Plaintiffs are elderly Section 8 recipients who want to sue their attorney for allegedly pressuring them into a terrible settlement. Including but not limited to seeking to have the court appoint a guardian ad litem for the three when they balked at taking the deal.
I'm not expressing a view on the merits. Perhaps the lawsuit's a total crock. The point is that the plaintiffs are hardly rich.
The case is instead about whether the plaintiffs can be compelled to arbitrate. Defendants say they can, based on an arbitration agreement plaintiffs (allegedly) signed. Plaintiffs, however, say that there's no way they can afford the up-front arbitration fees, and the fact that they've been granted in forma pauperis status in the trial court tends to suggest they may be right.
Defendants say, in essence, "Tough crap." Moving to dismiss both the lawsuit and the arbitration because plaintiffs can't pay.
The trial court agrees. The Court of Appeal reverses and remands.
Justice Rylaarsdam can't make the arbitration tribunal waive its fees. He can't make defendants pay those fees either.
But he can give defendants a choice. The Court of Appeal holds that if the plaintiffs are indeed indigent and can't pay the up-front costs, then defendants can either (1) pay those costs for 'em, or (2) waive their right to arbitrate.
The only alternative would be to hold that an attorney can protect its own (potential) misconduct by including an expensive arbitration provision that he knew the clients could never employ given its expense. And that's a worse -- and untenable -- result. Unconscionable, even.
I like the opinion. It makes sense. And is written in common, easily-understood language. Justice.
Plus, it's now a holding of the Court of Appeal. One with broad implications for other mandatory arbitration clauses as well.
Despite my appreciation of the opinion, I will add one cautionary note. This opinion is from the California Court of Appeal. It's not one -- in form or substance -- that the United States Supreme Court would write. Which matters, since the Federal Arbitration Act has federalized the underlying jurisprudence.
The Supreme Court wouldn't have written this opinion, but it nonetheless currently stands as the law in California.
On this issue, at least, I greatly prefer the California Court of Appeal to the United States Supreme Court.
