Kibbitz Costs Kaiser Arb Award

Grabowski v. Kaiser Found. Health Plan, Inc., No. D076968 (May 10, 2021)

Plaintiff lost a medmal arbitration, in which she was pro se. During a break, while she wasn’t present, the arbitrator and defendant’s counsel had an ex parte conversation about the difficulties with the fact that plaintiff didn’t have a lawyer and her inefficacy as an advocate for herself. The lawyer and the arbitrator had a laugh about it. Unbeknownst to them, the conversation was recorded. Plaintiff’s mother, who had been recording the proceedings with her phone to make a record, had left it on during the break. 

Arbitrators, of course, are not supposed to have ex parte discussions with one party’s lawyers about the other party. Because such communications are a potential grounds for disqualification as facts that might reasonably give rise to a doubt over the arbitrator’s impartiality if known by an objective observer, an arbitrator is required to disclose them. See Code Civ. Proc.§ 1281.9(a). A failure to do so is, effectively, structural error meriting the vacation of an arbitration award even without any showing of prejudice. See § 1286.2(a)(6)(A).) Which is what happens here.

Reversed.

Can’t Sandbag on an Arb DQ.

Alper v. Rotella, No. G058088 (D4d3 May 5, 2021)

Under Code of Civil Procedure § 1281.91, an arbitrator is required to disqualify him or herself, “upon the demand of any party,” if a ground for DQing a sitting judge under § 170.1 is present. One of those grounds is an “impairment” that renders the judge (or arbitrator) “unable to properly perceive the evidence or . . . to properly conduct the proceeding.” § 170.1(a)(7). The arbitrator in this case had been in some kind of accident and was taking some pretty heavy pain meds. Arguably, that could be a ground for a DQ. But all the parties were made aware of the fact. And none of them objected during the proceedings.

But the losing party tried to vacate the award on that ground after the fact. No way. If a party wants a DQ, it has a statutory obligation to make a timely demand § 1281.91(d). Having known of the basis of a potential DQ and failed to timely raise it before the arbitrator, the losing party forfeited the ability to bring it up for the first time on a motion to vacate the award.

Affirmed.

Quashing Service in Unlawful Detainer

Stancil v. Superior Court, No. S253783 (Cal. May 3, 2021)

Unlawful detainers—eviction proceedings—are among the most common civil litigations in California state courts. More than 150,000 of them get filed in any given year. 

UD procedure is, however, a wreck. It is super-expedited—a response to a complaint needs to be served within five days. Summary judgment motions can be heard on five days notice. Trial can be set in twenty days.

At the same time, it is also very complicated. The substance and procedure are governed by numerous vaguely worded statutes, strewn across multiple codes in seemingly random fashion. There are overlapping layers of law at the city, county, state, and sometimes even the federal level. Many of the defenses are extremely technical. And, despite the enormous volume of filings, there is very little case law on anything. 

And then on top of all that, many of the litigants are pro se, and even the represented ones often aren’t paying their lawyers for hours of work to figure it all out.

This case, however, made it to the Supreme Court. The question presented is whether and how the tenant can use a motion to quash to challenge a UD complaint. It’s an interesting one.

In ordinary civil procedure, a motion to quash is used to challenge a defect in service or the lack of personal jurisdiction. The relevant statute, Code of Civil Procedure § 418.10, also addresses forum nonconveniens. It permits a defendant to make a special appearance to challenge service. No responsive pleading is required unless and until the motion is denied. The time to respond is further tolled if the defendant takes writ petition—specifically authorized by § 418.10(c)—until ten days after it is denied.

This has an unusual significance in UD cases because it potentially creates a avenue the tenant to really slow things down. Instead of five days to respond, the tenant gets the time spent to brief and argue the motion, ten days to take a writ, whatever time it takes to get decided, and then, if denied, ten days after the denial to answer.   

That creates a lot of incentive for the tenant to move to quash. Even when personal jurisdiction, as such, is not really at issue. Which is what happened here. Plaintiff—who appears to be the renter of a boat slip at a Marina of the S.F. Bay—argued in his motion that the wrong public entity was the name plaintiff. The trial court denied his motion, and then the appellate division and the Court of Appeal denied his writs. But the Supreme Court granted review, due to a longstanding perceived split of authority between Delta Imports, Inc v. Municipal Court, 146 Cal. App. 3d 1033, 1036 (1983) and Borsuk v. Superior Court, 242 Cal. App. 4th 607, 610 (2015).

The Court, in a unanimous opinion by Justice Cuellar, takes an interesting tack. Plaintiff loses, but the rule the Court lays winds up being relatively favorable to tenants. As the Court explains, a motion to quash under § 418.10 can only raise issues with personal jurisdiction or service. Tenant’s effort here—which entails a challenge to the truth of some of the facts alleged in the complaint—is not that. So a motion to quash is not an appropriate vehicle in his case.

But while that was enough to end the case, it doesn’t end the analysis. As the Court explains, UD is a creature of statute, with a bunch of special procedures. One of them is the right to serve a summons that requires a response within five days. In order to serve that kind of summons, however, the case needs to be a legit UD case. Were you to serve a five-day summons in an ordinary tort case, that service would be defective, it would be inadequate for the court to take jurisdiction over the defendant, and thus it could be subject to a motion to quash.

So, reasons the Court, a condition of serving a five-day notice in a legit UD case is pleading a legit UD case. A complaint that doesn’t state facts, if assumed true, that make out all the elements of an actionable UD claim is thus amenable to attack by a motion to quash.*

The upshot of all this is that although the tenant can’t use a motion to quash in a UD case to accomplish what he could with a summary judgment motion, he can use the motion to serve the same essential function of a general demurrer. And because the landlord’s strict compliance with the statutory procedures are elements of a UD claim, that means many of the kind of technical defects that trip up landlords and their counsel are amenable to resolution on on a motion to quash, even if they don’t raise what one would ordinary consider to be defects in service or personal jurisdiction.

Writ denied.

*This case shows the value of a well placed amicus brief. The link between stating a claim and jurisdiction thorough a five-day notice that the Court drew is not all that apparent from the tenant’s brief—it comes directly out of an amicus brief filed by the Western Center on Law & Poverty.