enforceability of an arbitration clause in California

2025Nonetheless, we agree that where . . . the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination.” (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 414 .) “The burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence,” but the burden of production involves

2024(Id. at p. 846.) The court continued, “Where allegations of fraudulent agreements to arbitrate exist, and are opposed, ‘the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination,’ ” citing Rosenthal, supra, 14 Cal.4th at page 414 . 9 “A party seeking to compel arbitration pursuant to [Code of Civil Procedure section] 1281.2 must ‘plead and prove a prior demand for arbitration under the p

2018But neither of those opinions addressed Ramos's argument that a confidentiality clause like the one at issue in this case would impair her ability to engage in informal discovery in pursuit of her litigation claims. 11 In Zuver v. Airtouch Communications, Inc. (2004) 153 Wn.2d 293 , 299, 103 P.3d 753 , 757 , the Washington Supreme Court addressed the enforceability of an arbitration clause in an employment contract with a confidentiality clause providing, "All arbitration proceedings, including settlements and awards, under the Agreement will be confidential." The Zuver court observed the appe

2018But neither of those opinions addressed Ramos’s argument that a confidentiality clause like the one at issue in this case would impair her ability to engage in informal discovery in pursuit of her litigation claims.11 In Zuver v. Airtouch Communications, Inc. (2004) 153 Wn.2d 293, 299 [ 103 P.3d 753, 757 ], the Washington Supreme Court addressed the enforceability of an arbitration clause in an employment contract with a confidentiality clause providing, “All arbitration 11 Although Sanchez noted in passing that the trial court found the confidentiality provision at issue was unconscionable be

2020Securities Corp. (1996) 14 Cal.4th 394 (Rosenthal), “facts relevant to enforcement of the arbitration agreement must be determined ‘“in the manner . . . provided by law for the . . . hearing of motions.”’ [Citations.] This ‘ordinarily mean[s] the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.’ [Citations.] The Rosenthal court further observed that where ‘the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would no

2020Securities Corp. (1996) 14 Cal.4th 394 (Rosenthal), “facts relevant to enforcement of the arbitration agreement must be determined ‘“in the manner . . . provided by law for the . . . hearing of motions.”’ [Citations.] This ‘ordinarily mean[s] the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.’ [Citations.] The Rosenthal court further observed that where ‘the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would no

2025Nonetheless, we agree that where . . . the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination.” (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 414 .) “The burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence,” but the burden of production involves

2022(E.g., Rent-A-Center West, Inc. v. Jackson (2010) 561 U.S. 63, 68 (Rent-A-Car).) It argues that the arbitrator should have determined the enforceability of the arbitration clause in this case, citing the rule that the parties may agree to delegate this power to the arbitrator when the language they use is “clear and unmistakable.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 242 ; see also Henry Schein, Inc. v. Archer & White Sales, Inc. (2019) ___ U.S. ___ [ 139 S.Ct. 524, 529 ] (Schein); First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938 , 944–945.) Windsor points to la

2022(See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 [if inclusion of additional evidentiary evidence with reply is permitted, the other party should be given the opportunity to respond].) And where, as here, “the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross- examination.” (Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, 98 .) On the other hand, we are mindful tha

2022(See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 [if inclusion of additional evidentiary evidence with reply is permitted, the other party should be given the opportunity to respond].) And where, as here, “the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross- examination.” (Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, 98 .) On the other hand, we are mindful tha

2022(E.g., Rent-A-Center West, Inc. v. Jackson (2010) 561 U.S. 63, 68 (Rent-A-Car).) It argues that the arbitrator should have determined the enforceability of the arbitration clause in this case, citing the rule that the parties may agree to delegate this power to the arbitrator when the language they use is “clear and unmistakable.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 242 ; see also Henry Schein, Inc. v. Archer & White Sales, Inc. (2019) ___ U.S. ___ [ 139 S.Ct. 524, 529 ] (Schein); First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938 , 944–945.) Windsor points to la

2015As the trial court here remarked, ‘it’s pretty difficult to weigh credibility without seeing the witnesses.’ ” (Id., at pp. 413-414.) *97 Elaborating on Rosenthal, Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219-1220 [ 101 Cal.Rptr.3d 97 ], explained it this way: “Thus, our Supreme Court has clearly stated that a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the arbitration agreement.’ ( Rosenthal, supra, 14 Cal.4th at pp. 402, 413.) In this way, a court’s role, though limited, is critical. ‘There is indeed a strong

2015As the trial court here remarked, ‘it’s pretty difficult to weigh credibility without seeing the witnesses.’ ” (Id., at pp. 413-414.) *97 Elaborating on Rosenthal, Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1219-1220 [ 101 Cal.Rptr.3d 97 ], explained it this way: “Thus, our Supreme Court has clearly stated that a court, before granting a petition to compel arbitration, must determine the factual issue of ‘the existence or validity of the arbitration agreement.’ ( Rosenthal, supra, 14 Cal.4th at pp. 402, 413.) In this way, a court’s role, though limited, is critical. ‘There is indeed a strong

2012(See Winter v. Window Fashions Professionals, Inc. (2008) 166 Cal.App.4th 943, 946-949 [ 83 Cal.Rptr.3d 89 ] (Winter) [under the FAA, the court, not the arbitration panel, was to decide the enforceability of an arbitration clause providing that any controversy or claim shall be submitted to binding arbitration].) 8 We therefore hold that the clear and unmistakable evidence test is not met by language requiring arbitration of “[a]ny disputes, differences or controversies arising under” a contract.

2012(See Winter v. Window Fashions Professionals, Inc. (2008) 166 Cal.App.4th 943, 946-949 [ 83 Cal.Rptr.3d 89 ] (Winter) [under the FAA, the court, not the arbitration panel, was to decide the enforceability of an arbitration clause providing that any controversy or claim shall be submitted to binding arbitration].) 8 We therefore hold that the clear and unmistakable evidence test is not met by language requiring arbitration of “[a]ny disputes, differences or controversies arising under” a contract.

2009Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 765 [ 50 Cal.Rptr.3d 700 ]; Brown v. Wells Fargo Bank, N.A. (2008) 168 Cal.App.4th 938, 945 [ 85 Cal.Rptr.3d 817 ]; Loving, supra, 33 Cal.2d at p. 615 ; Lindenstadt, supra, 55 Cal.App.4th at p. 895 .) On remand, the court must hear plaintiffs’ petition to confirm the corrected award “in a summary way in the manner and upon the notice provided by law for the making and hearing of motions.” (§ 1290.2.) Although “the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion

2009Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 765 [ 50 Cal.Rptr.3d 700 ]; Brown v. Wells Fargo Bank, N.A. (2008) 168 Cal.App.4th 938, 945 [ 85 Cal.Rptr.3d 817 ]; Loving, supra, 33 Cal.2d at p. 615 ; Lindenstadt, supra, 55 Cal.App.4th at p. 895 .) On remand, the court must hear plaintiffs’ petition to confirm the corrected award “in a summary way in the manner and upon the notice provided by law for the making and hearing of motions.” (§ 1290.2.) Although “the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion

2004Proc., § 1294, subd. (a).) Discussion Any analysis of the enforceability of an arbitration clause properly begins with a discussion of the Federal Arbitration Act (FAA) ( 9 U.S.C. § 1 et seq.), and its preemptive effect on state laws that impair the enforceability of *86 agreements to arbitrate. 6 The FAA was enacted to overcome the unwillingness of the courts to enforce agreements to arbitrate and “to ‘place such agreements “upon the same footing as other contracts,” ’ [citations].” (Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 270-271 [ 130 L.Ed.2d 753 , 115 S.Ct. 834 ].) Sectio

2004Proc., § 1294, subd. (a).) Discussion Any analysis of the enforceability of an arbitration clause properly begins with a discussion of the Federal Arbitration Act (FAA) ( 9 U.S.C. § 1 et seq.), and its preemptive effect on state laws that impair the enforceability of *86 agreements to arbitrate. 6 The FAA was enacted to overcome the unwillingness of the courts to enforce agreements to arbitrate and “to ‘place such agreements “upon the same footing as other contracts,” ’ [citations].” (Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 270-271 [ 130 L.Ed.2d 753 , 115 S.Ct. 834 ].) Sectio

2003The parties cannot, as the Reeds did here, willingly accede to and participate in the arbitration process without even raising the public policy issue, only to raise the question before the trial court later. “[A] party who questions the validity of the arbitration agreement may not proceed with arbitration and preserve the issue for later consideration by the court after being unsuccessful in the arbitration.” (Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 Cal.App.4th 119, 129 [ 18 Cal.Rptr.2d 626 ].) 12 Any claim of illegality must be raised before the arbitrator or it

2003The parties cannot, as the Reeds did here, willingly accede to and participate in the arbitration process without even raising the public policy issue, only to raise the question before the trial court later. “[A] party who questions the validity of the arbitration agreement may not proceed with arbitration and preserve the issue for later consideration by the court after being unsuccessful in the arbitration.” (Bayscene Resident Negotiators v. Bayscene Mobilehome Park (1993) 15 Cal.App.4th 119, 129 [ 18 Cal.Rptr.2d 626 ].) 12 Any claim of illegality must be raised before the arbitrator or it