Litigation

Court of Appeal Reconsiders Arbitration Decision, Then Rules The Same Way

By Bruce Nye

    As Cal Biz Lit noted here on August 31, arbitration awards in California are almost never reversible.  But as that post pointed out, in Burlage  v. Superior Court Of Ventura County (Spencer) (August 31, 2009) ___ Cal.App.4th ___ (2d Civil No.B211431), the Second District Court of Appeal created a loop-hole in arbitration finality jurisprudence that seemed  big enough to drive an appellate truck through.  The loop-hole:  arbitration awards can be challenged at the trial court, and on appeal, if the arbitrator erroneously excludes evidence.

    Well, the Court reconsidered its opinion.  And yesterday it posted a slightly changed opinion here.   I should mention that this opinion (like the earlier one)  is by Justice Arthur Gilbert, the Presiding Justice of Division 6 of the Second Appellate District.  CBL doesn't usually concern itself with personalities on the bench.  But CBL makes an exception here because Justice Gilbert is one of CBL's favorites.  This is not because of his opinions, but rather because he is a very good (and often very funny) writer of essays dealing with the legal world, and a blogger.  

    And while Justice Gilbert's slightly changed opinion ends up with the same result -- trial court is reversed, it should have refused to confirm the arbitration award because the arbitrator incorrectly excluded evidence -- he also adds a paragraph that shows arbitrators how to close the loophole:  just don't explicitly exclude any evidence.  Of course, Justice Gilbert is satisfied that this would not happen:

It may be argued that to avoid the imposition of section 1286.2, arbitrators will simply admit evidence to insulate their decisions from review. We do not subscribe to this cynical view. It is through judicial review that the law is shaped and developed. Arbitrators do not subvert this process because a court might vacate an award. Arbitrators base their decisions on a careful analysis of the law and facts. They, like the arbitrator here, are professionals who conduct themselves according to the canons of ethics and the high degree of integrity their profession demands.

    Sigh.  Sorry Justice Gilbert, but in the real world, that ain't necessarily the way it works.  The fallibility -- and let's face it, bias in both directions -- of arbitrators makes the process a real crap shoot.  And arbitrators, like judges, don't like to get reversed.  And that, as we've stated before, is why CBL is no big fan of binding arbitration.

Full post as published by CalBizLit on October 21, 2009 (boomark / email).