However, Arbitrator Still Has Wide-Ranging Discretion To Allow Costs-Shifting Or Not.
The California Supreme Court, in Heimlich v. Shivji, Case No. S243029 (Cal. Supreme Court May 30, 2019), in a 7-0 opinion authored by Justice Corrigan, established a bright-line rule for presentation of a rejected CCP § 998 offer to an arbitrator for fee/cost-shifting purposes. “Consistent with practice in civil litigation, for 15 days after issuance of a final award, a party to an arbitration may submit a cost request asserting rejection of an earlier 998 offer. The arbitrator has implicit power under section 998 to consider the request and amend any award accordingly.” (Slip Op. at p. 15.) Our state supreme court also indicated that the 998 offer should not be presented before issuance of a merits award. Finally, in an interesting twist, the arbitrator’s cost denial was sustained anyway, because the merits of the costs refusal decision could not be reviewed and did not fall within the “refusal to hear material evidence” vacatur ground.
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