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I need to appeal an arbitrator's order of dismissal of binding arbitration!

Hemet, CA |

I was compelled into binding arbitration as the result of an arbitration agreement contained in a contract. The arbitrator refused to hear my motion to dismiss based on invalidity of the arbitration clause and the contract itself. The respondent's in the matter made multiple motions to dismiss related to conducting a deposition. The arbitrator finally dismissed my claim for her perception that I had abused the process by failing to appear for the deposition. There was no decision on the merit. Can I still get the order dismissing my claim reviewed and vacated? Under what conditions will an award of this type be vacated on review? What is the applicable leading authority?

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Attorney answers 4


The six grounds for setting aside an arbitration award are set forth in Code of Civil Procedure Section 1286.2(a), and are a little too long to summarize here. The grounds, however, are limited. In addition, the award may be set aside if a clear legal error on the arbitrator's behalf denies a party a hearing on an important and unwaivable statutory right. See Pearson Dental, 48 Cal.4th 665.

Please speak with an attorney before filing your petition to vacate, to minimize the chances that your petition is little more than a fool's errand. Petitions to vacate are an uphill fight, at best.


Federal law, and the law of most states, heavily favors arbitration. This even goes so far as to provide that most of the time it is the arbitrator who decides whether arbitration is the proper method for determining a dispute or not. So, part of this policy in favor of arbitration is that arbitrator decisions are very hard to vacate.
Whenever someone's question indicates that they are willing to spend time and money trying to get a dispute out of arbitration and into court, I usually believe that person needs to consult an attorney on the subject. Having been through a number of cases where the parties fought over "arbitrability" I will tell you that there need to be very compelling reasons to choose to fight over where to fight. Perhaps you perceive arbitration as being unfair, or unlikely to result in a favorable decision for you. I think those concerns should be aired to an experienced attorney who will help you make an informed decision. I've seen people fight to stay out of arbitration, lose that battle, then win the arbitration of the merits itself and wish they hadn't fought it originally.


It sounds like the arbitrator dismissed your claim as a discovery sanction, and that "terminating" remedy is reserved for only the most flagrant and intentional discovery violations.
One of the statutory grounds for vacating an arbitration award is where the arbitrator exceeded his or her powers. Another grounds for vacating a decision is where rights of a party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.
Whether the arbitrator had the "power" to impose an ultimate sanction is one direction worth pursuing; there may be others.
You have a very short window of time to file a Motion to Vacate the decision. If you do not have an attorney - or if your attorney has little experience in challenging arbitration awards in the trial court or appellate court - you should consult one who does.

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If you were ordered into arbitration by a superior court judge as part of a motion or petition to compel arbitration by the other side, and you lost that motion, then, upon the conclusion of the arbitration, appeal the court's order compelling you into the arbitration process. However, if you did not fight the arbitration process in the superior court before starting the arbitration, then you are likely SOL (sure out of luck). If you are left with trying to set aside a discovery sanction dismissal of the arbitration by challenging the award, you are quite certainly going to fail unless you can prove bias or one of the other very limited bases for setting aside an arbitration award.

You should have attended the depo. When you do not play by the rules, you face some very significant consequences.

Good luck to you.

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