2023 LEGISLATIVE WORK
AB 615 (Maienschein). International Arbitration-Support. Suspended
In 1988, the Legislature enacted the California International Arbitration and Conciliation Act (CIACA). It was based on the model law proposed by the United Nations Commission on International Trade Law (UNCITRAL). This model law was amended in 2006, but no action was taken in California to similarly amend CIACA and thus California law was no longer in tune with the UNCITRAL Model Law. AB 615 corrected this anomaly. CDRC supported the bill. The Assembly passed the bill without opposition. However, the Senate Appropriations Committee placed it in the suspense file because of a belief that the bill would impose additional costs on the California courts. A larger number of bills than usual have been placed in the suspense file this year because of the State’s $31.5 billion deficit. AB 615 is now a two year bill and CDRC expects that the author will reintroduce it in 2024.
AB 886 (Wicks). Digital Advertising. No position. Withdrawn
This bill created the California Journalism Competition and Preservation Act. It would direct digital advertising companies to pay news outlets a “journalism usage fee” when they sold advertising alongside news content. The bill required publishers to invest 70% of those funds in preserving journalism jobs in California. It also contained an arbitration provision which permitted journalism providers to initiate a final offer arbitration before a three member American Arbitration Association panel to determine the percentage of the covered platform’s advertising revenue that was to be remitted to the journalism provider. CDRC did not take a position on the bill.
The bill passed in the Assembly with bipartisan support June 1 and moved on to the state Senate. A hearing was initially scheduled for July 11, but before it could be held, the author converted it to a two year bill and announced that she would reintroduce it in 2024. In the interim, the Senate will hold an informational hearing this fall to further explore issues the bill attempts to address and look at examples of successful legislation in other countries to inform the California bill.
AB 924 (Gabriel). Complaints against Neutrals. Oppose. Withdrawn
In early 2023, the Los Angeles Times published an article critical of three retired judges who purportedly failed to properly administer settlement funds arising from lawsuits filed by attorney Tom Girardi. Because the judges were also mediators, the article called for regulation of mediators even though the purported actions of the judges had nothing to do with mediation and there was a question whether the judges acted improperly. This bill was introduced in reaction to the article. It required dispute resolution neutrals to forward any complaints that they received to the State Bar and to also file a synopsis of the complaint with the State Bar. The bill specifically overrode the confidentiality provisions of Evidence Code 1119. The erosion of the confidentiality provision caused CDRC to form a coalition to oppose the bill. Other members of the coalition were the Consumer Attorneys of California, California Employment Lawyers Association, California Defense Council, and California Judges Association. In response to the opposition, the author withdrew it, converting it to a two-year bill. CDRC expects that he will reintroduce it in 2024.
SB 40. (Umberg). Attorney misconduct. Oppose. Withdrawn
This bill required a licensee of the State Bar who knew that another licensee engaged in professional misconduct to the detriment of a client that raised a substantial question about that licensee’s honesty, trustworthiness, or ability to perform legal services with competence, to inform the State Bar. The bill also required a licensee to inform the State Bar if the licensee knew that another licensee had conspired to engage in, or had engaged in, treason, sedition, or insurrection against the State of California or the United States. CDRC opposed the bill because it did not make an exception for mediation confidentiality. The author withdrew the bill after the State Bar proposed a similar rule which did contain an exception for mediation confidentiality.
SB 42. (Umberg). Attorney misconduct. Oppose. Withdrawn
This bill was very similar to SB 40. However, it contained two exceptions, to wit, information otherwise protected by the attorney client privilege and information gained by a licensee while participating in the Attorney Diversion and Assistance Program. By specifically including two exceptions, it would appear that no other exception was considered by the Legislature. Hence, the bill would have superseded the mediation confidentiality provisions set forth in Evidence Code Section 1119 and this caused CDRC to oppose the bill. The author withdrew the bill after he amended SB 40, which previously was a spot bill.
SB 365 (Wiener). Automatic stay pending appeal. No position. Enrolled and presented to the Governor.
This bill provided that trial proceedings would not be automatically stayed pending an appeal from the denial of a motion to vacate. Because the bill had no effect on the ability of arbitrators to practice their profession, CDRC did not take a position.
2019 LEGISLATIVE WORK
AB 51 (Gonzalez-Fletcher). Employment discrimination:Enforcement; Oppose. Chaptered.
This bill added Section 432.6 to the Labor Code. The bill prohibited an employer outside of the securities industry from requiring an employee to enter into any agreement that waived the right to a jury trial, i.e., an arbitration agreement, and prohibited the employer from retaliating against an employee who refused to sign such an agreement.
The bill applied to all agreements entered into, extended, or modified after January 1, 2020. It was virtually identical to AB 3080, which was vetoed by Governor Brown in 2018 because he believed that it was preempted by the Federal Arbitration Act (FAA). The author believed that the bill would not be preempted because it provided that it did not invalidate an arbitration agreement signed by the employee (even one required as a condition of employment) if the agreement was otherwise enforceable under the FAA.
The bill also made a violation of Section 432.6 an unlawful employment practice. Thus, an employer who violated the statute by requiring its employees to sign arbitration agreements as a condition of employment would be committing a misdemeanor.
The bill also stated that a provision in an arbitration agreement that allowed the employee to opt out of a “mandatory” arbitration agreement or required the employee to take any other affirmative action to avoid the waiver was also a violation of Section 432.6.
CDRC opposed the bill, in part because it concluded that the bill was preempted and in part because it believed that employers would by and large decline to enter into voluntary arbitration agreements and this in turn would deprive access to justice for employees with modest claims.
The Chamber of Commerce and some allied organizations filed suit in the Eastern District of California to enjoin implementation of Section 432.6. On February 6, 2020, the court held that the statute was preempted by the FAA and granted plaintiffs’ motion for a preliminary injunction. The defendants appealed to the Ninth Circuit which ultimately affirmed the district court. See Chamber of Commerce of the United States v. Bonta, 62 F. 4th 273 (9th Cir. 2023).
This bill amended Section 1281.97 of the Code of Civil Procedure and was signed by Governor Newsom. It provides that the drafter of an arbitration agreement with a consumer or employee who does not pay the required arbitration fees within thirty days after they are due will be in breach of the arbitration agreement. In such event, the consumer or employee will have the option to proceed in court or file a motion to compel arbitration.
The bill also requires a provider who is involved in consumer arbitration to collect and report demographic data in the aggregate relative to ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all of its arbitrators.
CDRC did not take a position on the bill.
2018 LEGISLATIVE WORK
SB 766 (Monning) International commercial arbitration: representation. Support. Chaptered.
Permitted an individual who is not admitted to practice law in California but who is a member in good standing of a recognized legal profession in the United States or a foreign jurisdiction and is subject to effective regulation and discipline by a duly constituted professional body or public authority to provide legal services in an international commercial arbitration or related proceeding. Subjected such arbitrators to the disciplinary jurisdiction of the State Bar, and directed the State Bar to annually report to the Supreme Court regarding the number and nature of any complaints that it has received against these attorneys and any actions it has taken in response to these complaints.
SB 954 (Wieckowski) Mediation: confidentiality: disclosure. Support. Chaptered.
Except in the case of a class or representative action, required an attorney representing a person participating in a mediation or a mediation consultation to provide his or her client, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, with a printed disclosure containing the confidentiality restrictions related to mediation, and to obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. If an attorney is retained after an individual agrees to participate in a mediation or mediation consultation, required the attorney to comply with the printed disclosure and acknowledgment requirements as soon as reasonably possible after being retained. Specified language that would be deemed compliant with the printed disclosure and acknowledgment requirements. Failure of an attorney to comply with these disclosure requirements does not invalidate an agreement prepared in the course of, or pursuant to, a mediation. A communication, document, or writing related to an attorney’s compliance with the disclosure requirements is not confidential and may be used in an attorney disciplinary proceeding if the communication, document, or writing does not disclose anything said or done or any admission made in the course of the mediation.
AB 3080 (Gonzalez Fletcher) Employment discrimination: enforcement. Oppose. Vetoed.
The bill had two parts. The first part would have prohibited a person from, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement, prohibiting an applicant for employment, employee, or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract, or otherwise opposing any lawful practice, or from exercising any right or obligation or participating in any investigation or proceeding with respect to unlawful harassment or discrimination. CDRC had no objection to this part of the bill. The second part would have also prohibit an employer from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement. Would have also prohibited an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. Although CDRC opposes mandatory arbitration, it concluded that this part was preempted and thus it had to oppose the bill.
2017 LEGISLATIVE WORK
SB 217 (Wieckowski) Evidence: admissibility. Support. Chaptered.
Provided that declarations disclosing assets that are required by Family Code section 2105 would be admissible at trial even if they were also prepared for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation. Declared the intent of the Legislature that the bill codify the holding of Lappe v. Superior Court (2015) 232 Cal. App.4th 774.
SB 33 (Dodd) Arbitration agreements. Support. Chaptered.
Provided that arbitration would be denied in instances in which a state or federally chartered depository institution is seeking to apply a written agreement to arbitrate, contained in a contract consented to by a respondent consumer, to a purported contractual relationship with that consumer that was created by the petitioner fraudulently without the consumer’s consent and by unlawfully using the consumer’s personal identifying information.
2016 LEGISLATIVE WORK
SB 1065 (Monning) Dismissal or denial of petitions to compel arbitration: appeals: Elder and Dependent Adult Civil Protection Act. Support. Chaptered.
Required the Court of Appeal, in an appeal of an order dismissing or denying a petition to compel arbitration involving a claim under the Elder and Dependent Adult Civil Protection Act in which a party has been granted a court preference, to issue its decision no later than 100 days after the notice of appeal is filed. Required the Judicial Council to adopt rules implementing this provision and shortening the time within which a party may file a notice of appeal in these cases.
SB 1078 (Jackson) Civil procedure: arbitration. Oppose. Vetoed.
Would have required, in a consumer arbitration, the disclosure of any solicitation made within the last two years by, or at the direction of, a private arbitration company to a party or lawyer for a party. Would have prohibited: solicitation of a party or lawyer for a party during the pendency of the arbitration; an arbitrator, from the time of appointment until the conclusion of the arbitration, from entertaining or accepting any offers of employment or offers of new professional relationships; in a consumer arbitration case, would have prohibited the arbitrator from entertaining or accepting any offers of employment as a dispute resolution neutral in another case from a party or lawyer for a party in the pending arbitration. CDRC met with the Governor’s Office regarding its concerns.
SB 1241 (Wieckowsk) Employment contracts: adjudication: choice of law and forum. Support. Chaptered.
Prohibited an employer from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California a claim arising in California or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. Made any provision of a contract that violates these prohibitions voidable, upon request of the employee, and required a dispute over a voided provision to be adjudicated in California under California law. Specified that injunctive relief is available and would authorize a court to award reasonable attorney’s fees. Provided that adjudication includes litigation and arbitration for purposes of these provisions. Excepted contract with an employee who was represented by legal counsel.
CDRC representatives continued to attend and speak at the quarterly meetings of the CLRC in connection with its study of mediation confidentiality.
2015 LEGISLATIVE WORK
AB 465 (Hernandez) Contracts against public policy. Support with amendment. Vetoed.
Would have prohibited any person from requiring another person, as a condition of employment, to agree to the waiver of any legal right, penalty, forum, or procedure for any employment law violations. Would have prohibited a person from threatening, retaliating against, or discriminating against another person based on a refusal to agree to such waiver, and would have provided that any such waiver required from an employee or potential employee as a condition of employment or continued employment is unconscionable, against public policy, and unenforceable. CDRC proposed alternate language designed to avoid FAA preemption, but it was rejected by the author. CDRC discussed preemption concerns with the Governor’s Office.
AB 1123 (Mayes) Dispute resolution programs: court administration. Opposed. Died.
Would have permitted a county that has established and is operating a dispute resolution program as described above to contract with the superior court of the county to transfer operation of the program to the court.
CDRC continued to monitor the CLRA’s study of mediation confidentiality and attended and spoke at all of its quarterly meetings.
2014 LEGISLATIVE WORK
AB 802 (Wieckowski) Private arbitration companies: disclosures. Support as amended. Chaptered.
Reintroduced from 2013 after incorporating CDRC’s recommendations, required a private arbitration company to collect additional information related to a consumer arbitration case, and to provide the information in a single cumulative report. Require a private arbitration company to make the report available in a format that allows the public to search and sort the information using readily available software, and to make the report accessible on the private arbitration company’s Internet Web site.
AB 2617 (Weber) Civil rights: waiver of rights. Watch. Chaptered.
Amended Civil Code sections 51.7, 52 and 52.1 (the Ralph Civil Rights Act and the Banes Civil Rights Act) b, prohibiting a person from requiring a waiver of the right to pursue a civil action as a condition of entering into a contract for the provision of goods and services. Any waiver of this right would have to be knowing and voluntary and the burden of proving that the waiver was voluntary and not as a condition for the provision of goods and services would fall upon the person seeking to enforce the waiver. Although CDRC supported the bill's concept of opposing mandatory arbitration, it concluded that the bill was preempted and hence took no position. CDRC's conclusion proved to be correct when the statute created by the bill was overturned. See Saheli v. White Memorial Medical Center (2018) 21 Cal.App.5th 308.
SB 907 (Monning) International commercial disputes: representation and assistance. Support. Withdrawn.
Would have recast the International Commercial Arbitration and Conciliation Act (Code Civ. Proc., § 1297 et seq.) applicable to any arbitration or conciliation proceeding conducted pursuant to the statutory provisions that govern arbitration and conciliation of international commercial disputes. Would have also expressed the intent of the Legislature that those statutory provisions be broadly construed so as to promote California’s interest in becoming a major center for international commercial arbitration.
CDRC continued to attend and speak at the quarterly meetings of the CLRC where the Commission’s study of mediation confidentiality was discussed.
2013 LEGISLATIVE WORK
California Law Revision Committee: Mediation Confidentiality Study
CDRC continued to monitor the California Law Revision Commission study of mediation confidentiality by regularly attending and speaking at the Commission’s quarterly meetings.
Amicus Letter to California Supreme Court: Mangels Butler & Mitchell LLP (2013) 219 Cal. App.4th 1299
CDRC filed an amicus letter to the California Supreme Court asking that it grant review of Mount Holyoke Homes LP v. Jeffer Mangels Butler & Mitchell LLP. There, the respondent law firm had made an Internet search and discovered that, ten year before, a partner in the respondent law firm had written a reference letter on behalf of the arbitrator. The trial court denied the petitioner’s motion to vacate, but the Court of Appeal reversed. CDRC argued in its amicus letter that it was important in the Internet age for the Court to make a definitive ruling whether a party to an arbitration had a duty to make the search. The Court declined review.
2012 LEGISLATIVE WORK
AB 2025 (Gorell) Mediation Confidentiality. Support as amended. Chaptered.
In response to Cassel v. Superior Court (2011) 51 Cal.4th 113, required the California Law Revision Commission to study and report to the Legislature concerning the relationship under current law between mediation confidentiality and attorney malpractice and misconduct, as well as the availability and propriety of contractual waivers.
AB 1631 (Monning) Arbitration: legal representation. Co-sponsored. Chaptered.
Deleted sunset date on Code of Civil Procedure section 1282.4, which permits out of state attorneys to appear in domestic arbitrations in California under certain conditions.
AB 506 (Wieckowski) Local government: bankruptcy: neutral evaluation. Support. Chaptered.
Prohibited a local public entity from filing under federal bankruptcy law unless the local public entity has participated in a specified neutral evaluation process with interested parties.
SB 491 (Evans) Contracts: claims. Support. Died.
Would have provided that any term in a contract of adhesion purporting to waive the right to join or consolidate claims, or to bring a claim as a representative member of a class or in a private attorney general capacity shall be deemed to lack the necessary consent to waive that right, and would have been void.
2011 LEGISLATIVE WORK
AB 267 (Swanson) Employment contracts – Support. Vetoed.
Would have made void and unenforceable as against public policy any provision in an employment contract that requires an employee, as a condition of obtaining or continuing employment, to use a forum other than California, or to agree to a choice of law other than California law, to resolve any dispute with an employer regarding employment-related issues.
AB 506 (Wieckowski) Local government: bankruptcy: neutral evaluation. Support as amended. Chaptered.
Prohibited a local public entity from filing under federal bankruptcy law unless the local public entity, among other options, has participated in a specified neutral evaluation process with interested parties.
AB 646 (Atkins) Local public employee organizations: impasse procedures. Support as amended. Chaptered.
Amended the Meyers-Milias-Brown Act. Authorized the employee organization, if the mediator was unable to effect settlement of the controversy within 30 days of his or her appointment, to request that the matter be submitted to a fact-finding panel.
AB 1208 (Charles Calderon) Trial courts: administration. Oppose. Died.
Would have permitted courts to use funds allocated to them by the state for any purpose, including presumably Dispute Resolution Programs Act funds.
SB 684 (Corbett) Workers’ compensation insurance: dispute resolution: arbitration clauses. Support as amended. Chaptered.
Required an insurer that intends to use a dispute resolution or arbitration agreement to resolve disputes to disclose to the employer, contemporaneously with any written quote that offers to provide insurance coverage, that choice of law and choice of venue or forum may be a jurisdiction other than California and that these terms are negotiable between the insurer and the employer.
SB 731 (Committee on Judiciary) Civil actions. Support. Chaptered.
Section 3 of SB 731 pertained to court-connected non-binding arbitrations held pursuant to Code of Civil Procedure sections 1141.10, et seq. It amended sections 1141.20, subdivision (a), and 1141.23, so that a disappointed party to the arbitration would have 60 rather than 30 days to request a trial de novo.
Judicial Council Form ADR-100: Statement of Agreement or Non-Agreement. Support as amended. Adopted.
The Judicial Council revised the form as part of an effort to require all courts to use it and asked the ADR community to comment. CDRC supported the concept of a uniform reporting procedure, but suggested deletion of the portion of the revised form that required that, if a mediation did not take place, a mediator must report why it did not, including whether a person who was ordered to appear at the mediation did not appear.
2010 LEGISLATIVE WORK
AB 1639 (Nava) Facilitated Mortgage Workout Program. Support as amended. Defeated in Senate.
Would have created a program in which lenders and borrowers could restructure mortgages through mediation and thus terminate foreclosure proceedings.
AB 1680 (Saldana) Civil rights: waiver of rights. Support as amended. Vetoed by Governor.
Would have provided that parties could not waive the provisions of Civil Code Section 51.7 as a condition of entering into a contract. At CDRC’s request, author caused “fact sheet” to be revised regarding arbitration.
AB 2475 (Beall) Family law: complaints. Oppose. Held in Committee.
Would have directed the Judicial Council to adopt a rule of court to establish a uniform, statewide procedure for handling and responding to complaints regarding family law experts employed or appointed by the court, including mediators. Bill replaced by AB 939 (Committee on Judiciary) - Family law proceedings, which was enacted, that changed “mediators” to “child custody recommendation counselors.”
SB 877 (Harman) Arbitration: legal representation. Support as amended. Chaptered.
Extended the sunset provision until January 1, 2013, from the out-of-state attorney arbitration counsel program.
Other legislative concepts discussed with legislators.
HISTORY OF CDRC
In November, 1992, thirty-five ADR pioneers from all over California attended a retreat to brainstorm and address future needs in the emerging field. This group included Bob Barrett, Randy Lowry (director of the Institute for Dispute Resolution at Pepperdine University), Ron Kelly, Ramon Raugust, and the late Don Weckstein of the University of San Diego. These and others represented court-connected and other established ADR programs in a variety of arenas, including family, environmental, public policy, commercial, and civil.
Brainstorming resulted in listing more than forty needs in the dispute resolution field, including the area of legislation. On the one hand, there was an identified need for a "cohesive voice for legislation, research about proposals, updating developments as they move through the legislation process, and education of legislators and staffs about the implications of different formulations of laws." On the other hand, the group saw the need to keep practitioners informed regarding legislation that had the potential to impact their practices and programs.