Judge: Steven A. Ellis, Case: 20STCV07642, Date: 2023-10-16 Tentative Ruling
Case Number: 20STCV07642 Hearing Date: October 16, 2023 Dept: 29
TENTATIVE
Plaintiff Kathleen Shea’s Motion to Vacate Arbitration Award
is DENIED.
Background
On February 25, 2020, Plaintiff Kathleen
Shea (“Plaintiff”) filed a complaint for damages against Defendant Burbank
Spine & Pain Surgery Center, Inc. and Does 1 through 100, inclusive,
alleging a cause of action for medical negligence. The complaint asserts that
Plaintiff had a spinal cord simulator implant performed by defendants on or
about December 14, 2018 that led to permanent spinal cord injuries. On February
24, 2021, Plaintiff named Taher Saifullah as Doe 1 and Reginald Ajakwe as Doe
2.
The matter proceeded to arbitration between
Plaintiff (on one side) and Dr. Saifullah and Dr. Ajakwe (“Defendants”) (on the
other). The arbitration was based on a contract that included a provision that
states: “Any party may bring before the arbitrators a motion for summary
judgment or summary adjudication in accordance with the Code of Civil
Procedure.” (Blumberg Decl., Exh. 5, at article 3.)
Defendants submitted a motion for summary
judgment in the arbitration on statute of limitations grounds on July 25, 2022.
(Id., Exh. 6.) Plaintiff opposed the motion on September 26, 2022. (Id.,
Exh. 7.) On October 3, 2022, Defendants submitted a reply. (Id., Exh.
8.)
Upon competition of the briefing, the
arbitrator informed the parties that he did not believe further argument was
necessary. (Blumberg Decl., ¶ 4.) Plaintiff’s counsel objected. (Ibid.)
In response, the arbitrator asked for further argument in the form of
supplemental briefing. (Ibid.) Plaintiff
submitted a supplemental brief in opposition to the motion on October 11, 2022,
and two days later Defendants submitted a supplemental brief in reply. (Id.,
Exhs. 9 and 10.)
On December 1, 2022, the arbitrator issued
a written final award, granting Defendants’ motion for summary judgment. (Id.,
Exh. 11.)
On January 25, 2023, Plaintiff filed a
motion to vacate arbitration award. On October 2, 2023, Defendant Taher M.
Saifullah, M.D. and Reginald Ajakwe (Defendants) filed an opposition. On
October 9, 2023, Plaintiff filed a reply.
Legal
Standard
“Any party to an
arbitration in which an award has been made may petition the court to
confirm, correct
or vacate the award. The petition shall name as respondents all parties to the
arbitration and may name as respondents any other persons bound by the
arbitration award.”(Code Civ. Proc., § 1285.)
“A petition under
this chapter shall: (a) Set forth the substance of or have attached a copy of
the agreement to arbitrate unless the petitioner denies the existence of such
an agreement. (b) Set forth the names of the arbitrators. (c) Set forth or have
attached a copy of the award and the written opinion of the arbitrators, if
any.” (Code Civ. Proc., § 1285.4.) “If a petition or response under this
chapter is duly served and filed, the court shall confirm the award as
made…unless in accordance with this chapter it corrects the award and confirms
it as corrected, vacates the award or dismisses the proceeding.” (Code Civ.
Proc., § 1286.) Any response to the petition is required to be filed and served
within 10 days after service of the petition. (Code Civ. Proc., § 1290.6.)
The specific
grounds upon which an arbitrator’s award may be vacated are set forth in the Code
of Civil Procedure section 1286.2, subdivision (a). That statute provides that
the court shall vacate the award if it 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 party 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 either: ¿(A) failed to disclose within the time required for
disclosure a ground for disqualification of which the arbitrator was then
aware;¿or (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.
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
Cal.4th 1, 11.) 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.” (Id. at p. 10.) “Neither the merits of the
controversy ... nor the sufficiency of the evidence to support the arbitrator's
award are matters for judicial review.” (Morris v. Zuckerman (1968) 69
Cal.2d 686, 691.) The court “may not substitute its judgment for that of the
arbitrators.” (Ibid.)
Code of Civil
Procedure section 1283.4 provides that an arbitration award shall “include a
determination of all the questions . . . the decision of which is necessary in
order to determine the controversy.” (Code Civ. Proc., § 1283.4.) “[I]t is
presumed that all issues submitted for decision have been passed on and
resolved, and the burden of proving otherwise is upon the party challenging the
award.” (Rodrigues v. Keller (1980)
113 Cal.App.3d 838, 842.) “[T]o discharge that burden, the party attacking the
award must demonstrate that a particular claim was expressly raised at some
time before the award, and that the arbitrator failed to consider it.” (Ibid. [internal citations omitted].)
However, “the failure of an arbitrator to make a finding on even an express
claim does not invalidate the award, so long as the award ‘serves to settle the
entire controversy.” (Id. at p. 843
[internal quotation mark omitted].) This is because “the merits of the
controversy are for the arbitrator, not for the courts.” (Ibid.) “[I]t is not appropriate for courts to review the
sufficiency of the evidence before the arbitrator.” (Ibid.)
Discussion
Plaintiff moves
to vacate the arbitration award. Plaintiff complains that the arbitrator’s
award (Blumberg Decl., Exh. 11) is terse, short on explanation, and from that
starting point Plaintiff makes essentially two arguments: (1) that the
arbitrator refused to hear evidence material to the controversy or (2) that the
arbitrator exceeded his powers by refusing to comply with the requirements of
the arbitration agreement.
As to the first
argument, Plaintiff argues that because the arbitrator did not cite in the
arbitration award any of the evidence submitted by Plaintiff, he must have improperly
refused to read (or “hear”) the evidence. But Plaintiff presents no evidence in
support of this argument. The arbitrator received extensive argument and
evidence from both sides on the statute of limitations issue. (Id.,
Exhs. 6-8.) At the request of Plaintiff, he accepted an additional round of
argument and evidence from both sides. (Id., ¶ 4 & Exhs. 9-10.) In
his written award, issued approximately six weeks after the briefing was
complete, the arbitrator stated that he had “repeatedly studied the detailed
submissions” from both sides and that he had given both sides, including
Plaintiff, “the well-deserved opportunity to amplify their positions about
whether the statute of limitations has run.” (Id., Exh. 11.) He praised
the advocacy of Plaintiff’s counsel, noted that he had received a “thorough,
detailed analysis” from both sides, and stated that he had “taken what perhaps
seems like an inordinate amount of time to issue” the award. (Ibid.)
There is simply no indication on this record that the arbitrator abdicated his
responsibility to consider all of the evidence submitted by both sides. Rather,
it appears that what occurred is that the arbitrator found the evidence
presented by Defendants persuasive; the arbitrator did not find the evidence
presented by Plaintiff persuasive; and in preparing the written award the arbitrator
cited the evidence he found to be persuasive. (See Rodrigues, supra, 113 Cal.App.3d at pp. 842-843.)
As to the second
argument, Plaintiff argues that the arbitration agreement required the
arbitrator to follow the Code of Civil Procedure, including section 437c,
subdivision (g), in ruling on the motion for summary judgment. Subdivision (g)
states that when a court grants a motion for summary judgment, the court (among
other things) “shall specifically refer to the evidence proffered in support of
and, if applicable, in opposition to the motion that indicates that no triable
issue exists.” Plaintiff claims that the arbitrator did not do so.
As a threshold
matter (and assuming that section 437c, subdivision (g), applies to the
arbitrator in this context, which neither party contests), Plaintiff misconstrues
the requirements of subdivision (g). Subdivision (g) does not, as Plaintiff
argues, require a court (or an arbitrator) “to address all evidence considered
in granting or denying the motion.” (Mot. at 1.) Rather, a court must “specifically
refer” to the evidence offered by the parties “that indicated that no triable
issue exists.”
In the award, the
arbitrator fully satisfied this requirement. The arbitrator stated, clearly,
concisely, and unequivocally, that the evidence that indicated that no triable
issue exists is the complaint filed in the litigation. As the arbitrator
explained, by the time the complaint was filed, Plaintiff and her lawyers “had
more than sufficient knowledge about the wrongful acts – the alleged medical
malpractice by the surgeons -- … to have included [Defendants] as named Defendants.”
(Blumberg Decl., Exh. 11.) In other words, the complaint itself was the
evidence that established that there was no triable issue with regard to the
statute of limitations.
But the
arbitrator did not conclude there. Rather, he went on to state the following,
referencing Plaintiff’s evidence:
There is nothing submitted
that can rescue [Plaintiff’s] claims from this unfortunate outcome. When coupled
with the record submitted in support and in opposition to the Motion, the
difficult and only reasonable decision must be that the statute of limitations
had run by the time the [Defendant] surgeons were brought into this case.
(Ibid.)
Nothing more is
required. The arbitration award refers to the evidence that indicates that no
triable issue exists. That is sufficient under Code of Civil Procedure section
437, subdivision (g). (The court notes that it is also sufficient under Code of
Civil Procedure section 1283.4, which requires that an arbitration award “include
a determination of all the questions ... the decision of which is necessary in
order to determine the controversy.”)
Conclusion
Accordingly,
Plaintiff Kathleen Shea’s Motion to Vacate Arbitration Award is DENIED.
Moving party is ordered to give notice.