Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this.

Tim goes solo while Jeff is still in trial, covering several of the recent cases on both sides of the split.

• Does your arb agreement incorporate the FAA? You might be well-poised to argue it preempts the FAA.
• Or is the arb agreement silent on FAA, or include only a qualified reference? You’re on shakier ground.

There’s also a separation of powers concern: Can the legislature declare that late arbitration fee payments automatically equal a waiver of arbitration rights, or is that a judicial function? Waiver is a common-law doctrine, and it’s discretionary. But clearly that’s not how the legislature intends it. And waiver requires fact-finding of the parties’ intentions in a particular case—obviously the Legislature doesn’t know what some future litigant in some future scenario “intends.”

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Other items discussed in the episode:

• Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents (May 30, 2024)
• Yet another arbitration preemption case, with 1st Dist. holding CAA’s 30-day deadline survives
• Another late arbitration payment case, again holding the FAA preempts the CAA
• Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] (rev. granted in Hohenshelt)
• Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here)