The Appellate Court in Orange County has determined that the arbitration clause in CAR’s Independent Contractor Agreement (Form ICA) is invalid. CAR publishes contracts which are widely used in the Real Estate business in California. They publish an Independent Contractor Agreement, which is commonly used by brokers when employing salespeople. In this case, a salesperson sued Century 21 and its broker, claiming damages arising from alleged gender discrimination and sexual harassment. Century 21 filed a petition for arbitration of the dispute, citing the binding arbitration clause in the Independent Contractor Agreement, which was signed by both parties. However, the court held that the binding arbitration clause was procedurally and substantively unconscionable, leading to the inevitable conclusion it is unenforceable. In June, 2011, CAR published a

new version of this form which deleted the binding arbitration clause.

The appellate court in Orange County recently ruled [CUESTA v. BENHAM, G043788 (Cal.App. 3-29-2011)] that a landlord was entitled to recover its attorney’s fees against a tenant, where the landlord prevailed in an action for rent, but did not recover the full amount he was suing for. “If the results in a case are lopsided in terms of one party obtaining “greater relief” than the other in comparative terms, it may be an abuse of discretion for the trial court not to recognize that the party obtaining the “greater” relief was indeed the prevailing party. (Silver Creek, LLC v. BlackRock Realty Advisors, Inc. (2009) 173 Cal.App.4th 1533, 1541 (Silver Creek) [“Although a trial court has broad discretion to determine the prevailing party in a mixed result case, its discretion is not unlimited.”]; Hilltop Investment Associates v. Leon (1994) 28 Cal.App.4th 462, 468 (Hilltop) [“Appellant’s final argument is that the trial court’s discretion under Civil Code section 1717 is not unlimited, a proposition with which we agree.”].)”