17331.3
. (a) Notice to the person, and to the member with whom the
person is employed, of the decision to deny an application for or to
revoke or suspend a Fidelity Corporation Certificate, shall be
effective immediately upon personal delivery, or by facsimile if
written acknowledgment of receipt by the member and the person is
returned by facsimile, or within five days of the date of mailing,
and shall become final upon expiration of the time for filing a
notice of appeal or upon the conclusion of the appeal, as provided
for in this section.
(b) The person whose application for a certificate has been
denied, or whose certificate has been suspended or revoked may,
within 15 days after notice of the decision, file with Fidelity
Corporation a notice of appeal and request for a hearing, by binding
arbitration or judicial action, as provided herein. Neither the
notice of appeal nor the request for a hearing shall stay the
decision of Fidelity Corporation under Section 17331.2. A late notice
of appeal and request for a hearing may be accepted upon a showing
of good cause.
(c) The hearing for the appeal may be resolved by arbitration in
accordance with Chapter 1 (commencing with Section 1280) of Title 9
of Part 3 of the Code of Civil Procedure. The notice of the person's
right to appeal and notice of appeal provided by Fidelity Corporation
shall contain a schedule of proposed arbitrators or of a proposed
arbitration forum which provides a panel of arbitrators and method
for appointing an arbitrator. The person filing the notice of
arbitration may agree to submit the decision and matter to binding
arbitration and accept an arbitrator whose name appears on the notice
or may propose, in writing, an alternative arbitrator, but if
Fidelity Corporation does not notify the person of acceptance of the
proposed alternative arbitrator within 10 days, then either party may
within 30 days petition the court to appoint an arbitrator, as
provided by law.
(d) If the person does not agree to submit the decision and matter
to binding arbitration, then the person may, within 30 days after
the notice of the decision, file an action in superior court
concerning the decision to deny an application for, or to suspend or
revoke the certificate. The court may, on its own motion, or shall,
upon the filing of an election by any or either party, order that the
action be submitted to arbitration pursuant to Chapter 2.5
(commencing with Section 1141.10) of Title 3 of Part 3 of the Code of
Civil Procedure, in which case the action shall be accorded that
priority for hearing as circumstances permit, unless the plaintiff
may otherwise request.
(e) Either Fidelity Corporation or the person whose application
for a certificate has been denied, or whose certificate has been
suspended or revoked, may apply to the superior court for relief to
compel compliance with this section in accordance with Chapter 2
(commencing with Section 1084) of Title 1 of Part 3 of the Code of
Civil Procedure.
(f) Upon the conclusion of the hearing on appeal, either the
arbitrator or the court may in its discretion award to the prevailing
party as an item of costs, reasonable attorneys' fees, and costs.
All other expenses and fees for the arbitration incurred prior to the
decision of the arbitrator or confirmation of the decision by the
court shall be shared equally by the parties except for attorneys'
fees, witness fees or other expenses incurred by either party for his
or her own benefit.
(g) Upon the filing of any action in the superior court by the
person whose application for a certificate has been denied, or whose
certificate has been suspended or revoked, Fidelity Corporation at
any time within 30 days after service of the summons may upon notice
and hearing, move the court for an order requiring the plaintiff to
furnish an undertaking to secure an award of costs and attorneys'
fees which may be awarded in the action. The motion shall be
supported by affidavit showing that the action filed is frivolous and
that there is no reasonable possibility that the prosecution of the
action will benefit the plaintiff and that the moving party fully
complied with this section and Section 17331.2.
At the hearing upon the motion, the court shall consider any
written or oral evidence, by witnesses or affidavit, as may be
material (1) to the ground or grounds upon which the motion is based,
or (2) to a determination of the probable reasonable expenses,
including attorneys' fees, of the defendant and the moving party,
which will be incurred in the defense of the action.
If the court determines, after hearing the evidence adduced by the
parties, that the moving party has established a probability in
support of any of the grounds upon which the motion is based, the
court shall fix the amount of the undertaking, not to exceed
twenty-five thousand dollars ($25,000), to be furnished by the
plaintiff for reasonable expenses, including attorneys' fees, which
may be incurred by the moving party in connection with the action.
A ruling by the court on the motion shall not be a determination
of any issue in the action or of the merits thereof. If the court,
upon the motion, makes a determination that a bond shall be furnished
by the plaintiff, the action shall be dismissed as to the defendant,
unless the bond required by the court has been furnished within a
reasonable time as may be fixed by the court. Upon the filing of a
motion pursuant to this subdivision, no other pleadings need be filed
by the defendant and the prosecution of the action shall be stayed
until 10 days after the motion has been disposed of. The motion shall
be considered pursuant to this subdivision and in accordance with
Chapter 2 (commencing with Section 995.010) of Title 14 of Part 2 of
the Code of Civil Procedure.