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California Judicial Arbitration

By Barbara Haubrich-Hass, ACP/CAS

06/22/2011

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 cutoffs for judicial arbitration1, 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 differences2. DIFFERENCES BETWEEN JUDICIAL AND CONTRACTUAL ARBITRATION Judicial Arbitration Cases Subject to Judicial Arbitration: 1. 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
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Contractual Arbitration 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

Caveat: The contractual arbitration timeline and cut-offs are different than judicial arbitration cut-offs. Caveat: This is not a complete list. Page 1

cases where the amount in controversy does not exceed $50,000 as to any plaintiff; 2. All limited civil cases where it is provided by local rule; 3. By stipulation in any limited or unlimited civil case, regardless of the amount in controversy; and 4. 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). Source of Judicial Arbitration Rules: Governed by California Code of Civil Procedure 1141.10 1141.31; California Rules of Court Rules 3.810 3.830 Effect of Judicial Arbitration Award: 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 Arbitrators decision is nonbinding. Exceptions include: The parties stipulating to a binding arbitration; or the acceptance of the Arbitrators 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] Selection of Arbitrator: 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

the contract that determines the details of the process. [CCP 1282 et seq.]

Source of Contractual Arbitration Rules: Governed by California Code of Civil Procedure 1282 1284.3 Effect of Contractual Arbitration Award: 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 Arbitrators decision is legally binding and nonappealable.

Selection of Arbitrator: 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 an Arbitrator. If
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members of the State Bar. [CRC Rule 3.815; CCP 1141.18] Discovery Disputes: The court retains the power to enforce the rights, remedies, procedures, duties, liabilities, and resolution of discovery disputes. Rules of Evidence: 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] Costs and Prejudgment Interest: An award of costs of suit for the failure to accept a CCP 998 Offer to Compromise applies to arbitrations. [CCP 998(c)(1)]

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: 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: Unless otherwise provided in the contract, courtroom rules of evidence and procedure need not be observed. [CCP 1282.2(d)]

Costs and Prejudgment Interest: 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.

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Below is a summary of events that occur in California judicial arbitration. Note: 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. 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. When the court determines that the amount in controversy does not exceed $50,000. [Note: Generally at the initial case management conference] Within 15 days after the case management conference. Within 10 days from the date of mailing the list of potential arbitrators to the parties. Promptly on the expiration of the 10th day from the mailing of the list of potential arbitrators to the parties. 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) "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) "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) 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) 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) 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

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administrator must then assign the case to the arbitrator and notify the parties. CRC Rule 3.815(b)(4)(5) Within 5-days of the arbitrators appointment. 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) Within 15 days after the arbitrators 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) The arbitration hearing must not be set not earlier than 30days 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) 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) 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) 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)

Within 15-days of the arbitrators appointment.

Arbitration set not earlier than 30-days or later than 90-days from the date of assignment of the case to the arbitrator. 90th day after assignment of arbitrator. 20-days prior to arbitration.

20-days prior to arbitration.

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20-days prior to arbitration.

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) Discovery must be completed no later than 15-days before the date set for the arbitration hearing. CRC Rule 3.822(b) 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) The arbitrator must file the award within 10-days after conclusion of the hearing. CRC Rule 3.825(b)(1) 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)]

15-days prior to arbitration. 10-days prior to arbitration.

10-days after arbitration. 30-days after arbitration.

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 dates3, as follows:
3

A trigger date is the date that activates the calculation of the task. Page 6

1. 2. 3. 4. 5. 6. 7.

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.

Note: 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)

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

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Trigger Date #3: Date on Proof of Service of Notice of Assignment of Arbitrator Served by the Court 5-days After 15-days After Last day for arbitrator to disclose disqualification CRC 3.816(b) Last day for arbitrator to set the time, date, and place of the arbitration hearing -- CRC 3.817(a) Last day for the arbitration hearing to be completed CRC 3.817(c)

90-days After

Trigger Date #4: Date on Proof of Service of Notice of Arbitration Hearing Served by the Arbitrator 30-days After Trigger Date #5: Arbitration Date 75-days Before 75-day file review. First day the arbitration hearing may be set CRC 3.817(b)

[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]

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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 + 5days 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 = 30-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) 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

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20-days Before 15-days Before

Last day to hand deliver Written Statement of Witnesses CRC 3.823(2)(B) 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 15-days Before

Discovery Cut-Off CRC 3.822(b) Serve by mail Arbitration Brief


[Recommended Time]

10-days Before 10-days Before

Last day to hand deliver CCP 998 Offer to Compromise 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) Date of Arbitration Hearing Last day for Arbitrator to file and serve Award of Arbitrator CRC 3.825(b)

0 days 10-days After

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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. Prepare Memorandum of Costs
[Due 30-days after Award]

15-days After

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) Last day to serve by mail and file with court Memorandum of Costs CRC 3.826(d); CCP 1141.21 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)

30-days After

31-days After

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)

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

http://www.thecalifornialitigator.com/deadline-direct.html 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. Ideal Tool For: Law Firms Virtual/Freelance Paralegals Legal Secretaries Economical: Inexpensive One-Time Purchase Fee of $9.99. No Monthly Subscription Fees No Per-Use Fees
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Fast and Easy: Easy to Understand Data Entry Fields Simple to Use Notes Field One Click Integration With Microsoft Outlook Easy to Download 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

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Copyright 2011 All Rights Reserved 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.

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