California Judicial Arbitration

8/6/2019 California Judicial Arbitration

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California Judicial Arbitration 06/22/2011By Barbara Haubrich-Hass, ACP/CAS

Arbitration is a means to resolve a civil dispute withoutthe 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 correctlydetermined and calculated. For purposes of this article, I will provide a timeline and the cut-

offs 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 Contractual 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

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

1 Caveat: The contractual arbitration timeline and cut-offs are different than judicial arbitration cut-offs.2 Caveat: This is not a complete list.


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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 incontroversy; 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).

the contract that determines the details of

the process. [CCP 1282 et seq.]

Source of Judicial Arbitration Rules:

Governed by California Code of Civil Procedure

1141.10 1141.31; California Rules ofCourt

Rules 3.810 3.830

Source of Contractual Arbitration Rules:

Governed by California Code of Civil

Procedure 1282 1284.3

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 within30-days from the date of the award.

Additionally, the Arbitrators decision is non-

binding.

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]

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 non-

appealable.

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

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]

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 court retains the power to enforce the

rights, remedies, procedures, duties, liabilities,

and resolution of discovery disputes.

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:

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]

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:

An award of costs of suit for the failure to

accept a CCP 998 Offer to Compromise

applies to arbitrations. [CCP 998(c)(1)]

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 Event

Arbitration set forthwith.

Last day to file stipulation to

arbitrate is 15 calendar days

before the date set for the case

management conference.

"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)

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


"Upon written election of all plaintiffs to submit a case toarbitration, 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)

When the court determines that

the amount in controversy does

not exceed $50,000.[Note: Generally at the initial

case management conference]

"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 notexceed $50,000. ..." CRC Rule 3.812(d) (Emphasis added)

Within 15 days after the case


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)

Within 10 days from the date of

mailing the list of potential

arbitrators to the parties.

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)

Promptly on the expiration of

the 10th day from the mailing of

the list of potential arbitrators to

the parties.

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 mattersubject 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 of the

arbitrators appointment.

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. CRC3.817(a)

Arbitration set not earlier than

30-days or later than 90-days

from the date of assignment of

the case to the arbitrator.

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)

90th day after assignment of

arbitrator.

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)

20-days prior to arbitration. 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)

20-days prior to arbitration. 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 thedeponent. 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)


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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)

15-days prior to arbitration. Discovery must be completed no later than 15-days beforethe date set for the arbitration hearing. CRC Rule 3.822(b)

10-days prior to arbitration. 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)

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

30-days after arbitration. 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

dates3, as follows:

3 A trigger date is the date that activates the calculation of the task.


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1. The date the arbitration is ordered by the court at the initial case management

conference.

2. The date on the Proof of Service of the Notice of Potential Arbitrators served by the

court.

3. The date on the Proof of Service of the Notice of Assignment of Arbitrator served by thecourt.

4. The date on the Proof of Service of the Notice of Arbitration Hearing served by the

arbitrator.

5. The date of the Arbitration Hearing.

6. The date on the Proof of Service of the Award of Arbitrator.

7. 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)

Promptly on the

10th

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.


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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 + 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

= 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)

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)


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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)


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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.

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 noRequest 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)


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Next . . . Need Help Calculating and Tracking TheseDeadlines?

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Fast and Easy:

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

Copyright 2011 All Rights Reserved

DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from TheCalifornia Litigator, and any other statements contained herein, are for information purposes only, andshould not be construed as legal advice or a recommendation on a legal matter. The information fromThe California Litigatoris not guaranteed to be correct, complete, or current. Barbara makes nowarranty, express or implied, about the accuracy or reliability of the information provided within thisarticle, or to any other website to which this article may be linked.
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California Judicial Arbitration