BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1007| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- UNFINISHED BUSINESS Bill No: SB 1007 Author: Wieckowski (D) Amended: 6/15/16 Vote: 21 SENATE JUDICIARY COMMITTEE: 5-1, 4/26/16 AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski NOES: Anderson NO VOTE RECORDED: Moorlach SENATE FLOOR: 26-10, 5/12/16 AYES: Allen, Beall, Block, Cannella, De León, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk NOES: Anderson, Bates, Berryhill, Gaines, Huff, Morrell, Nguyen, Nielsen, Stone, Vidak NO VOTE RECORDED: Fuller, Liu, Moorlach, Runner ASSEMBLY FLOOR: 53-26, 8/18/16 - See last page for vote 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 court reporter either: (1) upon a demand, SB 1007 Page 2 response, answer, or counterclaim related to the arbitration; or (2) at the time that any a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared, and permits the party to petition the court for an order, as specified to compel the arbitrator to grant the party's request if an arbitrator refuses their request. Assembly Amendments (1) make clarifying amendments as to the timing of the request for a court reporter and (2) expressly permit parties who are petitioning the court for an order to compel the arbitrator to grant their request to also request from the court an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court's determination of their petition. ANALYSIS: 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 SB 1007 Page 3 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: 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 in or at either of the following: A demand for arbitration, or a response, answer, or counterclaim to a demand for arbitration; or A pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared. 1)Provides that if an arbitrator refuses to allow a party to SB 1007 Page 4 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. The petition may include a request for an order to stay any deposition, proceeding, or hearing related to the arbitration pending the court's determination of the petition. 2)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 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 SB 1007 Page 5 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 to have a court reporter transcribe any deposition, proceeding, or hearing, as specified. Comments As stated by the author: SB 1007 Page 6 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified8/18/16) Conference of California Bar Associations (source) California Court Reporters Association SB 1007 Page 7 Court Reporters Board of California OPPOSITION: (Verified8/18/16) None received ASSEMBLY FLOOR: 53-26, 8/18/16 AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooper, Dababneh, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Holden, Irwin, Jones-Sawyer, Lackey, Levine, Linder, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Cooley, Dahle, Beth Gaines, Grove, Hadley, Harper, Jones, Kim, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Roger Hernández Prepared by:Ronak Daylami / JUD. / (916) 651-4113 8/19/16 19:37:18 **** END ****