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AB-993 Contractors: arbitration.(2013-2014)

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AB993:v97#DOCUMENT

Amended  IN  Senate  June 10, 2013
Amended  IN  Assembly  April 24, 2013

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 993


Introduced by Assembly Member Linder

February 22, 2013


An act to amend Section 7085.5 of the Business and Professions Code, relating to contractors.


LEGISLATIVE COUNSEL'S DIGEST


AB 993, as amended, Linder. Contractors: arbitration.
The Contractors’ State License Law provides for licensing and regulation of contractors by the Contractors’ State License Board. Existing law establishes an arbitration process administered by the board to resolve disputes between contractors and consumers. Existing law requires that if a dispute goes to arbitration, the arbitrator or arbitrator association be approved by the board.

Existing law imposes certain duties and requirements on private arbitration companies that conduct arbitration proceedings, including, among other things, a prohibition against administering a consumer arbitration if the company has a financial interest in any party or attorney for a party to the proceedings, as specified.

The bill would apply these provisions to an appointed arbitration association handling disputes between consumers and contractors, as specified.

Existing law prohibits a person from serving as an arbitrator for contractor complaints in which that person has any financial or personal interest in the result of the arbitration.

This bill would require a prospective arbitrator to comply with certain disclosure requirements prior to accepting an appointment as an arbitrator and would specify grounds upon which an arbitrator may be disqualified.

Existing law authorizes an arbitrator to grant any remedy or relief deemed just and equitable and within the scope of the board’s referral to the arbitrator and the requirements of the board, including costs and expenses.
This bill would prohibit the arbitrator from awarding specific performance of any project, but would authorize the release of a mechanics lien or the return of tools or materials. The bill would also provide that a party that submits a dispute to arbitration waives any right to recover attorney’s fees or to challenge an arbitrator’s award of attorney’s fees in a civil action related to the dispute.
Existing law requires the board or appointed arbitration association to provide the parties with a list of the times, dates, and locations of the hearing to be held, and requires the parties to notify the arbitrator of the convenient times and dates within 7 calendar days of the mailing of the list. A record is not required to be taken of the hearing proceedings. Existing law requires the arbitrator to fix the time, place, and location of the hearing, if the parties fail to respond within that timeframe. A record is not required to be taken of the hearing proceedings.
This bill would instead require the parties to notify the arbitrator of times, dates, and locations convenient to each party, as specified, and require the arbitrator to fix the time, place, date, and location of the hearing after considering the responses of the parties. The bill would require a party making a recording of a hearing to supply the recording to the arbitrator at the party’s expense.
Existing law provides that any person having a direct interest in the arbitration is entitled to attend the hearing, but that it shall be discretionary with the arbitrator to determine the propriety of the attendance of any other person.
This bill would provide that the arbitrator shall not exclude any other person from attendance at the hearing without good cause, consistent with the public nature of the proceeding.
Under existing law, any party to the proceeding may have a record made at its own expense.
This bill would require a party making a recording of a hearing to supply that recording, at its own expense, to the auditor.
Existing law authorizes the hearing to be reopened on the arbitrator’s own motion, and provides that service of any papers or process in connection with these proceedings shall be by personal service or by regular mail on a party at the last known address.
This bill would authorize the hearing to be reopened on the arbitrator’s motion prior to the rendering of an award, and would provide that service by first class mail is complete upon deposit into specified mail receptacles.

Existing law requires the registrar of contractors to advise the parties that names of industry experts may be obtained by requesting this information from the registrar.

This bill would instead require the arbitrator to advise the parties that the names of industry experts may be obtained by requesting this information from the registrar.

The bill would make other related changes.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 7085.5 of the Business and Professions Code is amended to read:

7085.5.
 Arbitrations of disputes arising out of cases filed with or by the board shall be conducted in accordance with the following rules:
(a) All “agreements to arbitrate” shall include the names, addresses, and telephone numbers of the parties to the dispute, the issue in dispute, and the amount of monetary damages sought. The arbitrator shall not order or provide for the specific performance of any project, including, but not limited to, the completion of work, repairs, or corrections, but may order the release of a mechanics lien or the return of tools or materials. The appropriate fee for arbitration services shall be paid to the appointed arbitration association by the board from the Contractors’ License Fund. The appointed arbitration association shall comply with all of the duties and requirements applicable to private arbitration companies pursuant to Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure.
(b) (1) The board or appointed arbitration association shall appoint an arbitrator in the following manner: immediately after the filing of the agreement to arbitrate, the board or appointed arbitration association shall submit simultaneously to each party to the dispute, an identical list of names of persons chosen from the panel. Each party to the dispute shall have seven days from the mailing date in which to cross off any names to which it objects, number the remaining names to indicate the order of preference, and return the list to the board or appointed arbitration association. If a party does not return the list within the time specified, all persons named in the list are acceptable. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the board or appointed arbitration association shall appoint an arbitrator to serve. If the parties fail to agree on any of the parties named, if acceptable arbitrators are unable to act, or if, for any other reason, the appointment cannot be made from the submitted lists, the board or appointed arbitration association shall have the power to make the appointment from among other members of the panel without the submission of any additional lists. Each dispute shall be heard and determined by one arbitrator unless the board or appointed arbitration association, in its discretion, directs that a greater number of arbitrators be appointed.
(2) In all cases in which a complaint has been referred to arbitration pursuant to subdivision (b) of Section 7085, the board or the appointed arbitration association shall have the power to appoint an arbitrator to hear the matter.
(3) The board shall adopt regulations setting minimum qualification standards for listed arbitrators based upon relevant training, experience, and performance.
(c) A person shall not serve as an arbitrator in any arbitration in which that person has any financial or personal interest in the result of the arbitration. Prior to accepting an appointment, the prospective arbitrator shall comply with Sections 1281.9 and 1281.95 of the Code of Civil Procedure. An arbitrator shall be subject to disqualification pursuant to Sections 1291.91 and 1281.95 of the Code of Civil Procedure. disclose to the appointed arbitration association any circumstances likely to prevent a prompt hearing or to create a presumption of bias. Upon receipt of that information, the board or appointed arbitration association shall immediately replace the arbitrator or communicate the information to the parties for their comments. Thereafter, the board or appointed arbitration association shall determine whether the arbitrator should be disqualified and shall inform the parties of its decision, which shall be conclusive.
(d) The board or appointed arbitration association may appoint another arbitrator if a vacancy occurs, or if an appointed arbitrator is unable to serve in a timely manner.
(e) (1) The board or appointed arbitration association shall provide the parties with a list of the times, dates, and locations of the hearing to be held. The parties shall notify the arbitrator of the times, dates, and locations convenient to each party within seven calendar days of the mailing of the list. The arbitrator shall fix the time, date, and location of the hearing after considering the responses of the parties. Any party that fails to respond to the arbitrator within the seven-day period waives any objection to the time, date, and location of the hearing. An arbitrator may, at the arbitrator’s sole discretion, make an inspection of the construction site that is the subject of the arbitration. The arbitrator shall notify the parties of the time and date set for the inspection. Any party who so desires may be present at the inspection.
(2) The board or appointed arbitration association shall fix the time, date, and location of the hearing for all cases referred to arbitration pursuant to subdivision (b) of Section 7085. An arbitrator may, at the arbitrator’s sole discretion, make an inspection of the construction site that is the subject of the arbitration. The arbitrator shall notify the parties of the time and date set for the inspection. Any party who desires may be present at the inspection.
(f) A person having a direct interest in the arbitration is entitled to attend the hearing. The arbitrator may exclude any witness, other than a party or other essential person, during the testimony of any other witness. The arbitrator shall not exclude any other person from attendance at the hearing without good cause, consistent with the public nature of the proceeding.
(g) A hearing shall be adjourned by the arbitrator only for good cause.
(h) A record is not required to be taken of the proceedings. However, any party to the proceeding may have a record made at its own expense. A party making a recording of a hearing shall supply the recording to the arbitrator at the party’s own expense. The parties may make appropriate notes of the proceedings.
(i) The hearing shall be conducted by the arbitrator in any manner that will permit full and expeditious presentation of the case by both parties. Consistent with the expedited nature of arbitration, the arbitrator shall establish the extent of, and schedule for, the production of relevant documents and other information, the identification of any witnesses to be called, and a schedule for any hearings to elicit facts solely within the knowledge of one party. The complaining party shall present its claims, proofs, and witnesses, who shall submit to questions or other examination. The defending party shall then present its defenses, proofs, and witnesses, who shall submit to questions or other examination. The arbitrator has discretion to vary this procedure, but shall afford full and equal opportunity to the parties for the presentation of any material or relevant proofs.
(j) The arbitration may proceed in the absence of any party who, after due notice, fails to be present. The arbitrator shall require the attending party to submit supporting evidence in order to make an award. An award for the attending party shall not be based solely on the fact that the other party has failed to appear at the arbitration hearing.
(k) The arbitrator shall be the sole judge of the relevancy and materiality of the evidence offered, and conformity to legal rules of evidence shall not be required.
(l) The arbitrator may receive and consider documentary evidence. Documents to be considered by the arbitrator may be submitted prior to the hearing. However, a copy shall be simultaneously transmitted to all other parties and to the board or appointed arbitration association for transmittal to the arbitrator or board appointed arbitrator.
(m) The arbitrator shall specifically inquire of the parties whether they have any further proofs to offer or witnesses to be heard. Upon receiving negative replies, the arbitrator shall declare the hearing closed and minutes thereof shall be recorded. If briefs are to be filed, the hearing shall be declared closed as of the final date set by the arbitrator for the receipt of briefs. If documents are to be filed as requested by the arbitrator and the date set for their receipt is later than that set for the receipt of briefs, the later date shall be the date of closing the hearing. The time limit within which the arbitrator is required to make the award shall commence to run, in the absence of other agreements by the parties, upon the closing of the hearing.
(n) The hearing may be reopened on the arbitrator’s own motion prior to the rendering of an award.
(o) A party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with, and who fails to state his or her objections to the arbitrator in writing, within 10 calendar days of close of the hearing, shall be deemed to have waived his or her right to object.
(p) (1) Except as provided in paragraph (2), any papers or process necessary or proper for the initiation or continuation of an arbitration under these rules, and for any court action in connection therewith, or for the entry of judgment on an award made thereunder, may be served upon a party by first-class mail addressed to that party or his or her attorney at the party’s last known address, or by personal service. Service by first-class mail is complete upon deposit in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service in a sealed addressed envelope, with postage paid.
(2) Notwithstanding paragraph (1), in all cases referred to arbitration pursuant to subdivision (b) of Section 7085 in which the contractor fails or refuses to return an executed copy of the notice to arbitrate within the time specified, any papers or process specified in paragraph (1) to be sent to the contractor, including the notice of hearing, shall be mailed by certified mail to the contractor’s address of record.
(q) The award shall be made promptly by the arbitrator. Unless otherwise agreed by the parties, the award shall be made no later than 30 calendar days from the date of closing the hearing, from closing a reopened hearing, or if oral hearing has been waived, from the date of transmitting the final statements and proofs to the arbitrator.
The arbitrator may for good cause extend any period of time established by these rules, except the time for making the award. The arbitrator shall notify the parties of any extension and the reason therefor.
(r) (1) The arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the board’s referral and the requirements of the board. The arbitrator, in his or her sole discretion, may award costs or expenses.
(2) An arbitrator may award all direct costs and expenses for the completion or repair of the project.
(3) A party that submits a dispute to arbitration pursuant to this section waives any right to recover attorney’s fees, or to challenge an arbitrator’s award of attorney’s fees, in a civil action regarding the dispute.
(s) (1) The award shall become final 30 calendar days from the date the arbitration award is issued. The arbitrator, upon written application of a party to the arbitration, may correct the award upon the following grounds:
(A) There was an evident miscalculation of figures or an evident mistake in the description of any person, things, or property referred to in the award.
(B) There is any other clerical error in the award, not affecting the merits of the controversy.
(2) An application for correction of the award shall be made within 10 calendar days of the date of service of the award by serving a copy of the application on the arbitrator, and all other parties to the arbitration. A party to the arbitration may make a written objection to the application for correction by serving a copy of the written objection on the arbitrator, the board, and all other parties to the arbitration, within 10 calendar days of the date of service of the application for correction.
(3) The arbitrator shall either deny the application or correct the award within 30 calendar days of the date of service of the original award by mailing a copy of the denial or correction to all parties to the arbitration. Any appeal from the denial or correction shall be filed with a court of competent jurisdiction and a true copy thereof shall be filed with the appointed arbitration association within 30 calendar days after the award has become final. The award shall be in writing, and shall be signed by the arbitrator or a majority of them. If no request for correction is filed within the 30-calendar day period, it shall become a final order of the registrar.
(t) Service of the award by certified mail shall be effective if a certified letter containing the award, or a true copy thereof, is mailed by the arbitration association to each party or to a party’s attorney of record at their last known address, address of record, or by personally serving any party. Service by certified mail is complete upon deposit in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service in a sealed addressed envelope, with postage paid.
(u) (1) The board shall pay the expenses of one expert witness appointed by the board if both of the following apply:
(A) The services of an expert witness are requested by either party involved in arbitration pursuant to this article.
(B) The case involves workmanship issues that are itemized in the complaint and have not been repaired or replaced.
(2) A party that chooses to present the findings of another expert witness as evidence shall pay for those services. Payment for expert witnesses appointed by the board shall be limited to the expert witness costs for inspection of the problem at the construction site, preparation of the expert witness’ report, and expert witness fees for appearing or testifying at a hearing. All requests for payment to an expert witness shall be submitted on a form that has been approved by the registrar. All requests for payment to an expert witness shall be reviewed and approved by the board prior to payment. The arbitrator registrar shall advise the parties that names of industry experts may be obtained by requesting this information from the registrar.
(v) The arbitrator shall interpret and apply these rules insofar as they relate to his or her powers and duties.
(w) The following shall apply as to court procedure and exclusion of liability:
(1) The board, the appointed arbitration association, or any arbitrator in a proceeding under these rules is not a necessary party in judicial proceedings relating to the arbitration.
(2) Parties to these rules shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.
(3) The board, the appointed arbitration association, or any arbitrator is not liable to any party for any act or omission in connection with any arbitration conducted under these rules.