How to count to 30

When an appellate justice writes a concurrence just to point out a trap for unwary practitioners, it merits some consideration. The "trap" is one of counting the days that are allowed after an award in a mandatory fee arbitration before one's right to request a trial de novo evaporates. And because it concerns arbitration of legal fees, the "mother's milk" of the practice of our profession as well as our reputation, it is very important to get this right.

After I was a member of the State Bar's Committee on Mandatory Fee Arbitration for many years, I got involved in many fee arbitration issues and came to understand that the whole act in Business and Professions Code Section 6200 et seq. (MFAA) and the myriad rules in the many local bar fee arbitration programs was little-known and widely misunderstood by lawyers -- many of whom I thought would have known better. My grandmother's saying that "Well the cobbler never has a good pair of shoes" came to mind. We are supposed to know the codes and the bar's rules of ethics and how the system for the regulation of lawyers works. At the very least we should know how to calendar deadlines. But the statutory language on "service" is confusing, inconsistent and probably not logical, so it is easy to make a mistake -- and courts are not empowered to fix that mistake.

Because of my experience with MFAA, when the opinion was ordered published in Soni v. Simplelayers, Inc., 2019 DJDAR 11268 (Dec. 4, 2019), I was impressed with how well it covered many of the specialized rules and requirements that we need to know if confronted with a client's fee arbitration under the MFAA rules.

Business and Professions Code Section 6203 reads in part "(b) Even if the parties to the arbitration have not agreed in writing to be bound, the arbitration award shall become binding upon the passage of 30 days after service of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration pursuant to Section 6204." These awards are typically mailed out by regular mail by the program administrators.

The main trap is when to start counting the days (and how many days are allowed) for filing a new lawsuit, or if a lawsuit already exists, a petition for a trial de novo from an award by an MFAA program under State Bar arbitration or with any of the local programs.

Soni explains that the time for contesting an MFAA program award starts upon the service of the notice of an award. In this context, "service" mean the mailing of the award by the program.

The 30 days for objecting in Business and Professions Code Section 6203(b) is not extended because of service by mail. The local program rules of the Los Angeles County Bar Association and the State Bar's procedural rules provide that no extra five, 10 or 20 days are allowed for service by mail as many expect per Code of Civil Procedure Section 1013.

So the bright-line rule for filing is just this: "Thirty days from the date of mailing of an award by the arbitration program."

But Soni is a veritable treatise on the disparate rules for the MFAA that merit attention. Here is a partial list:

• A client must file request for MFAA arbitration by a filing or by a postmarked mailing a request within 30 days after receipt of the notice of a client's right to arbitrate.

• Judicial review of the award is limited to the grounds in CCP Section 1286.2 (to vacate) and 1286.6 (to correct).

• The trial court's ruling on a petition to confirm, correct or vacate an arbitration award (under CCP Section 1285) is reviewed on a "substantial evidence" basis.

• The 30 days in Business and Professions Code Section 6206 on tolling runs from receipt of notice of the award.

• Section 6206 does not affect the time in which an arbitration becomes binding.

• Lack of jurisdiction is a ground for vacating an award but a petition must be filed not later than 100 days after service of an award (CCP Section 1288).

• An MFAA arbitrator's ruling on the issue of arbitrability is not subject to review for legal or factual errors.

• The extensions of time (for five, 10 or 20 days) for service by mail in CCP Section 1013(a) do not apply to an award by an MFAA arbitration.

• One may not get relief for failure to meet the 30-day deadline under CCP Section 473(b).

Justice Lamar Baker's concurrence implores the Legislature to change the language of Business and Professions Code Sections 6203 and 6206 to run from the same triggering event -- receipt of notice of an arbitration award.

Unless and until this happens, start counting 30 days from the date of the mailing. 