good morning your honor smith please the court i am steven johnson representing third party plaintiffs and appellant when they tell me i was taken as i was sitting listening to the proceeding arguments and how fact intensive the other cases appeared to be this case is not intensive it involves a very straightforward issue of law whenever i prepare for an argument like this and i look back at briefs that were written eighteen months ago i think to myself might i have presented things differently how might we more carefully focus the issue and i'll try to limit my comments this morning to those issues the first thing i'm most taken by is the fact that we were not singular enough none of the parties were in focusing on the jurisdictional issue that stands at the heart of this case the trial court finding was that she felt she did not have the power to conduct further proceedings simply because the arbitrator had arbitration is dismissed for the reason of nonpayment there is an absolute bar that extends to the trial court that prohibits the trial court from conducting a trial on the merits all you have to do is look at the at the sink case and that's evident we can talk about distinguishing one case for another essential here there were three cases there was life can there sink and then there's williams in life can the court was silent as to the question as to what happened with further proceedings what happened at lifescan was simply that the court said well i'm going to order the arbitrator to make this party pay and the court of appeal said no you can't do that you can't give directives to the arbitrator and i have no disagreement with that point in fink what happened was the employer sought to enforce the arbitration provision the employer then failed to pay the court said all right the trial court said we'll proceed with the hearing and the trial here in kuwait and sink in the end the employer said well now we'll pay for the court said no you've lost the right to arbitrate but in that case the arbitration was terminated for non payment and the trial court proceeded and so that's i think that's because there was a default by the party that had asked for the arbitration to begin with right well that that was certainly the factual component of that case and there's a provision as i understand it of the section three zero of the f a a that specifically deals with the question of that that is correct your honor but there was no finding by this arbitrator in this case in our case that ms tillman was responsible for the payment of the failure to pay in our excerpt of record we make clear and we point out what happened at the arbitration the arbitrator specifically just like in lifescan the arbitrator asked reingold if they wish to pay wrangled didn't pay there was a hearing set to determine who was responsible of to pay and the court the arbitrator said i can't even have that hearing if you don't pay if there isn't a payment by somebody to be a dispute about whether that happened or not as i understand it could you tell me where in the record that exists what the the statement and i won't even tell you i won't even consider who should pay because you're not paying me that the hearings the excerpt of records regarding the arbitrators findings appear event there were several issues remember the other point we make in our opening brief with with citations to the record was that the arbitrator had already found liability the arbitrator had already determined that damages existed in the form of the fees that my client has incurred as a result of the wrangle firm's mistake the arbitrator had already made those express findings the only thing that was left to do is to calculate the damages and we asked the arbitrator to determine to award order reingold to pay the costs in light of the fact that they were inevitably going to be required to pay for costs anyway and that specific request is referenced in the briefs i excerpts and the arbitrator declined to do that in williams is a distinguishable case in the sense that what happened in williams of course is the arbitrator made a specific decision and found that it was in him it was a negotiated arbitration provision and so what the trial court was really asked to do in williams was nothing more than to reverse a determination that was made by the arbitrator here there was no determination by the arbitrator the only tribunals that ever made a determination as to whether ms tilman could afford the fee was the trial court and she found she could not afford the fee and she dismissed the case anyway that's why this case is so important this is the most clear example of a bright line you was ever come on down to the question i mean i gather that if the  essentially what he did you know he didn't do that he was very careful not to do it the rulings he made that the findings he made are very specific he we specifically requested briefing at the excerpt you will see get to the specific order he made he says there was a motion before me to determine responsibility for fees i'm not ruling on that where he's saying it wasn't sixty two or sixty six i've just looked at those all he said is sixty two and fifty six is but that's an order that life can pay i'll defer to your reading but my reading of the case was that they gave they asked life again if they would like to pay i didn't see an order by the arbitrator that good morning your honor stephen kane on behalf of the appellee the rheingold firm scuse me for my voice this morning interesting that the initiation of the argument was that there are no disputed facts in this is a legal question and most of the argument involved all the underlying facts which is the court undoubtedly knows would have been the sole obligation of the arbitrator to decide meaning but he did say i'm not to exercise a motion to have  have found that he did say it so what do you do with that i mean that context is important your honor i don't think that statement is being presented correctly why just read it what do you mean well he says he's not going to decide to request what is the has been clear from the start that she did not have the funds to pursue a long drawn out case in the case proceeding and although the arbiter has ruled the request rule the case with any case process inapplicable which is wrong rheingold is managed to elo  these proceedings and the receiving sentence is important please accept this letter is our request the claimant rheingold valet be ordered to pay the cost of arbitration going forward at this point this is in august of two thousand and twelve the arbitrations me going on two years plaintiff's already eighteen thousand dollars you know arrears on the initial deposit they haven't paid they aren't up to date they made an initial payment of ten thousand dollars to start the case and then extensive work was done to develop orders to make motions many of which really several important ones were denied for the plaintiff and made a motion to switch the location of the arbitration from new york to los angeles exacting they wanted when they oppose arbitration in the first place that motion with denied there was a separate motion and many conference calls discussing how the case would be formatted and whether aspects of it would be done in the case of the case format which is mandatory for training or practice actions the court most certain rather the arbitrator most certainly did order that the case within a case process would be applied for the real need of any of this in the end in the didn't decide the motion what he was a request that there be an order is there anything a court should or could or would do about that after the fact i don't believe the court has the ability to go back and order the arbitrator to go do something differently there are several cases making that exact point quite could that seems an extreme example wou i don't think that would be inappropriate and i think there are aspects of the aaa rules that allow a replacement of an arbitrator if they are abdicating their duties and that's sort of what the pathetically corporate sounds like but what we have and what we are dealing with and what the district court had to deal with was the fact that the order most certainly terminated first suspended and then terminated the arbitration due to the plaintiffs nonpayment of fees into the optics liability was not really as easy as they seem to think yes there was a determination that for purposes of the arbitration a duty to join the unknown or the previously unknown minor plaintiff fell upon both the law firm and the and the the wife that duty exist however liability wasn't automatically created for that you still have to have proximate cause ation and damages resulting from that that was highly in doubt because of what is derisively called the offset issue but which is actually a very important issue remember this is a wrongful death is for lack of a better phrase a fixed amount under the california statutes the judge and or the jury would then determine depending on the number of errors who got how much of that fixed amount because sean tillman the unknown son from the first marriage wasn't included in the underlying trial by definition renee tillman got the money that shawn tillman would have received or should have received she got a windfall and the arbitrator discussed that precisely she got the windfall so if sean tillman after his settlement for a lighter still had a claim against renee or the law firm or anyone for that well that money refused and then the the arbitration was suspended no so far that seems quite parallel to this with the exception that there was an express up until that point so it seems quite parallel and then life can goes to the district court and says order the premier to pay the programmer share the c s and and the court says well a court can't do with an expectation that life can afford hoops the advanced class can refuse and requested the age expired to proceed without premier and suspended the proceedings that's what this says all right so why don't want to know  its is sort of to arbitrate at that point that seems to be what happened in life and i don't know exactly what happened in the end it seems like the case just die i guess it's life can only go so far the arbitration was suspended just read a sentence saying there was no what isn't and exactly parallel under your scenario that would be but also true is the fact that they never race there is nothing in the request to pay the fees alleviating the obligation of renee tillman to pay her fees it might have been a joint obligation at worst that does not mean that renee tillman was not in default in her green that she was not she had defaulted by not paying on the premise that there is any as to whether the inability to pay is a reason not to arbitrate and i gather that you don't think we should be addressing a question in this case belittle your inability to pay is the question that the case law says lies with an exclusive the exclusive jurisdiction of the arbitrator that  that's why you need to lay that out to the arbitrator if you really can't tell you lay that out in the in the district court in the motion to compel arbitration the order might be affected by it that request was never made here never made when the arbitrator got the case the issue of inability to pay didn't really come into it until several months and years later after many decisions had been made payments had been made but again i do not concede that this letter from a lawyer is really enough to put the issue what happened here i call that a motion to set i'm not just citing it so that's what whether it's he didn't say because it was procedurally improper he said because i'm not going to science again this was after they were already eighteen thousand dollars had one minute tell him thank you your honors the only point i i think given the amount of time already taken is to point out that page fifty two of the excerpt of record is the by the arbitrator that he did give the claimant did give rheingold the opportunity to pay the fee just as in light skinned and as to the final question you asked as to that issue we certainly contend that arbitration should never have been ordered and we didn't have the chance to raise that argument at the time the matter was put into arbitration my client had money she she ran out of money scoring victory after victory in arbitration and every time we'd win they'd ask for more time you know this i understand there's a finding that she couldn't pay but is a little peculiar that she couldn't pay the arbitrator but she can pay her lawyer to litigate a great lead that she should have to arbitrate after she didn't pay us your honor we had it you'll see in the record that we actually advanced