CCP § 1281.97 Ties The 30-Day Deadline From The Date Of An Arbitrator Invoice.
We have posted about the CCP § 1281.97 30-day deadline for an employer to pay arbitration fees, with most courts strictly construing the deadline (although whether the provision is preempted by the FAA is an issue recently taken up the California Supreme Court in Hohenshelt). However, given how unique circumstances can drive results, the trial and appellate courts in Anoke v. Twitter, Inc., Case No. A168675 (1st Dist., Div. 5 Aug. 27, 2024) (unpublished) took a practical approach to a unique situation.
There, employee’s counsel mistakenly paid employer’s share of arbitration fees quickly after issuance of that invoice. Employer checked and saw that the arbitration portal reflected the fees as being paid. Later, employee’s counsel then demanded a refund (which was made with no apparent notice to employer). The arbitrator issued a second invoice to employer, which paid within 30 days.
Employee challenged the payment as untimely, but the appellate court disagreed after the lower court denied employee’s request for a motion to compel an arbitration in which employer was liable for her reasonable fees and costs (an untimely payment remedy available under § 1281.97(b)(2)). Based on the statutory language having a “passive voice,” the 2/5 DCA determined that the statute ties the 30-day deadline to an invoice from the arbitrator, with employer timely paying the second invoice. It further observed that any other result could result in some gamesmanship by employee, a “gotcha” the appellate court did not like. “Here, a mistaken payment resulted in a second invoice, which is consistent with ordinary business billing practices. We are not going to rewrite the statute to say that, in the event one invoice is mistakenly paid, a second invoice is improper.”
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