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Turner v. Superior Court of Los Angeles County11/24/1998
ent." Wendy's supporting declaration states that she is Arianna's mother, that Wendy never agreed to arbitrate this case, and that Wendy "wants a jury trial, with a panel of neighbors . . . to decide the questions of fact herein." Without any supporting evidence, Wendy simply concludes that "she is indigent as, of course, is her daughter . . . ." Since Kaiser wants arbitration, says Wendy, "Kaiser should be compelled to pay all costs of said arbitration." There was nothing in Wendy's papers about the "costs" of arbitration. The trial court apparently granted the petition to compel arbitration but did not rule on Arianna's cost-shifting request.
In March 1998, Arianna filed a motion to compel Kaiser to pay all costs of her "party arbitrator" (not those of the neutral arbitrator as contemplated by section 1373.20). In a supporting screed that purported to be a declaration, Arianna's lawyer (Nathaniel Friedman) reminded the trial court that, over Arianna's "strenuous objection," arbitration had been compelled so that Arianna could not "present her case to a jury of her peers (which jury likely would have crucified Kaiser)." Thereafter, said Friedman, Arianna selected an attorney (Mark O. Hiepler) as her "Party Arbitrator. Mr. H pler required $2,500 a day for his services, a not unreasonable sum, considering that retired Judges hire themselves out for as much as $800 an hour, the amount reportedly charged (and collected, no doubt) by the retired Chief Justice of California." Friedman's declaration continued:
"[Friedman] made demand upon [Kaiser's] attorneys that [Kaiser] pay Mr. H pler's charges, pointed out that Kaiser had prevailed upon its choice of forum motion, and since the resolution of this case would be carried out in a forum not of [Arianna's] choosing, it was appropriate that . . . [Kaiser] pay the relatively nominal sums required by Mr. H pler. (It is also to be noted that any monies paid for attorneys' fees or arbitrator's fees, are, when [Kaiser] fills out its federal income tax, `reasonable and necessary business expenses,' and thereby absorbed by the taxpayers.) [ ] [Kaiser] refused."
"[Friedman] determined to force [Kaiser's] hand on this issue. The only question was, would [Friedman] seek an order compelling [Kaiser] to pay [Arianna's] Party Arbitrator's charges from the Neutral Arbitrator, or from the Court. [ ] [Friedman] determined that the Court would probably expect a first application to be made to the Neutral Arbitrator [and s]uch a motion was made. . . . [ ] Meanwhile, [the Neutral Arbitrator, Jerome Berenson], having been nominated for three straight arbitrations became indignant when [Friedman] wrote, asking to be informed if there was any type of `special relationship' between retired Judge Berenson and [Kaiser] and/or [Kaiser's] permanent Party Arbitrator, P. Theodore Hammond. [ ] Judge Berenson took great umbrage at any suggestion that `he had any kind of special relationship,' and promptly resigned." There is more of the same sort of hyperbole, none of which is relevant.
From a legal perspective, Arianna claimed there was no agreement to arbitrate. It followed, she said, that the order compelling arbitration was tantamount to a compelled discovery reference pursuant to Code of Civil Procedure section 639, and that Kaiser ought to be required to pay for her party arbitrator. Kaiser opposed the motion, contending that, even in cases of extreme hardship, its obligation was limited by statute to its duty to pay the claimant's share of the fees charge by the neutral arbitrator. (ยง 1373.20.) The trial court denied the motion, finding that section 1373.20 does not obligate Kaiser to pay the fees and costs of the claimant's party arbitrator.
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