Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

This bill would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The bill would require a party requesting a certified shorthand reporter to make his or her request in a demand, response, answer, or counterclaim related to the arbitration, or at a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared. The bill would also require the party requesting the transcript to incur the expense of the certified shorthand reporter, except as specified in a consumer arbitration. The bill would authorize a party whose request has been refused by the arbitrator to petition the court for an order to compel the arbitrator to grant the partys request to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, and for an order to stay any deposition, proceeding, or hearing pending the courts determination of the petition.

Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

This bill would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The bill would require a party requesting a certified shorthand reporter to make his or her request in a demand, response, answer, or counterclaim related to the arbitration, or at a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared. The bill would also require the party requesting the transcript to incur the expense of the certified shorthand reporter, except as specified in a consumer arbitration. The bill would authorize a party whose request has been refused by the arbitrator to petition the court for an order to compel the arbitrator to grant the partys request to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, and for an order to stay any deposition, proceeding, or hearing pending the courts determination of the petition.

Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

This bill would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The bill would require a party requesting a certified shorthand reporter to make his or her request upon the initiation of the arbitration in a demand, response, answer, or counterclaim related to the arbitration, or at the time that any a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared, and calendared. The bill would also require the party requesting the transcript to incur the expense of the certified shorthand reporter, except as specified in a consumer arbitration. The bill would authorize a party whose request has been refused by the arbitrator to petition the court for an order to compel the arbitrator to grant the partys request to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, and for an order to stay any deposition, proceeding, or hearing pending the courts determination of the petition.

Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

This bill would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The bill would require a party requesting a certified shorthand reporter to make his or her request upon the initiation of the arbitration or at the time that any deposition, proceeding, or hearing is being calendared, and would also require the party requesting the transcript to incur the expense of the certified shorthand reporter, except as specified in a consumer arbitration. The bill would also require a court to vacate an arbitration award if the court determines that an arbitrator refused a authorize a party whose request has been refused by the arbitrator to petition the court for an order to compel the arbitrator to grant the partys request to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing.

Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

This bill would, in addition, would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The bill would require the party requesting the transcript to incur the expense of the certified shorthand reporter, except as specified in a consumer arbitration. The bill would also require a court to dismiss vacate an arbitration award if the court determines that the rights of a party were substantially prejudiced by the refusal of the arbitrators to allow the party, at the partys expense, an arbitrator refused a partys request to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. hearing.

Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

This bill would, in addition, require a court to dismiss an arbitration award if the court determines that the rights of a party were substantially prejudiced by the refusal of the arbitrators to allow the party, at the partys expense, to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record.

 UNFINISHED BUSINESS  

Bill No: SB 1007

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-1, 4/26/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach

SENATE FLOOR: 26-10, 5/12/16

AYES: Allen, Beall, Block, Cannella, De León, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk

NOES: Anderson, Bates, Berryhill, Gaines, Huff, Morrell, Nguyen, Nielsen, Stone, Vidak

NO VOTE RECORDED: Fuller, Liu, Moorlach, Runner

ASSEMBLY FLOOR: 53-26, 8/18/16 - See last page for vote

SUBJECT:

SOURCE: Conference of California Bar Associations

DIGEST: This bill establishes the right of a party to an arbitration to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, at the expense of the party requesting the transcript, except as specified, and provides that the transcript shall be the official record of the deposition, proceeding, or hearing. This bill requires that the party request the court reporter either: (1) upon a demand, response, answer, or counterclaim related to the arbitration; or (2) at the time that any a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared, and permits the party to petition the court for an order, as specified to compel the arbitrator to grant the party’s request if an arbitrator refuses their request.

Assembly Amendments (1) make clarifying amendments as to the timing of the request for a court reporter and (2) expressly permit parties who are petitioning the court for an order to compel the arbitrator to grant their request to also request from the court an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court’s determination of their petition.

ANALYSIS:

Existing law:

1. Governs, under the California Arbitration Act (CAA), private arbitrations in this state, including the enforcement of an arbitration agreement, the conduct of arbitration proceedings, and the enforcement of arbitration awards. Provides that a party to the arbitration has the right to be represented by an attorney at any proceeding or hearing in arbitration under this title.
2. Provides that any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award, as specified.
3. Requires that all fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, be waived for an indigent consumer. For these purposes, “indigent consumer” means a person having a gross monthly income that is less than 300 percent of the federal poverty guidelines. Provides, further, that nothing in these provisions affects the ability of a private arbitration company to shift fees that would otherwise be charged or assessed upon a consumer party to a nonconsumer party.
4. Requires any consumer requesting a waiver of fees or costs may establish his or her eligibility by making a declaration under oath on a form provided to the consumer by the private arbitration company for signature stating his or her monthly income and the number of persons living in his or her household. No private arbitration company may require a consumer to provide any further statement or evidence of indigence.

This bill:

1. Provides that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.
2. Requires that a party requesting a certified shorthand reporter make his or her request in or at either of the following:

• A demand for arbitration, or a response, answer, or counterclaim to a demand for arbitration; or
• A pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared.

1. Provides that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing pursuant to the above provisions, the party may petition the court for an order to compel the arbitrator to grant the party’s request. The petition may include a request for an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court’s determination of the petition.
2. Provides that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter. Provides, further, however, that in a consumer arbitration, a certified shorthand reporter shall be provided upon request of an indigent consumer, as defined under existing law, above, at the expense of the nonconsumer party.

Background

Arbitration is a method of alternative dispute resolution where the disputing parties present their disagreement(s) to one or more neutral third-party arbitrators whose decisions are generally final and binding, instead of litigating the issues in courts.

While the arbitration of certain types of disputes may be governed by specific statutes, the CAA, Sections 1280 et seq. of the Code of Civil Procedure, provides for a comprehensive, all-inclusive statutory scheme applicable to all written agreements to arbitrate disputes. This law governs all aspects of a nonjudicial arbitration: from the conduct of arbitrators, private arbitration companies, and the arbitration proceedings, to the enforcement of arbitration agreements and arbitration awards, as well as related judicial proceedings. Currently, the CAA is silent as to the right of parties to court reporters in an arbitration.

Arbitration has been a topic of significant controversy over the years as a form of alternative disputes resolution. Generally, some advocates assert that private arbitration provides a cheaper, faster, more efficient form of dispute resolution than the overburdened courts. At the same time, other consumer and employee advocates frequently raise issues with arbitration as an unregulated industry, which can be costly, unreceptive, and biased against consumers. These advocates assert that boilerplate, or standardized, contracts forcing consumer and employees into private arbitrations are problematic because arbitrators can conduct arbitrations without allowing for discovery, complying with the rules of evidence, or explaining their decisions in written opinions (Code Civ. Proc. Secs. 1283.1, 1282.2, and 1283.4); and arbitrations may be conducted in private with no public scrutiny (Ting v. AT&T, 182 F.Supp.2d 902 (N.D. Cal. 2002), affirmed, 319 F.3d 1126 (9th Cir. 2003)). Critics’ concerns are compounded by the fact that there are little, if any, regulations or legal standards imposed on arbitrators or their decisions. Regardless of the level or type of mistake, or even misconduct, by the arbitrator, the grounds on which a court will allow judicial review of an arbitration are extremely narrow. As a result, arbitrators can disregard the law and can issue binding decisions that are legally enforceable but generally not reviewable by a court. (See Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1 (holding that a court is not permitted to vacate an arbitration award based on errors of law by the arbitrator, except for certain narrow exceptions).) As a matter of statutory law, the CAA’s remedies are limited to vacatur of the award under limited circumstances.

This bill establishes the right of any party to an arbitration to have a court reporter transcribe any deposition, proceeding, or hearing, as specified.

Comments

As stated by the author:

In arbitrations, as in all legal proceedings, the existence of a reporter’s transcript of a deposition, proceeding or hearing can be absolutely essential to obtaining justice. In the absence of such a transcript or a suitable substitute, a reviewing court will conclude that an arbitration award, like all judgments or orders of lower courts, are presumed to be correct. Numerous appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided.

For this reason, the ability of a party or an arbitrator to deny the other party’s request to have, at the party’s own expense, a court reporter prepare a transcript of the proceeding can substantially prejudice the rights of the requesting party because no court report’s transcript or suitable substitute will be available for a reviewing court. As a result, the reviewing court then has to assume that the arbitration award is correct because no official record exists. This is a denial of the fundamental due process right to fairness of an arbitration hearing.

Although some of the major Alternative Dispute Resolution (ADR) providers acknowledge the importance of the ability to prepare a record of the proceedings, the practice is not universal and abuse has occurred. Arbitrators can and will deny parties the right to prepare a record of the proceedings. Particularly in cases of mandatory arbitration and unequal bargaining power between the parties, this can be a critical factor in the denial of justice.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 8/18/16)

Conference of California Bar Associations (source)

California Court Reporters Association

Court Reporters Board of California

OPPOSITION: (Verified 8/18/16)

None received

ASSEMBLY FLOOR: 53-26, 8/18/16

AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon

NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Cooley, Dahle, Beth Gaines, Grove, Hadley, Harper, Jones, Kim, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk

NO VOTE RECORDED: Roger Hernández

Prepared by: Ronak Daylami / JUD. / (916) 651-4113

8/19/16 19:37:18

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1007

Author:(Wieckowski)

As Amended Ver:June 15, 2016

Majority vote

SENATE VOTE: 26-10

SUMMARY: Allows a party to an arbitration proceeding the right to have a court reporter during the arbitration proceeding. Specifically, this bill:

1. Provides that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.
2. Requires a party requesting a certified shorthand reporter to make the request in any of the following:
   1. A demand for arbitration, or in a response, answer, or counterclaim to a demand for arbitration.
   2. A pre-hearing scheduling conference where any deposition, proceeding, or hearing is being calendared.
3. Establishes that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter.
4. Requires a certified shorthand reporter to be provided to an indigent consumer, upon request, at the expense of the nonconsumer party in a consumer arbitration.
5. Provides that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, the party may petition the court for an order to compel the arbitrator to grant the party's request.
6. Further provides that a petition may include a request for an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court's determination of the petition.
7. States that this act does not add grounds for vacating an arbitration award or for correcting an arbitration award.

FISCAL EFFECT: None.

COMMENTS: Justice Brennan once said that, "courts are the central dispute-setting institutions of our society. They are bound to do equal justice under the law, to rich and poor alike." It comes as no surprise then that the phrase, "Equal Justice Under Law," is engraved above the entrance to our nation's highest court. And so it seems, we put a great deal of faith in our courts – but would we expect any less? We anticipate our courts to apply the law in a fair, neutral, and open manner. We hold judges to high standards, and ask that they avoid even the appearance of impropriety. We count on our judiciary to advance the law, issue orders, and render written opinions. And yet, we acknowledge that our system isn't perfect and that despite their best efforts, courts sometimes get it wrong. Acknowledging the imperfection of our justice system is undoubtedly one reason why it has safeguards. We remember that decisions of courts are reviewed by appellate courts and indeed, reviewed by our elected branches. In order to facilitate the right to appeal, we provide a record of the proceedings, in criminal matters at least. And so, when our families, friends, and neighbors are injured, wronged, or have a dispute, we rely upon that faith that our courts—the institution we trust upon to promote fairness—will deliver equal justice under the law.

Arbitration is a form of alternative dispute resolution held outside of courts where a third-party (rather than a judge) makes a binding (and rarely appealable) award. Because most arbitration is created by entering into a contract (usually a contract that is adhesive or take-it-or-leave-it), the arbitration agreement will lay-out the procedures that will be followed during the arbitration hearing. For example, the terms of the arbitration agreement may stipulate that the award need not be written or justified (unlike in court), and that the entire process be kept in secret (rather than in public view). Arbitrators do not need to be lawyers, nor do they need to be trained in the law. Arbitrators who issue favorable awards to a particular company can be repeatedly-hired by that same company to serve as the arbitration-neutral without ever notifying the public about that award-history. Arbitrators do not need to be trained in the law, or even apply the law, or render a decision consistent with the evidence presented to them. What evidence is presented may, in fact, be incomplete because parties in arbitration have no legal right to obtain evidence in support of their claims or defenses, or the claims or defenses of the other party, contrary to the longstanding discovery practice in public courts. Advocates continue to debate about the benefits and harms of mandatory-arbitration. Proponents of arbitration say that arbitration produces quicker results and reduces litigation costs. Opponents argue that arbitration harms consumers and workers because arbitration proceedings render unfair awards.

What happens after an arbitrator issues an award? When a court renders a final judgment, parties in an action have the right to appeal the court's judgment for appellate review. The same is not true for arbitration. When an arbitrator issues an award, the award is usually binding and final. Although the parties may move to correct or vacate the award, the grounds for correction or vacatur (vacating an award) are limited. For instance, an award may be vacated if: 1) the award was procured by corruption or fraud; 2) the rights of the party were substantially prejudiced by the arbitrator's misconduct; 3) the arbitrator exceeded his or her powers and the award cannot be corrected without affecting the merits of the decision; or 4) the arbitrator failed to disclose certain matters to the parties. Parties seeking vacatur under these limited grounds must provide evidence to the court to prove that an award should be vacated. However, because arbitration awards do not need to be written or justified (unlike in court), and the entire process may be kept in secret (rather than in public view), parties have a difficult time proving that an arbitrator has engaged in prejudicial misconduct. This bill seeks to remedy this problem by allowing litigants to obtain an official record of an arbitration or arbitration-related proceeding to not only serve as a record of the proceeding, but also as a check on the arbitrator and the other parties during the proceedings.

Summary of the bill: This bill would establish that a party to an arbitration proceeding has the right to have a certified shorthand reporter (i.e. a court reporter) in any arbitration deposition, proceeding, or hearing. This bill also provides that if an arbitrator denies a party's request for a court reporter, the party may petition the court for an order to compel the arbitrator to grant the party's request.

Access to an official transcript for any adjudicatory proceeding is an important component of access to justice. Without an official record of what transpired at an arbitration proceeding, litigants may be unable to draft effective petitions to a court and will be unable to recount what actually happened during proceedings with any degree of accuracy. This bill reasonably allows a party the right to request a court reporter during the arbitration proceedings, at the expense of the requesting party, without interfering with the arbitration process. In order to provide access to justice for indigent litigants, this bill also provides that a court reporter shall be provided to an indigent consumer at the expense of the nonconsumer party.

To prevent gamesmanship, this bill requires parties to an arbitration proceeding to request a shorthand reporter in a timely manner. To address the concern that this act would allow parties to use a request for shorthand reporters to cause delay, this bill requires a party to make a request for a certified shorthand reporter either in the initial demand for arbitration (or in the response or answer to the demand), or during a scheduling conference between the parties. Although most arbitration proceedings only have one initial pre-hearing scheduling conference, this bill also envisions that there may be multiple scheduling conferences before the arbitration hearing. Accordingly, as long as a request for a shorthand reporter is made at the scheduling conference when a deposition, proceeding, or hearing is being calendared, the request would appear to satisfy the parameters for timeliness under this bill.

A party may petition the court to enforce his or her right to have a court reporter in arbitration under this bill. To ensure that this important right can be enforced, this bill allows a party to petition the court to compel the arbitrator to allow the party to have a court reporter in the event that an arbitrator denies a request. This bill additionally allows a party to petition the court to stay the arbitration proceeding while the court reviews the petition to compel. Although this bill allows parties to have the right to have a court reporter in an arbitration proceeding, the state of arbitration law theoretically would allow a party to contract away this right – even though such a contract provision would appear to violate the public policy of this state. The Legislature, in the future, may wish to consider whether it should adopt a measure to prevent this type of unscrupulous conduct by making such contractual provisions void as against public policy.

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0003502

SENATE THIRD READING

STR Bill Id:SB 1007

Author:(Wieckowski)

As Amended Ver:June 15, 2016

Majority vote

SENATE VOTE: 26-10

SUMMARY: Allows a party to an arbitration proceeding the right to have a court reporter during the arbitration proceeding. Specifically, this bill:

1. Provides that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.
2. Requires a party requesting a certified shorthand reporter to make the request in any of the following:
   1. A demand for arbitration, or in a response, answer, or counterclaim to a demand for arbitration.
   2. A pre-hearing scheduling conference where any deposition, proceeding, or hearing is being calendared.
3. Establishes that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter.
4. Requires a certified shorthand reporter to be provided to an indigent consumer, upon request, at the expense of the nonconsumer party in a consumer arbitration.
5. Provides that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, the party may petition the court for an order to compel the arbitrator to grant the party's request.
6. Further provides that a petition may include a request for an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court's determination of the petition.
7. States that this act does not add grounds for vacating an arbitration award or for correcting an arbitration award.

FISCAL EFFECT: None.

COMMENTS: Justice Brennan once said that, "courts are the central dispute-setting institutions of our society. They are bound to do equal justice under the law, to rich and poor alike." It comes as no surprise then that the phrase, "Equal Justice Under Law," is engraved above the entrance to our nation's highest court. And so it seems, we put a great deal of faith in our courts – but would we expect any less? We anticipate our courts to apply the law in a fair, neutral, and open manner. We hold judges to high standards, and ask that they avoid even the appearance of impropriety. We count on our judiciary to advance the law, issue orders, and render written opinions. And yet, we acknowledge that our system isn't perfect and that despite their best efforts, courts sometimes get it wrong. Acknowledging the imperfection of our justice system is undoubtedly one reason why it has safeguards. We remember that decisions of courts are reviewed by appellate courts and indeed, reviewed by our elected branches. In order to facilitate the right to appeal, we provide a record of the proceedings, in criminal matters at least. And so, when our families, friends, and neighbors are injured, wronged, or have a dispute, we rely upon that faith that our courts—the institution we trust upon to promote fairness—will deliver equal justice under the law.

Arbitration is a form of alternative dispute resolution held outside of courts where a third-party (rather than a judge) makes a binding (and rarely appealable) award. Because most arbitration is created by entering into a contract (usually a contract that is adhesive or take-it-or-leave-it), the arbitration agreement will lay-out the procedures that will be followed during the arbitration hearing. For example, the terms of the arbitration agreement may stipulate that the award need not be written or justified (unlike in court), and that the entire process be kept in secret (rather than in public view). Arbitrators do not need to be lawyers, nor do they need to be trained in the law. Arbitrators who issue favorable awards to a particular company can be repeatedly-hired by that same company to serve as the arbitration-neutral without ever notifying the public about that award-history. Arbitrators do not need to be trained in the law, or even apply the law, or render a decision consistent with the evidence presented to them. What evidence is presented may, in fact, be incomplete because parties in arbitration have no legal right to obtain evidence in support of their claims or defenses, or the claims or defenses of the other party, contrary to the longstanding discovery practice in public courts. Advocates continue to debate about the benefits and harms of mandatory-arbitration. Proponents of arbitration say that arbitration produces quicker results and reduces litigation costs. Opponents argue that arbitration harms consumers and workers because arbitration proceedings render unfair awards.

What happens after an arbitrator issues an award? When a court renders a final judgment, parties in an action have the right to appeal the court's judgment for appellate review. The same is not true for arbitration. When an arbitrator issues an award, the award is usually binding and final. Although the parties may move to correct or vacate the award, the grounds for correction or vacatur (vacating an award) are limited. For instance, an award may be vacated if: 1) the award was procured by corruption or fraud; 2) the rights of the party were substantially prejudiced by the arbitrator's misconduct; 3) the arbitrator exceeded his or her powers and the award cannot be corrected without affecting the merits of the decision; or 4) the arbitrator failed to disclose certain matters to the parties. Parties seeking vacatur under these limited grounds must provide evidence to the court to prove that an award should be vacated. However, because arbitration awards do not need to be written or justified (unlike in court), and the entire process may be kept in secret (rather than in public view), parties have a difficult time proving that an arbitrator has engaged in prejudicial misconduct. This bill seeks to remedy this problem by allowing litigants to obtain an official record of an arbitration or arbitration-related proceeding to not only serve as a record of the proceeding, but also as a check on the arbitrator and the other parties during the proceedings.

Summary of the bill: This bill would establish that a party to an arbitration proceeding has the right to have a certified shorthand reporter (i.e. a court reporter) in any arbitration deposition, proceeding, or hearing. This bill also provides that if an arbitrator denies a party's request for a court reporter, the party may petition the court for an order to compel the arbitrator to grant the party's request.

Access to an official transcript for any adjudicatory proceeding is an important component of access to justice. Without an official record of what transpired at an arbitration proceeding, litigants may be unable to draft effective petitions to a court and will be unable to recount what actually happened during proceedings with any degree of accuracy. This bill reasonably allows a party the right to request a court reporter during the arbitration proceedings, at the expense of the requesting party, without interfering with the arbitration process. In order to provide access to justice for indigent litigants, this bill also provides that a court reporter shall be provided to an indigent consumer at the expense of the nonconsumer party.

To prevent gamesmanship, this bill requires parties to an arbitration proceeding to request a shorthand reporter in a timely manner. To address the concern that this act would allow parties to use a request for shorthand reporters to cause delay, this bill requires a party to make a request for a certified shorthand reporter either in the initial demand for arbitration (or in the response or answer to the demand), or during a scheduling conference between the parties. Although most arbitration proceedings only have one initial pre-hearing scheduling conference, this bill also envisions that there may be multiple scheduling conferences before the arbitration hearing. Accordingly, as long as a request for a shorthand reporter is made at the scheduling conference when a deposition, proceeding, or hearing is being calendared, the request would appear to satisfy the parameters for timeliness under this bill.

A party may petition the court to enforce his or her right to have a court reporter in arbitration under this bill. To ensure that this important right can be enforced, this bill allows a party to petition the court to compel the arbitrator to allow the party to have a court reporter in the event that an arbitrator denies a request. This bill additionally allows a party to petition the court to stay the arbitration proceeding while the court reviews the petition to compel. Although this bill allows parties to have the right to have a court reporter in an arbitration proceeding, the state of arbitration law theoretically would allow a party to contract away this right – even though such a contract provision would appear to violate the public policy of this state. The Legislature, in the future, may wish to consider whether it should adopt a measure to prevent this type of unscrupulous conduct by making such contractual provisions void as against public policy.

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334 FN: 0003502

Date of Hearing: June 21, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 1007

Author:(Wieckowski) – As Amended Ver: June 15, 2016

SENATE VOTE: 26-10

SUBJECT: ARBITRATION: TRANSCRIPTION BY CERTIFIED SHORTHAND REPORTER

KEY ISSUE: SHOULD A PARTY HAVE A RIGHT TO A COURT REPORTER IN AN ARBITRATION HEARING OR PROCEEDING?

SYNOPSIS

When a court renders a final judgment, parties in an action have the right to appeal the court’s judgment for appellate review. The same is not true for arbitration. When an arbitrator issues an award, the award is usually binding and final. Although the parties may move to correct or vacate the award, the grounds for correction or vacatur (vacating an award) are limited. For instance, an award may be vacated if: (1) the award was procured by corruption or fraud; (2) the rights of the party were substantially prejudiced by the arbitrator’s misconduct; (3) the arbitrator exceeded his or her powers and the award cannot be corrected without affecting the merits of the decision; or (4) the arbitrator failed to disclose certain matters to the parties. Parties seeking vacatur under these limited grounds must provide evidence to the court to prove that an award should be vacated. However, because arbitration awards do not need to be written or justified (unlike in court), and the entire process may be kept in secret (rather than in public view), parties have a difficult time proving that an arbitrator has engaged in prejudicial misconduct.

This bill seeks to remedy this problem by allowing litigants to obtain an official record of an arbitration or arbitration-related proceeding to not only serve as a record of the proceeding, but also as a check on the arbitrator and the other parties during the proceedings. Essentially, this bill establishes that a party to an arbitration proceeding has the right to have a certified shorthand reporter (i.e. a court reporter) in any arbitration deposition, proceeding, or hearing—at the expense of the requesting party. This bill also provides that if an arbitrator denies a party’s request for a court reporter, the party may petition the court for an order to compel the arbitrator to grant the party’s request. To ensure that indigent consumers have access to a court reporter during an arbitration proceeding, this bill also requires the non-consumer to provide a court reporter upon the request of the indigent consumer. This bill is sponsored by the Conference of California Bar Associations, and supported by California Court Reporters Association and Court Reporters Board of California. There is no opposition.

SUMMARY: Allows a party to an arbitration proceeding the right to have a court reporter during the arbitration proceeding. Specifically, this bill:

1. Provides that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.
2. Requires a party requesting a certified shorthand reporter to make the request in any of the following:
   1. A demand for arbitration, or in a response, answer, or counterclaim to a demand for arbitration.
   2. A pre-hearing scheduling conference where any deposition, proceeding, or hearing is being calendared.
3. Establishes that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter.
4. Requires a certified shorthand reporter to be provided to an indigent consumer, upon request, at the expense of the nonconsumer party in a consumer arbitration.
5. Provides that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, the party may petition the court for an order to compel the arbitrator to grant the party’s request.
6. Further provides that a petition may include a request for an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court’s determination of the petition.
7. States that this act does not add grounds for vacating an arbitration award or for correcting an arbitration award.

EXISTING LAW:

1. Establishes the California Arbitration Act which provides that agreements to arbitrate shall be valid, irrevocable, and enforceable, except upon such grounds as exist at law or in equity for the revocation of any contract. (Code of Civil Procedure Section 1280 et seq. Unless otherwise stated, all further statutory references are to the Code of Civil Procedure.)
2. Similarly establishes the Federal Arbitration Act (FAA) which provides that agreements to arbitrate shall be valid, irrevocable, and enforceable, except such grounds as exist at law or in equity for the revocation of any contract. (9 U.S.C. Section 1 et seq.)
3. Holds that private arbitrators may issue binding decisions that are legally enforceable but essentially not reviewable by a court; there is no appeal from an arbitrator's decision to a public court unless the arbitration agreement expressly provides for judicial review. (Crowell v. Downey Community Hospital Foundation (2002) 95 Cal. App. 4th 730; Cable Connection, Inc. v. DIRECTV, Inc., 44 Cal. 4th 1334 (2008).)
4. Holds that arbitrators may disregard the law and/or the evidence in rendering their decisions. Awards may be enforced by the court, even if they are legally and factually erroneous. (Moncharsh v. Heily & Blase et al (1992) 3 Cal.4th 1.)
5. Allows arbitrators to conduct arbitrations without allowing for discovery, complying with the rules of evidence, or explaining their decisions in written opinions. (Sections 1283.1, 1282.2, 1283.4.)
6. Allows arbitrators substantial, if not absolute, immunity from civil liability for acts relating to their decisions, even in the case of bias, fraud, corruption or other violation of law. (Baar v. Tigerman (1983) 140 Cal. App. 3d 979.)
7. Requires a court to vacate an arbitration award if it determines any of the following:
   1. The award was procured by corruption, fraud, or other undue means.
   2. There was corruption in any of the arbitrators.
   3. The rights of a party were substantially prejudiced by misconduct of a neutral arbitrator.
   4. The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision.
   5. The rights of a party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown for postponement, or by the refusal of the arbitrators to hear evidence material to the controversy, or by other misconduct of the arbitrators.
   6. An arbitrator making the award failed to disclose a ground for disqualification or was subject to disqualification but failed to disqualify himself or herself. (Section 1286.2.)
8. Provides that a petition to vacate an arbitration award must be served and filed no later than 100 days after the date of the service of a signed copy of the award on the petitioner. (Section 1288.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Justice Brennan once said that, “courts are the central dispute-setting institutions of our society. They are bound to do equal justice under the law, to rich and poor alike.” It comes as no surprise then that the phrase, “Equal Justice Under Law,” is engraved above the entrance to our nation’s highest court. And so it seems, we put a great deal of faith in our courts – but would we expect any less? We anticipate our courts to apply the law in a fair, neutral, and open manner. We hold judges to high standards, and ask that they avoid even the appearance of impropriety. We count on our judiciary to advance the law, issue orders, and render written opinions. And yet, we acknowledge that our system isn’t perfect and that despite their best efforts, courts sometimes get it wrong. Acknowledging the imperfection of our justice system is undoubtedly one reason why it has safeguards. We remember that decisions of courts are reviewed by appellate courts and indeed, reviewed by our elected branches. In order to facilitate the right to appeal, we provide a record of the proceedings, in criminal matters at least. And so, when our families, friends, and neighbors are injured, wronged, or have a dispute, we rely upon that faith that our courts—the institution we trust upon to promote fairness—will deliver equal justice under the law.

As this Committee is well-aware, arbitration is a form of alternative dispute resolution held outside of courts where a third-party (rather than a judge) makes a binding (and rarely appealable) award. Because most arbitration is created by entering into a contract (usually a contract that is adhesive or take-it-or-leave-it), the arbitration agreement will lay-out the procedures that will be followed during the arbitration hearing. For example, the terms of the arbitration agreement may stipulate that the award need not be written or justified (unlike in court), and that the entire process be kept in secret (rather than in public view). Arbitrators do not need to be lawyers, nor do they need to be trained in the law. Arbitrators who issue favorable awards to a particular company can be repeatedly-hired by that same company to serve as the arbitration-neutral without ever notifying the public about that award-history. It’s easy to predict the calls if you can hire the umpire.

Last year, the New York Times issued a three-part series titled, “Beware the Fine Print” – a special report examining how arbitration clauses buried in contracts deprives Americans of their fundamental constitutional rights:

Over the last 10 years, thousands of businesses across the country – from big corporations to storefront shops – have used arbitration to create an alternate system of justice. There, rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients. The change has been swift and virtually unnoticed, even though it has meant that tens of millions of Americans have lost a fundamental right: their day in court. (Silver-Greenberg & Corkery, In Arbitration, a Privatization of the Justice System, N.Y. Times (Nov. 1, 2015).)

In fact, some legal scholars have stated that, arbitration “amounts to the whole-scale privatization of the justice system.” (Ibid.) In an effort to protect consumers and workers, this Legislature has worked on legislation aimed at leveling the playing field, a turf that has been used by corporate interests to evade public scrutiny, and even, avoid the law. This is because arbitrators do not need to be trained in the law, or even apply the law, or render a decision consistent with the evidence presented to them. What evidence is presented may, in fact, be incomplete because parties in arbitration have no legal right to obtain evidence in support of their claims or defenses, or the claims or defenses of the other party, contrary to the longstanding discovery practice in public courts. Advocates continue to debate about the benefits and harms of mandatory-arbitration. Proponents of arbitration say that arbitration produces quicker results and reduces litigation costs. Opponents argue that arbitration harms consumers and workers because arbitration proceedings render unfair awards.

A brief review of recent court decisions on arbitration. Given the preemptive issues surrounding the Federal Arbitration Act (FAA) and the U.S. Supreme Court’s interpretation of the FAA, the ability to legislate around the issue of arbitration is difficult. In 2005, the California Supreme Court held that in certain adhesive take-it-or-leave-it consumer contracts, a contractual provision requiring the consumer to waive class-action is unconscionable and void. This is known as the Discovery Bank rule (herein the Rule). (36 Cal. 4th 148, 159.) In the well-known Concepcion decision, the U.S. Supreme Court struck down the Rule. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 344-47.) In that case, Vincent and Liza Concepcion entered into a cellphone contract that required claims to be brought in an “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” (Id. at 336.) Relying on Discovery Bank, the Concepcions challenged the class-action waiver as an unconscionable contract provision. (Id. at 338.) In abrogating the Rule, the Court held that the Rule stood “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” because it “interferes with fundamental attributes of arbitration.” (Id. at 344-47.) Although the Supreme Court has not defined a “fundamental attribute of arbitration,” the Court did say that there were potential advantages of arbitration: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes. (Id. at 348.) Indeed, the Court analogized to several examples on the kinds of rules or laws that would amount to “interference” with the “fundamental attribute of arbitration.” For example, a rule to require arbitration agreements and proceedings to provide judicially-monitored discovery, or to follow the Federal Rules of Evidence would clearly violate the FAA. (Id. at 342.) In those instances, those additional protections and procedures—admirable as they are—would increase costs, reduce efficiency and speed, and prevent an arbitrator from applying the rules he or she wants to apply; accordingly, states and courts are limited in crafting certain rules.

Despite what some may say, California may regulate issues involving arbitration. Relying on these principles in Concepcion, some argue that anything that interferes with arbitration is preempted by the FAA, as interpreted under Concepcion; however, this argument is mistaken. Federal law does not preempt states from enacting basic protections around the principles of contract law. While federal preemption is broad, states are permitted to set rules that are consistent with certain contract law principles.  Additionally, states may establish specific arbitration rules in their states.  As the Supreme Court has stated, “parties are generally free to structure their arbitration agreements as they see fit…[Where] parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA.”  (Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. (1989) 489 U.S. 468, 479.)  Accordingly, states can enact legislation that affects arbitration without offending the FAA.

What happens after an arbitrator issues an award? As previously stated, when a court renders a final judgment, parties in an action have the right to appeal the court’s judgment for appellate review. The same is not true for arbitration. When an arbitrator issues an award, the award is usually binding and final. Although the parties may move to correct or vacate the award, the grounds for correction or vacatur (vacating an award) are limited. For instance, an award may be vacated if: (1) the award was procured by corruption or fraud; (2) the rights of the party were substantially prejudiced by the arbitrator’s misconduct; (3) the arbitrator exceeded his or her powers and the award cannot be corrected without affecting the merits of the decision; or (4) the arbitrator failed to disclose certain matters to the parties. Parties seeking vacatur under these limited grounds must provide evidence to the court to prove that an award should be vacated. However, because arbitration awards do not need to be written or justified (unlike in court), and the entire process may be kept in secret (rather than in public view), parties have a difficult time proving that an arbitrator has engaged in prejudicial misconduct. This bill seeks to remedy this problem by allowing litigants to obtain an official record of an arbitration or arbitration-related proceeding to not only serve as a record of the proceeding, but also as a check on the arbitrator and the other parties during the proceedings.

Summary of the bill: Essentially, this bill would establish that a party to an arbitration proceeding has the right to have a certified shorthand reporter (i.e. a court reporter) in any arbitration deposition, proceeding, or hearing. This bill also provides that if an arbitrator denies a party’s request for a court reporter, the party may petition the court for an order to compel the arbitrator to grant the party’s request.

In support of the bill, the author writes:

In arbitrations, as in all legal proceedings, the existence of a reporter’s transcript of a deposition, proceeding or hearing can be absolutely essential to obtaining justice. In the absence of such a transcript or a suitable substitute, a reviewing court will conclude that an arbitration award, like all judgments or orders of lower courts, are presumed to be correct. Numerous appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided.

Additionally, arbitrators can and will deny parties the right to prepare a record of the proceedings. Particularly in cases of mandatory arbitration and unequal bargaining power between the parties, this can be a critical factor in the denial of justice.

SB 1007 will preserve the fundamental right to due process in an arbitration proceeding and enhance consumer protection by establishing a party’s right to certified shorthand reporter in any arbitration proceeding. Consumers will have the option to petition for a court order to compel the arbitrator if their request is denied. The existence of a record of the proceedings is essential in consumers obtaining justice when there are instances of arbitrator misconduct, unfair procedural actions, corruption or fraud.

Access to an official transcript for any adjudicatory proceeding is an important component of access to justice. Without an official record of what transpired at an arbitration proceeding, litigants may be unable to draft effective petitions to a court and will be unable to recount what actually happened during proceedings with any degree of accuracy. This bill reasonably allows a party the right to request a court reporter during the arbitration proceedings, at the expense of the requesting party, without interfering with the arbitration process. In order to provide access to justice for indigent litigants, this bill also provides that a court reporter shall be provided to an indigent consumer at the expense of the nonconsumer party.

To prevent gamesmanship, this bill requires parties to an arbitration proceeding to request a shorthand reporter in a timely manner. To address the concern that this act would allow parties to use a request for shorthand reporters to cause delay, this bill requires a party to make a request for a certified shorthand reporter either in the initial demand for arbitration (or in the response or answer to the demand), or during a scheduling conference between the parties. Although most arbitration proceedings only have one initial pre-hearing scheduling conference, this bill also envisions that there may be multiple scheduling conferences before the arbitration hearing. Accordingly, as long as a request for a shorthand reporter is made at the scheduling conference when a deposition, proceeding, or hearing is being calendared, the request would appear to satisfy the parameters for timeliness under this bill.

A party may petition the court to enforce his or her right to have a court reporter in arbitration under this bill. To ensure that this important right can be enforced, this bill allows a party to petition the court to compel the arbitrator to allow the party to have a court reporter in the event that an arbitrator denies a request. This bill additionally allows a party to petition the court to stay the arbitration proceeding while the court reviews the petition to compel. Although this Committee is unaware of whether denial of a request court reporter is a widespread practice, the author and sponsors has provided anecdotal information that this has occurred. Given that the work of a court reporter is important in delivering access to justice, it seems sensible to allow a party to enforce that right in court. It should be noted that this bill could be strengthened in this regard. Although this bill allows parties to have the right to have a court reporter in an arbitration proceeding, the state of arbitration law theoretically would allow a party to contract away this right – even though such a contract provision would appear to violate the public policy of this state. The Legislature, in the future, may wish to consider whether it should adopt a measure to prevent this type of unscrupulous conduct by making such contractual provisions void as against public policy.

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

California Court Reporters Association

Court Reporters Board of California

Opposition

None on file

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334

 THIRD READING  

Bill No: SB 1007

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-1, 4/26/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach

SUBJECT:

SOURCE: Conference of California Bar Associations

DIGEST: This bill establishes the right of a party to an arbitration to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, at the expense of the party requesting the transcript, except as specified, and provides that the transcript shall be the official record of the deposition, proceeding, or hearing. This bill requires that the party request the reporter upon the initiation of the arbitration or at the time that any deposition, proceeding, or hearing is being calendared, and permits the party to petition the court for an order to compel the arbitrator to grant the party’s request if an arbitrator refuses their request.

ANALYSIS:

Existing law:

1. Governs, under the California Arbitration Act (CAA), private arbitrations in this state, including the enforcement of an arbitration agreement, the conduct of arbitration proceedings, and the enforcement of arbitration awards. Provides that a party to the arbitration has the right to be represented by an attorney at any proceeding or hearing in arbitration under this title.
2. Provides that any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award, as specified.
3. Requires that all fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, be waived for an indigent consumer. For these purposes, “indigent consumer” means a person having a gross monthly income that is less than 300 percent of the federal poverty guidelines. Provides, further, that nothing in these provisions affects the ability of a private arbitration company to shift fees that would otherwise be charged or assessed upon a consumer party to a nonconsumer party.
4. Requires any consumer requesting a waiver of fees or costs may establish his or her eligibility by making a declaration under oath on a form provided to the consumer by the private arbitration company for signature stating his or her monthly income and the number of persons living in his or her household. No private arbitration company may require a consumer to provide any further statement or evidence of indigence.

This bill:

1. Provides that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.
2. Requires that a party requesting a certified shorthand reporter make his or her request upon the initiation of the arbitration or at the time that any deposition, proceeding, or hearing is being calendared.
3. Provides that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing pursuant to the above provisions, the party may petition the court for an order to compel the arbitrator to grant the party’s request.
4. Provides that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter. Provides, further, however, that in a consumer arbitration, a certified shorthand reporter shall be provided upon request of an indigent consumer, as defined under existing law, above, at the expense of the nonconsumer party.

Background

Arbitration is a method of alternative dispute resolution where the disputing parties present their disagreement(s) to one or more neutral third-party arbitrators whose decisions are generally final and binding, instead of litigating the issues in courts.

While the arbitration of certain types of disputes may be governed by specific statutes, the CAA, Sections 1280 et seq. of the Code of Civil Procedure, provides for a comprehensive, all-inclusive statutory scheme applicable to all written agreements to arbitrate disputes. This law governs all aspects of a nonjudicial arbitration: from the conduct of arbitrators, private arbitration companies, and the arbitration proceedings, to the enforcement of arbitration agreements and arbitration awards, as well as related judicial proceedings. Currently, the CAA is silent as to the right of parties to court reporters in an arbitration.

Arbitration has been a topic of significant controversy over the years as a form of alternative disputes resolution. Generally, some advocates assert that private arbitration provides a cheaper, faster, more efficient form of dispute resolution than the overburdened courts. At the same time, other consumer and employee advocates frequently raise issues with arbitration as an unregulated industry, which can be costly, unreceptive, and biased against consumers. These advocates assert that boilerplate, or standardized, contracts forcing consumer and employees into private arbitrations are problematic because arbitrators can conduct arbitrations without allowing for discovery, complying with the rules of evidence, or explaining their decisions in written opinions (Code Civ. Proc. Secs. 1283.1, 1282.2, and 1283.4); and arbitrations may be conducted in private with no public scrutiny (Ting v. AT&T, 182 F.Supp.2d 902 (N.D. Cal. 2002), affirmed, 319 F.3d 1126 (9th Cir. 2003)). Critics’ concerns are compounded by the fact that there are little, if any, regulations or legal standards imposed on arbitrators or their decisions. Regardless of the level or type of mistake, or even misconduct, by the arbitrator, the grounds on which a court will allow judicial review of an arbitration are extremely narrow. As a result, arbitrators can disregard the law and can issue binding decisions that are legally enforceable but generally not reviewable by a court. (See Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1 (holding that a court is not permitted to vacate an arbitration award based on errors of law by the arbitrator, except for certain narrow exceptions).) As a matter of statutory law, the CAA’s remedies are limited to vacatur of the award under limited circumstances.

This bill establishes the right of any party to an arbitration to have a court reporter transcribe any deposition, proceeding, or hearing, as specified.

Comments

As stated by the author:

In arbitrations, as in all legal proceedings, the existence of a reporter’s transcript of a deposition, proceeding or hearing can be absolutely essential to obtaining justice. In the absence of such a transcript or a suitable substitute, a reviewing court will conclude that an arbitration award, like all judgments or orders of lower courts, are presumed to be correct. Numerous appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided.

For this reason, the ability of a party or an arbitrator to deny the other party’s request to have, at the party’s own expense, a court reporter prepare a transcript of the proceeding can substantially prejudice the rights of the requesting party because no court report’s transcript or suitable substitute will be available for a reviewing court. As a result, the reviewing court then has to assume that the arbitration award is correct because no official record exists. This is a denial of the fundamental due process right to fairness of an arbitration hearing.

Although some of the major Alternative Dispute Resolution (ADR) providers acknowledge the importance of the ability to prepare a record of the proceedings, the practice is not universal and abuse has occurred. Arbitrators can and will deny parties the right to prepare a record of the proceedings. Particularly in cases of mandatory arbitration and unequal bargaining power between the parties, this can be a critical factor in the denial of justice.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/4/16)

Conference of California Bar Associations (source)

OPPOSITION: (Verified 5/6/16)

None received

ARGUMENTS IN SUPPORT: The sponsor of this bill, the Conference of California Bar Associations, writes in support that:

SB 1007 would specify in statute that parties to an arbitration have a right – at their own expense (except in the case of a consumer arbitration) – to have a certified shorthand reporter attend and transcribe any deposition, proceeding, or hearing during the arbitration, and to have that transcript be regarded as the official record. [ . . . ]

Under existing law [ . . . ] the arbitrator or another party to an arbitration can deny the other party’s request to have a court reporter prepare a transcript of the proceedings, even if the requesting party is paying for the reporter out of pocket. The absence of such a record can substantially prejudice the rights of the requesting party because no court report’s transcript or suitable substitute will be available for a reviewing court considering the validity of the award. Because no official record exists, the reviewing court has to assume that the arbitration award is correct, even if the record – if it existed – might clearly show error or misconduct. In these cases, the absence of a transcript is a denial of the fundamental due process right to fairness of an arbitration hearing.

The importance of having an official record in arbitration proceedings is acknowledged by the state’s major ADR providers, each of whom has rules that encourage – but don’t guarantee - the ability to prepare a record of the proceedings. However, the practice is not universal and abuse has occurred, often in cases of mandatory arbitration and unequal bargaining power between the parties. SB 1007 will provide protection against such miscarriages of justice.

Prepared by:

5/6/16 15:31:14

**** END ****

 THIRD READING  

Bill No: SB 1007

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 5-1, 4/26/16

AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach

SUBJECT:

SOURCE: Conference of California Bar Associations

DIGEST: This bill establishes the right of a party to an arbitration to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, at the expense of the party requesting the transcript, except as specified, and provides that the transcript shall be the official record of the deposition, proceeding, or hearing. This bill requires that the party request the reporter upon the initiation of the arbitration or at the time that any deposition, proceeding, or hearing is being calendared, and permits the party to petition the court for an order to compel the arbitrator to grant the party’s request if an arbitrator refuses their request.

ANALYSIS:

Existing law:

1. Governs, under the California Arbitration Act (CAA), private arbitrations in this state, including the enforcement of an arbitration agreement, the conduct of arbitration proceedings, and the enforcement of arbitration awards. Provides that a party to the arbitration has the right to be represented by an attorney at any proceeding or hearing in arbitration under this title.
2. Provides that any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award, as specified.
3. Requires that all fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, be waived for an indigent consumer. For these purposes, “indigent consumer” means a person having a gross monthly income that is less than 300 percent of the federal poverty guidelines. Provides, further, that nothing in these provisions affects the ability of a private arbitration company to shift fees that would otherwise be charged or assessed upon a consumer party to a nonconsumer party.
4. Requires any consumer requesting a waiver of fees or costs may establish his or her eligibility by making a declaration under oath on a form provided to the consumer by the private arbitration company for signature stating his or her monthly income and the number of persons living in his or her household. No private arbitration company may require a consumer to provide any further statement or evidence of indigence.

This bill:

1. Provides that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.
2. Requires that a party requesting a certified shorthand reporter make his or her request upon the initiation of the arbitration or at the time that any deposition, proceeding, or hearing is being calendared.
3. Provides that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing pursuant to the above provisions, the party may petition the court for an order to compel the arbitrator to grant the party’s request.
4. Provides that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter. Provides, further, however, that in a consumer arbitration, a certified shorthand reporter shall be provided upon request of an indigent consumer, as defined under existing law, above, at the expense of the nonconsumer party.

Background

Arbitration is a method of alternative dispute resolution where the disputing parties present their disagreement(s) to one or more neutral third-party arbitrators whose decisions are generally final and binding, instead of litigating the issues in courts.

While the arbitration of certain types of disputes may be governed by specific statutes, the CAA, Sections 1280 et seq. of the Code of Civil Procedure, provides for a comprehensive, all-inclusive statutory scheme applicable to all written agreements to arbitrate disputes. This law governs all aspects of a nonjudicial arbitration: from the conduct of arbitrators, private arbitration companies, and the arbitration proceedings, to the enforcement of arbitration agreements and arbitration awards, as well as related judicial proceedings. Currently, the CAA is silent as to the right of parties to court reporters in an arbitration.

Arbitration has been a topic of significant controversy over the years as a form of alternative disputes resolution. Generally, some advocates assert that private arbitration provides a cheaper, faster, more efficient form of dispute resolution than the overburdened courts. At the same time, other consumer and employee advocates frequently raise issues with arbitration as an unregulated industry, which can be costly, unreceptive, and biased against consumers. These advocates assert that boilerplate, or standardized, contracts forcing consumer and employees into private arbitrations are problematic because arbitrators can conduct arbitrations without allowing for discovery, complying with the rules of evidence, or explaining their decisions in written opinions (Code Civ. Proc. Secs. 1283.1, 1282.2, and 1283.4); and arbitrations may be conducted in private with no public scrutiny (Ting v. AT&T, 182 F.Supp.2d 902 (N.D. Cal. 2002), affirmed, 319 F.3d 1126 (9th Cir. 2003)). Critics’ concerns are compounded by the fact that there are little, if any, regulations or legal standards imposed on arbitrators or their decisions. Regardless of the level or type of mistake, or even misconduct, by the arbitrator, the grounds on which a court will allow judicial review of an arbitration are extremely narrow. As a result, arbitrators can disregard the law and can issue binding decisions that are legally enforceable but generally not reviewable by a court. (See Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1 (holding that a court is not permitted to vacate an arbitration award based on errors of law by the arbitrator, except for certain narrow exceptions).) As a matter of statutory law, the CAA’s remedies are limited to vacatur of the award under limited circumstances.

This bill establishes the right of any party to an arbitration to have a court reporter transcribe any deposition, proceeding, or hearing, as specified.

Comments

As stated by the author:

In arbitrations, as in all legal proceedings, the existence of a reporter’s transcript of a deposition, proceeding or hearing can be absolutely essential to obtaining justice. In the absence of such a transcript or a suitable substitute, a reviewing court will conclude that an arbitration award, like all judgments or orders of lower courts, are presumed to be correct. Numerous appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided.

For this reason, the ability of a party or an arbitrator to deny the other party’s request to have, at the party’s own expense, a court reporter prepare a transcript of the proceeding can substantially prejudice the rights of the requesting party because no court report’s transcript or suitable substitute will be available for a reviewing court. As a result, the reviewing court then has to assume that the arbitration award is correct because no official record exists. This is a denial of the fundamental due process right to fairness of an arbitration hearing.

Although some of the major Alternative Dispute Resolution (ADR) providers acknowledge the importance of the ability to prepare a record of the proceedings, the practice is not universal and abuse has occurred. Arbitrators can and will deny parties the right to prepare a record of the proceedings. Particularly in cases of mandatory arbitration and unequal bargaining power between the parties, this can be a critical factor in the denial of justice.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/4/16)

Conference of California Bar Associations (source)

OPPOSITION: (Verified 5/4/16)

Civil Justice Association of California

ARGUMENTS IN SUPPORT: The sponsor of this bill, the Conference of California Bar Associations, writes in support that:

SB 1007 would specify in statute that parties to an arbitration have a right – at their own expense (except in the case of a consumer arbitration) – to have a certified shorthand reporter attend and transcribe any deposition, proceeding, or hearing during the arbitration, and to have that transcript be regarded as the official record. [ . . . ]

Under existing law [ . . . ] the arbitrator or another party to an arbitration can deny the other party’s request to have a court reporter prepare a transcript of the proceedings, even if the requesting party is paying for the reporter out of pocket. The absence of such a record can substantially prejudice the rights of the requesting party because no court report’s transcript or suitable substitute will be available for a reviewing court considering the validity of the award. Because no official record exists, the reviewing court has to assume that the arbitration award is correct, even if the record – if it existed – might clearly show error or misconduct. In these cases, the absence of a transcript is a denial of the fundamental due process right to fairness of an arbitration hearing.

The importance of having an official record in arbitration proceedings is acknowledged by the state’s major ADR providers, each of whom has rules that encourage – but don’t guarantee - the ability to prepare a record of the proceedings. However, the practice is not universal and abuse has occurred, often in cases of mandatory arbitration and unequal bargaining power between the parties. SB 1007 will provide protection against such miscarriages of justice.

ARGUMENTS IN OPPOSITION: The Civil Justice Association of California wrote in opposition to the prior version of this bill that:

[C]urrent law sets standards for arbitration and requires a court to vacate an arbitration award if it makes certain findings, including:

• The award was procured by corruption, fraud, or other undue means.
• There was corruption in any of the arbitrators.
• The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.
• The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
• The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

We do not believe that SB 1007 presents a comparable basis for vacating an arbitration award. [ . . . ] We do not believe that having a certified shorthand reporter should provide the basis for vacating a permissible arbitration award.

Prepared by: Ronak Daylami / JUD. / (916) 651-4113

5/4/16 14:57:54

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SB 1007 (Author:Wieckowski)

Version: April 13, 2016

Hearing Date: April 26, 2016

Fiscal: No

Urgency: No

Consultant: RD

SUBJECT

Arbitration: transcription by certified shorthand reporter

DESCRIPTION

This bill would establish the right of a party to an arbitration to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, at the expense of the party requesting the transcript, except as specified, and would provide that the transcript shall be the official record of the deposition, proceeding, or hearing. This bill would provide that the refusal of this right is a ground for vacatur of the arbitration award and would add a new provision to the existing vacatur statute for that purpose.

BACKGROUND

Arbitration is a method of alternative dispute resolution where the disputing parties present their disagreement(s) to one or more neutral third-party arbitrators whose decisions are generally final and binding, instead of litigating the issues in courts.

While the arbitration of certain types of disputes may be governed by specific statutes, the California Arbitration Act (CAA), Sections 1280 et seq. of the Code of Civil Procedure, provides for a comprehensive, all-inclusive statutory scheme applicable to all written agreements to arbitrate disputes. This law governs all aspects of a nonjudicial arbitration: from the conduct of arbitrators, private arbitration companies, and the arbitration proceedings, to the enforcement of arbitration agreements and arbitration awards, as well as related judicial proceedings. Currently, the CAA is silent as to the right of parties to court reporters in an arbitration.

Arbitration has been a topic of significant controversy over the years as a form of alternative disputes resolution. Generally, some advocates assert that private arbitration provides a cheaper, faster, more efficient form of dispute resolution than the overburdened courts. At the same time, other consumer and employee advocates frequently raise issues with arbitration as an unregulated industry, which can be costly, unreceptive, and biased against consumers. These advocates assert that boilerplate, or standardized, contracts forcing consumer and employees into private arbitrations are problematic because arbitrators can conduct arbitrations without allowing for discovery, complying with the rules of evidence, or explaining their decisions in written opinions (Code Civ. Proc. Secs. 1283.1, 1282.2, and 1283.4); and arbitrations may be conducted in private with no public scrutiny (Ting v. AT&T, 182 F.Supp.2d 902 (N.D. Cal. 2002), affirmed, 319 F.3d 1126 (9th Cir. 2003)). Critics’ concerns are compounded by the fact that there are little, if any, regulations or legal standards imposed on arbitrators or their decisions. Regardless of the level or type of mistake, or even misconduct, by the arbitrator, the grounds on which a court will allow judicial review of an arbitration are extremely narrow. As a result, arbitrators can disregard the law and can issue binding decisions that are legally enforceable but generally not reviewable by a court. (See Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1 (holding that a court is not permitted to vacate an arbitration award based on errors of law by the arbitrator, except for certain narrow exceptions).) As a matter of statutory law, the CAA’s remedies are limited to vacatur of the award under limited circumstances.

This bill would establish the right of any party to an arbitration to request a court reporter, as specified, and would provide that the refusal of an arbitrator to allow a court reporter at the expense of the requesting party is grounds for vacatur of the award.

CHANGES TO EXISTING LAW

Existing law, the California Arbitration Act (CAA), generally governs private arbitrations in this state, including the enforcement of an arbitration agreement, the conduct of arbitration proceedings, and the enforcement of arbitration awards. (Code Civ. Proc. Sec. 1280 et seq.) Existing law provides that a party to the arbitration has the right to be represented by an attorney at any proceeding or hearing in arbitration under this title. (Code Civ. Proc. Sec. 1282.4(a).)

Existing law provides that any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award, as specified. (Code Civ. Proc. Sec. 1285.)

Existing law provides that if a petition or response under the CAA is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with the CAA it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings. (Code Civ. Proc. Sec. 1286.)

Existing law requires that a petition to correct or vacate an award, or a response requesting such relief, set forth the grounds on which the request for such relief is based. (Code Civ. Proc. Sec. 1285.8.)

Existing law provides, generally, that, subject to specified procedural requirements, the court shall vacate the award if the court determines any of the following:

• the award was procured by corruption, fraud or other undue means;
• there was corruption in any of the arbitrators;
• the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator;
• the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted;
• the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor, by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of the CAA; or
• an arbitrator making the award either: (1) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (2) was subject to disqualification upon specified grounds but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. (Code Civ. Proc. Sec. 1286.2(a).)

Existing law requires that all fees and costs charged to or assessed upon a consumer party by a private arbitration company in a consumer arbitration, exclusive of arbitrator fees, be waived for an indigent consumer. For these purposes, “indigent consumer” means a person having a gross monthly income that is less than 300 percent of the federal poverty guidelines. Existing law provides that nothing in this section shall affect the ability of a private arbitration company to shift fees that would otherwise be charged or assessed upon a consumer party to a nonconsumer party. (Code Civ. Proc. Sec. 1284.3(b)(1).)

Existing law requires any consumer requesting a waiver of fees or costs may establish his or her eligibility by making a declaration under oath on a form provided to the consumer by the private arbitration company for signature stating his or her monthly income and the number of persons living in his or her household. No private arbitration company may require a consumer to provide any further statement or evidence of indigence. (Code Civ. Proc. Sec. 1284.3(b)(3).)

This bill would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing. The transcript shall be the official record of the deposition, proceeding, or hearing.

This bill would provide that if an arbitration agreement does not provide for a certified shorthand reporter, the party requesting the transcript shall incur the expense of the certified shorthand reporter. This bill would further provide, however, that in a consumer arbitration, a certified shorthand reporter shall be provided upon request of an indigent consumer, as defined under existing law, above, at the expense of the nonconsumer party.

This bill would provide that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing pursuant to this section and an award is made, the court shall vacate the award as specified.

This bill would add that the court shall vacate the award, if the court determines that an arbitrator refused a party’s request, under the provisions above, for a certified shorthand reporter.

This bill would make other technical, nonsubstantive changes.

COMMENT

1. Stated need for the bill

According to the author:

In arbitrations, as in all legal proceedings, the existence of a reporter’s transcript of a deposition, proceeding or hearing can be absolutely essential to obtaining justice. In the absence of such a transcript or a suitable substitute, a reviewing court will conclude that an arbitration award, like all judgments or orders of lower courts, are presumed to be correct. Numerous appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided.

For this reason, the ability of a party or an arbitrator to deny the other party’s request to have, at the party’s own expense, a court reporter prepare a transcript of the proceeding can substantially prejudice the rights of the requesting party because no court report’s transcript or suitable substitute will be available for a reviewing court. As a result, the reviewing court then has to assume that the arbitration award is correct because no official record exists. This is a denial of the fundamental due process right to fairness of an arbitration hearing.

Although some of the major Alternative Dispute Resolution (ADR) providers acknowledge the importance of the ability to prepare a record of the proceedings, the practice is not universal and abuse has occurred. Arbitrators can and will deny parties the right to prepare a record of the proceedings. Particularly in cases of mandatory arbitration and unequal bargaining power between the parties, this can be a critical factor in the denial of justice.

2. Right to transcripts are vital to the administration of justice

California law provides for the enforcement of private arbitration agreements and governs the operation and conduct of those nonjudicial proceedings under the California Arbitration Act (CAA). As noted in the Background, the relief that a court may grant to a party to the arbitration is limited to a potential vacatur of the award under the CAA. Vacatur is available, for example, if there was corruption or bias; the party’s rights were substantially prejudiced by a neutral arbitrator’s misconduct; or the party’s rights were substantially prejudiced by the arbitrator’s refusal to postpone the hearing where sufficient cause was shown, or by the arbitrator’s refusal to hear evidence material to the controversy, or by other conduct of the arbitrators contrary to the provisions of the CAA. Presumably, a party might need a transcript of the original proceedings to successfully seek vacatur or to otherwise seek judicial review. According to the author and sponsor, however, even when a party seeks to have a court reporter transcribe the proceedings at the party’s own expense, some arbitrators deny the party’s request or make the authorization contingent upon the other party’s consent.

As a matter of public policy, having accurate, verbatim records of proceedings is vital to the administration of justice for multitudes of reasons: transcripts provide a record for appeal; enable opposing counsel to impeach a witness (prior inconsistent statements under oath); allow for the prosecution a person for perjury; and ensure that court orders accurately reflect what the judge actually ruled in court with respect to any range of important issues such as visitation rights, or division of property. Arguably, the importance of transcripts to the American legal system is true regardless of whether the dispute resolution proceedings are judicial or nonjudicial in nature. This is perhaps even truer in a privatized, nonjudicial legal system, where significant disputes between parties can be resolved without enforcement of traditional rules of evidence, opportunity for full discovery, in-depth written opinions, opportunity for public proceedings, or opportunity for appeals. Again, where the potential relief that a court may grant in private under the CAA is largely limited to vacatur of the award, it becomes that much more difficult for a party to ever prove that the arbitrator was biased, corrupt, acted in a manner that substantially prejudiced one party, or engaged in some other misconduct, if no record of the proceedings exist.

As such, this bill would establish the right of a party to have a certified shorthand reporter, at the party’s own expense, to transcribe the proceedings. At the same time, consistent with other public policy in this state authorizing court reporter fees to be waived for indigent parties (see Gov. Code Secs. 68086(b), 68631-68633), this bill would require that a court reporter be provided at no cost to any indigent consumer requesting a reporter. In that scenario, the non-consumer party would bear the expense.

3. Enforcement mechanism

To ensure that the right to a court reporter is enforced, this bill would provide that if an arbitrator refuses to allow a party to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, as specified, and an award is made, the court shall vacate the award, as specified. Currently, when an award is vacated, the court may order a rehearing before new arbitrators, or, in some cases, order a rehearing before the original arbitrators. (Code Civ. Proc. Sec. 1286.2.) As a matter of public policy, however, requiring a party to wait until the award has been made to enforce their right to a court reporter may not be preferable. At that point, the parties have born significant time and expense to go through the arbitration, only to have to begin new proceedings over the same issues all over again. To ensure that the party is able to enforce his or her right to a court reporter for all proceedings in a more timely fashion, the author may wish to amend the bill to strike the vacatur provisions of the bill and to, instead, allow the party to petition the court for an order to compel the arbitrator to grant the party’s request. As a practical matter, to avoid any calendaring issues and to ensure that parties cannot use the provision to delay proceedings that are already in progress, the author may wish to further amend the bill to ensure that the right to request a court reporter shall be made at the outset of the arbitration.

4. Opposition arguments

The Civil Justice Association of California writes in opposition that:

[C]urrent law sets standards for arbitration and requires a court to vacate an arbitration award if it makes certain findings, including:

• The award was procured by corruption, fraud, or other undue means.
• There was corruption in any of the arbitrators.
• The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.
• The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
• The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

We do not believe that SB 1007 presents a comparable basis for vacating an arbitration award. [ . . . ] We do not believe that having a certified shorthand reporter should provide the basis for vacating a permissible arbitration award.

Staff notes that the amendment suggested in Comment 3 would arguably resolve these concerns.

Support: None Known

Opposition: Civil Justice Association of California

HISTORY

Source: Conference of California Bar Associations

Related Pending Legislation:

SB 1241 (Wieckowski, 2016) would provide that any contract provisions that require a consumer or employee to litigate or arbitrate in a different state or that require a different state’s law to govern a dispute that arose in California, as specified, are voidable by the consumer or employee.

SB 1078 (Jackson, 2016) would add specified rules relating to marketing activities of private arbitration companies and relating to the ability of arbitrators to enter into future arrangements with one party to a pending arbitration. This bill would also allow parties to recoup fees where an award has been vacated or the arbitrator has been removed during an arbitration for violations of ethical rules or disclosure requirements.

SB 1065 (Monning, 2016) would eliminate the existing law right of appeal when a motion to compel arbitration has been denied, if the case involves a claim under the Elder Abuse and Dependent Adult Civil Protection Act and the senior has received a trial preference under existing law due to age and health.

Prior Legislation: None Known

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