Pay to Play

Doe v. Superior Court, No. A167105 (D1d3 Sept. 8, 2023)

This case holds basically the same thing as the 2/8's decision in Cvejik back in June. Under Code of Civil Procedure § 1281.98, in an employment or consumer case, the party that drafted an arbitration clause needs to pay the Arbitrator’s bill within 30 days of it being due. And by “paid” it means payment received. Not the check is in the mail. The arbitration org—which has every incentive to let the rule slip—doesn’t get to extend the deadline or (as it did here) make up some kind of mailbox rule. 

So when the arb org—after reminding the employer like fifty times that it needed to pay on time—cashed a check and deemed it timely because it was sent, but not received, before the due date, it erred. And then the trial court erred too when it declined to find that the employer waived the right to arbitrate and restart the litigation.

Writ granted.

This is a great song about some long ago LA punk rock controversy, but the sentiment is well expressed. Lance was one of the greats...