Judge Bruce G. Iwasaki, Case Number: 19STCV36682, Date: 2023-10-11 Tentative Ruling

Tentative Ruling: The Petition to Confirm the arbitration award is granted. The Petition to Vacate the arbitration award is denied.

Plaintiff Da’Qunisha De Bose (Plaintiff) sued her former employer, Public Storage and her former manager Robert Arredondo (Defendants), for: (1.) wrongful termination in violation of public policy; (2.) racial discrimination in violation of the FEHA (Govt. Code 12940(a)); (3.) racial harassment in violation of FEHA (Govt. Code §12940(j)); (4.) sexual harassment in violation of the FEHA (12940(j)); (5.) failure to prevent harassment and discrimination in violation of the FEHA (Cal. Govt. Code §12940(k); (6.) retaliation in violation of the FEHA – Cal. Govt. Code 12940(h); (7.) Retaliation in Violation of Labor Code §1102.5; and (8.) Negligence.

Pursuant to a stipulation and order, the Court ordered the case to arbitration on January 13, 2020. The arbitration was held before Sara Adler (Arbitrator or Arbitrator Adler) at the American Arbitration Association.

On August 4, 2023, Arbitrator Adler submitted the Final Award, which was seven pages in length. The Arbitrator found in favor of Defendant Public Storage and Robert Arredondo and, denied all the relief sought by Plaintiff.

On September 13, 2023, Defendants filed a Petition to Confirm Arbitration Award. On September 18, 2023, Plaintiff filed a Motion to Vacate the Arbitration Award. Both parties opposed the others’ petition/motion and filed replies.

For the reasons discussed below, the Court will only consider the Petition to Confirm the Arbitration Award, the Motion to Vacate the Arbitration Award, and Defendants’ reply to the Petition to Confirm the Arbitration Award.

Defendants’ petition to confirm the arbitration award is granted. Plaintiff’s petition to vacate the arbitration award is denied.

When parties agree to private arbitration, the scope of judicial review is strictly limited to give effect to the parties’ intent “to bypass the judicial system and thus avoid potential delays at the trial and appellate levels....” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10.) “By agreeing to arbitration, parties anticipate a relatively speedy, inexpensive and final resolution, one that may be based on ‘ “broad principles of justice,” ’ rather than strictly the rule of law. [Citation.] Consequently, ‘as a general rule courts will indulge every reasonable intendment to give effect to arbitration proceedings.’ [Citation.]” (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1218.)

Further, “the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943; see Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10–11, 27–28, 33.) Generally, courts may not review the merits of the dispute, the sufficiency of the evidence, or the reasoning in support of the arbitrator's decision. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23.) “Because ‘arbitral finality is a core component of the parties' agreement to submit to arbitration’ [citation] and because arbitrators are not required to make decisions according to the rule of law, parties to an arbitration agreement accept the risk of arbitrator errors [citation], and arbitrator decisions cannot be judicially reviewed for errors of fact or law even if the error is apparent and causes substantial injustice [citations].” (Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 534.)

“ ‘[I]t is within the power of the arbitrator to make a mistake either legally or factually. When parties opt for the forum of arbitration they agree to be bound by the decision of that forum knowing that arbitrators, like judges, are fallible.’ ” (Moncharsh v. Heily & Blasé¸ supra, 3 Cal.4th at 12,; accord, Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1340 [“[T]he California Legislature ‘adopt[ed] the position taken in case law ... that is, “that in the absence of some limiting clause in the arbitration agreement, the merits of the award, either on questions of fact or of law, may not be reviewed except as provided in the statute.” ’ ”].)

Under section 1286.2, the grounds on which a court may vacate an award are if it was (1) procured by corruption, fraud, or undue means, (2) issued by corrupt arbitrators, (3) affected by prejudicial misconduct on the part of the arbitrators, or (4) in excess of the arbitrators' powers. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1340; Code Civ. Proc., § 1286.2, subd. (a).) There is a presumption in favor of the validity of the award, and the challenger bears the burden of establishing a claim of invalidity. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.)

Defendants petition this Court to confirm the Arbitrator’s final Arbitration Award (Award) denying all relief sought by Plaintiff in her claims.

Defendants seek to confirm an arbitration award issued by the arbitrator, Sara Adler of American Arbitration Association (AAA).

The Petition complies with Code Civil Procedure section 1285.4. Defendants attached a copy of the arbitration agreement. (Pet., Attachment 4(b); Code Civ. Proc., § 1285.4, subd. (a).) Further, the Award sets forth the name of the arbitrator, Sara Adler, and a copy of the award and opinion is attached. (Code Civ. Proc., § 1285.4, subds. (b)-(c).)

A party may petition a trial court to confirm, correct, or vacate an arbitration award. (Code Civ. Proc., § 1285.) A party may also seek to have the award corrected or vacated by filing an opposition to a petition to confirm an arbitration award. (Code Civ. Proc., § 1285.2.) A petition to confirm an arbitration award must be filed within four years of the date the petitioner was served a signed copy of the arbitration award (Code Civ. Proc., § 1288), but no petition, of any kind—whether to confirm, correct, or vacate an award—may be served and filed until at least 10 days after service of the signed copy of the award upon the petitioner (Code Civ. Proc., § 1288.4). A petition to vacate or correct an arbitration award must be filed within 100 days of the petitioner being served with a signed copy of the arbitration award. (Code Civ. Proc., § 1288.) An opposition requesting an award be vacated or corrected must be served and filed within 100 days of the respondent being served with a signed copy of the arbitration award. (Code Civ. Proc., § 1288.2, subd. (a).)

The filing of a petition to confirm an arbitration award, however, changes the statutory timeline. “When one side files a petition to confirm the award, the other side must respond within 10 days”— even if the opposition seeks to vacate or confirm the award. (Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66; see Code Civ. Proc., § 1290.6.) Therefore, “ ‘[w]hen [a] party petitions the court to confirm the award ..., [the opposing party] may seek vacation ... of the award by way of response only if he serves and files his response within 10 days after the service of the petition [citation]. “[T]he proper interpretation of section 1288.2 is that the 100–day limit applies only when the other party to the arbitration does not file a petition to confirm the award. When such petition is filed a response must be filed within the time limit set forth in section 1290.6.” (Coordinated Construction, Inc. v. Canoga Big “A,” Inc. (1965) 238 Cal.App.2d 313, 317.)

Here, the Award was served on August 4, 2023. On September 13, 2023, Defendants filed the Petition to Confirm the Award. The Petition complies with Code of Civil Procedure section 1288.4.

Pursuant to Code of Civil Procedure section 1290.6, a response to a petition to confirm an arbitration award must be served and filed within 10 days after service of the petition. (Code Civ. Proc. § 1290.6 [“A response shall be served and filed within 10 days after service of the petition”]; Oaktree Capital Management, L.P. v. Bernard (2010)182 Cal.App.4th 60, 66-67.)

Defendants served the Petition to Confirm by e-mail on September 13, 2023. Because service was by e-mail, Plaintiff’s response deadline of 10 days was extended by two court days. (Code Civ. Proc., § 1010.6, subd. (a)(3).) As such, Plaintiff had until September 26, 2023 to submit a response to the Petition to Confirm. However, Plaintiff did not submit a “response” until September 28, 2023. Thus, Plaintiff’s response was untimely and will not be considered. (See, e.g., Rivera v. Shivers (2020) 54 Cal.App.5th 82, 94 (2020) [“Because [the] response to the petition to confirm was not filed and served within 10 days of the petition, . . . the trial court had no authority to hear it”].)

However, this matters little because Plaintiff filed her Motion to Vacate the Award – containing similar arguments – on September 18, 2023, within ten days of the Petition to Confirm. The Court will treat Plaintiff’s motion to vacate as a timely response to the Petition to Confirm.

In her cross-motion to vacate, Plaintiff moves to vacate the Award on the grounds that the Arbitrator’s Award exceeded her power because the Award fails to address all the essential finding and conclusions with regard to Plaintiff’s claims.

Unless the arbitration agreement provides otherwise, arbitrators have no obligation to state reasons for their award. (Severtson v. Williams Construction Co. (1985) 173 Cal.App.3d 86, 92.) Thus, the arbitrator is usually not required to submit findings of fact or detail the process by which the result was reached or give any reasons for the award: “It is not the finding on issues that is required; it is the determination thereof.” (Cothron v. Interinsurance Exchange (1980) 103 Cal.App.3d 853, 860.) However, the parties may, by agreement, require the arbitrator to issue with the “award a written discussion sufficient to [allow] limited judicial review to enforce or vacate the ... award.” (Biller v. Toyota Motor Corp. (9th Cir.2012) 668 F.3d 655, 666.)

Here, Plaintiffs cites Code of Civil Procedure section 1283.4, which states that “award shall be in writing and signed by the arbitrators concurring therein. It shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” Further, pursuant to AAA Rule 39(c): “The award shall be in writing and shall be signed by a majority of the arbitrators and shall provide the written reasons for the award unless the parties agree otherwise. It shall be executed in the manner required by law.” Additionally, in the context of an arbitration containing FEHA claims, in order for such judicial review to be successfully accomplished, an arbitrator in a FEHA case must issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 107.) Finally, the parties’ Arbitration Agreement states: “The arbitrator must render a written arbitration decision that reveals the essential findings and conclusions on which the decision is based.” (Trankiem Decl., Ex. 1.)

There is no dispute that the Arbitrator here was required to issue a written award that disclosed the essential findings and conclusions on which the award was based. The only dispute is whether the Arbitrator’s Award here did so.

In the arbitration proceeding, Plaintiff argued that her manager, Defendant Arredondo, sexually harassed and racially discriminated against her. (Award, pp. 4, 6-7.) Plaintiff further claimed that customers would call her and her co-worker the “n-word,” and that Defendant Public Storage had a duty to stop this conduct. (Award, p. 5.) In total, fifteen fact witnesses, three expert witnesses, and four healthcare providers testified at the arbitration hearing. (Trankiem Decl. ¶ 11.)

Despite the extensive evidence and testimony before the Arbitrator, Plaintiff argues the Arbitrator responded with a cursory, deficient Award. In support of this argument, Plaintiff emphasizes the length of the various briefing submitted to the Arbitrator (54,287 words or 94 pages) with the length of the Award (1,149 words and 7 double spaced pages). This quantitative analysis does not demonstrate that the Arbitrator’s Award lacked essential findings and conclusions.

Plaintiff continues by specifically addressing her claims for racial discrimination, racial harassment, negligence. She argues that the Arbitrator’s Award was deficient as to the findings on these claims.

With respect to Plaintiffs’ racial discrimination claim, Plaintiff alleged that Defendant Arredondo discriminated against her by both denying her transfer request and by terminating her. Plaintiff argues the Award did not discuss the denial of her transfer and only discussed the termination. Plaintiff’s argument is without merit. The Award addresses the lack of discriminatory animus that would have been a prerequisite to determining whether the denial of a transfer was racially motived. (Award, p. 3-4.)

With respect to Plaintiff’s racial harassment claim, Plaintiff alleged that, in addition to customers calling her the N-word, her supervisor Carmen Hoeman also used the N-word in front of her. The Award squarely addresses the use of the N-word in the context of the harassment claim – even where it does not specifically address the alleged use of this word by Hoeman. (Award, p. 4.) The Arbitrator made a point of noting that there was no evidence that anyone used this word more than once. (Id.) The Arbitrator found this was not harassment under these circumstances. Plaintiff does not demonstrate that the absence of a specific finding as to Hoeman renders the Award deficient of essential findings and conclusions.

Finally, with respect to the negligence cause of action, Plaintiff argues that she alleged facts showing incidences of negligence occurring from October 6, 2016 to August 28, 2018. (Mot. To Vacate, p. 13:22-14:5 [citing Valencia Decl., Ex. 5, pp. 15-20].) Nonetheless, the Arbitrator granted the motion to dismiss this claim based on the exclusivity of the Workers Compensation jurisdiction and the statute of limitations. (Award, p. 2.) Plaintiff argues that this decision makes no “finding as to when the statute of limitations actually was.” (Mot., p. 14:17-20.) Plaintiff does not provide any legal authority that this is an essential finding and conclusion. Moreover, the Award clearly explained that “[t]o the extent that this claim is premised on physical or intimidating incidents, as alleged in the claim, the evidence does not support a finding that, within the Statute of Limitations period, there was the kind of conduct that would constitute an exception to the California Worker’s Compensation exclusivity provisions.” (Award, p. 2.)

Plaintiff’s motion to vacate is more akin to an improper challenge to the sufficiency of the evidence that supports Arbitrator’s findings and conclusions. The Arbitrator addressed and rejected each of Plaintiff’s claims raised. Plaintiff essentially argues the findings are insufficient because the Award does not address every issue Plaintiff raised. However, Plaintiff provides no legal authority that the law requires the Arbitrator to address every single alleged incident of misconduct proffered by a plaintiff.

In fact, the opposite is true. In Advanced Micro v. Intel Corp. (1994) 9 Cal.4th 362, 372, our Supreme Court held that “[a]lthough section 1286.2 permits the court to vacate an award that exceeds the arbitrator’s powers, the deference due an arbitrator’s decision on the merits of the controversy requires a court to refrain from substituting its judgment for the arbitrator’s in determining the contractual scope of those powers.” Importantly, “[i]t is for the arbitrators to determine which issues were actually “necessary” to the ultimate decision. [Citation.] Likewise, any doubts as to the meaning or extent of an arbitration agreement are for the arbitrators and not the court to resolve.” (Morris v. Zuckerman (1968) 69 Cal.2d 686, 690.)[1]

Based on the foregoing, Plaintiff has not carried her burden of demonstrating the Arbitrator exceeded her powers by failing to issue a written award that addressed all essential findings and conclusions of law.

Defendants’ petition to confirm the arbitration award is granted. Plaintiff’s motion to vacate the arbitration award is denied.

Defendants are to prepare, serve, and submit a proposed Judgment on or before November 3, 2023.

[1] As the Reply notes, Plaintiff points out that Advanced Micro and Morris are non-FEHA cases, but cites no caselaw supporting the position that the Court must ignore these cases simply because they are not FEHA cases. These cases are on-point and instructive to the Court’s analysis here.

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