Adr Update
| Jurisdiction | California,United States |
| Author | Hon. Michelle R. Rosenblatt (Ret.) |
| Citation | Vol. 38 No. 1 |
| Publication year | 2024 |
AUTHOR*
Hon. Michelle R. Rosenblatt (Ret.)
Doe v. Superior Court for the City and Cty. of San Francisco, 95 Cal. App. 5th 346 (2023)
The requirement of California Code of Civil Procedure section 1281.98(a)(1) that arbitration fees and costs must be "paid" within a 30 day grace period after the due date also requires that the fees and costs must be "received" by the arbitrator within 30 days after the due date, not merely remitted. Here, the fees and costs were to be paid by Monday, October 3, 2022.
The employer mailed the check to the arbitrator on the Friday before the due date: September 30, 2022. The check did not arrive by the 30 day deadline (October 3), and instead was received on October 5, 2022. The court held that the mailing in this case did not constitute payment as statutorily required, so that the plaintiff could not be forced to remain in arbitration.
FCM Investments, LLC v. Grove Pham, LLC, 2023 WL 6826821
Under California Code of Civil Procedure section 1286.2(a) and 9 United States Code section 10(a), an arbitration award can be vacated based upon an arbitrator's prejudicial misconduct or conduct that exceeds the arbitrator's powers. Here, appellant alleged linguistic bias. In the written award, which was primarily based on an assessment of witness credibility, the arbitrator made an adverse credibility finding against a party witness, underscoring that the use of the interpreter appeared to be a ploy given that the party had lived in the United States for decades, had engaged in sophisticated business transactions, and had herself acted as an interpreter. The court held that this finding gave a "reasonable impression of possible bias," causing substantial prejudice to the party.
The court further noted that litigants must feel assured that the choice to use an interpreter will not affect the impartiality of the decisionmaking. While the grounds for vacatur were presented for the first time on appeal, the court of appeal found that the forfeiture rule did not apply in the present case.
Barrera v. Apple American Group LLC, 95 Cal. App. 5th 346 (2023)
Following a year of active litigation of plaintiffs' individual and representative PAGA claims, defendants Apple American Group and its related companies moved to compel arbitration. In finding that defendants did not waive their right to compel...
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