Judge: Katherine Chilton, Case: 20STLC07276, Date: 2022-12-20 Tentative Ruling

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Case Number: 20STLC07276     Hearing Date: December 20, 2022    Dept: 25

PROCEEDINGS:      PETITION TO VACATE ARBITRATION AWARD

 

MOVING PARTY:   Petitioners Eva Weinfeld, et al.

RESP. PARTY:         None

 

PETITION TO VACATE ARBITRATION AWARD

(CCP § 1285, et seq.)

 

TENTATIVE RULING:

 

The Petition to Vacate Arbitration Award, filed by Defendants Eva Weinfeld, et al., is CONTINUED to FEBRUARY 14, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Petitioners must file and serve supplemental papers addressing the errors discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

 

SERVICE: 

 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK[1]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

 

OPPOSITION:          None filed as of December 18, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of December 18, 2022.                     [   ] Late                      [X] None

 

ANALYSIS:

 

I.                Background

 

On August 26, 2020, Plaintiff Allen Supply (“Plaintiff”), in propria persona, filed a complaint against Defendants Eva Weinfeld (“Weinfeld”) and the Eva Weinfeld Family Trust (“Family Trust”), (collectively “Defendants”).  On September 16, 2020, Defendant Eva Weinfeld, in propria persona, filed a Response to Plaintiff.

 

On October 9, 2020, Plaintiff filed a Motion to Stay All Proceedings Pending Contractual Arbitration. (“Motion”).

 

Defendants filed a substitution of attorney on July 12, 2021.  On the same day, Defendants filed an Opposition to the Motion. (“Opposition”).

 

On July 29, 2021, the Court noted that Allen Supply is a sole proprietorship and not a legal entity separate from its individual owner, Dave Bischoff.  (7-29-21 Minute Order.)  On August 20, 2018, Bischoff had been declared a vexatious litigant and prohibited from filing new litigation without the approval of a presiding judge of the court, where the action was filed, unless he was represented by an attorney.  (Ibid.; 8-20-18 Order.)  Since Plaintiff had not filed a pre-filing order in the instant case, the Motion to Stay All Proceedings Pending Contractual Arbitration was placed off calendar and the matter was transferred to Department 1.  (7-29-21 Minute Order.)

 

On September 28, 2021, the Court ordered Plaintiff to file a Request to File New Litigation, within 10 days’ notice, “establishing that his civil Complaint has merit and is not being filed to harass or delay the defendants.”  (9-28-21 Minute Order.)  The Court also ordered the clerk to “notify the Judicial Council that ‘Allen Supply’ is an AKA used by vexatious litigant Dave Bischof.”  (Ibid.)

 

On October 14, 2021, the Complaint was dismissed without prejudice, due to Plaintiff’s failure to file the prefiling order within 10 days of the filing of the notice.  (10-14-21 Minute Order.)

 

On July 18, 2022, Arbitrator Henry M. Koffman, had issued an award requiring Defendants to pay Plaintiff the sum of $3,550 within 15 days from the date of the award.  (Mot. p. 2.)

 

On October 3, 2022, Defendants/Petitioners filed the instant Petition to Vacate Arbitration Award (“Petition”).

 

            No opposition has been filed.

 

II.              Legal Standard

 

“Regardless of the particular relief granted, any arbitrator's award is enforceable only when confirmed as a judgment of the superior court.”  (O'Hare v. Municipal Resource Consultants¿(2003) 107 Cal.App.4th 267, 278.)  “Once a petition to confirm an award is filed, the superior court must select one of only four courses of action: it may confirm the award, correct and confirm it, vacate it, or dismiss the petition.”  (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc.¿(2018) 21 Cal.App.5th 1058, 1063.)  “It is well settled that the scope of judicial review of arbitration awards is extremely narrow.”  (California Faculty Assn. v. Superior Court¿(1998) 63 Cal.App.4th 935, 943.)  “Neither the trial court, nor the appellate court, may ‘review the merits of the dispute, the sufficiency of the evidence, or the arbitrator's reasoning, nor may we correct or review an award because of an arbitrator's legal or factual error, even if it appears on the award's face.  Instead, we restrict our review to whether the award should be vacated under the grounds listed in section 1286.2. [Citations.]’”  (Ibid.)

 

Code of Civil Procedure § 1286.2(a), states, in pertinent part:

 

“Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following: 

 

(1)   The award was procured by corruption, fraud or other undue means.

 

(2)   There was corruption in any of the arbitrators.

 

(3)   The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

 

(4)   The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

 

(5)   The rights of the parties were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

 

(6)   An arbitrator making the award…(B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. . . .”

 

(Code Civ. Proc. § 1286.2(a).)

 

Only where both (1) the arbitrator abused his or her discretion and (2) there was resulting prejudice, can a trial court properly vacate an arbitration award.  (SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1198.)

 

III.            Discussion

 

Petitioner seeks to vacate the arbitration award issued on July 18, 2022, in Plaintiff/Respondent’s favor.  Petitioner argues that the Arbitrator ignored evidence that the case had been dismissed in Court and that Plaintiff/Respondent had been declared a vexatious litigant.  (Mot. p. 3.)  Moreover, the arbitration clause was not initialed or signed by Weinfeld, “so she should not have been compelled to any hearing.”  (Ibid.)

 

As a preliminary matter, the Court notes that Plaintiff/Respondent, a self-represented party, has been improperly served by electronic service.  (See Mot. p. 37.)  Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances.  Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel.  (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).)  Here, Plaintiff/Respondent is not represented by an attorney and there is no indication that he has consented to electronic service.

 

Furthermore, the Court is unable to consider any of the exhibits submitted in support of the instant Motion because they have not been authenticated as true and correct copies, in compliance with Evidence Code § 1400, et seq.

 

For these reasons, the Court continues the hearing on the Petition and orders Petitioners/Defendants to properly serve Plaintiff/Respondent with the moving papers and to file and serve exhibits authenticated by a sworn declaration.

 

IV.           Conclusion & Order

 

For the foregoing reasons,

 

The Petition to Vacate Arbitration Award, filed by Defendants Eva Weinfeld, et al., is CONTINUED to FEBRUARY 14, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Petitioners must file and serve supplemental papers addressing the errors discussed herein.  Failure to do so may result in the Motion being placed off calendar or denied.

 

Moving party is ordered to give notice.


[1] Self-represented Plaintiff/Respondent was improperly served by electronic service.