Home \ Blog \ California Judicial Arbitration

Blog

California Judicial Arbitration

June 22, 2011

By Barbara Haubrich-Hass, ACP/CAS

Arbitration is a means to resolve a civil dispute without the need to go to trial. In arbitration, a neutral third person (called an “Arbitrator”) will hear the testimony and review the evidence presented and then render an unbiased decision. Arbitration is less formal than a trial, and the rules of evidence are not as strict. California Arbitrations can be either “binding” or “non-binding,” and are generally referred to as “Judicial” or “Contractual.”

Judicial Arbitration is an Alternative Dispute Resolution (“ADR”) mechanism utilized by the California state courts whereby cases that fit a certain criteria are court-ordered to complete. Additionally, parties can elect or stipulate to proceed with binding or non-binding judicial arbitration.

In contrast, Contractual Arbitration is required by a pre-dispute contract whereby the parties agree that in the event of a dispute, resolution will be controlled through binding arbitration rather than litigation.

There are fundamental differences between the two types of arbitrations in California. For paralegals, one of the biggest concern is making sure the arbitration cut-offs are correctly determined and calculated. For purposes of this article, I will provide a timeline and the cut-offs for judicial arbitration[1], only. However, because it is important to understand the differences between judicial and contractual arbitration, I will start with a table that lists a few of the differences[2].

DIFFERENCES BETWEEN JUDICIAL AND CONTRACTUAL ARBITRATION

Cases Subject to Judicial Arbitration:

In superior courts with 18+ judges (and in superior courts with less than 18 judges where it is provided by local rule), all unlimited civil cases where the amount in controversy does not exceed $50,000 as to any plaintiff;
All limited civil cases where it is provided by local rule;
By stipulation in any limited or unlimited civil case, regardless of the amount in controversy; and,
Upon filing of an election by all plaintiffs, any limited or unlimited civil case whereby each plaintiff agrees that the arbitration award will not exceed $50,000 as to that plaintiff. [CRC Rule 3.811(a); CCP § 1141.11] Cases that are exempt from this rule are listed in CRC Rule 3.811(b).

Cases Subject to Contractual Arbitration:

Contractual arbitration applies only if the parties have agreed to resolve the dispute by arbitration rather than litigation, and it is the contract that determines the details of the process. [CCP §§ 1282 et seq.]

Source of Rules:

Judicial arbitration is governed by California Code of Civil Procedure §§ 1141.10 – 1141.31; California Rules of Court Rules 3.810 – 3.830. In contrast, contractual arbitration is governed by California Code of Civil Procedure §§ 1282 – 1284.3.

Effect of Award:

In judicial arbitration, the parties do not waive their right to a trial by jury. The parties have a right to request a trial de novo after the Award of Arbitrator within 30-days from the date of the award. Additionally, the Arbitrator’s decision is non-binding. Exceptions include: The parties stipulating to a binding arbitration; or the acceptance of the Arbitrator’s Award by failing to file a Request for Trial de Novo within 30-days from the date of the award. [CCP 1141.20; CRC Rule 3.826]

In contractual arbitration, the parties waive their right to a trial by jury. The parties do not have a right to a trial de novo after the Award of Arbitrator. Unless otherwise agreed or under very limited circumstances, the Arbitrator’s decision is legally binding and non-appealable.

Selection of Arbitrator:

In judicial arbitration, the arbitrator may be selected by stipulation between the parties, or appointed through the court selection process. Arbitrators are to be retired judges, retired court commissioners, or members of the State Bar. [CRC Rule 3.815; CCP § 1141.18] In contractual arbitration, the contract can provide for the method of selecting an Arbitrator. If the contract does not provide a method, the parties can agree on a method of appointing anArbitrator. If there is not an agreed method, or if the parties cannot agree on a method, the court will appoint the Arbitrator. [CCP § 1281.6]

          Discovery Disputes:

In judicial arbitration, the court retains the power to enforce the rights, remedies, procedures, duties, liabilities, and

resolution of discovery disputes.  In contractual arbitration, the Arbitrator retains the power to enforce the rights,

remedies, procedures, duties, liabilities, and resolution of discovery disputes.  [CCP § 1283.05(b)]

          Rules of Evidence:

In judicial arbitration, the rules of evidence governing civil cases apply to the conduct of the arbitration hearing with the exception of written reports and documents; witness statements, and deposition transcripts offered into evidence. [CRC Rule 3.823]

In contractual arbitration, unless otherwise provided in the contract, courtroom rules of evidence and procedure need not be observed. [CCP § 1282.2(d)]

Costs and Prejudgment Interest:

In judicial arbitration, an award of costs of suit for the failure to accept a CCP § 998 Offer to Compromise applies to arbitrations. [CCP § 998(c)(1)] In contractual arbitration, if the award is confirmed, prejudgment interest and statutory costs may be recovered that is awarded by the Arbitrator. [CCP § 1287.4]

Next . . . The Timeline

In order to determine the judicial arbitration cut-offs, it is necessary to read California Code of Civil Procedure §§ 1141.10 – 1141.31 and California Rules of Court Rules 3.810 – 3.830 and create a timeline of events that the above-described statutes describe in judicial arbitration. Below is a summary of events that occur in California judicial arbitration.

Caveat: As with all statutes, they are subject to change. Please check the statutes before utilizing any timeline or cut-off table. This table was created 06-22-2011.

CALIFORNIA JUDICIAL ARBITRATION TIMELINE

Timing: Arbitration set forthwith. Last day to file stipulation to arbitrate is 15 calendar days before the date set for the case management conference.

Event: "When the parties stipulate to arbitration, the case must be set for arbitration forthwith. The stipulation must be filed no later than the time the initial case management statement is filed, unless the court orders otherwise." CRC Rule 3.812(a) (Emphasis added)

Timing: Arbitration set forthwith. Last day to file written election of all plaintiffs to submit a case to arbitration is 15 calendar days before the date set for the case management conference.

Event: "Upon written election of all plaintiffs to submit a case to arbitration, the case must be set for arbitration forthwith, subject to a motion by defendant for good cause to delay the arbitration hearing. The election must be filed no later than the time the initial case management statement is filed, unless the court orders otherwise." CRC Rule 3.812(b) (Emphasis added)

Timing: When the court determines that the amount in controversy does not exceed $50,000. [Note: Generally at the initial case management conference]

Event: "Absent a stipulation or an election by all plaintiffs to submit to arbitration, cases must be set for arbitration when the court determines that the amount in controversy does not exceed $50,000. ..." CRC Rule 3.812(d) (Emphasis added)

Timing: Within 15 days after the case management conference.

Event: Within 15 days after a case is set for arbitration under rule 3.812, the administrator must mail a list of potential arbitrators to the parties. CRC Rule 3.815(b)(1)

Timing: Within 10 days from the date of mailing the list of potential arbitrators to the parties.

Event:   Each side has 10 days "from the date of mailing" of the list to file a written rejection of one name on the list.

If there are two or more parties to a side, they must all join in the rejection of a single name.   CRC Rule 3.815(b)(3)

Timing:  Promptly on the expiration of the 10^th day from the mailing of the list of potential arbitrators to the parties.

Event:  At the end of the 10-day period for rejection of names, the court administrator must promptly appoint at

random one of the persons on the list whose name was not rejected by the parties if more than a single name

remains. The court administrator must then assign the case to the arbitrator and notify the parties.  CRC Rule 3.815(b)(4)(5)

Timing: Within 5-days of the arbitrator’s appointment.

Event: No later than 5-days before the deadline for parties to file a motion for disqualification of the arbitrator, or if the arbitrator is not aware of his or her appointment or a matter subject to disclosure at that time, as soon as practicable thereafter, the arbitrator must disclose to the parties: 1. Any matter subject to disclosure; and 2. Any significant personal or professional relationship the arbitrator has or has had with a party, attorney, or law firm in the case. CRC Rule 3.816(b)(1)(2)

Timing: Within 15-days of the arbitrator’s appointment.

Event: Within 15 days after the arbitrator’s appointment, the arbitrator must set the time and place of hearing and notify the parties in writing of the date, time, and place set. CRC 3.817(a)

Timing: Arbitration set not earlier than 30-days or later than 90-days from the date of assignment of the case to the arbitrator.

Event: The arbitration hearing must not be set not earlier than 30-days after the date the arbitrator sends the notice of the hearing (35-days if served by mail [CCP § 1013(a)]) and scheduled to be completed within 90-days from the date of assignment. CRC Rule 3.817 (b)(c)

Timing: 90^th day after assignment of arbitrator.

Event: An arbitration hearing must not be continued to a date later than 90-days after the assignment of the case to the arbitrator except by court order. CRC Rule 3.818(c)

Timing: 20-days prior to arbitration.

Event: Written statements of any witness may be offered if copies have been delivered to all opposing counsel at least 20 days before the hearing (25-days if served by mail [CCP § 1013(a)]). CRC Rule 3.823(2)(B)

Timing: 20-days prior to arbitration.

Event: The proponent must deliver to all other parties notice of intent to use a deposition at least 20-days before the hearing (25-days if served by mail [CCP § 1013(a)]). Any other party then has the option of subpoenaing the deponent. In this event, the arbitrator, in his or her discretion, may exclude the deposition, or admit it subject to cross-examination of the witness by the subpoenaing party. CRC Rule 3.823(b)(3)

Timing: 20-days prior to arbitration.

Event: Written reports and other documents must be delivered to the arbitrator and all parties at least 20-days before the hearing (25-days if served by mail [CCP § 1013(a)]). CRC Rule 3.823(b)

Timing: 15-days prior to arbitration.

Event: Discovery must be completed no later than 15-days before the date set for the arbitration hearing. CRC Rule 3.822(b)

Timing: 10-days prior to arbitration.

Event: Witness statements are not admissible as a substitute for live testimony, if any other party has, at least 10-days before the hearing (15-days if served by mail [CCP § 1013(a)]), delivered to the proponent a written demand that the witness be produced in person to testify at the hearing. CRC 3.823(2)(C)

Timing: 10-days after arbitration.

Event: The arbitrator must file the award within 10-days after conclusion of the hearing. CRC Rule 3.825(b)(1)

Timing: 30-days after arbitration.

Event: The arbitration award becomes final if neither party requests a trial de novo within 30-days after the award and proof of service are filed. The court clerk will enter a judgment on the award without further order of court. [CCP § 1141.20(a); CRC Rule 3.827(a)] The judgment will have the same force and effect as any other civil judgment and may be enforced accordingly. [CCP §§ 1141.23; CRC Rule 3.827(c)]

Next . . . The Cut-Offs

Once you have made a timeline of events, it is easier to create a table to follow in calculating the judicial arbitration cut-offs. Based on the above-described statutes, a table was created below for the California judicial arbitration cut-offs. They are based from seven “trigger” dates[3], as follows:

The date the arbitration is ordered by the court at the initial case management conference.
The date on the Proof of Service of the Notice of Potential Arbitrators served by the court.
The date on the Proof of Service of the Notice of Assignment of Arbitrator served by the court.
The date on the Proof of Service of the Notice of Arbitration Hearing served by the arbitrator.
The date of the Arbitration Hearing.
The date on the Proof of Service of the Award of Arbitrator.
The date of the Entry of Judgment.

Caveat: As with all deadlines, they are subject to judicial change. Please check the statutes before utilizing any cut-off table. This table was created 06/22/2011.

CALIFORNIA JUDICIAL ARBITRATION CUT-OFFS

Trigger Date #1: Date Arbitration is Ordered by the Court at the Case Management Conference

15-days After: Last day for the Court to mail a list of potential arbitrators -- CRC 3.815(b)(1)

Trigger Date #2: Date on Proof of Service of Notice of Potential Arbitrators Served by the Court

10-days After: Last day to Reject Arbitrator – CRC 3.815(b)(3)

Promptly on the 10^th day After [20-days after for follow-up if not received]: Has the Court served a Notice of Assignment of Arbitrator? If not, contact the court clerk to follow-up regarding status.

Trigger Date #3: Date on Proof of Service of Notice of Assignment of Arbitrator Served by the Court

5-days After: Last day for arbitrator to disclose disqualification – CRC 3.816(b)

15-days After: Last day for arbitrator to set the time, date, and place of the arbitration hearing -- CRC 3.817(a)

90-days After: Last day for the arbitration hearing to be completed – CRC 3.817(c)

Trigger Date #4: Date on Proof of Service of Notice of Arbitration Hearing Served by the Arbitrator

30-days After: First day the arbitration hearing may be set – CRC 3.817(b)

Trigger Date #5: Arbitration Date

75-days Before: 75-day file review. [Recommended Time]

50-days Before: Last day to serve by mail written discovery [Interrogatories, Request for Production of Documents, Request for Admissions, Demand for Defense Medical Examination] [Calculation: 15-days for discovery cut off + 30-days for notice period for discovery + 5-days for mailing = 50-days]

45-days Before: Last day to hand deliver written discovery. [Interrogatories, Request for Production of Documents, Request for Admissions, Demand for Defense Medical Examination] [Calculation: 15-days for discovery cut-off + 30-days for notice period for discovery = 45-days]

32-days Before: Prepare Notice of Documentary Evidence to be Submitted at Arbitration Hearing. [Due by mail 25-days; hand delivered 20-days before arbitration]

32-days Before: Prepare Written Statement of Witnesses. [Due by mail 25-days; hand delivered 20-days before arbitration]

32-days Before: Prepare Notice of Intent to Offer Deposition into Evidence at Arbitration. [Due by mail 25-days; hand delivered 20-days before arbitration]

30-days Before: Last day to serve by mail Notice of Taking Deposition. [Calculation: 15-days for discovery cut off + 10-days for notice period for deposition + 5-days for mailing = 30-days]

25-days Before: Last day to hand deliver Notice of Taking Deposition. [Calculation: 15-days for discovery cut off + 10-days for notice period for deposition = 25-days]

25-days Before: Last day to serve by mail Written Statement of Witnesses – CRC 3.823(2)(B) [Calculation: 20-days + 5-days for mailing = 25-days]

25-days Before: Last day to serve by mail Notice of Intent to Offer Deposition into Evidence at Arbitration – CRC 3.823(b)(3)(A)(ii) [Calculation: 20-days + 5-days for mailing = 25-days]

25-days Before: Last day to serve by mail Notice of Documentary Evidence to be Submitted at Arbitration Hearing – CRC 3.823(b)(1)(A) [Calculation: 20-days + 5-days for mailing = 25-days]

22-days Before: Prepare Arbitration Brief [Recommended Time]

20-days Before: Last day to hand deliver Notice of Intent to Offer Deposition into Evidence at Arbitration – CRC 3.823(b)(3)(A)(ii)

20-days Before: Last day to hand deliver Notice of Documentary Evidence to be Submitted at Arbitration Hearing – CRC Rule 3.823(b)(1)(A)

20-days Before: Last day to hand deliver Written Statement of Witnesses – CRC 3.823(2)(B)

15-days Before: Last day to serve by mail Demand for Attendance of Witnesses – CRC 3.823(b)(2)(C) [Calculation: 10-days + 5-days for mailing = 15-days]

15-days Before: Last day to serve by mail CCP 998 Offer to Compromise. [Calculation: 10-days + 5-days for mailing = 15-days]

15-days Before: Discovery Cut-Off CRC 3.822(b)

15-days Before: Serve by mail Arbitration Brief [Recommended Time]

10-days Before: Last day to hand deliver CCP 998 Offer to Compromise

10-days Before: Hand deliver Arbitration Brief [Recommended Time – if not mailed]

10-days Before: Last day to hand deliver Demand for Attendance of Witnesses – CRC 3.823(b)(2)(C)

0 days: Date of Arbitration Hearing

10-days After: Last day for Arbitrator to file and serve Award of Arbitrator – CRC 3.825(b)

Trigger Date #6: Date on the Proof of Service of the Award of Arbitrator Served by the Arbitrator

15-days After: Discuss with attorney whether a Request for Trial de Novo is going to be filed.

15-days After: Prepare Memorandum of Costs [Due 30-days after Award]

15-days After: Prepare Request for Trial de Novo. [Due 30-days after Award]

30-days After: Last day to serve by mail and file with court Request for Trial de Novo – CRC 3.826(a); CCP 1141.20(a)

30-days After: Last day to serve by mail and file with court Memorandum of Costs – CRC 3.826(d); CCP 1141.21

31-days After: First day Court Clerk can enter arbitration award as a judgment if no Request for Trial de Novo has been filed – Clerk mails Notice of Entry of Judgment CRC 3.827(a)(b)

Trigger Date #7: Date of Entry of Judgment

Within 6-months After Entry of Judgment: Any party may move to vacate judgment – CCP 1141.23, 473, 1286.2(a)(1)-(3); CRC 3.828(a)

[1] Caveat: The contractual arbitration timeline and cut-offs are different than judicial arbitration cut-offs.

[2] Caveat: This is not a complete list.

[3] A “trigger” date is the date that activates the calculation of the task.

Next . . . Need Help Calculating and Tracking These Deadlines?

Deadline Direct is a great addition to your Microsoft Windows 7 or Microsoft Vista computers. It is a handy tool that gives you all the options you need in calculating business deadlines. Time increment choices include calendar days, business days, weeks, months, or years. You can add or delete weekends, federal holidays, or any other date of your choosing. You no longer need to make manual notes in Microsoft Outlook concerning deadline calculations. Deadline Direct provides a notes field that will automatically include the notes with the calculation in its integration features to Microsoft Outlook calendar, task, or e-mail.

Effective:

Allows You to Control How the Deadline is Calculated
Provides Multiple Choices in the Deadline Calculation
The Notes Field Allows You to Control the Details of the Deadline
Quick Integration to Outlook Saves Time and Steps to Track the Deadline

Do you want to use this article? You can so long as you include this entire blurb with it: "Barbara Haubrich-Hass, The California Litigator, publishes an e-zine that delivers simple discussions and strategies for the California civil litigation professional. Barbara’s discussions focus on common paralegal and law office tasks, such as pre-litigation document gathering, document preparation, filing rules, law and motion, discovery, arbitration, trial, deadline calculation, and post-trial procedures. More information is available at www.thecalifornialitigator.com

DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this article, or to any other website to which this article may be linked.