Judge: Layne H. Melzer, Case: 2023-01322514, Date: 2023-08-24 Tentative Ruling
Petitioner Kaiser Foundation Hospitals, Lindsey Bennett, Simonette Z Soler,
James A Sproul
Petition to Confirm Arbitration Award
Before the court is Respondents/Defendants Kaiser Foundation Hospitals, Lindsey Bennett MD, Simonette Z Soler MD, James A Sproul MD’s petition to confirm the 3/6/23 Arbitration Award in their favor and against Petitioners/Plaintiffs Osmar Roberto Mertens and Jenny Moreno on their medical malpractice and loss of consortium claims.
The court notes that in the prior Motion heard on 7/27/23, Respondents represented that they intended to seek a transfer of this action to a different venue. (ROA 8, fn. 1). No motion to transfer venue has been filed. However, venue rules are not jurisdictional. This means that if the action is filed in an “improper” court, and no objection is raised, that court can render an enforceable judgment. (Barquis v. Merchants Collection Ass'n (1972) 7 Cal.3d 94, 121-122; Williams v. Sup.Ct. (Fautt) (2021) 71 Cal.App.5th 101, 114-116.) Thus, without a motion to transfer pending, the court will resolve the pending Petitions.
Relevant Procedure
The Honorable John F. Herlihy (Ret.) of JAMS in Santa Clara County entered and served an arbitration award in favor of Respondents on March 6, 2023. (ROA 16, Ex. A.) The award was electronically served to both sides on 3/6/23. (Id.)
On 4/27/23, Osmar Roberto Mertens and Jenny Moreno filed a Petition to Vacate an arbitration award. (ROA 2)
The Motion/Petition to confirm the award was filed on 6/9/23. (ROA 16, 20).
On 7/27/23, the court quashed service of that Petition to Vacate the arbitration award as to the individual Respondents because it was not properly (or timely) served on the individual Respondents. (ROA 23)
Mertens and Moreno opposed the Petition to confirm the award on 8/8/23. (ROA 27).
The Opposition is not timely.
As an initial matter, the court cannot consider the opposition because it is not timely filed.
There are two ways to seek vacation or correction of an arbitration award:
(1) Code Civ. Proc. § 1288 provides (emphasis added): “A petition to vacate an award or correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner,” or
(2) Within 10 days of service of a party's petition to confirm the award, file and serve a timely response. (Civ. Proc. Code, § 1290.6).
The petition and notice of hearing shall name as respondents all parties to the arbitration, and others bound by the award [Civ. Proc. Code, § 1285], and must set forth the grounds on which the request is made. [Civ. Proc. Code, § 1285.8] The petition must also set forth the substance of the arbitration agreement or have a copy attached, name the arbitrator, and set forth or have attached a copy of the award and the arbitrator's written opinion, if any. [Civ. Proc. Code, § 1285.4]
The petition must be served as required by the arbitration agreement, or in the same manner as normal service during litigation [Civ. Proc. Code, § 1010], or as required for the service of a summons if the respondent has not previously appeared or been served. [Civ. Proc. Code, § 1290.4]. This is a new action and thus service has to be in the same manner as a summons and complaint. (See Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1203, [the 100-day deadline “operates in the same manner as the deadline for filing an appeal, and the court loses jurisdiction to vacate the award if the petition is not timely served and filed”].)
Here, the Petition to Vacate was timely filed on 4/27/23, within 100 days of the service of the arbitrator’s award on 3/6/23 by email.
However, it was not properly served on all Respondents during that time. (ROA 23). Service is required within the 100 days. Code Civ. Proc. § 1288. There is no indication that the court can hear the Petition to vacate as to only one Respondent (Kaiser, the only one timely served with the petition to vacate) based on the facts of the underling case. Although it does not appear to be set for hearing, it will be mooted by the ruling confirming the award.
The court also cannot consider the opposition to the petition to confirm, as it is untimely.
Under the plain terms of sections 1288 and 1288.2, Moreno and Mertens had 100 days from the service of the final award to request that the arbitration award be vacated — whether they chose to do so via a standalone petition to vacate or via a response to Respondents’ petition to confirm the award. Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 946.)
When a filing both (1) responds to a petition to confirm, and (2) requests that the arbitration award be vacated, two deadlines apply: (1) Absent a written agreement or court order, the response must be filed within 10 days after service of the petition to confirm and (2) in any event, no later than 100 days after service of the award. (Id. at p. 949.)
Here, the Arbitrator served the Award on 3/6/23 by email. Thus, 100 days plus 2 days for electronic service is June 16, 2023.
The opposition here was filed on August 8, 2023. Thus, it is not timely filed relative to the 100-day deadline. If a petition to confirm an award is filed after the 100-day time limit, a response to the petition that asserts grounds to vacate the award must be disregarded. (Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 742, 746.)
The Opposition lacks merit.
Finally, even if the court did consider the opposition (and the memorandum in support of the Petition to vacate the award), there are no grounds to vacate the award.
Statutes set forth specific grounds upon which an arbitrator's award may be vacated (CCP § 1286). Except on these grounds, arbitration awards are immune from judicial review in proceedings to challenge or enforce the award. (Moncharsh v. Heily & Blase (1992) 3 C4th 1, 12-13; Zazueta v. County of San Benito (1995) 38 CA4th 106, 110.)
Limiting grounds for judicial review effectuates the parties' agreement that the award be final. It also reflects that arbitrators ordinarily 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.” (Moncharsh v. Heily & Blase, supra, 3 C4th at 11; Nogueiro v. Kaiser Found. Hospitals (1988) 203 CA3d 1192, 1195.)
Courts will not review the sufficiency of the evidence to support the award. [Morris v. Zuckerman (1968) 69 C2d 686, 691]. Nor will courts pass upon the validity of the arbitrator's reasoning. The court simply may not substitute its judgment for that of the arbitrator. [Morris v. Zuckerman, supra, 69 C2d at 691; Department of Pub. Health of City & County of San Francisco v. Service Employees Int'l Union, Local 790 (1989) 215 CA3d 429, 433, fn. 4—“we do not see any logic in the arbitrator's [decision] … however … the arbitrator had the power [to so decide]”]
Generally, errors of law committed by the arbitrator, no matter how gross, are not grounds for challenging the arbitrator's award under California law. (Moncharsh v. Heily & Blase (1992) 3 C4th 1, 11; Richey v. AutoNation, Inc. (2015) 60 C4th 909, 916; Baize v. Eastridge Cos. (2006) 142 CA4th 293, 300-302.) There are two reasons:
— The parties contracted that the arbitrator's decision, right or wrong, would be conclusive; and
— The risk of arbitral error has been reduced by statutory provisions allowing courts to vacate or correct for “serious problems with the award itself or with the fairness of the arbitral process.”
[Moncharsh v. Heily & Blase, supra, 3 C4th at 12]
Under California law, parties may agree to judicial review of the arbitration award on its merits (e.g., for errors of law). [Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 C4th 1334, 1340, 1361 (disapproving conflicting court of appeal decisions)]. Mertens and Moreno do not make this argument or provide any evidence that the parties agreed to expanded review.
Here, the court has examined all arguments in the opposition and memorandum of support of the petition to vacate the award and finds no statutory grounds to vacate the award.
Under CCP § 1286, the court must confirm, correct or vacate the award or dismiss the petition. (Law Offices of David S. Karton v. Segreto (2009) 176 CA4th 1, 9—§ 1286 is mandatory in this respect.) Having no basis to correct or vacate the award, the petition to confirm is granted.
Kaiser and the individual Respondents are ordered to submit a proposed judgment for the court’s consideration and serve notice of this Order.