ABTL Report - Fall 2026 Edition - Flipbook - Page 10
ABTL - Los Angeles
Fall 2026
wrongful death arbitrations, who are now subject to new section
1283.05 like everyone else, just lost a signi昀椀cant right they had
before 2025: the right to full discovery in arbitration, with no
ability to opt out by referring to an ADR provider’s rules or
contracting to impose express discovery limitations.
A SEA CHANGE? C.C.P. § 1283.05 AMENDMENT BROADENS DISCOVERY
RIGHTS FOR LITIGANTS IN ARBITRATION...continued from Page 8
set forth any detailed scheme for discovery in arbitration but
instead vest the arbitrator with broad discretion to “manage
any necessary exchange of information among the parties with
a view to achieving an ef昀椀cient and economical resolution of
the dispute” and allow depositions only in “exceptional cases,
at the discretion of the arbitrator, upon good cause shown and
consistent with the expedited nature of arbitration.” These
rules provide for signi昀椀cantly narrower discovery than the Civil
Discovery Act, so this question has case-altering implications
for arbitrations where the agreement explicitly incorporates an
ADR provider’s rules.
The legislative history of new section 1283.05 indicates that
this was not the Legislature’s intent. To the contrary, the stated
intent was to make full discovery available in all arbitrations,
to the same extent previously available in personal injury and
wrongful death arbitrations. (Sen. Rules Com., Off. of Sen.
Floor Analyses, Sen. Bill 940 (2023-2024 Reg. Sess.), as
amended Aug. 20, 2024, at pp. 7–8 [“This bill instead allows
for depositions to be taken in any arbitration, not just ones
resulting from any injury to, or death of, a person caused by the
wrongful act or neglect of another, and also allows discovery to
be conducted as provided under Section 1283.05”].)
Some early commentators have suggested that under the new
scheme, parties to California-seated arbitration retain the ability
to contract out of the discovery-broadening provisions of section
1283.05 by referring to and incorporating the published rules of
a designated ADR provider or including express limitations on
discovery in the arbitration agreement itself.
Thus, there is scant basis to conclude that the Legislature
meant with SB 940 to curtail the statutory discovery rights of
parties arbitrating personal injury and wrongful death claims
and override prior authority prohibiting parties from contracting
out of those rights. Yet, if the Narrowers’ arguments are correct,
this is the result. At the same time, it is also hard to believe that
the Legislature meant with SB 940 to entirely strip sophisticated
parties with equal bargaining power of the ability to write express
limitations on discovery in arbitration into their agreements. It
thus remains to be seen how courts and arbitrators address this
problem and whether the sophistication of the parties will turn
out to be a judicially developed factor to be considered in the
analysis.
There is good reason, however, to believe that courts will
interpret the new law as overriding any contrary contractual
terms. Under the previous scheme, former section 1283.1,
subdivision (a) indicated that “[a]ll of the provisions of Section
1283.05 shall be conclusively deemed to be incorporated into,
made a part of, and shall be applicable to, every agreement
to arbitrate any dispute, controversy, or issue arising out of
or resulting from any injury to, or death of, a person caused
by the wrongful act or neglect of another.” This provision
“govern[ed] all arbitrations arising out of or resulting from
injury or wrongful death.” (Miranda v. 21st Century Ins. Co.
(2004) 117 Cal.App.4th 913, 925, original italics; see Roman
v. Superior Court (2009) 172 Cal.App.4th 1462, 1475–1476
& fn. 3; Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.
App.4th 1790, 1802, fn. 10 [right to discovery in such cases
is “statutorily conferred”].) The new amendment effectively
extends this rule of full discovery to all arbitrations, while
also repealing the tort-speci昀椀c section 1283.1, subdivision (a)
as redundant. As a result, all arbitrations, including personal
injury and wrongful death arbitrations, are now governed the
same statutory provision: new section 1283.05.
FAA Preemption
Relatedly, what happens when the parties agree that their
disputes will be governed by the Federal Arbitration Act’s
procedural rules along with the rules of their ADR provider?
The FAA does not provide for party or third-party discovery,
and the arbitrator’s subpoena power is limited to the power to
require attendance of witnesses (with or without documents) at
the merits hearing. (9 U.S.C. § 7; CVS Health Corp. v. Vividus,
LLC (9th Cir. 2017) 878 F.3d 703, 706.) Thus, section 1283.05
is potentially of great consequence to parties whose arbitration
agreements adopt the FAA’s procedural rules.
However, this observation creates an inconvenient result
for the Narrowers, who will argue that parties to arbitration
agreements retain the ability to contract around new section
1283.05. Their argument is bolstered somewhat by the fact
that former section 1283.1, subdivision (a) said section 1283.05
was “conclusively deemed” a part of all agreements to arbitrate
covered tort disputes, while section 1283.05 as amended contains
no such language. At the same time, however, if the Narrowers
are correct on this point, then parties to personal injury and
The respondent in Hohenshelt v. Superior Court (2025) 18
Cal.5th 310, presented this issue for review, but the Court did
not reach it. (18 Cal.5th at pp. 349-350 (conc. opn. of Groban,
J.) [agreeing with majority’s decision not to reach this issue as
petitioner did not properly raise it in the court below].) One
plaintiff in the Central District of California recently raised a
related argument: that an arbitration agreement was fatally
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