Metropolitan News-Enterprise


Thursday, January 25, 2024


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C.A. Says That Emailing Invoice Is Not ‘Electronic Service’

Opinion Declares That Statute Extending by Two Days Time for Responding to Court Document Served Electronically Does Not Apply to Emailed Bill for Arbitration Services; Employer Forfeited Right to Arbitrate by Delaying Payment


By a MetNews Staff Writer


An employer waived its right to have an employee’s wage-and-hour action against it resolved through arbitration by not paying the fee charged by JAMS within 30 days of the invoice being emailed to it, Div. One of the Fourth District Court of Appeal held yesterday, rejecting the contention that the period was extended by two days because there was electronic transmission and because the 30th day and the following day fell on holidays.

A writ of mandate was granted directing the San Diego Superior Court to vacate its orders compelling arbitration of Onecimo Sierra Suarez’s action against Rudolph & Sletten, Inc. (“R&S”).

JAMS emailed its invoice to R&S on Dec. 2, 2022, marked, as statutorily prescribed, “due upon receipt.” 1281.97(a)(1) provides:

“In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration….”

Employer’s Contention

R&S paid on Jan. 4. That was timely, it insisted, in light of the combined effect of two Code of Civil Procedure sections.

Thirty days after the due date was Jan. 1, 2023, New Year’s Day; because the holiday fell on a Sunday, the next day was also a holiday. Sec. 12 provides:

“The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.”

That meant the day that the act of paying the fee was to be done was Jan. 3, R&S contended, adding that it had two additional days to pay in light of §1010.6. It says in subd. (a) that “[a] document may be served electronically in an action filed with the court” and provides in subd. (a)(3)(B) that “any right or duty to do any act or make any response within any period...shall be extended after service by electronic means by two court days.”

Dato’s Opinion

The Court of Appeal declared that even if the time was extended to Jan. 3, it was not extended further. Justice William Dato wrote:

“We will assume without deciding that section 12 could potentially apply to extend the time for R&S’s payment of arbitration fees if the deadline for payment fell on a ‘holiday.’  Even so, the major problem with R&S’s argument is that section 1010.6 simply does not apply to the e-mail transmission of a JAMS fee invoice. By its terms, the statute governs the service of documents in an action filed with the court. An arbitration proceeding is not ‘an action filed with the court,’ and the invoice required by section 1281.97 is ‘provided’ to the parties but is not ‘served.’

“That an arbitration proceeding is not a court action is axiomatic.  Private arbitration exists as an alternative to resolving disputes in the public court system. Private arbitration exists as an alternative to resolving disputes in the public court system.”

The fact that Suarez had not paid his share of the fee was immaterial, Dato said, explaining:

“The plain language of the statute does not say anything about Suarez’s payment and does not create penalties for employees who do not pay their share of the arbitration fees. Instead, it focuses exclusively on the obligations of the drafter of the arbitration agreement, in this case R&S.” 

The case is Suarez  v. Superior Court (Rudolph & Sletten, Inc.), 2024 S.O.S. 326.


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