4DCA Division 3 Oral Argument - 2025/11/19 - Nov 19, 2025

argument

4DCA Division 3 Oral Argument - 2025/11/19

California Fourth District Court of Appeal, Division Three 2h 58m 1 speaker 8 chapters transcribed 8 days ago official recording ↗

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Transcript generated automatically by AI and may contain errors.

What court rules and procedures were explained at the start of the hearing?

Unknown 1:51

Oh, I'm sorry. I saw that you were just observing. Can I get your name, sir?

Nicholas Bronni 4:11

Good morning, ladies and gentlemen. If I can get your attention real quick, just a few reminder court rules. No eating, no chewing gum, no drinking any liquids while you're back here. For counsel, when you do present your case, there is water provided for you up front. The podium for counsel, this is adjustable if you haven't been in this courthouse. The button's right here to toggle switch, so you can hold it down for down, vice versa for up. JUST ADJUST IT TO YOUR HEIGHT SO THEY CAN HEAR YOU PROPERLY. CURRENTLY IT'S RECORDING, SO IT WILL PICK UP ANY CONVERSATION FAR BACK OF THE ROOM. EVERYBODY KIND OF KNOWS WHERE THE RESTROOM IS. IT'S OUTSIDE OFFICE AT END. THERE IS A WATER FOUNTAIN RIGHT ACROSS FROM THAT IF YOU'D LIKE TO TAKE SOME WATER.

Nicholas Bronni 4:51

Don't read articles that don't pertain to your case, such as newspaper, magazines, and so forth. We say it because someone did it in the past. So just read stuff that's part of your briefs. Obviously, you have the appellate and respondent side. Really simple. And we don't have a panel change, so it would be pretty smooth, hopefully, right? And then that's pretty much it. And then those that are here to observe, that's all you're here to do is just to observe. No nodding your head in disagreement. No speaking up, nothing like that. Let your counsel do their job, okay? Any questions, concerns? No? Awesome, thank

Unknown 5:29

you.

Nicholas Bronni 18:27

ALL RIGHT.

Unknown 18:38

GOOD MORNING, EVERYONE. WE HAVE ONE PANEL THIS MORNING, FOUR MATTERS TO CALL. I AM JUSTICE MOTUIQUE. TO MY RIGHT IS JUSTICE GOODIE AND TO MY LEFT IS JUSTICE SCOTT. FIRST MATTER WE'LL CALL IS CHAZ PONTES VERSUS ENTELILONE.

Unknown 19:08

Whenever appellant's ready, you may proceed.

Eric Becker 19:19

Thank you. Good morning. My name is Eric Becker. I am the attorney on behalf of the defendant and appellant. We believe as set forth in our supplemental briefing that the decision in the Hohenschelt case clearly requires the matter be remanded to the trial court, to determine whether the delay in paying arbitration fees was willful, grossly negligent, or fraudulent. There are a couple of points we'd like to make to emphasize to the court in supplementation of our briefing. First, the reference in the arbitration agreement to the procedural rules of the California Arbitration Act is immaterial given the ruling in Hohenschel. The Supreme Court expressly found that the CAA applied to the arbitration agreement in Hohenschelt.

Eric Becker 20:08

Despite this finding, the court went on to rule that CCP 128.1.98, as properly interpreted, would only invalidate the arbitration agreement if it was established that the failure to pay arbitration fees within 30 days of the invoice was willful, grossly negligent, or fraudulent. This analysis, which the court found necessary to avoid preemption under the Federal Arbitration Act, must occur whether the application of the CAA is implicit or explicit in the arbitration agreement. In other words, whether the arbitration agreement references the CAA or not, it is governed by the FAA in a factual finding on whether the delay is excusable is necessary for a forfeiture of the rights to enforce the contract to arbitrate.

Eric Becker 21:05

Otherwise, the FAA would preempt 1281.98. Since the arbitration agreement in this case expressly states that it is governed by the substantive provisions of the FAA, the reference to the CAA does not distinguish this case from Hohenschel. The only published appellate decision since Hohenschelt supports the appellant's position. In Wilson v. Tapp Worldwide, which was issued by the Division I of the 2nd District and published on October 2nd, the court was presented with an appeal from the plaintiff of a reduced award of attorney's fees under 1281.98 after the arbitration was vacated. The Wilson Court found that the award of attorney's fees was improper under Hohenschelt because the record established there was excusable mistake and inadvertence in the failure to pay.

Eric Becker 22:04

It should be noted that the plaintiff in Wilson argued, similar to Pontez, that the issue of mistake, inadvertence, or excusable neglect was not raised by the opposing party and therefore was not before the court.