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Published May 14. 2012 - 4 years ago
Connemara Black Variant
Hook: Kamasan B175 #12, Thread: Benecchi 12/0, black, Tail: Golden pheasant crest, Butt: Danville Flymaster 6/0, scarlet, Rib: Wire, silver, Body: Seal's fur, dyed black, Hackle: Hen, natural black, Throat: Partridge, dyed blue Wing: Bronze mallard
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IL-2: Sturmovik: Birds of Prey
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IL-2: Sturmovik: Birds of Prey (Xbox 360) Cheats
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California Court of Appeals, Fourth District, First Division
February 27, 2015
UNIVERSAL PROTECTION SERVICE, L.P., Petitioner,v.THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent FLORIDALMA FRANCO, Real Party in Interest.
[REVIEW GRANTED bye CAL. SUPREME COURT]
[As modified Mar. 12, 2015.]
Petition for writ of mandate from an order of the Superior Court of San Diego County No. 37-2014-00012338- CU- MC-NC, Earl H. Maas III, Judge.
Page 1129
[Copyrighted Material Omitted]
Page 1130
Page 1131
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Jason Wade Kearnaghan, Cassidy M. English and Michael T. Campbell for Petitioner.
No appearance for Respondent.
The Dion-Kindem Law Firm, Peter R. Kindem, The Blanchard Law Group, Lonnie C. Blanchard and Jeffrey D. Holmes for Real Party in Interest.
Petitioner Universal Protection Service, L.P. (Universal) petitions for a writ of mandate and/or prohibition challenging the superior court's order granting real party in interest Floridalma Franco's demand to arbitrate her employment-related disputes with Universal and ruling the arbitrator would decide the arbitrability of Franco's class action claims. Universal contends the court legally erred in its ruling because the parties' arbitration agreement did not clearly and unmistakably submit arbitrability questions to the arbitrator, and thus it was for the superior court to decide whether the agreement authorized class and/or representative arbitration.
Page 1132
We conclude the court erred by granting Franco's petition in reliance on Green Tree Financial Corp. v. Bazzle (2003) 539 U.S. 444 [156 L.Ed.2d 414, 123 S.Ct. 2402] (Bazzle). Nevertheless, we agree with Franco that the parties' reference to American Arbitration Association (AAA) rules, which unambiguously state that the arbitrator is to decide whether the parties' arbitration agreement permits class arbitration, constitutes clear and unmistakable evidence of their intent that the arbitrator decide this issue, which is a threshold question of arbitrability. Because the trial court reached the correct conclusion, we deny the petition.
In 2008, Franco, then a Universal employee, signed an arbitration agreement providing that she and Universal agreed subject to some exceptions to arbitrate "any and all disputes or claims" between them, including disputes relating to their employment relationship and its termination, and disputes over wage and hour violations (the arbitration agreement). The arbitration agreement states that the arbitration is to be conducted "in accordance with the National Rules for the Resolution of Employment Disputes set forth by the [AAA]."[1]
In March 2014, Franco on behalf of herself and others similarly situated filed a claim for arbitration with the AAA setting out 11 causes of action based on Universal's alleged violations of the Labor Code and wage orders for not paying its security guards wages for regular and overtime hours, not providing required meal and rest breaks, not reimbursing for employment related expenses, and not providing itemized wage statements. In part, Franco
Page 1133
sought to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).
Universal responded to Franco's demand by filing a declaratory relief action in the San Diego Superior Court. It sought judicial declarations that (1) the court, not an arbitrator, decide whether class, collective or other representative arbitration is available under the arbitration agreement and (2) the arbitration agreement required Franco to arbitrate her claims on an individual basis only.
Franco petitioned to compel arbitration. She pointed out that AAA rules and supplementary rules empowered the arbitrator to determine the issues of arbitrability and his or her own jurisdiction, as well as rule on objections as to the scope of the arbitration agreement. Franco maintained that the parties' designation of those rules in the arbitration agreement demonstrated they agreed the arbitrability of Franco's class and PAGA claims was an issue for the arbitrator, precluding the court from deciding those issues. The motion was supported by the declaration of Franco's counsel, who averred in part that based on those rules, the parties "clearly agreed that the issue of the arbitrability of Plaintiff's class claims as well as the arbitrability of the PAGA claims is an issue for the arbitrator to decide."[2]
In opposition, Universal argued Franco had conceded that the superior court was to determine the " 'gateway question' " of whether Franco's claims could proceed on a class and/or representative basis in arbitration. (Italics omitted.) Relying in part on Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79 [154 L.Ed.2d 491, 123 S.Ct. 588], and Stolt-Nielsen S. A. v. AnimalFeeds International Corp. (2010) 559 U.S. 662 [176 L.Ed.2d 605, 130 S.Ct. 1758] (Stolt-Nielsen), Universal argued she had not provided evidence the parties had clearly and unmistakably agreed to submit that threshold issue to an arbitrator; that the choice to use AAA rules was not evidence of an agreement to delegate class arbitrability questions to the arbitrator, and courts had rejected such an argument. Universal further argued the parties' arbitration agreement was strictly limited to claims between it and Franco, making no reference to class arbitration, and thus the court could only order the parties to individual arbitration. Finally, Universal argued that under
Page 1134
Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 [173 Cal.Rptr.3d 289, 327 P.3d 129]. Franco's PAGA claim was not arbitrable.
Following a short hearing on the matter, the court granted Franco's petition to compel arbitration. Citing Garcia v. DIRECTV, Inc. (2004) 115 Cal.App.4th 297 [9 Cal.Rptr.3d 190] (Garcia), it ruled that "[t]he arbitrator shall decide the issue of whether the class action claims are arbitrable."
Universal filed this petition for writ of mandate or prohibition seeking an immediate stay and requesting that this court issue an alternative writ directing the superior court to vacate its order, or show cause why it should not be ordered to do so, and on return of that writ issue a peremptory writ of mandate directing the court to enter a new order denying Franco's motion to compel arbitration.
We issued an order to show cause, stayed the trial court's order and the parties' arbitration, and deemed, absent objection, Franco's informal response a return to the petition. We now deny the petition.
I. Standard of Review
Code of Civil Procedure section 1281.2, governing petitions to compel arbitration, provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement."
"The standard of review of an order compelling arbitration is substantial evidence, where the trial court's decision was based upon the resolution of disputed facts, or de novo where the facts are not in conflict." (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1360 [95 Cal.Rptr.3d 252],
citing Hartnell Community College Dist. v. Superior Court (2004) 124 Cal.App.4th 1443 [22 Cal.Rptr.3d 410].) The trial court here did not resolve factual disputes, but based its decision on what it believed to be controlling U.S. Supreme Court authority. Furthermore, the parties did not present conflicting evidence, but based their arguments strictly on the language of arbitration agreement and the referenced AAA rules, the language of which is
Page 1135
not in dispute. Under these circumstances, we determine the correctness of the court's decision, a legal question, de novo. (Accord, Robertson v. Health Net of California, Inc.
(2005) 132 Cal.App.4th 1419, 1425 [34 Cal.Rptr.3d 547] [appellate court employs de novo standard of review where court's ruling on motion to compel arbitration rests on a decision of law]; Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707 [111 Cal.Rptr.3d 876] [de novo standard applies to order on petition to compel arbitration where there is no factual dispute as to the agreement's language or conflicting evidence to aid its interpretation].)
II. The Superior Court Erred by Granting Franco's Motion to Compel Arbitration In Reliance on Garcia and Bazzle
Here, the superior court granted Franco's motion to compel arbitration based solely on Garcia, supra, 115 Cal.App.4th 297, which in turn held "[t]he Supreme Court ha[d] spoken" in Bazzle, supra, 539 U.S. 444 and "quite plainly mandates" that the arbitrator must decide in the first instance whether a particular arbitration agreement prohibits or permits class arbitrations. (Garcia, at pp. 298, 302.)
This court and others have declined to rely on Bazzle as the conclusive answer to that question. The Supreme Court's decisions in Stolt-Neilsen, supra, 559 U.S. at page 680, and Oxford Health Plans LLC v. Sutter (2013) 569 U.S.
__, __, fn. 2 [186 L.Ed.2d 113, 133 S.Ct. 2064, 2068, fn. 2] point out that Bazzle is a nonbinding plurality opinion, casting doubt on whether it should be accorded any deference. (See Garden Fresh Restaurant Corp. v. Superior Court
(2014) 231 Cal.App.4th 678, 685 [180 Cal.Rptr.3d 89] (Garden Fresh) [U.S. Supreme Court has not yet decided whether availability of class arbitration is a question for the court or for an arbitrator to decide]; Truly Nolen of American v. Superior Court (2012) 208 Cal.App.4th 487, 515, fn. 4 [145 Cal.Rptr.3d 432] [Bazzle was a nonbinding plurality decision on the point]; Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1129, fn. 6 [144 Cal.Rptr.3d 198].) We conclude that reliance on Garcia, supra, 115 Cal.App.4th 297 and Bazzle, supra, 539 U.S. 444 as the basis for granting Franco's petition to compel arbitration was error.
This conclusion, however, does not end the inquiry, as we review the correctness of the court's order, not its reasoning. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336 [113 Cal.Rptr.3d 279, 235 P.3d 947]; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19 [112 Cal.Rptr. 786, 520 P.2d 10]; Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 354 [175 Cal.Rptr.3d 145].) Here, Universal's action sought judicial declarations as to two matters.
Page 1136
The first was that the court declare that it, and not the arbitrator, had the power to decide the availability of class and/or representative arbitration. This court has now squarely held that this particular "who decides" question is a gateway question of arbitrability "for a court to decide, in the absence of a clear indication that the parties intended otherwise." (Garden Fresh, supra, 231 Cal.App.4th at p. 686, italics added.)[3]
In Garden Fresh, there was no dispute the parties' arbitration contracts were silent on that particular question. (Garden Fresh, supra, 231 Cal.App.4th at p. 682.) Where a contract is silent on the question of who primarily is to decide such threshold or gateway questions, "courts determine the parties' intent with the help of presumptions." (BG Group, PLC v. Republic of Argentina (2014) 572 U.S. ___ [188 L.Ed.2d 220, 134 S.Ct. 1198. 1206].) Without a clear indication of the parties' intent that the arbitrator decide questions of arbitrability, "courts presume that the parties intend courts, not arbitrators, to decide... disputes about 'arbitrability.' " (Ibid;
see Oxford Health Plans LLC v. Sutter, supra, 569 U.S. __, fn. 2 [133 S.Ct. 2064, 2069, fn. 2 [gateway questions of arbitrability are "presumptively for courts to decide" absent " 'clear[] and unmistakabl[e]' evidence that the parties wanted an arbitrator to resolve the dispute"]; First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944 [131 L.Ed.2d 985, 115 S.Ct. 1920] (First Options); Garden Fresh, at pp. 684-685.)
Whether there is clear and unmistakable evidence of the parties' intent is a heightened standard of proof. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 784 [137 Cal.Rptr.3d 773],
citing Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 69, fn. 1 [177 L.Ed.2d 403, 130 S.Ct. 2772].) Accordingly, "a contract's silence or ambiguity about the arbitrator's power [to decide a threshold question of arbitrability] cannot satisfy the clear and unmistakable evidence standard." (Ajamian v. CantorCO2e, L.P., at p. 782, citing First Options, supra, 514 U.S. at pp. 943-945.) The reason for this standard is that the issue of who should decide arbitrability "is rather arcane. A party often might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers. [Citations.] And, given the principle that a party can be forced to arbitrate only those issues it specifically has agreed to submit to arbitration, one can understand why courts might hesitate to interpret silence or ambiguity on the 'who should decide arbitrability' point as giving the arbitrators that power, for
Page 1137
doing so might too often force unwilling parties to arbitrate a matter they reasonably would have thought a judge, not an arbitrator, would decide." (First Options, at p. 945.)
"When deciding whether the parties agreed to arbitrate a certain matter (including arbitrability), courts generally... should apply ordinary state-law principles that govern the formation of contracts" subject to the "important qualification" that "[c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is 'clea[r] and unmistakabl[e]' evidence that they did so." (First Options, supra, 514 U.S. at p. 944.) Thus, as to "who decides" arbitrability, the question involved is fundamentally one of the parties' contractual intent, requiring both an analysis of the common understanding or ambiguity of the contractual language and, critically, reasonableness as well as the context in which the key terms appear. (See Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co.
(1993) 5 Cal.4th 854, 867 [21 Cal.Rptr.2d 691, 855 P.2d 1263]; Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 882 [162 Cal.Rptr.3d 211].)
III. The Parties' Consent to AAA Rules Is a Clear and Unmistakable Agreement That the Arbitrator Decides Arbitrability of Class and/or PAGA Claims
In its writ petition, Universal argues the arbitration agreement "makes no reference to who decides any threshold issues of arbitrability and makes no reference to class or representative arbitration." Universal compares the arbitration agreement's language to that in a case now on review before the California Supreme Court and no longer citable as precedent (see footnote 3, ante). Though we agree the arbitration clause in this case-providing the parties agree that "any and all disputes or claims between [Universal] and [Franco]... shall be resolved by arbitration"-does not expressly use the phrases class action or representative claims, this does not mean the arbitration agreement is without a clear and unmistakable indication of the parties' intent. (See Yahoo! Inc. v. Iversen
(N.D.Cal. 2011) 836 F.Supp.2d 1007, 1011, quoting Stolt-Nielsen, supra, 559 U.S. at pp. 669, 673 & Vazquez v. ServiceMaster Global Holding Inc. (N.D.Cal., June 29, 2011, No.09-cv-05148-SI) 2011 WL 2565574, fn 1 [Supreme Court has never held that the parties must explicitly mention that they agree to class arbitration in order for a decision maker to conclude the parties consented to class arbitration]; Parvataneni v. E*Trade Financial Corp. (N.D.Cal. 2013) 967 F.Supp.2d 1298, 1303.)
Franco's argument below, which Universal does not address in its writ petition, is that by referring to AAA rules in the arbitration agreement, the parties have clearly and unmistakably agreed that the arbitrator, not the court,
Page 1138
should decide whether the parties agreed to class and/or representative arbitration. In her informal response, Franco argues she presented "unmistakabl[e]" evidence the parties agreed the arbitrator would decide the issue because they incorporated the AAA rules, including specific AAA rules for class action arbitrations, into their agreement.
On this record, where the sole evidence of the parties' intent is the arbitration agreement and the relevant AAA rules, which were exhibits to the moving papers below, [4] we conclude Franco's argument has merit. As indicated, the parties' arbitration agreement unambiguously states that disputes "shall be resolved by arbitration before a neutral arbitrator in accordance with the National Rules of the Resolution of Employment Disputes set forth by the [AAA]." Paragraphs 3 and 6 of the AAA Employment Arbitration Rules and Mediation Procedures (AAA Employment Rules) respectively authorize the AAA to administer the arbitration and prescribe the arbitrator's power: "The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement."
But more specifically, an agreement to the AAA's Employment Rules necessarily includes an agreement to the AAA Supplementary Rules for Class Arbitrations (the Class Arbitration Rules). The Class Arbitration Rules provide, in part: "These Supplementary Rules for Class Arbitrations... shall apply to any dispute arising out of an agreement that provides for arbitration pursuant to any of the rules of the [AAA] where a party submits a dispute to arbitration on behalf of or against a class or purported class, and shall supplement any other applicable AAA rules. These Supplementary Rules shall also apply whenever a court refers a matter pleaded as a class action to the AAA for administration, or when a party to a pending AAA arbitration asserts new claims on behalf of or against a class or purported class." (Class Arbitration Rules, rule 1(a).)
The Class Arbitration Rules expressly state that the arbitrator shall engage in "construction" of the arbitration clause as to whether it permits the arbitration to proceed on behalf of or against a class: "Upon appointment, the arbitrator shall determine as a threshold matter, in a reasoned, partial final award on the construction of the arbitration clause, whether the applicable arbitration clause permits the arbitration to proceed on behalf of or against a class (the 'Clause Construction Award'). The arbitrator shall stay all proceedings following the issuance of the Clause Construction Award for a period of
Page 1139
at least 30 days to permit any party to move a court of competent jurisdiction to confirm or to vacate the Clause Construction Award." (Class Arbitration Rules, rule 3.) That rule further states: "In construing the applicable arbitration clause, the arbitrator shall not consider the existence of these Supplementary Rules, or any other AAA rules, to be a factor either in favor of or against permitting the arbitration to proceed on a class basis." (Class Arbitration Rules, rule 3.)
We hold under the circumstances of this case and on this record, that the parties' agreement to arbitrate their disputes under a specifically designated set of rules, which in turn provide that the arbitrator shall decide whether the parties' arbitration agreement permits class and/or representative arbitration, is clear and unmistakable evidence that the parties intended to delegate to the arbitrator that question. (Accord, Hartley v. Superior Court
(2011) 196 Cal.App.4th 1249, 1256-1257 [127 Cal.Rptr.3d 174] [addressing incorporation of a private arbitration service's rules: "Ordinarily, the parties' agreement to arbitrate in accordance with [rules giving the arbitrator authority to determine jurisdiction and arbitrability issues] 'is clear and unmistakable evidence of the intent that the arbitrator will decide whether a [c]ontested [c]laim is arbitrable' "]; Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 1442 [111 Cal.Rptr.3d 468];
see Yahoo! Inc. v. Iversen, supra, 836 F.Supp.2d at p. 1012 [incorporation by reference of the Class Arbitration Rules as they existed at the time Yahoo! Inc. and Iversen entered into their contract constitutes a "clear[] and unmistakabl[e]" agreement to have the arbitrator decide questions regarding the arbitrability of classwide claims].) This conclusion upholds the federal policy served by the Federal Arbitration Act (9 U.S.C. § 1 et seq.), which is " 'at bottom a policy guaranteeing the enforcement of private contractual arrangements.' " (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1353 [82 Cal.Rptr.3d 229, 190 P.3d 586], quoting Mitsubishi Motors v. Soler Chrysler–Plymouth (1985) 473 U.S. 614, 625 [87 L.Ed.2d 444, 105 S.Ct. 3346] & citing Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 58 [131 L.Ed.2d 76, 115 S.Ct. 1212].) " '[T]he basic objective in this area is... to ensure that commercial arbitration agreements, like other contracts, " 'are enforced according to their terms, ' " [citation], and according to the intentions of the parties.' " (Cable Connection, Inc., at p. 1353, quoting First Options, supra, 514 U.S. at p. 947;
see AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __, __ [179 L.Ed.2d 742, 131 S.Ct. 1740, 1745-1746] ["courts must place arbitration agreements on an equal footing with other contracts [citation] and enforce them according to their terms"]; Garden Fresh, supra, 231 Cal.App.4th at p. 684.)
This conclusion is also consistent with general contract principles. "A contract may validly include the provisions of a document not physically a part of the basic contract.... 'It is, of course, the law that the parties may
Page 1140
incorporate by reference into their contract the terms of some other document. [Citations.] But each case must turn on its facts. [Citation.] For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal, the reference must be called to the attention of the other party and he must consent thereto, and the terms of the incorporated document must be known or easily available to the contracting parties.' " (Williams Constr. Co. v. Standard–Pacific Corp. (1967) 254 Cal.App.2d 442, 454 [61 Cal.Rptr. 912];
see Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 66 [159 Cal.Rptr.3d 444]; Baker v. Osborne Development Corporation (2008) 159 Cal.App.4th 884, 895 [71 Cal.Rptr.3d 854]; King v. Larson Realty, Inc. (1981) 121 Cal.App.3d 349, 353-357 [175 Cal.Rptr. 226] [court held incorporated realtor association bylaws, which required members to arbitrate disputes and arbitration manual, reflected parties' agreement to arbitrate disputes as set forth in the arbitration manual].) Franco has not argued, nor can Universal as the drafter of the arbitration agreement, that the content of the referenced AAA rules were unknown or not readily available at the time Universal and Franco contracted.
We recognize there are conflicting California authorities on this question in differing contexts. This court's decision in Hartley v. Superior Court, supra, 196 Cal.App.4th 1249, involved a purchase agreement's provision that arbitration would be conducted in accordance with certain private judicial arbitration and mediation rules, which stated the arbitrator had authority to determine jurisdiction and arbitrability issues as a preliminary matter. (Id. at p. 1257.) Citing Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 557 [21 Cal.Rptr.3d 322] (Dream Theater), we acknowledged the general rule that an agreement to arbitrate in accordance with such a rule constitutes clear and unmistakable evidence of the parties' intent that the arbitrator will decide the arbitrability of a contested claim. (Hartley v. Superior Court, at pp. 1256-1257.) In that case, however, the parties' purchase agreement contained additional ambiguities; we concluded it was not clear and unmistakable because elsewhere it referred to a "trier of fact of competent jurisdiction" and not an "arbitrator, " and thus it did not meet the "heightened standard" to vary from the general rule that the court would decide such gateway issues. (Id. at pp. 1257-1258.) In Greenspan v. LADT, LLC, supra, 185 Cal.App.4th 1413, the Court of Appeal held that " 'when... parties explicitly incorporate rules that empower an arbitrator to decide issues of arbitrability, the incorporation serves as clear and unmistakable evidence of the parties' intent to delegate such issues to an arbitrator.' " (Id.
at p. 1442; see Gilbert Street Developers, LLC v. La Quinta Homes, LLC (2009) 174 Cal.App.4th 1185, 1193 [94 Cal.Rptr.3d 918] [observing that California cases hold that incorporation of AAA rules by reference was "sufficient to 'clearly and unmistakably' provide that arbitrators would have jurisdiction to decide their own jurisdiction, " and finding those cases to "represent the outer limits" of
Page 1141
incorporation by reference but declining to apply it in that case where the AAA rule was not in existence at the time of contracting]; Dream Theater, supra, 124 Cal.App.4th at pp. 550, 557 [parties agreed to conduct arbitration in accordance with AAA commercial rules, which provided the arbitrator would have power to rule on his own jurisdiction, including objections as to the scope of the agreement; "It is difficult to imagine how parties could state any more comprehensively... the intent to avoid litigation at every step of the dispute resolution process.... [The AAA commercial rules] specify that the arbitrator will decide disputes over the scope of the arbitration agreement. We conclude that the parties' agreement to arbitrate according to this rule is clear and unmistakable evidence of the intent that the arbitrator will decide whether a Contested Claim is arbitrable."].)
On the other hand, in Ajamian v. CantorCO2e, L.P., supra, 203 Cal.App.4th 771, the Court of Appeal "seriously question[ed]" whether the incorporation of AAA rules into an agreement provided clear and unmistakable evidence that an employer and employee intended to submit the issue of unconscionability of an arbitration provision to the arbitrator. (Ajamian, at p. 790.) But the observation was dicta; the Ajamian court expressly did not decide that question because there was a different reason in that case to conclude the parties had not so intended: the employment agreement at issue "did not mandate that AAA rules would necessarily apply. Instead, the arbitration clause stated that the arbitration would be held according to [the National Association of Securities Dealers] rules, AAA rules, or the rules of 'any other alternative dispute resolution organization' selected by [defendant] in its sole discretion." (Ajamian, at p. 791.) Furthermore, in that case, other provisions in the employment agreement suggested that the court (as opposed to the arbitrator) might find contractual provisions unenforceable, creating additional ambiguity. (Id. at pp. 791-792.) Because the parties' arbitration agreement in this case does not have these flaws, Ajamian is inapposite.
There is conflicting federal authority on the issue as well. In Reed Elsevier, Inc. v. Crockett (6th Cir. 2013) 734 F.3d 594, the federal Sixth Circuit Court of Appeals held that language of an arbitration clause providing for resolution under AAA commercial rules did not clearly and unmistakably assign to an arbitrator the question of whether the agreement permitted classwide arbitration. (734 F.3d at p. 599.) The court focused on the fact that the agreement "does not mention classwide arbitration at all, " holding it was, at best, silent or ambiguous on the issue, which was not enough to overcome the presumption that the issue should be decided by the court. (Ibid.) The court then proceeded to answer a different question from the "who decides" question-whether the parties' arbitration clause indeed authorized classwide arbitration-and held it did not, because the clause limited arbitration to claims "arising from or in connection with this Order" as opposed to other customer orders. (Ibid.) It rejected the customer's argument that incorporation
Page 1142
of the Class Arbitration Rules demonstrated otherwise, pointing out that they state "one should 'not consider the existence of these Supplementary Rules, or any other AAA rules, to be a factor either in favor of or against permitting the arbitration to proceed on a class basis.' " (734 F.3d at p. 600.) But this point is different from the "who decides" question. In any event, we disagree with Reed Elsevier's suggestion that the parties must expressly use the words "class arbitration" in their agreement in order to express an intent that an arbitrator (versus the court) decide whether the agreement permits it.[5]
In sum, Franco and Universal's agreement to resolve their arbitration under the AAA rules constitutes clear and unmistakable evidence of their intent that the arbitrator, not the court, interpret the arbitration agreement and decide whether it permits arbitration of class and/or representative claims. Accordingly, we deny Universal's petition.
Page 1143
The petition is denied. The stay issued on November 10, 2014, is vacated. Floridalma Franco shall recover her costs.
Nares, Acting P. J., and McIntyre, J., concurred.
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Abortion Barbie Under FBI Scrutiny
April 18, 2014 11:02am PST
In yet another ethical indiscrepency, Texas gubernatorial candidate Wendy Davis (a.k.a. the abortion barbie) has recently found herself the subject of an FBI investigation.
Back in January, you may remember that Davis was forced to come clean after it was revealed that her "troubling" teen mom past may have been exaggerated. As it turns out, she was married until she was well out of her teens, and managed to sign the papers the day after her husband paid the last payment of her college tuition.
Read more: "Abortion Barbie" Wendy Davis Admits She Lied About Being A Single Teen Mom
It appears her one little mistake, may actually be a pattern of intentional deceit composed to portray her in a more favorable light. Luckily for her opponents, the investigation has recently supplied a bit more ammo as they are referring to the incident as a, "bombshell."
Indicative of a deceptive past, the Dallas Morning News, explains that the investigation is, "related to Sen. Wendy Davis' work as a lawyer for the North Texas Tollway Authority are part of an FBI inquiry of the agency."
Now, at this point in time, it is unclear how involved Ms. Davis was in regards to the matter, but time will certainly tell. According to the paper, "It's not clear whether Davis' work for the tollway authority is a focus of the FBI or only part of the material collected in connection with its look into tollway agency operations."
Of course, her campaign team has once again taken to claiming ignorance on the matter noting, "We are not aware that Wendy Davis is the subject or target of any investigation." Seems like a similar excuse frequently used by our friends to the left.
(See also: Texas Senator "Abortion Queen": Children Are My First Priority)
Her current gubernatorial opponent, Greg Abbott, however, isn't going to just let this one pass by unanswered this time. Abbott's communications director, Matt Hirsch, expressed to the local media, "This revelation — the latest in a series of bombshells regarding Sen. Davis' ethical conduct — is both shocking and unsurprising at the same time."
Further expressing their desire to get to the bottom of things, despite it being in their best political advance, Hirsch went on to say, "Sen. Davis must fully disclose the facts about any wrongdoing and the extent of her involvement in that wrongdoing," Hirsch said. "Texans deserve to know the truth about Sen. Davis' involvement in a matter the FBI is investigating. This is a serious ethics issue that may violate federal law and cannot be swept under the rug, as Sen. Davis has tried to do when confronted with questions about her ethics thus far."
(See also: Pro-Abortion Senator Lying About Lying, Says Opponent Leaked Her Story )
When a pattern of corruption is established, it's time to re-evaluate the candidate.
Now, we all know that politicians have a long history of lying to the American people, but when will it be time where America says enough is enough? What do you think – will Americans smarten up before they allow another deceitful politician dictate their daily lives? Let us know in a comment below.
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You may also like to read:
- BREAKING: Hillary Clinton Caught In Major Lie – This Could Destroy Her
- Obama Caught Doing The Unthinkable On Camera
- FBI Gives Hillary Some Devastating News – This Could Be It For Her
- BREAKING: Hillary's Campaign Could Be Over After THIS Leaks… She's Panicking
- BREAKING: Clinton Investigator Breaks His Silence – Reveals Hillary's Darkest Secret…


text: Hey guys, Ok, so I'm using Quickfreedom's Boot image changer, and I followed every single direction I could using its troubleshooter. My Image dimensions are exactly 320 by 480 My Image Size is under 100KB (It is infact 62KB) My Image has been saved using the directions provided (Transparency saved as black) I made the NOR CFW file, and put my iTouch into recovery mode. Restored the firmware, and got an iTunes error (6). My iTouch has a white screen right now, and I'm gonna restore it using the presupplied logo's for now. Here are the logo's exactly as how I saved them: Please Register or Log in to view images Please Register or Log in to view images Can someone help me out, and explain what I'm doing wrong? Also, just a quick question, seeing as how the background will be black, those white spots will turn black right? Thanks.


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decided: February 3, 1982.
BOROUGH OF PLEASANT HILLS, PETITIONERv.COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT
Appeal from the Orders of the Unemployment Compensation Board of Review in the cases of In Re: Claims of Marjorie Noble Smith, No. B-181383; Patricia A. Galiszewski, No. B-181384; Constance C. Daerr, No. B-181385; Elizabeth M. Mayak, No. B-181386; Lois J. Lang, No. B-181387; Julia Zeher, No. B-181388; Doris Jean Barruso, No. B-181389; Dolores A. Slogan, No. B-181390; Dolores M. Kephart, No. B-181391; Agnes Dolinar, No. B-181392; and Charlotte Josephine Erringer, No. B-181393.
Henry E. Rea, Jr., with him John Newborg, Brandt, Milnes, Rea & Malone, for petitioner.
Charles Hasson, Associate Counsel, with him Stephen B. Lipson, Assistant Attorney General, Richard Wagner, Chief Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.
President Judge Crumlish, Jr. and Judges Rogers and Craig, sitting as a panel of three. Opinion by President Judge Crumlish, Jr. Judge Palladino did not participate in the decision in this case.
[ 64 Pa. Commw. Page 411]
The Borough of Pleasant Hills appeals an Unemployment Compensation Board of Review order which granted benefits to school crossing guards. We affirm.
In June 1979, the school crossing guards received letters from the Borough assuring them that they would be reemployed when the school year began on September 4, 1979. However, because of a teachers' strike, the school year did not begin until October 19, 1979. The Board held (1) that the appellees were eligible for benefits under Section 401(d)*fn1 of the Unemployment Compensation Law because they were available for work, and (2) Section 402.1(2)*fn2 was inapplicable
[ 64 Pa. Commw. Page 412]
since appellees were not employed by "an educational institution" and the time period in question was not "between two successive academic years." We agree.
Our scope of review, where the party with the burden of proof has prevailed below, is limited to questions of law and a determination of whether the findings of the Board are supported by substantial evidence. Maxwell v. Unemployment Compensation Board of Review, 54 Pa. Commonwealth Ct. 604, 423 A.2d 430 (1980).
Here we agree with the Board's conclusion that the appellees were available for work. We have held that school employees are "unavailable for work" under Section 401(d) when they expect and desire to return to work after the summer recess. Davis v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 146, 394 A.2d 1320 (1978). Here the factual situation dictates a different result. The appellees are not seeking benefits for a period of unemployment during the summer months, but rather for a time period during the scheduled academic year during which they were unemployed through no fault of their own.
Additionally, they were not precluded from receiving benefits under Section 402(d)*fn3 because they were not directly interested in nor participating in the teachers' strike. We also agree with the Board's conclusion that Section 402.1(2) was not meant to apply in this situation. This section reads in pertinent part:
With respect to services performed after December 31, 1977, in any other capacity for an educational institution. . . benefits shall not be
[ 64 Pa. Commw. Page 413]
paid on the basis of such services to any individual for any week which commences during a period between two successive academic years or terms if such individual performs such services in the first of such academic years or terms and there is a reasonable assurance that such individual will perform such services in the second of such academic years or terms. (Emphasis added.)
Here appellees are employees of the Borough. Although the Borough receives a 50% reimbursement for their salaries from the West Jefferson School District, there was testimony that the Borough maintains complete control over the guards. Thus, we cannot conclude that the guards perform services for "an educational institution." In addition, the guards received letters assuring them that they would commence work as of September 4th, the beginning of the academic year. From this letter, it is clear that the academic year began on this date for purposes of employment.
The intent of the legislature, in adding Section 402.1(2), was to preclude teachers from receiving unemployment benefits during the summer months between academic years. Davis.
We conclude that the Board correctly interpreted this statute to be inapplicable in this particular situation.
The orders of the Unemployment Compensation Board of Review, dated February 27, 1980, Nos. B-181383, B-181384, B-181385, B-181386, B-181387, B-181388, B-181389, B-181390, B-181391, B-181392, and B-181393, are affirmed.
Judge Palladino did not participate in the decision in this case.
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Fiery Baked Beans
Total Time
Prep 5 mins
Cook 45 mins
I haven't tried this yet, but I definitely have the urge to try this. It seems very simple to make when all ingredients are on hand.
Ingredients Nutrition
- 1⁄2 cup onion, chopped
- 2 tablespoons maple syrup
- 1 tablespoon Dijon mustard
- 1 tablespoon chipotle chile in adobo
- 1 teaspoon chipotle chile in adobo
- 2 (16 ounce) cans navy beans
- 1 cup ketchup
- 1 teaspoon cinnamon
- salt and pepper, to taste
- Preheat oven to 350.
- Combine all ingredients in a large bowl.
- Coat a shallow 7x11 dish with cooking spray.
- Add beans.
- Bake for 45 minutes.
Most Helpful
This was very good. I made this recipe last 4th of July and was going to post the recipe, but you've saved me the trouble! We all liked the heat and flavor of the chapotle chilies added, but thought that the cinnamon was a little too much. The next time I'll use a little less, maybe 1/2 teaspoon. Thanks for posting this!
Oh my, were these HOT. I liked them but my DH could not take the heat! Very easy to put together. I baked for one hour. I might might have to leave the chipotles out the next time I make these. Thanks for posting.


text: Governor Matt Mead Gov. Mead's Supplemental Budget Features No New Cuts By Bob Beck • Nov 30, 2016 Bob Beck Wyoming Governor Matt Mead unveiled a mostly flat supplemental budget that features no new budget cuts. The governor is proposing limited spending, using only a small portion of the legislature's rainy day fund for things like Title 25 that addresses those with mental health issues, and a contingency fund for corrections. He put forth bonding as a way to fix problems with the prison in Rawlins. Mead Cuts State Budget By $248 Million By Bob Beck • Jun 21, 2016 Bob Beck Due to declining state revenues, Governor Matt Mead announced that he is cutting the state budget by $248 million. The Wyoming Department of Health is being asked to cut its budget by $90 million for the next two years, which Mead said will lead to a loss of 677 private sector jobs. The University of Wyoming will cut $35 million, community colleges $20 million and the Department of Corrections $17 million. Mead told the Joint Appropriations Committee Tuesday that he had no choice. Budget Cuts Before Taxes By Bob Beck • May 23, 2016 Bob Beck Wyoming's revenue picture is dire. Thanks to declining energy and sales tax revenue Governor Mead has already started cutting nearly 300 million dollars from the two-year budget that was approved by the legislature in March. Governor Matt Mead's Approval Rating Ranks Near Top Of U.S. Governors By Caroline Ballard • May 17, 2016 According to a new poll, Wyoming Governor Matt Mead has the third highest approval rating of Governors across the U.S. The survey results were released last week by the non-partisan media and polling organization Morning Consult, which listed Governor Mead's approval rating at 67 percent. Jeff Cartwright is the communications director at Morning Consult. He says even with Wyoming facing a budget crunch, Governor Mead's approval ratings may not be affected, simply because it's hard to predict what will hurt a governor's image. Work By Jackson, Laramie Artists To Be Added To State's Public Buildings By Sara Teter • Feb 9, 2016 Some of Wyoming's best artists will be recognized this week at the 2016 Governor's Capitol Art Exhibition and Sale. Four works receiving the Purchase Awards join a growing collection of art in the state's public buildings. This year's Purchase Awards go to Jackson artists Martin Hagen and Valerie Seaberg and Laramie artists Dan Hayward and Joy Keown. A painting by Cheyenne's Rachel Ondrak received the Governor's Choice Award. Governor Matt Mead's 2016 State Of The State Address By Wyoming Public Media • Feb 8, 2016 Office of the Governor Wyoming Governor Matt Mead delivered his State of the State address this morning before members of the Legislature in Cheyenne. Wyoming Could Benefit From Presidential Memo On Wildlife Habitat By Melodie Edwards • Dec 9, 2015 nature.org Last week, President Obama issued a Presidential Memorandum to slow down the loss of wildlife habitat to human development. Governor Mead's Natural Resources Policy Advisor, Jeremiah Reiman says the memo took Western states by surprise. "We do share frustration that it was developed without input from many of us." But he does hope the feds borrow from Wyoming's approach to the greater sage grouse, which didn't just seek to protect the bird, but its entire habitat. Governor Discusses His Budget Proposal By Bob Beck • Dec 4, 2015 Bob Beck With the Consensus Revenue estimating group saying that revenues are dropping, Governor Matt Mead announced his budget this week. While his budget reduces spending that will impact some, it does not feature the deep cuts some feared. The governor is proposing to balance the budget by borrowing from reserves initially and paying it back with future income. Green River Running High And Dry By Melodie Edwards • Dec 4, 2015 Seedskadee National Wildlife Refuge The shadows of cottonwood trees grow long as the sun sets over Seedskadee National Wildlife Refuge in southwestern Wyoming. A perfect time to spot wildlife on the Green River. Among the reeds, I see a white patch with a long neck. A trumpeter swan. Refuge project leader Tom Koerner passes me a pair of binoculars. "That's probably a single bird and right in this wetland unit we just drove by there's three different pairs that nest in here," Koerner says. Mead Unveils Budget And Local Governments Will Be Impacted By Bob Beck • Dec 1, 2015 Bob Beck Wyoming Governor Matt Mead unveiled his proposed budget for the next two years. The governor will address the budget shortfall by borrowing short term from the legislative reserve account and pay back that account with investment income. Mead says his budget is about 200 million dollars less than it was two years ago. Much of the proposed cuts are to local government funding. Mead reduced spending for cities and counties to 90 million dollars down from 175 million dollars two years ago. The governor says that reduction will have a big impact. Mead Says Wyoming Will Overcome Challenges By Bob Beck • Nov 17, 2015 Governor Matt Mead said that Wyoming can diversify its economy through technology and that the energy industry will bounce back. During a speech to kick off his annual business forum on Tuesday, Mead said that technology was poised to be Wyoming's fourth leading industry. He discussed the enhancement of high-speed internet throughout the state and a number of other advances the state has made to attract technology-based business. Mead said such work is important to the state's future and it goes beyond economics. UW Will Freeze Hiring And Look For Budget Reductions By Bob Beck • Oct 9, 2015 University of Wyoming The University of Wyoming said it will follow the governor's order and implement a hiring freeze, as well as try and find ways to return some money to the state. Governor Matt Mead this week said that the state needs to cut up to 200 million dollars from its existing budget due to a revenue shortfall. He hopes to acquire 18 million dollars through leaving unfilled positions vacant. Governor Calls For Budget Cuts By Bob Beck • Oct 7, 2015 Bob Beck / Wyoming Public Radio Wyoming Governor Matt Mead says a dip in energy revenues will require the state to cut up to 200 million dollars from its existing budget. The governor has instituted a hiring freeze and will be looking to every agency to return unspent money. Mead would like to avoid layoffs. "I do not think that this is an area I will be looking at. I think we can get roughly 18 million dollars by not filling vacant positions and with a hiring freeze." Mead said citizens will accept some reduction in services, but added that the state will likely need to dip into savings. Governor Asks Public For Input On Energy Strategy By Stephanie Joyce • Oct 5, 2015 Leigh Paterson / Inside Energy After holding a number of meetings to gather public input on an energy strategy for Wyoming, the Governor's office is now asking people to vote on how to move forward. The Governor released his first energy strategy in 2013. The administration says it has completed most of the initiatives identified in that document, which is why it's now looking at a new set. Governor Mead Looks To Reform Endangered Species Act By Melodie Edwards • Sep 11, 2015 Office of the Governor People in Wyoming are passionate about wildlife. Just say the word "wolf" in mixed company and see what happens. And it's the state's long history of negotiating with the federal government over endangered species like the sage grouse and the grizzly that has prompted Governor Matt Mead this month to announce an initiative to reform the 42-year-old Endangered Species Act. I asked him, what made him decide now was the time for this. Governor Says It's Time To Dip Into Rainy Day Funds By Bob Beck • Aug 19, 2015 Bob Beck Wyoming Governor Matt Mead says it's time for the state to dip into its rainy day funds to get through some lean economic times. Falling oil and gas prices and declining coal revenues are reducing state revenues. He says the state will need to use some of the nearly two billion dollars in savings to get through the next two year budget cycle. While the state can reduce spending, Mead says there are still a lot of needs such as funding for local governments. Governor Mead Advocates Moving Beyond Climate Debate By Stephanie Joyce • Aug 14, 2015 Office of the Governor Energy has always been an important topic in Wyoming, but it's increasingly becoming an important global conversation, especially in the context of climate change. Wyoming, as the second-largest energy producing state in the nation, is central to that conversation. Decisions made today will likely affect the state and the country for years and decades to come. In an interview with Wyoming Public Radio's energy reporter Stephanie Joyce, Governor Matt Mead started by saying he thinks it's time to move past the debate about climate change. Reluctantly, Governor Mead Explores Options To Cut Carbon Emissions By Stephanie Joyce • Aug 12, 2015 Office of the Governor Wyoming Governor Matt Mead says the state will draft a plan to comply with new federal regulations for carbon emissions from power plants. The Obama administration released the final version of its Clean Power Plan last week. It requires Wyoming to reduce its carbon emissions more than 40 percent by 2030. Sheridan Poet Named 7th Poet Laureate Of Wyoming By Melodie Edwards • Jul 10, 2015 Governor Mead announced the state's new official poet Thursday. He gave the honor of poet laureate to Rose Hill of Sheridan, a local business owner and long-time writer. Mead said Hill was chosen for the position because her poetry was "beautiful and eloquent and something I couldn't do." At a ceremony, he signed an executive order naming Hill and afterward, she read a sample of her work. Hill is Wyoming's seventh poet laureate. Mead Looks To Humanities Council Amid Refugee Debate By Aaron Schrank • Jul 3, 2015 Governor Matt Mead is turning to the Wyoming Humanities Council to facilitate more productive discussion on a refugee resettlement program in the state. Wyoming is the only state without a resettlement program, and the Governor says misinformation is slowing down progress on the issue. Wyoming Humanities Council Executive Director Shannon Smith says her group will send experts around the state to lead public discussions about refugee resettlement. Governor Mead Sets Up Marijuana Study Council By Bob Beck • Jun 30, 2015 Governor Matt Mead is creating a task force that is intended to gather information on the pros and cons of legalizing marijuana in Wyoming. The governor says he continues to oppose any legalization of the drug. But he says he wants to get ahead of a possible 2016 general election ballot initiative that could ask voters to decide whether to legalize medical marijuana. Governor Mead Would Like To Avoid Budget Cuts By Bob Beck • May 26, 2015 Governor Matt Mead and other state officials are spending the summer watching energy prices as they make plans for a new budget next year. The governor says his priorities range from local government to health care. Mead expects that projected revenue may be down for the next two years, but he doesn't want budget cuts. "To cut another six percent as we did before I think would be very difficult, I think just not hiring people to fill jobs would be difficult and even together it may not make up the difference." Governor Calls For Energy Innovation In Wyoming By Stephanie Joyce • May 12, 2015 Stephanie Joyce Citing recent decisions by financial companies like Bank of America to withdraw funding from coal operations, Governor Matt Mead says Wyoming needs to innovate in order to stay an energy leader. During his keynote address at the Wyoming Business Report's Energy Summit, Mead said that he has and will continue to fight against federal regulations, but added that more will be needed. State Kicks Off Wyoming Grown Program By Bob Beck • May 11, 2015 Bob Beck / Wyoming Public Radio Wyoming's Department of Workforce Services has unveiled a new program intended to bring former residents back to the state to live and work. Called Wyoming Grown, it allows family members or friends of someone living out of state to refer them the Department of Workforce Services, who will attempt to recruit them back to Wyoming to fill a job. WyoFile Reporter Says State's Sage Grouse Plan Must Prove Its Adaptability By Melodie Edwards • May 1, 2015 Department Of Wildlife It's been five years since Governor Matt Mead signed an executive order giving special protections to the state's greater sage grouse populations. Now that order says it's time to re-evaluate the plan and make sure it's actually doing its job. The goal is to convince the U.S. Fish and Wildlife not to list the grouse as an endangered species come September 30. Hess Corp Is UW's Biggest Corporate Donor By Aaron Schrank • Mar 26, 2015 University of Wyoming The Hess Corporation announced a $15 million donation to the University of Wyoming's School of Energy Resources Thursday. Hess has now given a total of $25 million to UW, making the oil and gas giant the largest corporate donor in the university's history. The funds will go towards construction of UW's High Bay Research Facility—as well as equipment used in the facility and some proprietary research done there. Hess's research will focus mostly on figuring out how to tap hard-to-reach oil and gas reservoirs. Governor Mead Says The Legislative Session Had Some Disappointments By Bob Beck • Mar 20, 2015 Bob Beck A few weeks ago the Wyoming legislative session came to a close and Governor Matt Mead admitted that he had a number of concerns. The biggest was the failure of the legislature to pass Medicaid Expansion. The governor tells us that he knew it would be a tough sell, but it was tougher than he thought. UW Breaks Ground On $53.5 Million High-Bay Research Facility By Caroline Ballard • Mar 10, 2015 Caroline Ballard Wyoming Governor Matt Mead, politicians, and energy industry reps gathered at the University of Wyoming Monday to break ground on a state-of-the-art building . The $53.5 million dollar High-Bay Research Facility was funded mostly by the state government, but over $16 million of that came from energy companies. UW President Dick McGinity says their financial support points to a key partnership between industry, government, and higher education. Wyoming Gears Up For Annual Homeless Count By Aaron Schrank • Jan 27, 2015 Aaron Schrank/WPR All day Wednesday, volunteers will be canvassing Wyoming's homeless shelters and streets in an effort to come up with a sort of homeless census. The annual effort is what's called a homeless 'point-in-time' count. The results are used by agencies like the federal Department of Housing and Urban Development to determine how much funding and assistance is needed in the state. Brenda Lyttle with the Department of Family Services is Wyoming's homeless coordinator. She says last year, Wyoming's count of homeless residents was about one-thousand. Matt Mead, Governor Of Wyoming By Matt Mead • Jan 26, 2015 governor.wyo.gov Pages1 2 3 4 next › last »


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Deluxe Luau Package - Paradise Cove Luau
Start your evening in a Hawaiian village where you can participate in arts, crafts and games such as coconut tree climbing and a demonstration with a unique shower of flowers. See Hawaii's only Hukilau Ceremony where guests, dressed as villagers, help to pull in the fishing net. Also view Hawaii's only imu amphitheater showcasing the Royal Court Procession and the unearthing of the "Kalua Pua"a (roasted pig). This is followed by a spectacular Hawaiian Revue, which includes Tahitian and Samoan dances and audience participation.
Operates: Daily.
Departure Point: Located by the Ko'Olina Resort on 12 oceanfront acres approximately 1 hour from Waikiki.
Duration: Approximately 3 hours.
Equipment: N/A
Capacity: 1,200 guests.
Lomi lomi salmon, kalua pig, island fish with macadamia nut creme sauce, local style chicken, salad bar, macaroni salad, poi, steamed white rice, taro dinner rolls with butter and fresh pineapple chunks.
Coconut cake and haupia.
Beverages include coffee or hot tea.
Inclusions: Mai tai and fresh flower or Kukui Nut lei greeting, Cove Card $24 adults and $18 for children - that can be used towards drinks at the bar, photographs or merchandise from the Marketplace, table service in the deluxe seating area, Hawaiian luau dinner and show, and souvenir arrival photo and gift.
Exclusions: Round-trip transportation from Waikiki for an additional fee. Hotel pick up for guests of Hale Koa at 3:15, guests of Ilikai Hotel, Sheraton Waikiki (bus depot), Hyatt Regency (Koa Ave), Kahala Hotel (front entrance) at 3:30 pm, guests of Hilton Hawaiian (Rainbow Drive Curbside Tapa Tower), Ohana West(Walina St), Aston Waikiki(Paoakalani Ave) at 3:45 pm, guests of Ala Moana Hotel(front lobby), Waikiki Gateway(Olohana St) at 4:00 pm.
Serves Alcohol: There is alcohol that is available during the activity.
Foreign Language Translation: There is no foreign language translation available.
Handicapped Accessible: Participants who use a walker can go on this tour. Participants who require a wheelchair can go on this tour.
Required Certifications: The participant is not required to have any certification or special license in order to participate.
Restrictions: Cancellations of this reservation cannot be made within forty-eight hours of the scheduled check in time.
Bring a valid picture ID to be served alcohol. Bring a sweater for Winter months and flat shoes for comfort. Special handicapped or wheelchair accommodations available with 72 hours notice. This tour has a 48 hour cancellation policy. This means that once you're within 48 hours of the start time, the tour the tour is non refundable. If you choose to cancel before this time, the standard 10% cancellation fee will apply. If the vendor needs to cancel your tour because of weather, a mechanical issue or any other reason you will receive a 100% refund of the price you paid.
Additional Information
Adult With Transportation
Youth 13-20 With Transportation
Child 12 and Under With Transportation
Adult No Transportation
Youth 13-20 No Transportation
Child 12 and Under No Transportation
Lap Child 0-3
Today's prices are shown. To request a reservation please select a day and time from the calendar below.
(All bookings are backed by Tom Barefoot's "Low Price Guarantee". Online orders may take up to 24 hours to be processed. The availability displayed above is frequently updated and always subject to change.)
- # 500+ People
- # West Oahu
- # 2-4 Hours
- # Hula Dancing
- # Tours With a Guide
- # Walker Accessible
- # Wheelchair Accessible
- # Hotel Pickup is Available
- # Includes Dinner
- # No Swim Stop Included
- # Traditional Hawaiian Luau
- # No Certification or Special License Required
- # Alcohol Is Available
- # Moderate
- # Relaxed
- # Evening
- # Land
- # No Translation Available
- # No Minimum Age
- # West Oahu
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November 14, 2012
CARPENTER TECHNOLOGY CORP., PLAINTIFF,v. ALLEGHENY TECHNOLOGIES, INC., AND ATI PROPERTIES, INC., DEFENDANTS.
ATI moves to exclude deposition testimony of three individuals: Carpenter employee Dr. Sunil Widge and GE employees Robin Schwant and Dr. Sam Thamboo. Drs. Thamboo and Widge specifically testified as to the "obviousness" of '564 and '858 Patents. Mr. Schwant, while not specifically mentioning "obviousness," testified that the processes described in the '564 Patent were "standard stuff." Carpenter and ATI agree that, to the extent these witnesses are permitted to testify at trial, they are limited to their deposition testimony. For the following reasons, I will grant in part and deny in part ATI's motion.
I note first that the testimony in question is inadmissible under Federal Rule of Evidence 702. Although Carpenter initially designated Mr. Schwant, Dr. Thamboo, and Dr. Widge as experts, a review of their deposition testimony indicates that Carpenter made no attempt to show that their opinions were based upon sufficient facts or data, that their opinions were the result of reliable principles and methods, or that they applied the principles and methods reliably to the facts of this case. Carpenter has not satisfied Rule 702's requirements for expert witnesses with respect to Mr. Schwant's, Dr. Thamboo's, and Dr. Widge's opinion testimony on the issue of obviousness.
Carpenter alternatively contends that the testimony in question is admissible under Federal Rule of Evidence 701. Rule 701, which governs lay witness testimony, provides that"[i]f a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." ATI argues that the relevant testimony is inadmissible under Rule 701 because it is based on "scientific, technical, or other specialized knowledge." While testimony is not necessarily inadmissible simply because the subject matter is subject matter is specialized or technical, see Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 81 (3d Cir. 2009), the clear weight of authority militates against permitted lay testimony on the issue of obviousness. See Freedom Wireless, Inc. v. Boston Communications Group, Inc., 369 F. Supp. 2d 155, 157 (D. Mass. 2005) ("[The witness's] opinions on obviousness and triviality were based on his highly technical and specialized knowledge of telecommunications. But Rule 701 explicitly bars lay witnesses from giving opinions based on technical or specialized knowledge."); Hypertherm, Inc. v. Am. Torch Tip Co., CIV. 05-CV-373-JD, 2009 WL 435324, at *4 (D.N.H. Feb. 19, 2009) ("[N]o lay opinion testimony will be permitted on the issues of infringement and patent invalidity."); Gart v. Logitech, Inc., 254 F. Supp. 2d 1119, 1123 (C.D. Cal. 2003) ("[W]hen the declarants compare the [prior art] to the [] Patent [at issue], they provide testimony that does require specialized knowledge. This they are not permitted to do as lay witnesses."); Marine Polymer Technologies, Inc. v. HemCon, Inc., CIV. 06-CV-100-JD, 2009 WL 801826, at *5 (D.N.H. Mar. 24, 2009) ("A witness's testimony about the obviousness of an invention, in patent litigation, however, requires 'highly technical and specialized knowledge' that is beyond the scope of Rule 701.") (quoting Freedom Wireless, Inc., 369 F. Supp. 2d at 157); Fresenius Med. Care Holdings, Inc. v. Baxter Int'l, Inc., C 03-1431 SBA, 2006 WL 1330002, at *3 (N.D. Cal. May 15, 2006) (barring lay witness testimony comparing prior art to patent at issue). Accordingly, Mr. Schwant, Dr. Thamboo, and Dr. Widge will not be permitted to testify as to the obviousness of the '564 and '858 Patents at trial.
Finally, Carpenter contends that even if the testimony in question is inadmissible on the issue of obviousness, it is admissible for the more limited purpose of defending against ATI's claim of willful infringement. According, to Carpenter, "[s]trong evidence of a corporate entities' [sic] lack of willfulness in infringing a patent is found with its employees." Doc. No. 140 at 13. By this standard, the testimony of Mr. Schwant and Dr. Thamboo is not admissible as a defense to willfulness because they are not Carpenter employees. As to Dr. Widge's testimony, however, I agree with Carpenter that it is relevant and admissible for the limited purpose of defending against ATI's charge of willful infringement. See CNH Am. LLC v. Kinze Mfg., Inc., 809 F. Supp. 2d 280, 288
(D. Del. 2011) (testimony of company "engineer who worked on the development of the [allegedly infringing product] . . . on why he and the rest of the . . . development team believed that the [product] would not infringe . . . was highly relevant to the issue of willfulness").
In sum, to the extent Mr. Schwant, Dr. Thamboo, and Dr. Widge opined on the obviousness of the '564 and '858 Patents in their depositions, that testimony is not admissible for the purpose of establishing obviousness at trial. Dr. Widge's testimony, however, is relevant and admissible for the limited purpose of defending against ATI's charge of willful infringement.
An appropriate order follows.
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Cottage in Hereford, Herefordshire, England - Peaceful Location Half A Mile From A 14 Centry Inn
Much Dewchurch Cottages lie 5 miles from the cathedral city of Hereford, with good shops, theatre, cinema, leisure centre and horse racing courses and 9 miles from the market town of Ross-on-Wye in the heart of the Wye Valley. Positioned in the grounds of the main farmhouse in the peaceful surroundings of 230 acres of fields, woodland and lakes, perfect for long rambling walks, holiday cottages and a that have been converted from the old Scudamore racing stables with panoramic views of the Black Mountains. They are situated overlooking the beautiful, tranquil village of Much Dewchurch with a cider farm next door and the local 14th century pub only 5 minutes walk, many other pubs, restaurants and shops nearby. With golf, horse riding, fishing canoeing and many more activities at hand. For a great get away to rural England, Herefordshire offers a wonderful opportunity.
About the Owner
We are Handley and Jacqui Scudamore. We have lived in the village for forty two years and have just got married in the local church as you can see from the picture.
Guestbook comments from the owner
This is a beautifully decorated property with very friendly hosts! Lots of great places to visit near by and a lovely cosy converted farm house to come back to
The pictures in the brochure really didn't do this place justice. It has the most amazing view over the countryside beyond with not a single building in site for what seems like miles. We were welcomed by the owner of the cottage who was so nice and said that we could go wherever we liked on the 360 acres that they owned. He recommended some pubs to go to and places to eat. Very enjoyable relaxing break. I would definitely book to go there again and next time take more people and rent more of the cottages available
0 Reviews
From the Owner
"In 2002 we decided to convert the old Scudamore racing stables into holiday cottages, we live on a hill overlooking the Black Mountains with a pub half a mile away, we are set out of the village with very little traffic and noise. The farm is 230 acres of arable and grass to walk over and woods and lakes to explore."
Activity and Interests
Birmingham airport 60 miles away
Bristol airport 60 miles away
Much Dewchurch is half a mile away and Hereford town is 6 miles away
Ross on wye 9 miles and hay on wye 20 miles
Further Details:
We have two local shops about two miles away and 5 miles away is an out of town tesco, on site we have paint balling and clay shooting
Rental rates
Additional pricing information
|No additional mandatory fees
Booking Notes:
Deposit of 25% on booking and the total 2 weeks before arrival
credit cards taken
Changeover Day:
Change over day for a week booking is Saturday
short breaks vary
arrival time 3 pm
departure time 10 am
Notes on prices:
Prices do vary from week to week
Owner's Cancellation Policy
- 50% refund for cancellations more than 7 days before check-in date.
- 100% refund for cancellations more than 14 days before check-in date.
- 12
- Available arrival
- 12
- Available
- 12
- Unavailable
From the Owner
"The cottages lye outside the village but close enough to walk to with all the ground around you to explore and walk.The cottages are dog and cat friendly and very quiet. The great thing about the cottages is you can do as much or as little as you want from golf to paint balling and clay shooting it is all on the doorstep."
Property Type
- cottage
- Adventure
- Away From It All
- Family
- Farm Holidays
- Holiday Complex
- Romantic
- Sports & Activities
- Tourist Attractions
- Heating
- Iron & Board
- Linens Provided
- Living Room ...
- Parking
- Towels Provided
- Washing Machine
- Dishes & Utensils
- Freezer
- Kitchen ...
- Microwave
- Oven
- Refrigerator
- Hob
- Toaster
- Child's Highchair
- Dining Area
- DVD Player
- Television
- Events Allowed
- children welcome
- non smoking only
- pets considered ...
- suitable for elderly or infirm
- wheelchair accessible ...
Location Type
- mountain
- rural
- village
- autumn foliage
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- forests
- museums
- pond
- restaurants
Leisure Activities
- bird watching
- horse riding
- scenic drives
- sight seeing
- walking
Local Services & Businesses
- ATM/bank
- fitness centre
- groceries
- hospital
- medical services
Sports & Adventure Activities
- cycling
- fishing
- fly fishing
- golf
- hiking
- mountain biking
- swimming
- Bathroom 1 - Toilet, Bath (no shower), Shower Enclosure
- Bathroom has bath shower over bath toilet and basin
- 2 Bedrooms, Sleeps 4
- Bedroom 1 - 1 Cot
- Bedroom 2
- Description of sleeping capacity: Sleeps 4 (2 Bedrooms) Notes on bedrooms: Bedroom 1 double bed Bedroom 2 twin beds
- Terrace
- Golf ...
- Garden
- Barbecue
- Self-catering
Learn more about this holiday rental at the owner's website
- Outside: Outside the cottage is a big lawn with a patio area with bbq and seating Utility Room: Hover, mop, dustpan, broom Cleaning / Towels / Linen / Maid service: All towels and linen are included in the cottage