $2,419,800 in punitive damages.

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Defendant's negative net worth does not render punitive damage award reversible

Defendant.jpgBetween 2006 and 2010, ArvinMeritor, Inc., attained $3 billion in sales revenue each year and had an annual cash-flow profit of $111 million, a primary business being manufacturing brake shoes. Its lowest annual profit during this period was $95 million. However, as of 2010, it reported a negative "net worth" of $1.023 billion; the company's losses resulted primarily from significant capital expenditures and development expenses.

Gordon Bankhead contracted mesothelioma as a result of 30 years of exposure to asbestos dust while working in automobile maintenance facilities. Brake shoes for which ArvinMeritor is in part responsible caused the deleterious asbestos dust. Bankhead sued a number of defendants including ArvinMeritor. After trial in Alameda Superior Court, a jury awarded a verdict in favor of Bankhead including a 15% share of the fault against ArvinMeritor which resulted in joint and several liability in the sum of $1.47 million in economic damages, and several liability of $375,000 in noneconomic damages. In addition to this total compensatory award of $1.845 million, the jury later awarded punitive damages against this defendant in the sum of $4.5 million.

In Bankhead v. ArvinMeritor, Inc. (filed April 19, 2012) 2012 DJDAR 5011), ArvinMeritor disputed the punitive damage award on two grounds: 1) the award is excessive because ArvinMeritor proved its negative net worth, and 2) the 2.4 to 1 ratio of punitive damages to compensatory damages is constitutionally excessive. The Court of Appeal, First Appellate District, Division Four, disagreed and affirmed the judgment. In particular, the appellate court held there is no legal requirement that punitive damages must be measured against a defendant's net worth.

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Insufficient showing of third-party beneficiary status to compel arbitration of claim of nonsignatory to arbitration agreement

Court Gavel.jpgIn Epitech, Inc., v. Kann (filed April 16, 2012) 2012 DJDAR 4768), defendant Kann filed a petition to compel arbitration after a corporation's short term creditors brought suit against defendant, a financial advisor the corporation had retained to assist it in getting long-term financing to pay its short-term debts. Suit followed the corporation going bankrupt. Kann claimed the creditors were third-party beneficiaries of his financial advice contract with the corporation, which contained an arbitration clause. The Los Angeles Superior Court denied the petition; that order was affirmed by the Court of Appeal, Second Appellate District, Division Three.

Kann and the corporation signed an engagement letter that included an arbitration clause for any dispute arising out of the letter agreement or any issue concerning breach, termination, enforcement, interpretation or validity of it. The creditors allege that when the financing that Kann was to assist the corporation with failed to materialize, Kann induced the creditors to forbear on foreclosing upon their interests by assuring that financing was forthcoming. Their lawsuit does not allege breach of contract, rather that Kann committed fraud, negligent misrepresentation and concealment.

In his petition, Kann claimed he was being sued because of the way he performed his contract with the corporation and that plaintiffs were third-party creditor beneficiaries to the services Kann was to perform under the contract. The appellate court held the creditors were not, as a matter of law, third-party beneficiaries of Kann's agreement with the corporation, thus the denial of the petition was affirmed.

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Amendments to revocable trust must follow procedure specified in trust instrument to exclusion of statutory method

Dissents appear in published opinions of the California Court of Appeal, Fifth Appellate District about as frequently as meteors crash to Earth. King v. Lynch (filed April 10. 2012) 2012 DJDAR 4516) is such a cosmic event. The court majority affirmed the trial court's invalidating amendments to a trust, even though those amendments comply with the revocation method established in Probate Code section 15401, subdivision (a) (2). The majority found the trust specified a modification method, and thus, under section 15402 the trust could only be amended in that manner.

The trust in question provided that, during the joint life of the two settlors, who were also the initial trustees, the trust "may be amended" by a writing signed by both settlors and delivered to the trustee. Nowhere does the instrument explicitly state this is the exclusive method of amendment.

After one of the settlors, Edna, suffered a severe brain injury, leaving her incompetent, an amendment to the trust was executed by her co-settlor, Zoel. That amendment stated that because Edna could no longer serve, Zoel was appointed as sole trustee. Two further amendments were executed by Zoel changing monetary bequests to the settlors' beneficiaries. These three amendments are the subject of the challenge in this case. The trial court found all three of these amendments invalid, and was affirmed on appeal.

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Brinker: Clearing up some uncertainty in rest & meal period/ wage & hour class actions

rest.jpgThe California Supreme Court gave readers a "two-fer" when it issued its long-awaited opinion in Brinker Restaurant Corp. v. Superior Court (filed April 12, 2012) 2012 DJDAR 4615. As the court noted in its unanimous opinion, it granted review "to consider issues of significance to class actions generally and to meal and rest break class actions in particular."

Concerning class certifications, the court found that trial courts are not required in determining the issue of certification to resolve threshold disputes over the elements of a plaintiff's claims, unless necessarily dispositive of the certification question. Having said that, the state high court went on to address the "hot button" threshold disputes because the parties requested such, and impliedly because of the public interest involved. On the most debated of these disputes, the court ruled that an employer, while required to relieve its employees of all duties during a meal period, need not ensure that no work is done during this time. It also prescribed the proper interpretation concerning requirements of rate at which rest time must be permitted, and the timing of both rest and meal periods.

On the separate issue of off-the-clock certification, the high court saw no substantial evidence pointing to a uniform, companywide proof of employees performing work while clocked out during meal periods; the trial court's ruling that common questions predominate justifying class treatment was not supported by substantial evidence.

The Supreme Court took a more generous view than the Court of Appeal in interpreting the applicable rest time rate provisions. While the lower appellate court saw employees as entitled to 10 minutes of rest for shifts of 3 ½ hours or more and 20 minutes total for 7 ½ hours, the high court ruled the requirements as being 10 minutes for 3 ½ to 6 hour shifts and 20 minutes for 6 to 10 hour shifts. On the matter of timing of rest periods, the high court disagreed with the claim of the employees that a rest period must occur before any meal period.

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Summary adjudication of employment harassment claims reversed because aggregate of evidence may factually support a claim

In Rehmani v. Superior Court (Real Party: Ericsson, Inc)(filed March 29, 2012) 2012 DJDAR 4177, the Court of Appeal, Sixth Appellate District granted Rehmani's petition for writ of mandate and overturned the Santa Clara Country Superior Court's summary adjudication of Rehmani's claims of workplace harassment based on national origin and religion.

At issue in the appeal was Rehmani's allegation against employer Ericsson that it failed to ameliorate the hostile work environment that existed as a result of abuse he suffered from 3 fellow employees. Rehmani is a Muslim of Pakistani origin; the fellow employees are of Indian origin. He claimed that, because of his national origin and religion, the others were rude, dismissive and hostile; they were unwilling to help him with his projects and made comments concerning the hostile relationship between Pakistan and India. Specific comments included one about the need for India to bomb Pakistani terrorists; a comment that if the fellow worker did not assist him, would he "blow me up?" and a prank birthday party for Rehmani while he was away from the office "celebrating 9/11 and planning terrorist attacks."

To prove entitlement to a summary adjudication of dismissal of these harassment claims, Ericsson needed to establish that Rehmani could not show not only a hostile work environment, but also its failure as his employer to respond with appropriate corrective action. Ericcson asserted in the trial court that the incidents were isolated and not caused by Rehmani's religion or national origin, and not so severe or pervasive as to constitute a hostile environment. Concerning corrective actions, Ericsson set forth evidence that none of the fellow employees were managers, and that Rehmani's complaints to his superiors never asserted (1) "harassment" or "discrimination", and (2) he never said his alleged mistreatment was due to his being Pakistani of Muslim. In any event, Ericsson conducted an investigation and concluded there was no discrimination or harassment, and warned employees against conduct like the 9-11 prank.

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Arbitration clause in employment contract superseded that in earlier agreement and made wrongful termination claim not subject to arbitration

contract.jpgIn the morass of paperwork accompanying the start of employment, an employer may ask the employee to sign multiple documents discussing arbitration: an employee handbook, an employer alternative resolution policy statement, and/or the contract of employment may be among the many documents. Which executed document concerning arbitration controls if their content differs?

This question is presented in Grey v. American Management Services (filed March 28, 2012) 2012 DJDAR 4075. When plaintiff applied for employment, defendant provided him with an application packet that contained an Issue Resolution Agreement (IRA) which he signed. The IRA required arbitration of any claim "arising out of or [in] relation to [the] application or candidacy of employment." After he accepted employment, plaintiff signed an employment contract that required arbitration of "a dispute arising out of the alleged breach of any provision of this Agreement." Plaintiff was terminated from his employment and filed a lawsuit primarily alleging employment discrimination and wrongful termination (no claim of "breach of contract"). Defendant successfully moved to compel arbitration, and the arbitrator found in its favor.

On appeal, the Court of Appeal, Second Appellate District, Division Four, reversed, finding that Grey was not required to submit his claims to arbitration under the terms of the employment contract.

The appellate court delineated the critical issue as whether the parties intended their writing (the employment agreement) to serve as the exclusive embodiment of their agreement. The employment agreement included an integration clause providing it was "the entire agreement of the parties and supersedes all prior and contemporaneous discussions and understandings."

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