Judge Monica Bachner, Case 19STCV02506 2022-09-06 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Defendants’ petitions to confirm the arbitration award are granted except for costs requested in paragraph 10(e)(1) of their petitions and 10(g) in Greenfield Care Center’s petition. Defendants are to submit a proposed judgment in ten days.

Defendants Greenfield Care Center of Gardena, Inc. (Greenfield Care Center) and Eva Care Group, LLC, (ECG) petition the Court to confirm their December 2, 2021, Arbitration Award rendered by the Arbitrator Emily R. Boyle against Plaintiff Cecilia Duckworth (Plaintiff) and enter judgment in accordance therewith. (Def. Greenfield Care Pet. Confirm Contractual Arbitration Award ¶¶ 1, 6, 8, 10; Def. ECG Pet. Confirm Contractual Arbitration Award ¶¶ 1, 6, 8, 10 [hereinafter (Petitions)].) [1]Specifically, Greenfield Care Center and ECG move the Court to confirm the Award issued by the Arbitrator, and in their Petitions move the court to order Plaintiff to pay Greenfield Care Center $462.52 for court filing fees and $17,890.45 for post-section 998 offer costs and ECG $452.87 for court filing fees assessed in this Court. (Petitions ¶ 10(e)(1), (g); Atts. 10(e), 10(g).)

This case arises out of an action brought by Plaintiff relating to the February 2017 termination of her employment as Director of Nursing at Greenfield Care Center and subsequent retaliation against Plaintiff by Defendants after she complained of their illegal conduct. (Compl. ¶¶ 12, 23.) Greenfield Care Center, a skilled nursing facility, is owned, operated, and managed by ECG. (Compl. ¶ 11.) Plaintiff filed a Complaint on January 24, 2019, against Defendants. (Compl. ¶ 1.)

The Parties stipulated to submit their case to arbitration and to stay all proceedings until a settlement was reached. (Petitions, Att. 4(b), Stipulation to Arbitrate Claims, pg. 1–2.) Pursuant to that stipulation, the case would “be administered according to the AAA Arbitration Rules for Employment Law cases.” (Id., pg. 1.) Section 39(d) of the AAA rules provides that: “[t]he arbitrator may grant any remedy or relief that would have been available to the parties had the matter been heard in court including awards of attorney’s fees and costs, in accordance with applicable law. The arbitrator shall, in the award, assess arbitration fees, expenses, and compensation as provided in Rules 43, 44, and 45 in favor of any party and, in the event any administrative fees or expenses…” (Cagney Decl. ¶ 6, Exh. 5.)

The Arbitration hearing occurred August 16–19, 2021, and the Arbitrator issued her Award of the Arbitrator on December 2, 2021. (Pl.’s Resp. Defs.’ Pets. Confirm Contractual Arbitration Award, Cagney Decl. ¶ 4, Ex. 3.) The American Arbitration Association electronically served the Award on parties’ counsel on December 7, 2021. (Cagney Decl. ¶ 5, Ex. 4.) Greenfield Care Center and ECG filed their Petitions to Confirm Contractual Arbitration Award on February 16, 2022. Plaintiff filed her Response on February 25, 2022, and Greenfield Care Center and ECG filed their joint Reply on August 29, 2022.

1. [Defendants are] the prevailing part[ies] and [Plaintiff’s] claims are denied.

2. Pursuant to the Arbitration Agreement entered into by the parties and the AAA Rules governing Employer-Promulgated Plans, [Defendants] shall pay the administrative fees and expenses of the American Arbitration Association totaling $2,950.00 which shall be borne as incurred and the compensation and expenses of the arbitrator totaling $35,572.50 which shall be borne as incurred.

3. All other fees, costs, compensation, reimbursement, and hearing requests associated with the arbitration, including without limit each party’s attorney’s fees, are hereby denied and will be borne by the party incurring the costs fees and expenses.

This Final Award is in full settlement of all claims submitted to this Arbitration. All claims not expressly granted herein are hereby, denied.

Stipulated attorneys’ fees and costs incurred during arbitration and associated judicial proceedings must first be requested to the arbitrator before they can be approved by a court. (See Maaso v. Signer (2012) 203 Cal.App.4th 362, 378; Corona v. Amherst Partners (2003) 107 Cal.App.4th 701, 706.) Civil Code of Procedure section 1286.6 sets forth the exclusive grounds for correction of an arbitration award. (Maaso, 203 Cal.App.4th at 378.) Under the statutory scheme for private arbitration, a party’s failure to request the arbitrator to determine a particular issue within the scope of the arbitration is not a basis for vacating or correcting an award. (Maaso, 203 Cal.App.4th at 378, citing Code Civ. Pro. § 1286.2.) As the Maaso Court explained “although Maaso styled his petition [for post-offer costs pursuant to Code of Civil Procedure section 998] as one to ‘confirm’ the [arbitration] award, he essentially sought ‘correction’ of the award by asking the court to add costs and interest not awarded by the panel, and which were in fact inconsistent with the panel’s award.” (Maaso, 203 Cal.App.4th at 378.)

In Heimlich v. Shivji (2019) 7 Cal.5th 350, the California Supreme Court clarified the forum and timeline that parties must submit post-settlement offer costs to an arbitrator pursuant to Code of Civil Procedure section 998. Harmonizing section 998, California Rule of Court 3.1700(a)(1),[2] and the Arbitration Act, the Court concluded that fifteen days after the issuance of a final arbitration award, “a party to an arbitration may submit a cost request asserting rejection of an earlier 998 offer. The arbitrator has implicit power under section 998 to consider the request and amend any award accordingly.” (Heimlich, supra, 7 Cal.5th at 365.)

Here, like in Maaso, Greenfield Care and ECG have styled petitions to “confirm” an arbitration award with the intention of seeking a “correction” of the award by asking this Court to add post-section 998 costs and court filing fees not awarded by Arbitrator Boyle, which is inconsistent with Arbitrator Boyle’s awards. Here, the parties agreed to be bound by the AAA rules, which provide the arbitrator the authority to “grant any remedy or relief that would have been available to the parties had the matter been heard in court including awards of attorney’s fees and costs.” This Court will not vacate or correct the Arbitration Awards to add costs from judicial proceedings associated with the arbitration in violation of the statutory scheme contemplated by the legislature. Therefore, Greenfield Care is not entitled to the post-section 998 offer costs and Greenfield Care and ECG are not entitled to the court filing fees of $452.87.

Greenfield Care did not request an award of post-section 998 costs pursuant to Code Civ. Proc. § 998 during the arbitration hearing, or in its 63-page closing brief. It also never submitted a memorandum of costs seeking litigation costs, or section 998 costs to the arbitrator. (Cagney Decl., ¶ 8.) Similarly, the Court has not been provided information that either party requested the court filing fees from the arbitrator. Accordingly, the requests were untimely as it was submitted to this Court seventy-one days after the service of the arbitration award upon the parties, well beyond the fifteen-day period provided in Rule 3.1700. (See Heimlich, supra, 7 Cal.5th at 365.)

Greenfield Care and ECG argue in reply that Plaintiff’s dispute of costs that are advanced in a petition such as this one must be sought by filing a motion to strike or tax costs fifteen days after service of the petition. (Defs.’ Reply Pl.’s Resp. Defs.’ Pets., pg. 3.) Greenfield Care and ECG offer no supporting case law, but merely cite to California Rule of Court, rule 3.1700(b)(1), which would have applied to the section 998 request if it had been submitted to Arbitrator Boyle pursuant to rule 3.1700(a)(1).

Greenfield Care and ECG are entitled to orders to confirm their Arbitration Awards as made by Arbitrator Boyle in conformity with Code of Civil Procedure section 1287.4. (Code Civ. Proc. § 1287.4.) However, Greenfield Care and ECG are not entitled to costs of suit in the amounts of $462.52 and Greenfield care is not entitled to the $17,890.45 sought for post-998 costs. (Petitions ¶ 10(e)(1).)

Based on the foregoing, Greenfield Care’s and ECG’s petitions to confirm the Arbitration Awards are granted, except for the costs requested in paragraph 10(e)(1) of their petitions and 10(g) of Greenfield Care’s petition. Defendants are to submit a proposed judgment within ten days.

[1] As to ECG, the Arbitrator granted summary adjudication (sic) on March 26, 2021, apparently disposing of all claims against ECG.

[2] Rule 3.1700(a)(1) provides: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.”