1

Filed 4/22/22 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

GERALD ARONOW,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

FRANCISCO COUNTY,

Respondent;

EMERGENT, LLP et al.,

Real Parties in Interest.

A162662

(San Francisco County

Super. Ct. No. CGC-19-579853)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed March 28, 2022, be modified as 

follows:

1. On page 24 of the opinion, following the paragraph continued 

from the previous page that ends with “Emergent’s fears about waiving its 

right to arbitrate are unfounded,” insert as footnote number 7 the following 

text:

We agree with Aronow that the ability of a litigant’s attorney to 

pay for arbitration costs is not relevant. (See Isrin v. Superior Court

(1965) 63 Cal.2d 153, 165 [right to proceed in forma pauperis in 

appropriate cases may not be denied on ground that counsel for 

indigent litigant is representing litigant pursuant to a contingent fee 

contract].) 

This modification does not change the judgment.
2

The petition for rehearing is denied.

_______________________

Streeter, Acting P.J.

A162662 Aronow v. Superior Court
3

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Ethan P. Schulman

Counsel: Law Offices of Paul J. Steiner, Paul J. Steiner; Gary S. 

Garfinkle, Maria J. Garfinkle, for Petitioner

No appearance for Respondent.

Murphy, Pearson, Bradley & Feeney, Harlan B. Watkins, 

Geoffrey T. Macbride, for Real Parties in Interest

A162662 Aronow v. Superior Court
1

Filed 3/28/22 (unmodified version)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

GERALD ARONOW,

Petitioner,

v.

THE SUPERIOR COURT OF SAN 

FRANCISCO COUNTY,

Respondent;

EMERGENT, LLP et al.,

Real Parties in Interest.

 A162662

 (San Francisco County

 Super. Ct. No. CGC-19-579853)

We address a narrow issue, which the trial court certified for appellate 

resolution (Code Civ. Proc.,1 § 166.1): Does a trial court that granted a 

defendant’s petition to compel arbitration have jurisdiction to lift the stay of 

trial court proceedings where a plaintiff demonstrates financial inability to 

pay the anticipated arbitration costs? If so, may the court require defendant 

either to pay plaintiff’s share of arbitration costs or to waive the right to 

arbitration? We answer both questions in the affirmative, and will issue a 

writ of mandate directing the trial court to allow Aronow to attempt to 

demonstrate his inability to pay the arbitrator’s fees and, if necessary, to 

conduct an evidentiary hearing. If the trial court finds Aronow is unable to 

1 All statutory references are to the Code of Civil Procedure unless 

otherwise indicated.
2

pay the arbitrator’s fee, it should give Emergent the choice either to pay 

Aronow’s share of the arbitrator’s fee or to waive the right to arbitrate.

BACKGROUND

Aronow sued his former attorneys, Emergent LLP, Christopher 

Wimmer, and Peter Roldan (collectively, “Emergent,” the real parties in 

interest) for legal malpractice. Emergent invoked the arbitration provision in 

the retainer agreement, which required that any dispute be resolved by 

“binding arbitration before a retired judge at ADR Services, Inc., in San 

Francisco, California, according to the rules of that organization.” The 

agreement stated that Aronow “waiv[ed] [his] right to submit any dispute or 

any cause of action . . . to a jury or court trial. The parties shall bear their 

own legal fees and costs for all claims . . . .” Aronow opposed Emergent’s

section 1281.2 petition to compel arbitration, challenging the arbitration 

provision on various grounds, including unconscionability. On August 4, 

2020, the trial court granted the petition after finding the agreement was 

valid; there was consideration for the fee agreement; the arbitration 

agreement was not unconscionable; and Emergent had not waived its right to 

arbitrate.

2

Aronow and Emergent agreed on ADR Services, Inc. arbitrator Hon. 

Alfred Chiantelli (Ret.), whose hourly rate is $600; $3,600 for a half (up to 

2 In this proceeding, Aronow claims the trial court erred in concluding 

that the arbitration agreement is not unconscionable, and both parties 

extensively briefed that issue. The issue was not certified by the trial court.

In any event, that claim is untimely in our court as the trial court rejected 

the argument in its August 4, 2020 order granting the petition to compel 

arbitration, and Aronow did not seek review of that decision until he filed the

writ petition on May 19, 2021. (See Volkswagen of America, Inc. v. Superior 

Court (2001) 94 Cal.App.4th 695, 701 [“As a general rule, a writ petition 

should be filed within the 60-day period that is applicable to appeals.”].)

Therefore, we do not address the unconscionability issue.
3

four-hour) day; and $6,000 for a full (up to eight-hour) day. Aronow was 

required to make “a $1,500 advance payment” for the arbitrator’s fee. ADR 

Services, Inc. agreed to apply its “consumer” waiver of its usual $450 

administrative fee because Aronow was a consumer of legal services. At the 

initial conference with the arbitrator, Aronow advised that he was unable to 

pay the arbitration fees. The conference was adjourned and the arbitration 

did not proceed.

In the trial court, Aronow filed a motion for arbitration fees and costs 

waiver or alternatively to lift the court stay, which the trial court denied.

Recognizing a split of authority, the court followed the appellate opinion that

held a trial court does not have jurisdiction to lift a stay despite a plaintiff’s 

claim that he cannot afford to pay arbitration fees. (See MKJA, Inc. v. 123 Fit 

Franchising, LLC (2011) 191 Cal.App.4th 643, 658–659 (MKJA).) The court 

also found Aronow had not documented “his share of the arbitration costs,” 

“did not seek or obtain permission from this Court to proceed in forma 

pauperis,” and “does not make a persuasive showing that he is unable to pay 

that estimated amount.”

Aronow asked the court, pursuant to section 166.1,3 to certify the 

question of whether a trial court that granted a defendant’s petition to 

compel arbitration has jurisdiction to lift the stay of trial court proceedings 

3 Section 166.1 states: “Upon the written request of any party or his or 

her counsel, or at the judge’s discretion, a judge may indicate in any 

interlocutory order a belief that there is a controlling question of law as to 

which there are substantial grounds for difference of opinion, appellate 

resolution of which may materially advance the conclusion of the litigation.”

The statute is intended to “ ‘codify a judge’s implicit authority to comment on 

an order,’ ” though it “ ‘does not change existing writ procedures or create a 

new level of appellate review.’ ” (Bank of America Corp. v. Superior Court

(2011) 198 Cal.App.4th 862, 869, fn. 6.)
4

where a plaintiff demonstrates financial inability to pay the anticipated 

arbitration costs. The court granted Aronow’s request. In its order, the court 

acknowledged it found in its prior order that even if contrary authority, 

including Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 (Roldan)

applied, Aronow “did not make a sufficient factual showing to support a 

finding that he is unable to pay his anticipated share of the cost of the 

arbitration. . . . However, the court notes that, based on the representations 

of counsel at the hearing, it has a reasonable basis to believe that [Aronow] 

may be able to fill those gaps in his evidentiary presentation. For example, 

[Aronow’s] counsel pointed out that [Aronow] is currently receiving public 

assistance relief in the State of Alaska, and would not be eligible to receive 

such relief if he had any substantial assets.” 

Aronow then filed a petition for writ of mandate or other relief, which, 

in response to our request for a preliminary opposition, Emergent opposed.

We issued an order to show cause to the respondent superior court, and these 

proceedings followed.

DISCUSSION

I. Legal Background

Trial court stays during arbitration

A stay of trial court proceedings pending arbitration is governed by 

section 1281.4, which provides: “If a court of competent jurisdiction, whether 

in this State or not, has ordered arbitration of a controversy which is an issue 

involved in an action or proceeding pending before a court of this State, the 

court in which such action or proceeding is pending shall, upon motion of a 

party to such action or proceeding, stay the action or proceeding until an 

arbitration is had in accordance with the order to arbitrate or until such 

earlier time as the court specifies. [¶] If an application has been made to a 
5

court of competent jurisdiction, whether in this State or not, for an order to 

arbitrate a controversy which is an issue involved in an action or proceeding 

pending before a court of this State and such application is undetermined, 

the court in which such action or proceeding is pending shall, upon motion of 

a party to such action or proceeding, stay the action or proceeding until the 

application for an order to arbitrate is determined and, if arbitration of such 

controversy is ordered, until an arbitration is had in accordance with the 

order to arbitrate or until such earlier time as the court specifies.”

“ ‘The purpose of the statutory stay [required pursuant to section 

1281.4] is to protect the jurisdiction of the arbitrator by preserving the status 

quo until arbitration is resolved. [Citations.] [¶] In the absence of a stay, the 

continuation of the proceedings in the trial court disrupts the arbitration 

proceedings and can render them ineffective.’ ” (MKJA, supra, 

191 Cal.App.4th at p. 658.) “ ‘ “Once a petition is granted and the lawsuit is 

stayed, ‘the action at law sits in the twilight zone of abatement with the trial 

court retaining merely vestigial jurisdiction over matters submitted to 

arbitration.’ [Citation.] During that time, under its ‘vestigial’ jurisdiction, a 

court may: appoint arbitrators if the method selected by the parties fails

([Code Civ. Proc.,] § 1281.6); grant a provisional remedy ‘but only upon the 

ground that the award to which an applicant may be entitled may be 

rendered ineffectual without provisional relief’ ([Code Civ. Proc.,] § 1281.8, 

subd. (b)); and confirm, correct or vacate the arbitration award ([Code Civ. 

Proc.,] § 1285). Absent an agreement to withdraw the controversy from 

arbitration, however, no other judicial act is authorized.” ’ ” (MJKA, at 

pp. 658–659.)
6

Split of Authority on consequence of a plaintiff’s indigency

As the trial court recognized, appellate courts disagree whether a trial 

court may lift a stay in response to a plaintiff’s claimed inability to pay 

arbitration costs. The trial court followed MKJA, the authority it found to be 

“better-reasoned” (see Auto Equity Sales, Inc. v. Superior Court (1962) 

57 Cal.2d 450, 456 [trial courts must choose between conflicting decisions]),

and concluded it did not have jurisdiction to grant Aronow relief.

In MKJA, franchisees sued the franchisor for fraudulently inducing 

them to enter into the relationship and failing to provide operational support 

pursuant to the agreement, which contained an arbitration provision.

(MKJA, supra, 191 Cal.App.4th at pp. 648–649.) The franchisor filed a 

motion to stay pursuant to section 1281.4, which the trial court granted.

(MJKA, at p. 649.) When the franchisees filed a motion to lift the stay 

because they could not afford arbitration costs, the trial court lifted the stay 

concluding that the “arbitration provisions were unconscionable and/or 

unenforceable.” (Id. at p. 653.) 

Division One of the Fourth District Court of Appeal reversed. The court 

interpreted section 1281.4 and “conclude[d] that a trial court may not lift a 

stay of litigation merely because a party cannot afford the costs associated 

with arbitration.” (MJKA, supra, 191 Cal.4th at p. 660.) The court reasoned 

“the purpose of section 1281.4 is to protect the jurisdiction of the arbitrator by 

preserving the status quo until the arbitration is resolved,” which is 

“essential to the enforceability of arbitration agreements generally.” (Id. at 

pp. 660–661.) In its view, “[i]nterpreting section 1281.4 to broadly permit a 

trial court to allow litigation to proceed whenever the court determines that a 

party cannot afford the costs of arbitration . . . would be fundamentally 

inconsistent with [both] California’s ‘strong public policy favoring contractual 
7

arbitration’ [citation] [¶] . . . [and] well-established case law holding that a 

trial court retains only a very narrow scope of jurisdiction with respect to an 

action that has been stayed pending arbitration.” (Id. at p. 661.) 

Division Three of the Fourth District Court of Appeal twice considered 

the same issue, but reached the opposite conclusion. In the first case, Roldan,

supra, 219 Cal.App.4th 87, a law firm sued by its former clients successfully 

invoked the arbitration provision of the retainer agreement. (Id. at p. 89.)

The trial court granted the clients in forma pauperis status, but later denied 

their motion to compel the law firm to advance the arbitration costs. (Id. at 

pp. 92–93.) The Court of Appeal reversed and explained succinctly that the 

former clients could be excused from the obligation to pay arbitration fees 

because “to rule otherwise might effectively deprive them of access to any 

forum for resolution of their claims against [the law firm]. We will not do 

that.” (Id. at pp. 95–96.) The court acknowledged it could not order the 

arbitration forum to waive its fees. So instead, the court remanded the 

matter for the trial court to “determine whether any of these plaintiffs are 

financially able to pay their pro rata share of [the arbitration] cost. If the 

court determines that any plaintiff is unable to do so, it must issue an order 

specifying that [defendant] has the option of either paying that plaintiff’s 

share of the arbitration cost or waiving its right to arbitrate that plaintiff’s 

case and allowing the case to proceed in court.” (Id. at p. 96.) The court did 

not address either the trial court’s jurisdiction under section 1281.4 or the 

contrary result in MKJA.

The same appellate court reached a similar result in Weiler v. Marcus 

& Millichap Real Estate Investment Services, Inc. (2018) 22 Cal.App.5th 970.

In Weiler, the plaintiff sued an investment services company that represented 

her in property exchange transactions. On the company’s motion, the trial 
8

court ordered the matter to arbitration. (Id. at p. 974.) Several years later, 

the former client claimed she could not afford her half of the escalating costs 

of arbitration, so she brought a declaratory relief action seeking relief under 

Roldan. (Weiler, at pp. 975–976.) The trial court granted the company’s 

summary judgment motion, but the appellate court reversed. (Id. at p. 976.)

Following its decision in Roldan, the court explained that forcing the plaintiff 

“to remain in the arbitral forum with an obligation to pay half the fees will 

lead to ‘the very real possibility [that she] might be deprived of a forum’ to 

resolve her grievances against defendants.” (Weiler, at p. 978, quoting 

Roldan, supra, 219 Cal.App.4th at p. 96.) “The interest in avoiding such an 

outcome far outweighs the interest, however strong, in respecting parties’ 

agreements to arbitrate.” (Weiler, at p. 979.) The court also believed its 

conclusion was consistent with both the Federal Arbitration Act (9 U.S.C. § 1 

et seq.) and the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) 

because an arbitration can be deemed “had” under both laws if it is 

terminated due to a party’s failure to pay arbitration fees, which would allow 

the court to lift a stay of court proceedings. (Weiler, at pp. 979–980, citing 

9 U.S.C., § 3; and Code Civ. Proc., § 1281.4.) Once again, the court elided the 

contrary result in MKJA.

II. Analysis

Standard of review

We review the issue presented here de novo as it requires us to 

interpret section 1281.4 to decide whether the trial court has jurisdiction to 

lift the stay. (See Doe v. Brown (2009) 177 Cal.App.4th 408, 417 [“We apply 

the de novo standard of review to this claim, since the claim raises an issue of 

statutory interpretation.”]; Cardiff Equities, Inc. v. Superior Court (2008) 

166 Cal.App.4th 1541, 1548 [applying de novo standard of review to “legal 
9

question” of whether case was properly stayed pursuant to § 1281.4]; MKJA, 

supra, 191 Cal.App.4th at p. 657 [applying de novo review].)

Statutory text and history

We begin by considering section 1281.4’s language and structure.

(Gund v. County of Trinity (2020) 10 Cal.5th 503, 511.) The California 

Arbitration Act “was enacted in 1927, and revised and reenacted in 1961”

(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 

83, 112 (Armendariz), abrogated in part on another ground in AT&T Mobility 

LLC v. Concepcion (2011) 563 U.S. 333, 339-340, 352) upon the 

recommendation of the California Law Revision Commission. Neither the 

statute nor the Law Revision Commission’s recommendation addresses 

circumstances where, due to indigency, a party to a contract containing an 

arbitration provision is unable to bear the cost of the arbitrator’s fee. (Stats. 

1961, ch. 461, § 2, Assem. Bill No. 832, Recommendation and Study relating 

to Arbitration (Dec. 1960) 3 Cal. Law Revision Com. Rep. 1961.) The statute 

states only that upon ordering arbitration, a trial court must “stay the action 

or proceeding until an arbitration is had in accordance with the order to 

arbitrate or until such earlier time as the court specifies.” (§ 1281.4.) We 

agree with the MKJA court’s explanation that while we may assume, based 

on the statutory language, that a “trial court possesses some amount of 

discretion to lift a stay imposed pursuant to section 1281.4, prior to the 

completion of an ordered arbitration,” the statute “does not address the scope 

of that discretion.” (MKJA, supra, 191 Cal.App.4th at p. 660.) We therefore 

turn to other sources to determine whether a trial court may lift a stay under 

the circumstances presented here. (Gund, at p. 511.)
10

Jameson v. Desta

Confronted with MKJA and Roldan, the trial court found the former 

“the better-reasoned of the two approaches.” However, it appears the parties 

did not advise the trial court that our Supreme Court had recently cited 

Roldan with approval and relied upon it in reaching its holding in Jameson v. 

Desta (2018) 5 Cal.5th 594, 605, 621–622 (Jameson.)4

Jameson, a prison inmate, sued a California Department of Corrections 

doctor in San Diego County for professional negligence. (Jameson, supra, 

5 Cal.5th at p. 599.) Declared in forma pauperis, Jameson was entitled to 

both waiver of the filing fee and the attendance of an official court reporter.

(Id. at p. 598, see Gov. Code, §§ 68086, subdivision (b), 68631.) In response to 

drastic budget reductions, the trial court’s policy did not provide official court 

reporters at civil trials; a party had to hire a private reporter, and no 

provision was made for a litigant who, due to limited financial resources, was 

unable to engage a private reporter. (Jameson, at p. 598.) Jameson 

represented himself at the jury trial, which proceeded without a court 

reporter. (Id. at p. 601.) After opening statements, the trial court granted 

defendant’s nonsuit motion (§ 581c) and motion to dismiss for failure to bring 

the action to trial within five years after commencement (§ 583.310) and 

entered judgment for defendant. (Jameson, at p. 601.) Jameson appealed. The 

Court of Appeal affirmed after concluding that “plaintiff is precluded from 

obtaining a reversal of the trial court’s nonsuit ruling because the record on 

appeal does not contain a reporter’s transcript.” (Id. at p. 602.)

4 Curiously, while Emergent devotes dozens of pages to its discussion of 

Roldan, it does not address Jameson in either its opposition to petition for 

writ of mandate (table of authorities at pp. 7–8) or in its return to petition for 

writ of mandate (table of authorities at pp. 9–10).
11

The Supreme Court reversed and held “as applied to in forma pauperis 

litigants who are entitled to a waiver of official court reporter fees, the San 

Diego Superior Court’s general policy of not providing official court reporters 

in most civil trials while permitting privately retained court reporters for 

parties who can afford to pay for such reporters is inconsistent with the 

general teaching of prior California in forma pauperis judicial decisions and 

the public policy of facilitating equal access to the courts embodied in

[Government Code] section 68630, subdivision (a).” (Jameson, supra, 

5 Cal.5th at p. 599.) “By precluding an indigent litigant from obtaining the 

attendance of an official court reporter (to which the litigant would be 

entitled without payment of a fee), while at the same time preserving the 

right of financially able litigants to obtain an officially recognized pro 

tempore court reporter, the challenged court policy creates the type of 

restriction of meaningful access to the civil judicial process that the relevant 

California in forma pauperis precedents and legislative policy render 

impermissible.” (Ibid.)

To reach this result, the court surveyed the decisions protecting 

indigent civil litigants, beginning with Martin v. Superior Court (1910) 

176 Cal. 289 (Martin), where the court held that “under the common law 

California courts have the inherent power to permit an indigent person to 

litigate a civil case in forma pauperis and thereby to bring a civil action 

without paying the ordinary, statutorily required filing fees.” (Jameson, 

supra, 5 Cal. 5th at pp. 603–604, citing Martin, at pp. 293–296.) The court 

explained: “Following the general principles set forth in Martin, this court 

and the Courts of Appeal have afforded indigent civil litigants the ability to 

obtain meaningful access to the judicial process in a great variety of 
12

contexts.” (Jameson, at p. 604.) The court listed 14 examples5, including the 

right of an indigent civil litigant to obtain an injunction without providing an 

injunction bond (see Conover, supra, 11 Cal.3d 842); the right of an indigent 

civil litigant to obtain waiver of bond requirement imposed by former 

5 “(See, e.g., Majors v. Superior Court of Alameda Co. (1919) 181 Cal. 

270 [right of civil indigent litigant to obtain jury on retrial without 

prepayment of jury fees]; Isrin v. Superior Court (1965) 63 Cal.2d 153 (Isrin) 

[indigent civil plaintiff could not be denied in forma pauperis status because 

represented by counsel on contingent fee basis]; Ferguson v. Keays (1971) 

4 Cal.3d 649 . . . [right of indigent civil litigant to file appeal without payment 

of appeal fees]; Earls v. Superior Court (1971) 6 Cal.3d 109 (Earls) [indigent 

civil litigant may not be denied in forma pauperis status on the ground that 

litigant may be able to afford fees through savings over several months];

Conover v. Hall (1974) 11 Cal.3d 842 (Conover) [right of indigent civil litigant 

to obtain injunction without providing an injunction bond]; Payne v. Superior 

Court (1976) 17 Cal.3d 908 . . . [right of indigent prisoner who is a defendant 

in a civil case to be provided meaningful access to judicial process, including 

representation by counsel if necessary]; Yarbrough v. Superior Court (1985) 

39 Cal.3d 197 [explaining trial court’s responsibilities under Payne]; County 

of Sutter v. Superior Court (1966) 244 Cal.App.2d 770 (County of Sutter) 

[right of indigent civil litigant to obtain waiver of bond requirement imposed 

by [former Gov. Code,] § 947]; Bank of America v. Superior Court (1967) 

255 Cal.App.2d 575 . . . [right of indigent out-of-state civil litigant to obtain 

waiver of security for costs required by Code Civ. Proc., § 1030]; Roberts v.

Superior Court (1968) 264 Cal.App.2d 235 . . . [right of indigent civil litigant 

to obtain waiver of appeal bond required by Code Civ. Proc., former § 985.5];

Cohen v. Board of Supervisors (1971) 20 Cal.App.3d 236 . . . [right of indigent 

civil plaintiff who could not afford service by statutorily prescribed 

publication to utilize alternative reasonable method of service]; Solorzano v.

Superior Court (1993) 18 Cal.App.4th 603 (Solorzano) [trial court abused its 

discretion in appointing a privately compensated discovery referee that 

indigent plaintiffs could not afford]; Baltayan v. Estate of Getemyan (2001)

90 Cal.App.4th 1427, 1436–1443(conc. opn. of Johnson, J.) (Baltayan) [right 

of indigent out-of-state civil plaintiff to exemption from security undertaking 

required by Code Civ. Proc., § 1030]; Roldan[, supra,] 219 Cal.App.4th

87 [trial court may not consign indigent plaintiffs to an arbitration process 

they cannot afford to pursue].)” (Jameson, supra, 5 Cal.5th at pp. 604–605.)
13

Government Code section 947 (see County of Sutter, supra, 244 Cal.App.2d 

770; and the right of an indigent out-of-state civil plaintiff to exemption from 

security undertaking required by Code of Civil Procedure section 1030 (see 

Baltayan, supra, 90 Cal.App.4th 1427, 1436–1443 (conc. opn. of Johnson, J.)); 

see also Jameson, at pp. 604–605.)

Principal among the examples was Roldan, which the court observed

was based on “ ‘California’s long-standing public policy of ensuring that all 

litigants have access to the justice system for resolution of their grievances, 

without regard to their financial means.’ ” (Jameson, supra, 5 Cal.5th at

p. 621, quoting Roldan, supra, 219 Cal.App.4th at p. 94.) The court described 

Roldan’s plight as follows: “In Roldan, supra, 219 Cal.App.4th 87, a related 

question arose in the context of the enforcement of an arbitration provision 

contained in retainer agreements between the plaintiff clients and the 

defendant attorneys. Under the arbitration clause at issue and the applicable 

provisions of the California Arbitration Act (Code Civ. Proc., § 1284.2), each 

party to the arbitration agreement was required to pay a pro rata share of 

the arbitrator’s fees and expenses as well as other arbitration expenses, all of 

which were likely to be substantial. The plaintiffs in Roldan were elderly 

individuals who had applied for and had been granted in forma pauperis 

status in the judicial proceeding. Thereafter, the plaintiffs challenged the 

trial court order compelling them to submit their dispute with their attorneys 

to arbitration, maintaining that they could not afford to pay the arbitration 

expenses.

“The Court of Appeal in Roldan first discussed several cases that had 

considered whether a provision of an arbitration agreement that required a 

party to pay arbitration fees that the party could not afford was 

unconscionable and unenforceable. (Roldan, at pp. 94–95 [describing
14

Gutierrez v. Autowest, Inc. (2013) 114 Cal.App.4th 77 and Parada v. Superior 

Court (2009) 176 Cal.App.4th 1554].) The appellate court in Roldan

thereafter concluded that it need not reach the issue of whether the 

arbitration agreements at issue in that case were unenforceable, because the 

only issue before it was whether plaintiffs, who had been granted permission 

to proceed in forma pauperis, ‘could . . . be excused from the obligation to pay 

fees associated with arbitration.’ (Roldan, at p. 95.) The court in Roldan, 

having taken note of ‘California’s long-standing public policy of ensuring that 

all litigants have access to the justice system for resolution of their 

grievances, without regard to their financial means’ (id. at p. 94, citing

Martin, supra, 176 Cal. 289), concluded that the plaintiffs were entitled to 

relief.

“The court in Roldan explained: ‘If, as plaintiffs contend, they lack the 

means to share the cost of the arbitration, to rule otherwise might effectively 

deprive them of access to any forum for resolution of their claims against [the

defendants]. We will not do that. Of course, as the trial court recognized, we 

cannot order the arbitration forum to waive its fees, as a court would do in the 

case of an indigent litigant. Nor do we have authority to order [the defendant 

law firm] to pay plaintiffs’ share of those fees. What we can do, however, is 

give [the defendant law firm] a choice: if the trial court determines that any 

of these plaintiffs is unable to share in the cost of arbitration, [the firm] can 

elect to either pay that plaintiff’s share of the arbitration cost and remain in 

arbitration or waive its right to arbitrate that plaintiff’s claim.’ (Roldan,

supra, 219 Cal.App.4th at p. 96.)” (Jameson, supra, 5 Cal.5th at pp. 621–622.)

Jameson also relied on Solorzano, supra, 18 Cal.App.4th 603 where, as 

in Roldan, the appellate court relieved an indigent litigant of bearing the cost 

of a private neutral decision maker. Solorzano held a trial court’s discretion 
15

to appoint a privately compensated referee under sections 639 and 645.1 

cannot be exercised in a manner that makes it unaffordable for an indigent 

party to litigate discovery disputes. The court explained: “Section 645.1 

makes no provision for indigent litigants proceeding in forma pauperis.

However, such parties are by definition unable to pay court-ordered reference 

fees regardless of how they are allocated. That is, no division or allocation of 

hourly fees for the services of a privately compensated discovery referee that 

imposes a monetary burden on impecunious litigants can achieve the fair and 

reasonable goal of section 645.1. Therefore, based on the present record, we 

conclude section 645.1 does not constitute authority for the trial court to 

appoint a privately compensated discovery referee to resolve the instant 

dispute.” (Solorzano, at p. 615.)

That the court in Solorzano was exercising discretion in appointing the 

referee whereas the Roldan court was acting pursuant to a legislative 

directive did not lead the Jameson court to distinguish the two outcomes. 

“[T]hese cases demonstrate that the policy of affording indigent litigants 

meaningful access to the judicial process establishes restrictions not only 

upon potential barriers created by legislatively imposed fees or procedures, 

but also upon court-devised policies or practices that have the effect of 

denying to qualified indigent litigants the equal access to justice that the in 

forma pauperis doctrine was designed to provide. (See, e.g., Isrin, supra, 

63 Cal.2d 153; Earls, supra, 6 Cal.3d 109; Solorzano, supra, 18 Cal.App.4th 

603; Roldan, supra, 219 Cal.App.4th 87.)” (Jameson, supra, 5 Cal.5th at 

p. 606 (italics in original).) The court then emphasized the significance of 

Roldan and Solorzano: “The decisions in Solorzano and Roldan reveal a 

fundamental aspect of the California in forma pauperis doctrine that is 

directly relevant to the issue presented here. As these decisions demonstrate,
16

under California law when a litigant in a judicial proceeding has qualified for 

in forma pauperis status, a court may not consign the indigent litigant to a 

costly private alternative procedure that the litigant cannot afford and that 

effectively negates the purpose and benefit of in forma pauperis status. In 

other words, whatever a court’s authority may be in general to outsource to 

privately compensated individuals or entities part or all of the court’s judicial 

duties with respect to litigants who can pay for such private services, a court 

may not engage in such outsourcing in the case of in forma pauperis litigants 

when the practical effect is to deprive such litigants of the equal access to 

justice that in forma pauperis status was intended to afford.” (Jameson, 

supra, 5 Cal.5th at p. 622.)

With the benefit of the Supreme Court’s approval of Roldan’s rationale 

and result, we find it to be the better reasoned opinion and will follow its 

approach.

In forma pauperis status

At the time the trial court certified this matter for writ review, it had 

not given Aronow permission to proceed in forma pauperis. After the matter 

was certified, both the trial court and our court allowed Aronow to proceed in 

forma pauperis. We need not analyze the timing of Aronow’s in forma 

pauperis status because our Supreme Court concluded in Conover, supra, 

11 Cal.3d 842, that in forma pauperis status is not required in the first 

instance for a litigant to seek relief from fees and costs that inhibit his right 

of access to the judicial process. In Conover, indigent plaintiffs who had not 

sought in forma pauperis status obtained a preliminary injunction against 

the enforcement of a state welfare provision without complying with section 

529’s mandatory injunction bond requirement. The court recognized that it 

was extending Martin, supra, 176 Cal. 289, because the bond “is not simply a 
17

fee exacted by the state for the use of its court system, but instead is a form 

of security intended to protect an adversary party from potential injury. The 

initial question must, therefore, be whether, in appropriate circumstances, a 

trial court has authority to suspend such protection afforded by statue to 

litigating parties generally.” (Conover, at p. 851.)

The Supreme Court affirmed the trial court’s decision to waive the bond 

fees. (Conover, supra, 11 Cal.3d at p. 853.) It explained that “[i]n a long series 

of cases commencing with Martin v. Superior Court (1917) 176 Cal. 289, our 

court has explained that, despite the apparent mandatory character of a 

variety of statutes calling for the payment of litigation fees, California courts 

retain a common law authority to dispense with such fees in the case of poor 

litigants.” (Id. at pp. 850–851.) Following this line of cases, the court held 

that “courts retain . . . authority to dispense with the “ ‘damage bond,’ ” which 

“function[s]” “to protect the monetary interests of adversary parties in 

litigation.” (Id. at p. 852.) The court quickly dispatched the appellant’s 

argument that in forma pauperis is required, noting that appellate court 

precedent does “not support defendants’ contention that a formal in forma 

pauperis application is required before relief can be granted.” (Ibid.)

Jurisdiction

In its explicit approval of Roldan and the relief afforded the plaintiff 

there, the Supreme Court in Jameson recognized a trial court’s jurisdiction 

on remand to determine if a plaintiff is unable to pay arbitration costs and, if 

so, to offer the defendant law firm two alternatives: “ ‘elect to either pay that 

plaintiff’s share of the arbitration cost and remain in arbitration or waive its 

right to arbitrate that plaintiff’s claim.’ (Roldan, supra, 219 Cal.App.4th at 

p. 96.)” (Jameson, supra, 5 Cal.5th at pp. 621–622.)
18

In choosing to follow Roldan’s approach, we are not unmindful of the 

authority on which MKJA relies, which the trial court adopted and which 

Emergent urges us to endorse. But we find more persuasive the Supreme 

Court’s approval of the cases in which it and our sister courts have not 

allowed the absence of legislation or, occasionally, contrary statutes to bar 

indigent litigants from pursuing their constitutional rights. (Pp. 11–16, ante;

Jameson, supra, 5 Cal.5th at pp. 605–606.) “Moreover, this line of cases also 

demonstrates that the exercise of judicial discretion in furtherance of 

facilitating equal access to justice is not limited to excusing the payment of 

fees that the government charges for government-provided services. Judicial 

authority to facilitate meaningful access to indigent litigants extends as well 

to excusing statutorily imposed expenses that are intended to protect third 

parties (e.g., injunction or damage bonds) and to devising alternative 

procedures (e.g., additional methods of service or meaningful access) so that 

indigent litigants are not, as a practical matter, denied their day in court.”

(Jameson, at p. 605.)

Unlike Conover and similar cases where relieving an indigent of the 

statutory obligation to post a bond could jeopardize the prevailing party’s 

recovery, the Roldan remedy affords Emergent two alternatives, both of 

which protect the right to a fair, neutral tribunal to decide the case.

Emergent can advance Aronow’s share of the arbitrator’s fee or, as it would 

absent the arbitration provision in the retainer agreement, try the case to a 

jury or court. We have no doubt that we strike the balance—between 

enforcing the language of the arbitration provision and Aronow’s changed 

financial circumstances—consistent with the indigent litigant jurisprudence 

Jameson recounts.
19

Other authorities cited by the trial court

Unlike the trial court, we do not find anything in Armendariz, supra, 

24 Cal.4th 83, or the Legislature’s subsequent enactment of section 1284.3 to 

compel a contrary outcome. Armendariz held that an employee’s California 

Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) claims could 

be decided in arbitration, but “the arbitration must meet certain minimum 

requirements, including neutrality of the arbitrator, the provision of 

adequate discovery, a written decision that will permit a limited form of 

judicial review, and limitations on the costs of arbitration.” (Armendariz, at 

p. 91.) The trial court did not find the arbitration provision of the retainer 

agreement to have been unconscionable at the time it was entered. But we 

cannot ignore that a party’s financial circumstances can change between 

entry into an arbitration-provision contract and a dispute that requires 

resolution. Where a trial court finds an arbitration agreement’s cost-sharing 

provision would effectively deprive a litigant of a forum for resolution,

Jameson instructs that a judicial remedy is necessary. That the Legislature 

enacted section 1284.3—which addresses fees and costs in consumer 

arbitration for indigent consumers (see Sanchez v. Valencia Holding Co., LLC

(2015) 61 Cal.4th 899)— does not preclude the need for a judicial remedy to 

ameliorate an unanticipated financial obstacle. 

Nor is our application of the Jameson principles incompatible with 

section 1281.4, on which MKJA relies for a contrary result: “ ‘The purpose of 

the statutory stay [required pursuant to section 1281.4] is to protect the 

jurisdiction of the arbitrator by preserving the status quo until arbitration is 

resolved. [Citations.] [¶] In the absence of a stay, the continuation of the 

proceedings in the trial court disrupts the arbitration proceedings and can 

render them ineffective.’ ” (MKJA, supra, at p. 658, quoting Federal Ins. Co. 
20

v. Superior Court (1998) 60 Cal.App.4th 1370, 1374–1375.) Here, the 

arbitration has not commenced; the status quo is static. Failure to allow 

Emergent to pay Aronow’s fee would render the “arbitration proceedings . . . 

ineffective.” (Ibid.)

Nor is Titan/Value Equities Group, Inc. v. Superior Court (1994) 

29 Cal.App.4th 482 apposite. In Titan, the trial court “reasserted jurisdiction” 

over a case in arbitration and ordered the arbitration to proceed under 

various conditions after the arbitration “never got off the ground” due to a 

number of factors, including the bankruptcy of certain defendants, various 

discovery disputes, and scheduling conflicts. (Id. at p. 485.) The appellate 

court held the trial court exceeded its jurisdiction by taking such action: “The 

trial court may not step into a case submitted to arbitration and tell the 

arbitrator what to do and when to do it: it may not resolve procedural 

questions, order discovery, determine the status of claims before the 

arbitrator or set the case for trial because of a party’s alleged dilatory 

conduct. It is for the arbitrator, and not the court, to resolve such questions.”

(Id. at p. 489.) Here, by contrast, no party is contending we are removing the 

arbitrator’s decision-making authority. Rather, without prepayment by 

Emergent, the arbitrator will never decide any issues. If, on remand, the trial 

court finds Aronow unable to pay the fees and Emergent elects to do so, the 

arbitration will proceed without further trial court intervention. Absent the 

trial court’s resolution of the fee payment, no issues will be decided. And in 

that event, the arbitrator’s jurisdiction is not “frustrated by the litigation” 
21

(MKJA, supra, 191 Cal.App.4th at p. 660); it is facilitated by the trial court’s 

intervention.6

Procedure to determine financial ability to pay arbitrator’s fees

The trial court expressed concern that adopting the Roldan analysis 

“threatens to open the courts to extensive, burdensome, and potentially 

unmanageable litigation.” In its view, Roldan “mandates an ill-defined 

inquiry in each case into the financial ability of the contracting party to 

proceed with arbitration.” The trial court invited us “to provide all trial courts 

with valuable guidance.” As we explain, trial courts are well equipped to 

analyze a litigant’s ability to pay arbitration fees.

We begin with guidance from our Supreme Court. In response to the 

argument that fee allocation should be decided at the conclusion of an 

arbitration, the Court in Armendariz recognized that “it is not only the costs 

imposed on the claimant but the risk that the claimant may have to bear 

substantial costs that deters the exercise of the constitutional right of due 

process.” (Armendariz, supra, 24 Cal.4th at p. 110, italics in original.)

“Because we conclude the imposition of substantial forum fees is contrary to 

public policy, and is therefore grounds for invalidating or revoking an 

arbitration agreement and denying a petition to compel arbitration under 

Code of Civil Procedure sections 1281 and 1281.2, we hold that the cost issues 

should be resolved not at the judicial review stage but when a court is 

petitioned to compel arbitration.” (Ibid.)

We, too, conclude that the trial court should decide the issue of 

arbitrator fee payment and it should be resolved before commencement of the 

6 We do not address the situation in which a party claims an inability to 

pay arbitration fees and the other party seeks to have the ability-to-pay issue 

resolved in arbitration.
22

arbitration. We do not prescribe a singular procedure, but—in response to the 

trial court’s request—suggest various alternatives, recognizing that the 

circumstances of a case will inform the trial court’s decision how to proceed.

That approach does not unduly burden the trial court and allows it to balance 

the parties’ due process rights with the need for judicial economy.

As we observed, in forma pauperis status is not a prerequisite; 

however, the procedures for that determination provide a ready template

should the trial court decide to employ it. (Gov. Code, § 68630 et seq.) In 

enacting the remedy for indigent litigants, the Legislature found “[t]hat our 

legal system cannot provide ‘equal justice under law’ unless all persons have 

access to the courts without regard to their economic means. California law 

and court procedures should ensure that court fees are not a barrier to court 

access for those with insufficient economic means to pay those fees.” (Gov. 

Code, § 68630, subd. (a).) In response to a petition to compel arbitration, a 

litigant who claims financial inability to pay the arbitrator’s fee could submit 

the Judicial Council application form and the financial statement prescribed 

by Government Code section 68633, subdivisions (c)(1) and (c)(2). “The court 

may delegate to the clerk the authority to grant applications for an initial fee 

waiver that meet the standards of eligibility and application requirements set 

forth in Sections 68632 and 68633.” (Gov. Code, § 68634, subd. (d).) Where a 

party seeking relief from paying the arbitrator’s fee is one of the persons 

enumerated in Government Code section 68632’s list of persons “eligible to 

proceed without paying court fees and costs,” the decision would be 

ministerial. Where the clerk is unable to grant the request, at the section 

1281.2 hearing the judge can follow the fee waiver procedure and make the 

determination just as judges do where the clerk does not grant a fee waiver 

request. (Gov. Code, § 68634.5, subd. (e).) This approach minimizes the 
23

judge’s role, avoids the trial court’s concern about “extensive, burdensome, 

and potentially unmanageable litigation,” and responds to its request for 

guidance. It will allow the trial court to decide a litigant’s ability to pay 

arbitration costs and achieve the Legislature’s stated goal of assuring “ ‘equal 

justice under law’ ” (Gov. Code, § 68630, subd. (a)) for indigent litigants 

subject to an arbitration provision.

At oral argument, Emergent claimed the right to challenge in forma 

pauperis status and asserted the need to conduct discovery to pursue that 

objection. We recognize that interest and conclude, where appropriate, it can 

be accommodated by the trial court. Where a party to a contract with an 

arbitration provision opposes a motion to compel arbitration on the ground of 

inability to pay the costs, the moving party can ask leave to conduct limited 

discovery directed only to the opponent’s financial circumstances. We do not 

share Emergent’s concern that such limited discovery would waive its right to 

arbitrate. While taking advantage of judicial discovery procedures not 

available in arbitration is one of several factors for assessing whether a party 

has waived its right to arbitrate (see St. Agnes Medical Center v. PacifiCare 

of California (2003) 31 Cal.4th 1187, 1196), the discovery at issue in the cases 

finding waiver bears no resemblance to the discovery Emergent desires here. 

(E.g., Oregel v. PacPizza, LLC (2015) 237 Cal.App.4th 342, 356 [defendant

produced “multiple deponents” who were questioned on class issues, and also 

deposed plaintiff and 25 putative class members]; Bower v. Inter-Con Security 

Systems, Inc. (2014) 232 Cal.App.4th 1035, 1045 [defendant propounded 

classwide discovery that “was not de minimis, and was not propounded to 

preserve some right to seek discovery that would otherwise be lost”]; Zamora 

v. Lehman (2010) 186 Cal.App.4th 1, 18 [defendants propounded “a set of 

form interrogatories, a set of 236 special interrogatories, and a document 
24

demand that resulted in the production of over 60,000 documents,” and also 

deposed person with most knowledge about the complaint’s allegations].) 

Emergent’s efforts to obtain limited discovery about Aronow’s finances will 

not implicate any of the other factors relating to waiver, such as acting 

inconsistently with the right to arbitrate or substantially invoking “ ‘ the 

litigation machinery.’ ” (St. Agnes Medical Center v. PacifiCare of California, 

at p. 1196.) Because “waivers are not to be lightly inferred and the party 

seeking to establish a waiver bears a heavy burden of proof” (id. at p. 1195),

Emergent’s fears about waiving its right to arbitrate are unfounded.

At oral argument, both counsel argued that our tentative decision could 

be read to constrain the trial court’s discretion. We now make clear that the 

court’s earlier declaration of in forma pauperis is not dispositive, and 

Emergent may conduct the limited discovery into finances the trial court 

allows without fear of waiver of arbitration. Addressing Aronow’s concern, we 

hold that the trial court has discretion to decide Aronow’s ability to pay 

arbitration fees and can do so upon declarations with supporting exhibits or 

after conducting an evidentiary hearing. 

Conclusion

Supported by a wealth of jurisprudence, we conclude the trial court has

jurisdiction to address Aronow’s request and, if he demonstrates financial 

inability to pay the anticipated arbitration costs, to require Emergent either 

to pay Aronow’s share of the arbitrator’s fee or to waive the right to 

arbitration.

DISPOSITION

Let a peremptory writ of mandate issue directing the trial court to 

vacate its order refusing to lift the stay, to provide Aronow with an 

opportunity to demonstrate his inability to pay the arbitrator’s fees and, if 
25

necessary, to conduct an evidentiary hearing. If the trial court finds Aronow 

is unable to pay the arbitrator’s fee, it should give Emergent the choice either 

to pay Aronow’s share of the arbitrator’s fee or to waive the right to arbitrate. 

Aronow is entitled to his costs in this writ proceeding. (Rules of Court, 

rule 8.493(a)(1)(A).).
26

_________________________

Ross, J.*

WE CONCUR:

_________________________

Streeter, Acting P.J.

_________________________

Brown, J.

A162662 Aronow v. Superior Court

* Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
27

Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Ethan P. Schulman

Counsel: Law Offices of Paul J. Steiner, Paul J. Steiner; Gary S. 

Garfinkle, Maria J. Garfinkle, for Petitioner

No appearance for Respondent.

Murphy, Pearson, Bradley & Feeney, Harlan B. Watkins, 

Geoffrey T. Macbride, for Real Parties in Interest

A162662 Aronow v. Superior Court