Judge Katherine Chilton, Case 20STLC07276 2023-02-14 Tentative Ruling

Judge: Katherine Chilton, Case: 20STLC07276, Date: 2023-02-14 Tentative Ruling

Case Number: 20STLC07276 Hearing Date: February 14, 2023 Dept: 25

PROCEEDINGS: PETITION TO VACATE ARBITRATION AWARD

MOVING PARTY: Petitioner Eva Weinfeld, Trustee of Eva Weinfeld Family Trust

RESP. PARTY: Respondent Dave Bischof

PETITION TO VACATE ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

The Petition to Vacate Arbitration Award, filed by Defendant Eva Weinfeld, Trustee of Eva Weinfeld Family Trust is CONTINUED to MARCH 22, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner 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) OK

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

OPPOSITION: Filed on December 9, 2022. [ ] Late [X] None

REPLY: None filed as of February 8, 2023. [ ] 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”) to foreclose on a mechanic’s lien and stay the action pending arbitration. 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. Defendant Eva Weinfeld, Trustee of Eva Weinfeld Family Trust (“Weinfeld”) filed a Substitution of Attorney on July 12, 2021. On the same day, Weinfeld filed an Opposition to the Motion.

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.) 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. (Ibid.)

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 October 3, 2022, Weinfeld (“Petitioner”) filed the instant Petition to Vacate Arbitration Award (“Petition”) issued in favor of Dave Bischoff (“Respondent”). Petitioner seeks to vacate an arbitration award issued by Arbitrator Henry M. Koffman on July 18, 2022, requiring Eva Weinfeld and Eva Weinfeld Family Trust to pay Dave Bischof the sum of $3,550 within 15 days from the date of the award. (Pet. p. 2.) On December 9, 2022, Respondent filed an Opposition to the Petition.

On December 20, 2022, the Court continued the hearing on the Petition to allow Petitioner additional time to properly serve Respondent with the moving papers and file and serve authenticated exhibits. (12-20-22 Minute Order.)

On December 22, 2022, Petitioner filed proof of serving the Notice of Ruling on Respondent.

On January 19, 2023, Petitioner filed a second Petition to Vacate Arbitration Award and Request for Judicial Notice. Petitioner also filed proof that Respondent was properly served with the moving papers on January 19, 2023.

No reply has been filed.

II. Request for Judicial Notice

Petitioner requests that the Court take judicial notice of orders and filings in the instant case:

1) Exhibit A: Complaint and Motion to Stay Pending Arbitration, filed on October 9, 2020;

2) Exhibit B: Weinfeld’s Opposition to Respondent/Plaintiff’s Complaint and Motion, filed on July 8, 2021;

3) Exhibit C: The Court’s tentative ruling, dated July 29, 2021;

4) Exhibit D: The Court’s tentative ruling, dated September 28, 2021;

5) Exhibit E: The Court’s tentative ruling, dated October 14, 2021.

(RJN Exs. A-E.) Although it is not necessary to take judicial notice of documents in the instant case, Petitioner’s request as to Exhibits A-E is GRANTED. (Evid. Code., § 452(c), (d).)

Petitioner also requests that the Court take judicial notice of the following documents:

6) Exhibit F: Plaintiff/Respondent’s service contract submitted by Plaintiff/Respondent to Weinfeld, pursuant to Evidence Code § 1414 (b);

7) Exhibit G: American Arbitration Association Standard of Conduct for Parties and Representatives, mailed to both parties on November 18, 2021, pursuant to Evidence Code § 1414 (b).

8) Exhibit H: American Arbitration Association Standard of Conduct for Parties and Representatives, mailed to both parties on July 19, 2022, pursuant to Evidence Code § 1414 (b).

According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and facts or propositions of common knowledge, among other matters. Evidence Code § 1414, cited by Petitioner, is irrelevant to the Court’s authority to take judicial notice, as it governs how documents may be authenticated. Accordingly, Petitioner’s request for judicial notice of Exhibits F-H is DENIED.

III. 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.)

IV. Discussion

Petitioner seeks to vacate the arbitration award issued on July 18, 2022, in Plaintiff/Respondent’s favor. (Pet p. 1.) 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. (Pet. p. 3.) Moreover, the arbitration clause was not initialed or signed by Weinfeld, “so she should not have been compelled to any hearing.” (Ibid.)

On December 20, 2022, the Court noted that Respondent, as a self-represented party, had been improperly served by electronic service. (12-20-22 Minute Order; See Pet. p. 37.). Furthermore, the Court could not consider any of the exhibits submitted in support of the instant Petition because they had not been authenticated as true and correct copies, in compliance with Evidence Code § 1400, et seq. (12-20-22 Minute Order.) For these reasons, the Court continued the hearing on the Petition and ordered Petitioner to properly serve Respondent with the moving papers and to file and serve authenticated exhibits. (Ibid.)

On December 22, 2022, Petitioner filed proof of serving the Notice of Ruling on Respondent, indicating that the hearing on the Petition had been continued. (12-22-22 Notice of Ruling.) On January 19, 2023, Petitioner filed a second Petition to Vacate Arbitration Award and Request for Judicial Notice. Petitioner also filed proof that Respondent was properly served with the moving papers on January 19, 2023. (1-19-23 Proof of Service by Mail.) The Court finds that the service requirement has been satisfied.

Regarding authentication of exhibits filed along with the Petition, Petitioner has requested that the Court take judicial notice of Exhibits A through E, as discussed above. The Court grants Petitioner’s request as to Exhibits A-E. Petitioner also states that Exhibits F through H may be authenticated pursuant to Evidence Code § 1414(b), which allows for authentication of evidence if “[t]he writing has been acted upon as authentic by the party against whom it is offered.” (RJN p. 2.) The Court does not find sufficient evidence to admit Exhibits F through H on this basis. For this reason, the Court again continues the hearing and provides Petitioner an opportunity to authenticate Exhibits F through H via sworn declaration. The Court notes that there are minor differences between the contracts submitted by the Parties so the Parties should address this. In addition, the AAA Standards of Conduct states that Participants shall not have previously been declared to be a vexatious litigant . . . in any state or federal court . . . .” The Court does not know whether this is grounds for vacating an arbitration award so the Parties should address that issue as well.

V. Conclusion & Order

For the foregoing reasons, the Petition to Vacate Arbitration Award, filed by Defendant Eva Weinfeld, Trustee of Eva Weinfeld Family Trust is CONTINUED to MARCH 22, 2023 at 10:30 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner 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.