Appellate attorney Anne Grignon suggests the California appellate courts seem to be more willing to review arbitration awards lately. Anne discusses with Tim Kowal and Jeff Lewis how questions concerning whether the case should be arbitrated, and questions involving important policy interests, may be more likely to receive appellate review. If you are in arbitration, these are important things to consider, whether you are looking to get appellate review or avoid it.
Who decides whether a dispute must be arbitrated? The court, or the arbitrator?
By a vote of 3 appellate attorneys, the court should decide.
Appellate attorney Anne Grignon explains the takeaway from Banc of California v. Superior Court when attorney see an arbitration agreement incorporating the AAA rules – which purport to empower the arbitrator to determine the question of arbitrability. Anne explains to appellate specialists Tim Kowal and Jeff Lewis the arguments that led the Court of Appeal to hold arbitrability must be decided by the trial court, not the arbitrator.
Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there are always reservations in taking a writ. Anne shares some of those reservations with Jeff Lewis and me.
In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys making themselves unintentionally conspicuous.
Some of the cases discussed involving "bad yearbook photos" include waiving the right to arbitration by failing to reference it in CMC statements; waiving issues by failing to include them in pretrial statements, trial motions, and posttrial motions; and failing to preserve evidentiary objections.
In this appeal of a relatively rare denial of a petition to compel arbitration, Presiding Justice Gilbert and Justice Tangeman each authored an opinion. After you read Gilbert's opinion, you will surely agree with it. But then read Tangeman's opinion, and tell me you haven't changed your mind.
The Upshot: If you decide to litigate despite having a right to arbitrate, consider raising a reservation of the right to arbitrate should new arbitrable claims or defenses be raised. Answers and CMC statements may be a good place to leave these breadcrumbs.
Be prepared for litigation to change shape. Retaining appellate counsel early is a good way be prepared for unexpected turns.
Wells Fargo Bank, N.A. v. Agak (Apr. 12, 2021) no. B300635 (unpublished).
After the 2020 reversal of an arbitrator's award in Brown v. TGS Mgm't Co., LLC, I noted that it may be hasty to conclude arbitration awards are not worth appealing. Reversal is possible where the arbitrator's error "violates a party's unwaivable statutory rights or that contravenes an explicit legislative expression of public policy."
But the recent published opinion in Bacall v. Shumway (D2d8 Feb. 18, 2021) No. B302787 illustrates the limits of review of arbitration awards. Appellant raised some decent legal challenges, apparently hoping to get the same result as in Brown. But fell short.
So while it is possible to get meaningful relief on appeal after arbitration, it is still tough going.
I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. […]
Appellant and attorney sanctioned a blistering $56,000 for their frivolous appeal. (Malek Media Group LLC v. AXGC Corp. (D2d3 Dec. 16, 2020) No. B299743.) After a business dispute was decided against […]
In Zazueta v. Imperial Heights Healthcare & Wellness Centre, LLC (Oct. 26, 2020) D075879 (D4d1), the trial court compelled the case to aribtration. But defendant "failed to engage and participate" in […]