Judge Daniel M. Crowley, Case Number: 24STCP0009476, Date: 2024-06-13 Tentative Ruling

Judge: Daniel M. Crowley, Case: 24STCP0009476, Date: 2024-06-13 Tentative Ruling

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Petitioner NKSFB, LLC’s unopposed petition to confirm the contractual arbitration award is granted.

Petitioner NKSFB, LLC (“NKSFB”) (“Petitioner”) petitions this Court unopposed to confirm the contractual arbitration award issued in its favor and against Respondent Joseph Keels AKA Joseph E. Keels AKA Joe Keels (“Keels”) (“Respondent”). (See Petition, pg. 1.)

This dispute arises from Petitioner’s assertion of claims for conversion, money had and received, and unjust enrichment pursuant to which it sought the return of $152,721.90, which was paid to Respondent after his termination, which Respondent allegedly did not earn, and he admitted he was not entitled to but has failed to repay to Petitioner. (Petition ¶5.) Petitioner and Respondent agreed to binding arbitration on October 7, 2019, pursuant to an employment related Mutual Agreement to Arbitrate (“Agreement”). (Petition ¶¶4(a), (c); Attachment 4(b) at ¶7.)

The Arbitration hearing occurred on August 21, 2023, before Arbitrator Hon. Glenda Sanders (Ret.), wherein Respondent did not appear, despite service of the Notice of Zoom Hearing. (Petition ¶¶6-7; Attachment 8c at pg. 1.) Arbitrator Sanders issued the Arbitration Award on November 16, 2023, requiring Respondent to pay Petitioner $152,721.90, plus prejudgment interest in the amount of 10% of the damages per annum beginning November 14, 2022, through to the date of payment. (Petition ¶8; Attachment 8c at pgs. 12-13.)

Petitioner filed the instant petition on March 25, 2024. As of the date of this hearing no opposition has been filed.

The party seeking judicial enforcement of a private arbitration award has the burden of proving the award as well as the existence of a valid arbitration agreement. (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1223 [holding burden not met by submitting copy of contract with arbitration provision signed by party’s attorney rather than by party personally].)

The specific grounds upon which an arbitrator’s award may be vacated are set forth in C.C.P. §1286.2. Except for such grounds, arbitration awards are

immune from judicial review. (See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10-11 [limiting grounds for judicial review effectuates the parties’ agreement that the award be final and also reflects that arbitrators need not follow the law and may base their decisions on “broad principles of justice and equity . . . paths neither marked nor traceable by judicial review”].) Generally, errors of law committed by the arbitrator are not grounds for challenging the arbitration award. (Id. at pg. 11.) The sufficiency of evidence to support the award is immaterial and courts cannot review the same. (See Morris v. Zuckerman (1968) 69 Cal.2d. 686, 691.) Courts cannot pass upon the validity of the arbitrator’s reasoning and cannot substitute its judgment for that of the arbitrator. (See Moncharsh, 3 Cal.4th at pg. 11.)

Petitioner has met its burden to prove the arbitration award and the existence of a valid arbitration agreement. (Petition ¶¶4(a), (c); Attachments 4(b) at ¶7; Petition ¶8(c), Attachment 8c.)

In light of the fact that Respondent did not appear at the Arbitration hearing, the Arbitrator noted that the JAMS Employment Rules, which govern the proceedings per ¶7 of the Agreement, provides that JAMS Rule 22(j) states:

The Arbitrator may proceed with the Hearing in the absence of a Party that, after receiving notice of the Hearing pursuant to Rule 19, fails to attend. The Arbitrator may not render an Award solely on the basis of the default or absence of the Party but shall require any Party seeking relief to submit such evidence as the Arbitrator may require for the rendering of an Award. If the Arbitrator reasonably believes that a Party will not attend the Hearing, the Arbitrator may schedule the Hearing as a telephonic Hearing and may receive the evidence necessary to render an Award by affidavit. The notice of Hearing shall specify if it will be in person or telephonic.

The Arbitrator concludes that the requirements of Rule 22(j) have been satisfied and that, in particular, there was a reasonable basis for the Arbitrator to believe Respondent would not attend the hearing thereby justifying the modern equivalent of a telephonic hearing, namely a Zoom hearing. Rule l9(b). A Notice of Zoom Hearing was served upon Respondent at least 30 calendar days prior to the scheduled date on July 20, 2023.

In accordance with Rule 22(j), in light of the arbitrator’s belief based on his lack of response to any of the Notices of hearings or any other communications (except for the one identified below), the Arbitrator received the evidence necessary to render an Award by affidavit at the Zoom hearing on August 21, 2023. More specifically, the arbitrator relied upon information contained in Claimant’s Demand for Arbitration and Request for Entry of Default Judgment, the declarations filed in support of the request for default judgment and in response to the Arbitrator’s request for additional evidence. Those affidavits are contained in the JAMS file and were served upon Respondent.

Claimant further satisfied Rule 22(j) by properly serving Respondent with all filings and communications, including the Demand for Arbitration, Notice of Preliminary Conference, Notice of Default Hearing, and Request for Entry of Default with associated declarations: (I) by mail at his last address on file in accordance with Paragraphs 9 and 18 of the Agreement; (2) by email at joe.keels@teamwass.com, the email address from which Respondent sent his one response to this action to Ms. English; and (3) electronically via JAMS Electronic Filing System.

Additionally, Respondent did actually receive the Demand for Arbitration. On February 7, 2023, JAMS Specialist, Darcy English, sent an email to Respondent via the “joe.keels@teamwass.com” email address (Respondent’s email address on file) asking for a deposit and inquiring whether Respondent had retained counsel. Respondent replied on the same day from that email address claiming he could not pay the deposit. He did not answer the question concerning counsel. However, Claimant’s counsel, on February 8, 2023, one day after Respondent’s email to Ms. English, sent an additional copy of the Demand for Arbitration by reply email to the “joe.keels@teamwass.com” address.

Should any Party refuse or willfully neglect to appear for, or participate in, the arbitration hearing, the Arbitrator shall have the authority to decide the dispute based upon whatever evidence is presented.

The Court determines the Petition is proper. Accordingly, the Court confirms the award and enters judgment according to it. Petitioner is awarded the award against Respondent in the amount of $152,721.90, plus prejudgment interest from the date of November 14, 2022, at a rate of 10% per year through to the date of payment, and costs of suit according to proof.

Based on the foregoing, Petitioner’s petition to confirm the Arbitration Award is granted.