Legal News and Appellate Tips

Here are some recent news items of interest to attorneys and court-watchers:

💰California courts spent nearly half-billion dollars on court reporters, but that’s not enough.

📽So if a court reporter isn’t available, SB 662 would allow electronic recordings to create the appellate record.

📰The Judicial Council has invited comment on 6 proposed changes affecting appellate rules, including changing the notice of appeal form to allow the attorney to join the appeal (such as in appeal from sanctions against the attorney), and highlighting the requirement to specify the date of the order being appealed (so that it is not overlooked).

🛑Frustrated when a corporate defendant stays a case by appealing from a denial of a motion to compel arbitration? SB 365 would end the automatic stay for such appeals.

🏛Supreme Librarians: David Carrillo and Stephen Duvernay say that our state high court exists to maintain consistency and clarity in the law – not to correct errors.

You may be able to convince a judge that an arbitrator’s award was wrong on the law. The judge thought so in E-Commerce Lighting, Inc. v. E-Commerce Trade LLC (D4d2 Dec. 9, 2022 No. E074525) --- Cal.Rptr.3d --- and so reversed the setoff awarded by the arbitrator in this lender-borrower dispute.

Basically, the lender and borrower both prevailed and got awards of about $2.5 million against each other, which the arbitrator then set off against each other. The intervening bank (not a party to the arbitration) then moved to “correct” the award to eliminate the setoff, arguing it had a superior right to recover, and that the setoff interfered with that right.

The trial court thought that seemed a pretty easy fix, and reversed the setoff.

But that was wrong, the Court of Appeal held, because the trial court’s power was limited under Code of Civil Procedure section 1286.6(b), in cases where “arbitrators exceeded their powers,” to “correct[ing] without affecting the merits of the decision upon the controversy submitted.”

Where is the line between “correcting” a decision and “affecting the merits”? The court noted that, when the parties have contested an issue in the arbitration, the arbitrator's resolution of that issue is a decision on the “merits.””

Here, the question of setoff was raised as an affirmative defense in the arbitration, and was a litigated issue. So the arbitrator’s decision on it was on the merits, and thus beyond the trial court’s jurisdiction to alter via “correction.”

Question: What’s the difference between an arbitration ruling based on an interpretation of contract that is merely wrong, and one that is irrational?

The answer in Hayday Farms, Inc. v. FeedX Holdings, Inc., No. 21-55650 (9th Cir. Dec. 19, 2022), an appeal from an arbitration award, is about $7 million.

This is yet another cautionary tale that arbitration severely constrains the litigants’ appellate rights. The 9th Circuit panel agreed that the appellant’s interpretation of the contract was the right one, but that was not enough: the arbitration award was not “irrational” or “some form of vigilante justice,” so it stands.

The arbitration panel awarded the plaintiffs $21 million on the contract dispute, but when the plaintiffs moved the district court to confirm the award, the defendants argued that $21 million was excessive. The large award was more than the plaintiffs stood to receive had the contract been performed, and so under California Civil Code section 3358, the award was excessive.

The district court agreed the arbitration award was excessive, and reduced it by $7 million.

The 9th Circuit reversed the district court and reinstated the aribtral award, even though the panel agreed with the district court that the award was excessive. As Judge Milan wrote, the defendant "probably offers the best interpretation of the parties’ agreements,” and the panel expressed "concern about a seemingly unfair damages award that likely violates § 3358.”

But as long as the arbitral award "was not some form of vigilante justice,” it has to be affirmed.

The California Supreme Court will review a surprising appellate court holding from earlier this year that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months before finally moving to compel arbitration.

The majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 78 Cal.App.5th 470 found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.

The dissent would have found a waiver because “all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.”

David Ettinger notes that the opinion was filed less than two weeks before the U.S. Supreme Court held prejudice to the other side is not essential to finding an arbitration waiver in federal courts. (Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708.)

Blog Note: The Quach opinion was originally unpublished until I filed an amicus request for publication.

What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, **employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead.

But the effect of Viking River may be short-lived. Eric notes that the California Supreme Court may be taking the cue in Justice Sotomayor’s concurrence in granting review in another PAGA case in Adolph v. Uber Technologies, Inc.

Eric also shares his experiences litigating in the California Supreme Court, some other interesting employment cases, and the Dr. Sally Ride Memorial Highway.

An employer-defendant answered a wrongful-termination complaint, served multiple sets of discovery, and took the employee-plaintiff’s deposition during 13 months’ of litigation, before finally moving to compel arbitration. The trial court refused to compel arbitration, ruling the employer waived arbitration by its unreasonable delay. That seemed unsurprising.

So it seemed surprising that the majority in Quach v. Calif. Commerce Club, Inc. (D2d1 Apr. 14, 2022 no. B310458) 2022 WL 1113998 (nonpub. opn.) found that these facts, as a matter of law, do not waive arbitration. The court noted that the California Supreme Court in *Saint Agnes Medical Center v. PacifiCare of California* (2003) 31 Cal.4th 1187, 1203, had held that mere participation in litigation, and merely driving up court costs and expenses, are not enough to establish waiver of the right to arbitrate.

True, undue delay and waiting until the eve of trial can be grounds for waiver. But the court here found—again, as a matter of law—that “almost seven months before the trial date” is “not on the ‘eve of trial.’”

Good to know.

Writing in dissent, Judge Crandall was persuaded by the employee’s argument in his brief: “Quach's appellate brief hits the nail on the head: “[By now], all benefits of a speedy resolution [Quach] could have obtained through arbitration [have] been lost.”” Judge Crandall thought the court should not “overextend ourselves” to accommodate arbitration under these facts.

Briefing Faux Pas?: The court suggests it is unethical to copy arguments from court opinions without attributions. I don’t know why you wouldn’t give a cite. But I don’t see how this is unethical.

The Upshot: Although arbitration waivers are not supposed to be driven by any single factor, expect that the court will insist on a showing of prejudice or unfair advantage. While delay is relevant, a delay of even 13 months might not suffice. But do not rely on mere participation in litigation or driving up litigation costs.

Some recent cases have suggested appellate courts might be more receptive to challenges to arbitration awards than in the past. But the Second District Court of Appeal swung hard in the other direction in *McQueen v. Huang* (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606. The court sanctioned the appellant and his counsel over $38,000 for challenging an arbitrator’s award for legal error. Mere legal error is not a ground to overturn an arbitration award, so the appeal was doomed from the start. The court also pointed to appellant’s “gamesmanship” in the trial court.

The Upshot: Appellate sanctions usually are a high hurdle, and on the quality of the appellate arguments alone, I would not have rated sanctions remotely likely. The lesson of this opinion, then, is that the appellant’s conduct in the trial court can play an outsized role in the imposition of appellate sanctions. If the appellant’s conduct in the trial court creates an impression that the unsuccessful appeal is part of a pattern of driving up the expense of the litigation, then this can be a grounds for sanctions almost by itself.

Question for #AppellateLinkedIn: Does this opinion suggest that conduct that might not warrant sanctions in the trial court could warrant sanctions in the appellate court? And if so, is this a problem?

Reviewing some 9th Circuit and California appellate cases of note from early 2022, Jeff Lewis and I discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in *United States v. Olsen*.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

Nosing out whether an order is appealable can be difficult. But we know injunctions are appealable because they are listed explicitly in Code of Civil Procedure section 904.1, the appealability statute. But a preliminary injunction issued by an arbitrator is not. They are not a final “award,” and thus not appealable. That is the holding of *Kirk v. Ratner* (D2d7 Feb. 10, 2022) --- Cal.Rptr.3d --- (2022 WL 405422).

The parties settled their show business dispute, agreeing to confidentiality. Worried that Kirk would breach confidentiality, the movie executives initiated arbitration. The arbitrator issued a temporary restraining order followed by a preliminary injunction. The movie executive plaintiffs were not required to post a bond for the injunction.

Kirk petitioned the superior court to vacate the injunction. The court dismissed the petition on grounds it lacked jurisdiction because the preliminary injunction was not an “award” under Code of Civil Procedure section 1283.4.

The Court of Appeal dismissed Kirk’s appeal, holding both that the preliminary injunction was not an “award” subject to a petition to vacate, and the order dismissing the petition was not appealable for the same reason.

This holding makes preliminary injunctions in arbitration all the more devastating. Not only are the beyond review, but the losing party loses the only statutory safeguard — a bond.

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.