That Won't Fly

Davis v. Kozak, No. 156234A (D1d3, Aug. 19, 2020) 

The Court of Appeal finds that an arbitration agreement in an employment was unconscionable when it: (1) limited default discovery to only two depositions—no documents, interrogatories, etc.—subject to a showing to the arbitrator of “sufficient cause” to get more; (2) carved out the employer’s claims under a confidentiality and invention agreement from the scope of arbitrability.

Affirmed.

How to Lose Your Appeal

Davis v. TWC Dealer Grp., Inc., No. A155030 (D1d2 Oct. 30, 2019)

So I have to cop that I only got around to writing up the Supreme Court’s decision in Kho because I read this case. It involves the essentially same Toyota arbitration agreement that the Supreme Court invalidated in Kho this past August. The same firm that represented the Toyota dealership in Kho represents a Toyota dealership here. Kho was decided a few weeks after the last brief was filed in this case. But nobody gave any notice of supplemental authority. 

The Court of Appeal flagged Kho in a pre-argument notice and asked the Dealership to explain why the parts of the agreement the Court in Kho found so oppressive were replaced with ellipses in the Dealership’s briefs. It also requested an explanation for why the Dealership never apprised the Court of the Kho decision, citing “Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82, fn. 9,” which deals with attorneys’ duty of candor. (The Court later explains that the duty has been made express by the recent restyling of the Rules of Professional Conduct, which now, in Rule 3.3, require attorneys to “disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel[.]”) 

The Dealership’s law firm (called out by name in the opinion) sent an associate to the argument—his name wasn’t even on the briefs. He had no explanation for the ellipses—he didn’t write the brief and hadn’t spoken to the attorney who did. He didn’t read the footnote in Batt. The arguing claimed only that the Dealer didn’t give notice Kho as supplemental authority because it was “different.”

This all, quite understandably, makes the Court of Appeal very mad. Especially when framed in the context of the somewhat hyperbolic arguments the Dealership made in its brief. Arguments like a claim—unsupported by citation—that arbitration clauses “identical in all material terms to arbitration provisions that have been routinely enforced by appellate courts, including the state Supreme Court.” 

The Court, describing the Dealership’s arguments as “wrong on all counts,” “easily affirm[s]” the trial court’s denial of the motion to compel arbitration. The opinion concludes by noting that “It is hard to imagine legal authority more ‘directly adverse to the position of’ [the Dealership] than Kho—hard to imagine a more obvious violation of Rule 3.3.” 

Easily Affirmed.

Sargon v. Asbestos Litigation Science

Davis v. Honeywell Int’l, No. B256793 (D2d4 Mar. 3, 2016)

This case addresses the admissibility of expert testimony on an issue that likely comes up in many of the wave of asbestos cases that are currently working their way through California courts. The testimony is based on the “every exposure” theory. The gist of the theory is that asbestos is so toxic that every exposure to it beyond the background level present in the ordinary atmosphere can potentially be a substantial factor in causing mesothelioma. Some states have rejected expert testimony on the theory, others have not. The court here finds that the testimony is sufficiently reliable under the relatively new Sargon standard, which permits courts to reject expert testimony that is: “(1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” According to the court, while there isn’t any scientific consensus on the theory, there is enough scientific support on the side of the every exposure theory that it should not be precluded as too unreliable for a civil trial.

Affirmed.