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HotWheels96

How to respond to discovery after arbitration election in California?!

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Hello everybody,

I'm asking this question for a friend, because I don't know the answer. She is being sued by Midland for less than $1,500, and has already elected arbitration prior to even answering the lawsuit. Midland of course has ignored her electing arbitration and has propounded discovery.

How does a person respond to discovery without waiving their right to arbitration? Also, she has already set up a motion date for her motion to compel but that isn't for two more months, far after her allowed time to respond to discovery.

Perhaps @calawyer can chime in here, as well as anybody else familiar with Cali and arbitration. Thanks in advance!

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I'm going to have to assume it is as I am still locked out of viewing that first post! I've tried and have given up. Any chance you could summarize any responses after I last responded there for me? @Credator seems like I recall the timing of the motion being raised and was left uncertain after that. Should I still keep with the same advice?

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Defendant OBJECTS to Plaintiff's Discovery requests as the arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. 
 
Defendant will not be answering discovery until such an agreement is reached between the parties under the contract in arbitration. 
 
Defendant further states there is a dispositive motion before the court that will moot discovery. 
 
I don't know who the original creditor was be sure to ask for the money for the arbitration.
 
Also state you expect the arbitration to last 4 or 5 days.
 
For this small amount that should scare them away and they should dismiss their claim.
 
In filling out the JAMS forms, I will need some information. Please forward an email address and fax number and contact person's name who will be handling the JAMS claim for your office to my address listed above.
 
Should have something like this in the credit agreement
Pursuant to the terms of the agreement We will be responsible for any additional arbitration fees. At your written request, we will consider in good faith making a temporary advance of all or part of your share of any arbitration fees.
 

 

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Thanks! I don't know why I can't view the other post properly but I'll have her begin working on this meet and confer right away. A letter was sent out after receiving the discovery reminding them, but I think this one is worded wonderfully. She only has a few days to respond to discovery at this point.

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I'm going to have to assume it is as I am still locked out of viewing that first post! I've tried and have given up. Any chance you could summarize any responses after I last responded there for me? @Credator seems like I recall the timing of the motion being raised and was left uncertain after that. Should I still keep with the same advice?

That has to be frustrating not being able to read your own thread. :(

 

After your last post:

Posted 01 December 2013 - 11:48 PM post...

It's the way my court does it. You are required to schedule when the motion will be held and they document the type of motion it is.

...

There was only one post:

http://www.creditinfocenter.com/community/topic/322344-already-elected-arbitration-with-midland-they-just-sent-discovery-requests/?p=1274937

 Posted 02 December 2013 - 12:18 AM

This is how my county works also, although I always sent the motion the day I recieved the hearing date.  But as long as you are meeting the CCP/court rules for serving the motion.  Seems normal to me....

by skippy1960

 

I had posted that it seemed that a petition for stay of the proceedings seems to be a path that some defendants take:

 

It appears some defendants in CA file a petition for stay of proceedings with their petition to compel arbitration:

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES, WEST DISTRICT

--

PETITION TO COMPEL ARBITRATION

AND REQUEST FOR STAY OF

PROCEEDINGS; MEMORANDUM OF

POINTS AND AUTHORITIES IN

SUPPORT THEREOF; DECLARATION

OF WBL IN SUPPORT THEREOF

http://www.jdsupra.com/legalnews/petition-to-compel-arbitration-and-reque-98675/

 

Motion vs. Petition? http://www.creditinfocenter.com/community/topic/317580-motion-vs-petition-california/

 

I had also additionally posted:

Continued participation in litigation and/or delay in compelling arbitration can constitute waiver of arbitration. One cannot test the waters before taking a swim. Assuming I wanted to move the dispute to an arbitration forum, I would not risk it.

 

It is not my opinion on "testing the waters" that should concern anyone. How the court views ones behavior on waiver of arbitration would be of concern to me. I do not know what threshold for waiver of arbitration is used in CA or more specifically by the court with jurisdiction in the OP referenced case, but I would be most interested to know if it were it my case.

 

Also, from my experience: In Arbitration No One Can Hear You Scream TM

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Thanks for posting that! She definitely wants to do the meet and confer, but is very nervous about not answering any of the discovery. Would it be okay to answer each request with an objection stating arb has been elected. Would it be okay to put an objection followed by something like, without waiving her right to arb defendant denies blah blah blah??? Or it is best to not answer at all?

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Thanks for posting that! She definitely wants to do the meet and confer, but is very nervous about not answering any of the discovery. Would it be okay to answer each request with an objection stating arb has been elected. Would it be okay to put an objection followed by something like, without waiving her right to arb defendant denies blah blah blah??? Or it is best to not answer at all?

Perhaps objection based on electing arbitration would be acceptable - IDK. I have not seen an example of such a response to discovery.

 

With or without such a response to discovery, I would be "nervous" if I had still not motioned or petitioned for a stay. An early filing and granting of a stay petition might have prevented service of discovery requests FAIK.

 

As I understand it a grant of a stay of proceedings should halt ongoing litigation until a determination is made on a Motion to Compel Arbitration.

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in my experience of two cases, in both of which I submitted a Motion to Compel Private Contractual Arb, the election and Motion were ignored by Plaintiff's counsel.

 

AND, upon being sent the Notice of Motion, they promptly moved for Summary Judgment.

 

I have a brick of paper in front of me, right now, with the, shall we say, interesting arguments they have both in favor of their MSJ, and against my MTC.

 

Apparently I was a bad bad girl for not setting up a Discovery agreement with them, and "ignoring" their Discovery requests. In point of fact, to each of their requests, I replied  "Without waiving general objections: Objection: arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering until such an agreement is reached between the parties under the contract."

 

It's possibly of interest to your friend, that, despite my refusing to respond to their discovery questions, they are arguing (from obscure decisions in the early 1980's) that Minnesota courts have ruled that participating on any level in a lawsuit constitutes waiving one's rights to arb.

 

Given that both cases they cite are employment cases, and that the legal arguments that they make are surely overturned in Concepcion, I still found it interesting that this firm came up with the arguments in the first case.

 

The first group just stomped their feet and said, "NO! We don't wanna go to arb!"

 

I don't live in CA, and that state's Discovery rules are significantly different from mine. So I can't speak to the issue of time limits for response. The time limit in my state is more based on the court date than the date that the Discovery was first sent.

 

One thing I WILL do, that I highly recommend your friend do is to make sure that the only Motion on the plate on my scheduled court date is mine.

 

They are, of course, trying to add their MSJ on the same date. 

 

I will be calling the clerk tomorrow, and explaining that until the judge has ruled on my MTC, he really can't rule on a MSJ.

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Just read your other thread. I did not file a separate Motion to Stay. But the conclusion of my MTC prays that the judge either Stay until the conclusion of Arb, or D W/O P.

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Once the motion was filed, they dismissed the case. They made no move to oppose the motion and I believe waited only to see if her stating a motion would be filed was a threat or a promise. It was in fact, a promise.

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