BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       SB 1007|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   THIRD READING 


          Bill No:  SB 1007
          Author:   Wieckowski (D) 
          Amended:  5/3/16  
          Vote:     21 

           SENATE JUDICIARY COMMITTEE:  5-1, 4/26/16
           AYES:  Jackson, Hertzberg, Leno, Monning, Wieckowski
           NOES:  Anderson
           NO VOTE RECORDED:  Moorlach

           SUBJECT:   Arbitration:  transcription by certified shorthand  
                     reporter


          SOURCE:    Conference of California Bar Associations


          DIGEST:  This bill establishes the right of a party to an  
          arbitration to have a certified shorthand reporter transcribe  
          any deposition, proceeding, or hearing, at the expense of the  
          party requesting the transcript, except as specified, and  
          provides that the transcript shall be the official record of the  
          deposition, proceeding, or hearing. This bill requires that the  
          party request the reporter upon the initiation of the  
          arbitration or at the time that any deposition, proceeding, or  
          hearing is being calendared, and permits the party to petition  
          the court for an order to compel the arbitrator to grant the  
          party's request if an arbitrator refuses their request.


          ANALYSIS:  










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          Existing law: 


          1)Governs, under the California Arbitration Act (CAA), private  
            arbitrations in this state, including the enforcement of an  
            arbitration agreement, the conduct of arbitration proceedings,  
            and the enforcement of arbitration awards.  Provides that a  
            party to the arbitration has the right to be represented by an  
            attorney at any proceeding or hearing in arbitration under  
            this title.   





          2)Provides that any party to an arbitration in which an award  
            has been made may petition the court to confirm, correct or  
            vacate the award, as specified.  


          3)Requires that all fees and costs charged to or assessed upon a  
            consumer party by a private arbitration company in a consumer  
            arbitration, exclusive of arbitrator fees, be waived for an  
            indigent consumer.  For these purposes, "indigent consumer"  
            means a person having a gross monthly income that is less than  
            300 percent of the federal poverty guidelines.  Provides,  
            further, that nothing in these provisions affects the ability  
            of a private arbitration company to shift fees that would  
            otherwise be charged or assessed upon a consumer party to a  
            nonconsumer party.  


          4)Requires any consumer requesting a waiver of fees or costs may  
            establish his or her eligibility by making a declaration under  
            oath on a form provided to the consumer by the private  
            arbitration company for signature stating his or her monthly  
            income and the number of persons living in his or her  
            household.  No private arbitration company may require a  
            consumer to provide any further statement or evidence of  
            indigence. 


          This bill: 








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          1)Provides that a party to an arbitration has the right to have  
            a certified shorthand reporter transcribe any deposition,  
            proceeding, or hearing. The transcript shall be the official  
            record of the deposition, proceeding, or hearing.


          2)Requires that a party requesting a certified shorthand  
            reporter make his or her request upon the initiation of the  
            arbitration or at the time that any deposition, proceeding, or  
            hearing is being calendared. 


          3)Provides that if an arbitrator refuses to allow a party to  
            have a certified shorthand reporter transcribe any deposition,  
            proceeding, or hearing pursuant to the above provisions, the  
            party may petition the court for an order to compel the  
            arbitrator to grant the party's request.


          4)Provides that if an arbitration agreement does not provide for  
            a certified shorthand reporter, the party requesting the  
            transcript shall incur the expense of the certified shorthand  
            reporter.  Provides, further, however, that in a consumer  
            arbitration, a certified shorthand reporter shall be provided  
            upon request of an indigent consumer, as defined under  
            existing law, above, at the expense of the nonconsumer party.





          Background


          Arbitration is a method of alternative dispute resolution where  
          the disputing parties present their disagreement(s) to one or  
          more neutral third-party arbitrators whose decisions are  
          generally final and binding, instead of litigating the issues in  
          courts.  


          While the arbitration of certain types of disputes may be  
          governed by specific statutes, the CAA, Sections 1280 et seq. of  







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          the Code of Civil Procedure, provides for a comprehensive,  
          all-inclusive statutory scheme applicable to all written  
          agreements to arbitrate disputes.  This law governs all aspects  
          of a nonjudicial arbitration: from the conduct of arbitrators,  
          private arbitration companies, and the arbitration proceedings,  
          to the enforcement of arbitration agreements and arbitration  
          awards, as well as related judicial proceedings.  Currently, the  
          CAA is silent as to the right of parties to court reporters in  
          an arbitration.  


          Arbitration has been a topic of significant controversy over the  
          years as a form of alternative disputes resolution.  Generally,  
          some advocates assert that private arbitration provides a  
          cheaper, faster, more efficient form of dispute resolution than  
          the overburdened courts.  At the same time, other consumer and  
          employee advocates frequently raise issues with arbitration as  
          an unregulated industry, which can be costly, unreceptive, and  
          biased against consumers.  These advocates assert that  
          boilerplate, or standardized, contracts forcing consumer and  
          employees into private arbitrations are problematic because  
          arbitrators can conduct arbitrations without allowing for  
          discovery, complying with the rules of evidence, or explaining  
          their decisions in written opinions  (Code Civ. Proc. Secs.  
          1283.1, 1282.2, and 1283.4); and arbitrations may be conducted  
          in private with no public scrutiny (Ting v. AT&T, 182 F.Supp.2d  
          902 (N.D. Cal. 2002), affirmed, 319 F.3d 1126 (9th Cir. 2003)).   
          Critics' concerns are compounded by the fact that there are  
          little, if any, regulations or legal standards imposed on  
          arbitrators or their decisions.  Regardless of the level or type  
          of mistake, or even misconduct, by the arbitrator, the grounds  
          on which a court will allow judicial review of an arbitration  
          are extremely narrow.  As a result, arbitrators can disregard  
          the law and can issue binding decisions that are legally  
          enforceable but generally not reviewable by a court.  (See  
          Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1 (holding that a  
          court is not permitted to vacate an arbitration award based on  
          errors of law by the arbitrator, except for certain narrow  
          exceptions).)  As a matter of statutory law, the CAA's remedies  
          are limited to vacatur of the award under limited circumstances.  



          This bill establishes the right of any party to an arbitration  







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          to have a court reporter transcribe any deposition, proceeding,  
          or hearing, as specified.


          Comments


          As stated by the author: 


            In arbitrations, as in all legal proceedings, the existence of  
            a reporter's transcript of a deposition, proceeding or hearing  
            can be absolutely essential to obtaining justice.  In the  
            absence of such a transcript or a suitable substitute, a  
            reviewing court will conclude that an arbitration award, like  
            all judgments or orders of lower courts, are presumed to be  
            correct. Numerous appellate courts have refused to reach the  
            merits of an appellant's claims because no reporter's  
            transcript of a pertinent proceeding or a suitable substitute  
            was provided.  


            For this reason, the ability of a party or an arbitrator to  
            deny the other party's request to have, at the party's own  
            expense, a court reporter prepare a transcript of the  
            proceeding can substantially prejudice the rights of the  
            requesting party because no court report's transcript or  
            suitable substitute will be available for a reviewing court.  
            As a result, the reviewing court then has to assume that the  
            arbitration award is correct because no official record  
            exists. This is a denial of the fundamental due process right  
            to fairness of an arbitration hearing.


            Although some of the major Alternative Dispute Resolution  
            (ADR) providers acknowledge the importance of the ability to  
            prepare a record of the proceedings, the practice is not  
            universal and abuse has occurred.  Arbitrators can and will  
            deny parties the right to prepare a record of the proceedings.  
             Particularly in cases of mandatory arbitration and unequal  
            bargaining power between the parties, this can be a critical  
            factor in the denial of justice.









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          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified5/4/16)


          Conference of California Bar Associations (source) 


          OPPOSITION:   (Verified5/6/16)


          None received


          ARGUMENTS IN SUPPORT:     The sponsor of this bill, the  
          Conference of California Bar Associations, writes in support  
          that:


            SB 1007 would specify in statute that parties to an  
            arbitration have a right - at their own expense (except in the  
            case of a consumer arbitration) - to have a certified  
            shorthand reporter attend and transcribe any deposition,  
            proceeding, or hearing during the arbitration, and to have  
            that transcript be regarded as the official record.  [ . . . ]


            Under existing law [ . . . ] the arbitrator or another party  
            to an arbitration can deny the other party's request to have a  
            court reporter prepare a transcript of the proceedings, even  
            if the requesting party is paying for the reporter out of  
            pocket. The absence of such a record can substantially  
            prejudice the rights of the requesting party because no court  
            report's transcript or suitable substitute will be available  
            for a reviewing court considering the validity of the award.  
            Because no official record exists, the reviewing court has to  
            assume that the arbitration award is correct, even if the  
            record - if it existed - might clearly show error or  
            misconduct. In these cases, the absence of a transcript is a  
            denial of the fundamental due process right to fairness of an  
            arbitration hearing.








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            The importance of having an official record in arbitration  
            proceedings is acknowledged by the state's major ADR  
            providers, each of whom has rules that encourage - but don't  
            guarantee - the ability to prepare a record of the  
            proceedings. However, the practice is not universal and abuse  
            has occurred, often in cases of mandatory arbitration and  
            unequal bargaining power between the parties. SB 1007 will  
            provide protection against such miscarriages of justice.





          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          5/6/16 15:31:14


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