A party may waive its right to have a court decide issues of arbitrability by conduct clearly evincing its intent to submit that issue to the arbitrator. The test for a waiver in this context is no more stringent than the test for waiver of the right to arbitrate by participation in court proceedings. Here, the plaintiff waived by voluntarily answering and appearing in arbitration proceedings for 10 months before abruptly withdrawing just weeks before the evidentiary hearing on the ground the arbitrator had denied plaintiff’s demand that defendant post a bond to cover plaintiff’s attorney fees in arbitration. Also, a party seeking to overturn an arbitration award must file a petition to vacate the award or a response to a petition to confirm the award within 100 days of service of the award. A response to a petition to confirm filed more than 100 days after service of the award is untimely and cannot give the court the power to vacate the arbitration award. That is true even when the party challenging the award claims that the arbitrator lacked “jurisdiction” to enter the award. In ordinary contractual arbitration, the arbitrators’ jurisdiction is set by the parties’ agreement and so, of course, may be augmented by actual or implied agreement, as by waiving any objection by failing to file a timely petition to vacate the award. National Union Fire Ins. Co. v. Stites Prof. Law Corp. (1991) 235 Cal.App.3d 1718 is distinguishable as it dealt with mandatory attorney-client arbitration under B&P Code sections, not contractual arbitration.
California Court of Appeal, Second District, Division Two (Hoffstadt, J.); February 8, 2018; 2018 WL 774085.