Late Employment-Arbitration Fees in California: Building the Section 1281.97 Record

Review the primary official source.

California Cal. Civ. Proc. Code § 1281.97 addresses a drafting party’s material breach when required initiation fees are not paid within the statutory period. The result depends on the invoice, contractual allocation, and procedural record.

Start with the controlling documents

Collect the arbitration agreement, provider rules, demand, acceptance notice, and every fee invoice. Identify which party drafted the agreement and which fees the provider required to begin arbitration. Keep the complete invoice and its transmission record, not just an email summary. The initiation-fee provision calls for the full amount and due date to be sent to all parties by the same means on the same day. Check any express agreement specifying the number of days to pay before using a due-upon-receipt assumption.

Calculate from the statutory framework

Section 1281.97 addresses required fees to initiate arbitration; do not substitute section 1281.98’s rules for fees during an ongoing arbitration. Its text sets a 30-day period after the due date and describes breach, default, and waiver consequences. First identify whether the employee met the filing requirements, which initiation charge the drafting party owed, and when that charge became due.

Preserve proof of payment or nonpayment

Keep provider statements, payment confirmations, returned-payment notices, and communications about extensions or allocation. If the provider revised an invoice, retain both versions and determine which one controlled. A declaration should distinguish personal knowledge from assumptions about the provider’s ledger. Identify who received each invoice version, whether a payment failed or was misallocated, when any problem was discovered, and what steps followed. A revised provider invoice is evidence to examine, not an automatic cure.

Choose the requested consequence carefully

Do not promise that every late payment automatically returns the case to court. In Hohenshelt v. Superior Court, No. S284498 (Cal. Aug. 11, 2025), the Supreme Court addressed ongoing fees under section 1281.98 and rejected an inflexible forfeiture rule. It also disapproved strict readings in decisions involving initiation fees. The court considered background relief for excusable nonperformance and compensation for resulting harm; it did not announce a new optional grace period. For an initiation-fee dispute, counsel must address the applicable section, current authority, asserted excuse, actual delay or expense, and requested relief. Preserve those facts and continue meeting other deadlines unless a tribunal orders otherwise.