California Mediation and Arbitration

Prompt Payment: Along With Other Courts, 1st District Div. 3 Strictly Interprets Statutory Prompt Payment Requirement For Employer Wanting To Arbitrate

The Payment Must Be Received By The Arbitrator Within 30 Days Of When It Was Due.

        September 1, 20221 was the “due date” for the employer in a sexual harassment dispute to pay arbitration fees and costs to the arbitrator, making payment due October 3. Cal. Code of Civ. Proc., § 1281.98(a)(1). The employer mailed the check on September 30, and it was received on October 5, two days after the 30 day grace period expired. That was good enough for the superior order, which issued an order compelling arbitration, but not good enough for the Court of Appeal. "We do not find that the proverbial check in the mail constitutes payment and agree with petitioner that real parties’ payment, received more than 30 days after the due date established by the arbitrator, was untimely." Jane Doe v. The Superior Court of the City and County of San Francisco, Respondent, and Na Hoku, Inc., et al, Real Parties in Interest, A167105 (1/3  9/8/23) (Petrou, Tucker, Fujisaki).

        What can one say? Almost doesn't count? Close but no cigar? How about: close only counts in horseshoes.

        We have now posted a number of times that California courts have been real sticklers about strictly interpreting the 30 day requirement in § 1281.98. See posts of  7/10/23,  8/1/22, 12/11/22, 1/2/23, 3/21/23. Employers who do not comply with the requirement risk ending up outside arbitration and inside court.

 

Arbitration, Deadlines, Prompt Payment, Fees: Plaintiff Successfully Exercises Option To Withdraw From Arbitration Because Defendant Employer Was Tardy Paying Arbitration Fees

Courts Have Been Unforgiving In Interpreting An Unambiguous Statute. See CCP § 1281.98.

        "A statute gave Milan Cvejic the option to get out of arbitration if Skyview was tardy in paying its arbitration fees. Skyview was tardy in paying its arbitration fee. Cvejic was entitled to get out." Milan Cvejic v. Skyview Capital, LLC, B318880 (2/8  6/28/23) (Wiley, Grimes, Viramontes).

        COMMENTS: (1) A panel of three arbitrators got it wrong. (2) Cvejic was smart and did not sit on his rights. "Within about an hour of the call [whereby the arbitration panel set a new deadline for defendant to pay the fees], Cvejic’s counsel wrote the panel to say Cvejic was withdrawing from the arbitration under section 1281.98." 

        See previous posts about § 1281.98 dated 8/1/22, 12/11/22, 1/2/23, 3/21/23.

MFAA: Losing Trial De Novo After Mandatory Fee Arbitration Award Can Lead To Serious Reversal Of Fortune

Mandatory Fee Arbitration Act Fee Provisions Prevailed Over Contract Fee Provisions.

Oscar Wilde. c1882. N. Sarony. Library of Congress.

        Oscar Wilde is credited with the paraprosdokian, "One would have to have a heart of stone to read the death of Little Nell without laughing." Our next case provokes similar sentiments. Surjit P. Soni v. Cartograph, B316270 (2/5  4/5/23) (Moor, Baker, Kim). File this one under, "Be careful what you ask for." 

        Soni, an attorney, got into a billing dispute with a client Tierney. All California attorneys are required to offer their clients the option of Mandatory Fee Arbitration in case of a fee dispute, and Tierney exercised the option. This procedure is governed by California Bus. & Prof. Code, § 6200 et seq., which has its own timing requirements and attorney fee provisions.

        The arbitrator awarded attorney Soni $2.50. Evidently displeased with the outcome, Soni filed a complaint for a trial de novo in Superior Court. Disagreeing with the arbitrator, the trial judge entered judgment in Soni's favor in the amount of $2,890. Soni requested fees in the amount of $281,191.65, which the trial court reduced to $79,898. Tierney appealed, and the Court of Appeal reversed the trial court judgment, ordering the judge to confirm the $2.50 award. We previously blogged about this portion of the case. (Soni blew the 30-day deadline for filing his complaint for a trial de novo, because the deadline is not extended by mailing). But wait, there's more!

        On remand, the trial court confirmed the $2.50 arbitration award. Soni filed a motion to recover attorney's fees, arguing that he prevailed in the trial court with an award of $2,890, and $79,898 in fees. Soni now sought fees of $543,365. Tierney, who may have litigated more efficiently, sought fees of  $339,603. The trial judge denied Soni's motion for fees, and awarded Tierney fees of $328,166.50. Tierney prevailed.

        The problem with Soni's argument is that he was not the prevailing party. There is a single final judgment, and at the end of the day, Soni had done worse with his trial de novo (0) than with his arbitration award ($2.50). Furthermore, the Court of Appeal held that the fee provisions in the MFAA governed the fee award, rather than contractual provisions. Under the MFAA fee rules, Soni's unsuccessful trial de novo entitled Tierney to fees.

        "Respondents Timothy Tierney and Cartograph, Inc., formerly known as Simplelayers, Inc., are awarded their costs on appeal."

        COMMENT. Tread very carefully before rejecting an award in Mandatory Fee Arbitration and filing a complaint for a trial de novo. If you don't do better in the trial, you risk an adverse award of attorney's fees under the MFAA.

 

Award, Fees: Award Of Arbitrator Was Final And Could Not Be Changed By Later Efforts To Award Fees

Once The Arbitrator Determines All Issues Necessary To Resolve The Essential Dispute, The Arbitrator's Ruling Constitute A Final Award Under § 1283.4.

        The arbitrator issued an award, labeled neither final nor interim, on April 3, 2020, denying employee a finding of liability in her favor, and denying employee and respondent employer attorney's fees, on the grounds that employee's claim was neither frivolous nor meritless. After post-hearing briefing, the arbitrator awarded $53,705.43 in fees to employer on June 11 in a revised award. Finally, on June 29, the arbitrator issued a corrected final award of $73, 756.43. The employer then asked the trial court to confirm the award denying employee a finding of liability and awarding $73,756.43 to employer. The trial court confirmed the award, except as to the fees, and so the employer appealed in order to recover its fees. Elizabeth Taska v. The RealReal, Inc., A164130 (1/5  11/4/22) (Jackson, Burns, Wiseman).

        First, whether the award was labeled final, interim, revised, or corrected could not be dispositive, because the law values substance over form. Second, what was dispositive was that the initial award, issued on April 3, was in substance a final award: the arbitrator addressed the liability issue, ruling against the employee, and she addressed the fee issue, denying fees to the employer. Once she determined all issues necessary to resolve the essential dispute, the arbitrator had, in substance, issued the final award. She had no power, except on narrow grounds that were not present, to change her award. And so the Court of Appeal confirmed the trial judge's judgment.

        COMMENT: My colleague Mike Hensley and I have another blog entitled California Attorney's Fees. Our mission statement in that blog cites the words of  the late Justice Edward Wallin: "All too often attorney fees become the tail that wags the dog in litigation." 

Arbitration, Severability, Public Policy: Second Dist. Div. 8 Holds Arbitration Provision In Attorney Fee Dispute Was Enforceable, Though Attorney Unlicensed In California Had Done Some Work For Client

Just Because Some Work Was Done By An Attorney Not Licensed In California Doesn't Necessarily Mean The Arbitration Agreement Or The Fee Agreement Is Unenforceable.

        Plaintiff Mark Brawerman sued Loeb & Loeb, arguing the law firm failed to protect his interests in  negotiating with the venture capital firm Wasserstein & Co., resulting in the eventual loss of control of his successful business TMI marketing healthy frozen food desserts. As a result of the arbitration agreement in his retention agreement with Loeb & Loeb, the parties arbitrated. Brawerman was unhappy with the result. Learning that a substantial amount of Loeb & Loeb's services (382 of 928 hours) had been performed by an attorney unlicensed to practice law in California (but licensed in other states), Brawerman argued his agreement with Loeb & Loeb was against public policy, the arbitrator had exceeded the scope of his powers by proceeding under an invalid arbitration agreement, and the arbitration award should therefore be vacated rather than confirmed. The arbitration award was confirmed, and Brawerman's appeal followed. Mark Brawerman et al. v. Loeb & Loeb LLP et al, B305802 (2/8  8/3/22) (Harutunian, Grimes, Wiley).

        The Court of Appeal affirmed, based on its analysis of two key cases: Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., 6 Cal.5th 59 (2018) and Birbrower, Montalbano, Condon & Frank v. Superior Court,  17 Cal.4th 119 (1998).

        Sheppard held that the retention of the law firm, which happened to result in a severe conflict of interest, could be invalid as against public policy, resulting in a loss of attorney fees. In Brawerman, the court limited Sheppard by explaining Sheppard applied to a situation where a breach of professional ethics infected the entire agreement from its inception. Birbrower, like Brawerman, involved a situation in which an attorney unlicensed in California performed work for a California client. While the California Supreme Court held that the Birbrower firm could not collect under the contract for work illegally performed in California by New York attorneys, it did not void the entire retention agreement, because it was possible that some of the work had been properly done by New York attorneys in New York, and that work might be severable from the work illegally performed.

        Unlike in Sheppard, in Brawerman there was no conflict of interest, nor was there a basis for finding that the retention agreement was improper from the beginning. In fact, but for the fact that an attorney unlicensed in California had performed some of the work in Brawerman, there would have been no basis for attacking the fees. Loeb & Loeb has plenty of California attorneys who could have been enlisted to do work for a California client under the retention agreement. Similar to Birbrower, the work improperly done by the attorney unlicensed in California, which involved filing an arbitration demand, might be separated from the work done by licensed California attorneys. The agreement in Brawerman need not be entirely invalid if work that was done properly can be severed from work that was done improperly. 

            The Court of Appeal affirmed the confirmation of the arbitration award in Brawerman.

        COMMENT: Interestingly, the award in Brawerman resulted in disgorgement of fees to plaintiffs in the amount $138,075 for work done by the unlicensed attorney, and fees incurred in the arbitration of $94,833. So the retention agreement and arbitration agreement were legal, but the work done by the attorney unlicensed in California was not compensable. But this was surely small potatoes for Brawerman, who believed his attorneys had not protected him properly, resulting in loss of control over a multi-million dollar company, and who therefore wanted to undo the arbitration award in its entirety. 

        Out-of-state attorneys are, of course, happy to know that California fixed the problem after Birbrower regarding out-of-state participation in arbitrations. California now has what is essentially a "pro hac vice" approach to out-of-state attorneys wishing to participate in California arbitrations. Cal. Code Civ. Proc., § 1282.4.

 

 

 

Arbitration, Vacatur, Illegality, Fees: Second District, Div. 8 Holds That Arbitrator Could Decide Contract Was Illegal

Who Decides Illegality Of A Contract, The Arbitrator Or The Court?

        Michael Bacall, an actor, was represented by Jeffrey Shumway, an attorney, who provided "legal/management services and [Chief Content Officer] services." Bacall alleged Shumway failed to disclose he was "inactive" with the State Bar, and Bacall terminated the contract with Shumway and his company Timaeus. Timaeus filed a demand for arbitration with the AAA, and Bacall filed a complaint asserting various claims, including breach of contract and rescission. The trial court granted the motion to arbitrate (be careful what  you ask for), and the arbitrator issued an award requiring Shumway and Timaeus to return $201,025.82 to plaintiffs/respondents Bacall and his company RBC Entertainment, and also to pay them $237.607.25 in fees and costs.

        Shumway and Timaeus appealed. Michael Bacall et  al. v Jeffrey Shumway et al., B302787 (2/8  3/16/21) (Ohta, Grimes, Wiley).

        The chief argument by Shumway was that it was the duty of the court, not the  arbitrator, to review the legality of the contract. This was somewhat curious, given that it was Bacall who filed a lawsuit and Shumway who successfully moved to compel arbitration. Shumway relied on a  case, Loving & Evans v. Blick, 33 Cal.2d 603 (1949), in which a party sought to vacate an arbitration award on the basis the arbitrator enforced an illegal contract, and the California Supreme Court held the arbitrator who enforced an illegal contract exceeded his  powers. Why? An arbitrator who enforces an illegal contract presumably has no rights and powers conferred under the contract. But the Loving case did not convince the court here, because the situation was the opposite: instead of enforcing an illegal contract, "the arbitrator severed the unlawful legal services rendered on a contract that Respondents had terminated . . . and allocated damages accordingly."

Russian-made antipersonnel mine in Cambodia. Creative Commons License.

        Another aspect of the case concerning legal fees is troubling as an example of the landmines litigators can step on in arbitration. Shumway alleged the arbitrator engaged in misconduct by denying an opportunity to address issues related to attorney fees and costs. After the arbitration hearing, Bacall requested attorneys fees and costs and submitted billing records. Shumway's counsel wrote to the arbitrator that arbitrators typically entertain such requests after an award has been rendered. The arbitrator wrote back: "Consideration of attorney fees will not take place until the case is decided and a prevailing party is determined. Anything submitted in that regard will not be read until then." Shumway did not submit a response, and the arbitrator's final award also included the fee award. 

        Evidently Shumway felt sandbagged by the arbitrator's response. But the Court of Appeal disagreed, though it  did acknowledge, "the arbitrator's response was vague," and that one might not know best how to argue the attorneys fees issue before one knew who would be the prevailing party However, the court pointed out that the  arbitrator had not never explicitly ordered that Shumway could not file an opposition before the arbitrator addressed fees and costs. 

        COMMENT: Regarding the briefing of the fees and cost issue, the Court explained, "the onus was on Appellants to seek clarification, which they failed to do." Good advice -- and a painful lesson.

 

Arbitration, Public Injunctive Relief: 9th Circuit Holds Arbitration Provision Allowing For Public Injunctive Relief, While Prohibiting Private Attorneys General, Is Enforceable

Arbitration Provision Allowing For Public Injunctive Relief Does Not Violate McGill Rule.

        The so-called McGill rule states California’s legal requirement that contracts allow public injunctive relief. So what happens if a contract requires arbitration of disputes, provides for all remedies in arbitration, and further provides that the claimant cannot act as a private attorney general? Put another way, can a claimant request public injunctive relief in California, without acting as a private attorney general? If the answer is yes, the arbitration clause is enforceable. If the answer is no, the arbitration clause is not enforceable. Yes, says the Ninth Circuit in DiCarlo v. MoneyLion, Inc., et al., No. 20-55058 (9th Cir.  2/19/21) (Thapar, Bea, Collins).

        Plaintiff DiCarlo brought claims under unfair competition law, false advertising law, and the Consumers Legal Remedies Act law against a lender being accused of predatory practices. The lender MoneyLion successfully moved to compel arbitration, and the Ninth Circuit affirmed. The key to enforcing the arbitration provision is that it provided for all remedies, including public injunctive relief: "In California, litigants proceeding in individual lawsuits may request public injunctive relief without becoming private attorneys general. That means that public injunctive relief is available to DiCarlo in arbitration with MoneyLion. Since the arbitration provision does not violate the McGill rule, it is valid."

        COMMENT: What  happens to attorneys fees if the claimant, who is prohibited by the contract from suing as a private attorney general, is entitled to obtain relief under the UCL, FAL, or CLRA? Technically, this case may not answer the question, because Judge Thapar points out that the plaintiff did not ask for attorneys fees. Thus, any comments about attorneys fees would be dictum. "In any case, we have no reason to think that the availability of public injunctive relief could hinge on whether those fees are up for grabs," writes Judge Thapar, adding, "Nor do we read the Agreement to bar any claims that could support fee shifting in court."  And so?

 

Arbitration, Enforceability, Fees: Froggy Arbitration Clause Buried Among the Lily Pads Is Too Inconspicuous To Require Arbitration

Inconspicuous As A Frog In A Thicket Of Water Lilies . . . 

 

"Too lazy to feed himself, Washington, D.C., Aug. 15. Just plumb too lazy to catch his food on the fly like regular frogs do, Popeye, giant frog from Louisiana in the U.S. Department of Commerce aquarium, has to be fed his meals from acting [sic] as nursemaid for the critter." Library of Congress. 1937.

        The inimitable Justice Arthur Gilbert writes: "An arbitration clause in a contract is invalid because the clause is as inconspicuous as a frog in a thicket of water lilies. The prevailing party is entitled to attorney fees per Civil Code section 1717. Speaking of frogs, Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515 (Frog Creek) does not prohibit the award of attorney fees." Domestic Linen Supply Co., Inc., v. L J T Flowers, Inc., B292863, B294788 (2/6  12/4/20).

        Justice Gilbert, agreeing with the trial judge, explains why the arbitration clause was inconspicuous. Among other  things, the arbitration clause was not above the purchaser's signature, but on the back of the agreement. The backside was filled with small type. The arbitration clause, lacking heading, boldface, italics or  capitalization, was "simply hidden in a thicket of fine print." The sales representative presenting the agreement was not trained to bring attention to the arbitration clause. And the sales rep was advised to have the purchaser read the personal guarantee while filling out the contract, thus diverting from  the backside of the contract.

        Comment: A reader might at first have thought that leading with a discussion of the inconspicuousness of the arbitration clause would take us to the  issue of unconscionability. No need to go there. Evidently the arbitration clause was so inconspicuous that Justice Gilbert concluded: "There was simply no agreement to arbitrate."

        Regarding the issue of fees, the opinion distinguishes between (1) Frog Creek, in which a case was pending, plaintiff's first petition to compel arbitration was defeated, a second petition succeeded, and defendant ultimately prevailed on the merits; and (2) the instant case, in which a petition to compel arbitration was filed, and the petition was defeated. In the first situation, the petition is defeated, and the lawsuit continues. However, in the instant case, the defeat of the petition terminated the action, leaving the defendant as the prevailing party. And where there is a contractual basis to recover attorney's fees and a prevailing party, the prevailing party can recover attorney's fees.

        Further Comment: If a Jim Murray prize for turning a phrase and color commetary in legal opinions could be awarded to California Appellate Justices, I would nominate Justice Gilbert and Justice William Bedsworth.

Lily pond. Jean E. Norwood, photographer. 1979. Library of Congress.

Arbitration Awards: Time To Change "Award" And Add Attorneys Fees Did Not Expire, Because Award Was Not Final Award

This Case Is Must Reading For Determining Whether An Arbitrator's Ruling Is An Award.

        "As this case highlights, whether an arbitrator's ruling constitutes an 'award' is a significant event." Lonky v. Patel, B295314 consolidated with B297632 (2/2  7/2/20) (Hoffstadt, Lui, Chavez). Indeed. The arbitrator can continue to issue interim rulings before there is an award. But once there is a final award, the clock begins to run on the  time the arbitrator has to continue to rule and correct or amend an award. In this case, the Court of Appeal ruled that a Second Interim Ruling did not constitute an Award, and thus the Arbitrator's time to increase compensatory damages and add attorney's fees had not expired.

        Very helpfully, the Court explains upfront how a court determines whether a ruling constitutes an award: "We hold that a court does so (1) by asking whether the ruling (a) determines all issues necessary to resolve the entire controversy and (b) leaves unaddressed only those issues incapable of resolution at that time because those issues are potential, conditional or contingent, and (2) answers those questions by looking to the specific procedures adopted in the arbitration at issue."

        The case is a model of clarity and genuinely useful for practitioners, because it addresses the nettlesome question of when a ruling complete enough to constitute an award. Here, the arbitration was divided into three phases: 1) liability, amount of compensatory damages, and eligibility for punitive damages; 2) amount of punitive damages and entitlement to attorney fees and costs; and 3) amount of attorney fees and costs. The Court of Appeal ruled that the arbitration ruling in phase two did not constitute an award, because it did not determine the amount of attorney fees, i.e., it did not determine all the  issues submitted to arbitration, and the amount was not potential, conditional, or could not otherwise have been determined at the time.

        

       

Arbitration, MFAA: CCA 1st Dist. Div. 4 Holds That A Malicious Prosecution Cannot Rest On An MFAA Arbitration, Reversing Trial Court

And Because The Malicious Prosecution Plaintiff Cannot Win, An Anti-SLAPP Motion By Defendant Succeeds.

        The holding of Dorit v. Noe, A157433  (1/3  5/26/20) (Brown, Pollak, Tucher) is that a malicious prosecution cause of action cannot be based on a mandatory fee arbitration act (MFAA) arbitration. Along the way to its conclusion, the case teaches about arbitration, MFAA arbitration, malicious prosecution, and anti-SLAPP motions.

        Dorit, an attorney, represented Noe, who was unhappy with his representation and who brought an MFAA fee arbitration against Dorit. Noe did not recover any fees from his attorney, and the arbitrator required Noe to pay the  filing fee. Neither party appealed within 30 days for a trial de novo in the Superior Court, and thus the arbitration award became final. 

        Dorit then sued Noe in Superior Court for malicious prosecution, and Noe brought an anti-SLAPP motion against Dorit, arguing that the MFAA would not support a malicious prosecution  claim. The trial court denied the motion, ruling that, while Noe's MFAA arbitration arose from protected activity, Dorit's claim had more than minimal merit -- the two-pronged analysis that must be made when evaluating anti-SLAPP motions.

        The Court of Appeal agreed that the MFAA arbitration arose from protected activity, because it was an official proceeding established by statute, and once the client chooses the proceeding as an alternative to filing a lawsuit against the attorney, the attorney is required to participate. 

        The attorney reasoned that if the matter is in the nature of an official proceeding, then it should support a cause of action for malicious prosecution. The problem with this argument is that MFAA arbitrations are neither fish nor fowl: they have aspects of litigation, as well a of voluntary arbitration. And so the question whether an MFAA arbitration will support a claim for malicious prosecution, which is a question of first impression, turns out to hinge on policy.

        The interests promoted by a cause of action for malicious prosecution are to prevent baseless lawsuits from being filed, and to prevent injury to the victims of malicious prosecution. In the case of MFAA arbitrations, however, the arbitration is an alternative to  litigation encouraged by the legislature, because it is thought to even the playing field between attorney and client, and to be speedy, cost effective, and efficient. A party unhappy with the outcome of the fee arbitration can proceed de novo to the Superior Court, something that did not happen here. And while the attorney may suffer injury from a meritless fee arbitration, the Court of Appeal explained that the injury is likely to be slight, because the attorneys typically does not go out and hire another attorney. Here, in fact, Dorit represented himself, and the proceeding was confidential.

        Comment: The Court of Appeal also found  a technical and more obscure reason for holding that the MFAA arbitration would not support a claim for malicious prosecution. In order to prove malicious prosecution, the plaintiff must be able to show that the plaintiff prevailed. At first blush, it would appear that Dorit prevailed in the MFAA arbitration, because Noe was denied relief and had to pay filing fees. However, the outcome of the MFAA arbitration cannot be used in court, except for the very limited purpose of establishing whether the party seeking a de novo trial in Superior Court did better or worse than that party did in the fee arbitration, an issue relevant to whether fee shifting can occur. Given that  there was no appeal to the Superior Court here, the evidence of Dorit's success was technically inadmissible, and thus the attorney could not have established that he prevailed -- even though we know he did.