The following is a guest blog post by Joseph A. Goldstein. Mr. Goldstein is a litigator with The Goldstein Law Firm, representing employers in labor and employment law disputes, wage and hour class actions, and business disputes. He authored the resolution that ultimately became SB 1007.
Effective January 1, 2017, SB 1007 amended the California Arbitration Act to provide that any party to an arbitration has a right to require the presence of a certified shorthand reporter to transcribe at any deposition, proceeding, or hearing. CCP §1282.5. This law is important because it provides the opportunity for litigants to create an appellate record as well as increases transparency in the arbitration process. Here’s what you need to know about this new law.
- The scope of the new law is broad and can’t be abrogated by agreement. A party to an arbitration now has the right to have a certified shorthand reporter transcribe at any deposition, proceeding, status conference, or hearing, whether in-person or by telephone. This right exists notwithstanding any terms and/or conditions of an arbitration agreement to the contrary or any arbitration agreement that’s silent on the issue of transcription.
- A party can’t wait too long before exercising this right. A party must exercise the right to a reporter either (1) in a demand for arbitration, or a response, answer, or counterclaim to a demand for arbitration; or (2) at a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared. A party can’t wait until the morning of the deposition, proceeding, or hearing to notify the arbitrator of the intention to invoke the protections of the statute and have a court reporter present. The best bet is to exercise this right at the beginning of the arbitration process either in the complaint itself or in the answer so that opposing counsel can’t later argue that you waived the protections of the statute.
- Indigent parties don’t have to pay for a reporter. If you’re representing an indigent client in a consumer-arbitration, the client can request a court reporter under this statute and also request that the non-consumer party pay for the reporter. To be considered “indigent” under the statute, the client must have a gross monthly income that’s less than 300 percent of the federal poverty guidelines.
- Parties can seek to compel an arbitrator to grant a request for a reporter. If an arbitrator refuses to allow your client to have a court reporter present at any arbitration proceeding after you properly triggered the right to a court reporter at the correct time, you can petition the superior court for an order to compel the arbitrator to grant your request. You can also petition the superior court for an order staying any deposition, proceeding, or hearing related to your request pending the court’s determination of your petition. This is a big deal because courts generally are reluctant to interfere with and/or intervene in an ongoing arbitration.
Note that this new law only comes into play if the arbitration agreement fails to provide for the presence of a certified court reporter at any deposition, hearing, and/or proceeding, attempts to limit the right to transcription to only certain kinds of proceedings, or is otherwise silent in the case of an indigent consumer litigating his or her claim in a consumer arbitration. Any well-drafted arbitration agreement should provide that a litigant has a right to transcribe all arbitration proceedings at the litigant’s own expense. This law was intended to address those agreements that fall short of this standard.
For more on arbitration procedures and the arbitration process generally, turn to CEB’s California Civil Procedure Before Trial §§45.31-45.43.
Other CEBblog™ posts you may find useful:
- New Year, New Laws for Civil Litigators
- The Pros and Cons of Requiring Workplace Arbitration
- Give the Reporter a Hand to Get a Clean Depo Transcript
© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.