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.
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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