Judge: Theresa M. Traber, Case: BC699897, Date: 2023-12-15 Tentative Ruling

Case Number: BC699897    Hearing Date: December 15, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 15, 2023                TRIAL DATE: VACATED

CASE:                         Jennifer Rivas v. Dynamic Nursing Services, Inc.

CASE NO.:                 BC699897           

(1)   PETITION TO CONFIRM ARBITRATION AWARD

(2)   PETITION TO VACATE ARBITRAITON AWARD

MOVING PARTY:               (1) Plaintiff Jennifer Rivas; (2) Defendant Dynamic Nursing Services, Inc.

RESPONDING PARTY(S): (1) Defendant Dynamic Nursing Services, Inc.;(2) Plaintiff Jennifer Rivas.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            In her Complaint, filed on March 28, 2018, Plaintiff alleges that she was harassed and terminated based on her disability. The case was ordered to arbitration on August 15, 2018.

Plaintiff petitions to confirm an arbitration award. Defendant petitions to vacate the arbitration award.

TENTATIVE RULING:

Plaintiff’s Petition to Confirm the Arbitration Award is GRANTED.

            Defendant’s Petition to Vacate the Arbitration Award is DENIED.

DISCUSSION:

Petition to Confirm Arbitration Award

            Plaintiff petitions to confirm an arbitration award.

//

Procedural Requirements 

“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.)  

Here, the Petition names all parties to the arbitration. (Attachment 3(b)(1).)

In addition, a petition under this chapter must: 

¿(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.) 

            The agreement to arbitrate is not directly attached to the Petition. Instead, the Petition references the Declaration of Sherri Nazarian filed concurrently with the petition. The agreement to arbitrate is contained within the Employment Agreement attached to the Declaration of Sherri Nazarian as Exhibit A. (Declaration of Sherri Nazarian ISO Petition Exh. A.) The name of the Arbitrator (the Hon. Rex Heeseman (ret.)) is included in the petition. (Petition ¶ 12.) A copy of the award is not attached directly to the petition, but is attached to the Nazarian Declaration as Exhibit D.

            Code of Civil Procedure section 1288 provides:  

A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to 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.

However, “[n]o petition may be served and filed under this chapter until at least 10 days after service of the signed copy of the award upon the petitioner.” (Code Civ. Proc. § 1290.4.) The proof of service on the Final Award states that it was served on counsel for all parties on May 16, 2023. (Nazarian Decl. Exh. D.) This petition was filed on July 3, 2023. Thus, the petition was timely filed.

//

//

Legal Standard

Any party to an arbitration award may petition the court to confirm, correct, or vacate the award. (Code Civ. Proc § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, 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 (bold emphasis added).) Under California law, an arbitration award may be vacated only under the following limited circumstances:

(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 therefore or by the refusal of the arbitrators to hear evidence material to the controversy or by 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. . . .

(Code Civ. Proc. § 1286.2(a).)

Other than these statutory 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, 12-13.) Under California law, errors of fact or law do not mean that an arbitrator has “exceeded” his powers. (Id. at 28.)

Challenge to Arbitration Award

            Defendant opposes confirmation of the arbitration award for the same reason that Defendant has separately petitioned to vacate the award: that the arbitrator exceeded his authority under the arbitration agreement by misapplying California law. As set forth in the arbitration award, the arbitrator found that Plaintiff had established a failure to engage in the interactive process, but failed to show that a reasonable accommodation was available. (See Nazarian Decl. Exh. D. pp. 5-7.) Defendant contends that under the arbitration agreement the arbitrator was bound to apply substantive California law. (See Nazarian Decl. Exh. A. p. 8.) According to Defendant, the arbitrator violated this requirement by adopting the holding of Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424–425, which states that a finding of no reasonable accommodation “is not inconsistent” with a finding of liability for refusal to engage in the interactive process, and by justifying that decision on the basis of the arbitrator’s inherent power to decide on principles of equity. (Hightower v. Superior Court (O’Dowd) (2001) 86 Cal.App.4th 1415, 1432.)

            Despite how Defendant portrays these claims, Defendant’s challenge to the arbitration award is not based on a violation of the arbitrator’s authority, but on claimed errors in the arbitrator’s application of California law. As our Supreme Court has expressly stated, this is not a basis to vacate an arbitration award. (Moncharsh, supra, 3 Cal.4th at 28; see also Moshonov v. Walsh (2000) 22 Cal. 4th 771, 775 [the Moncharsh Court “rejected the view that a court may vacate or correct the award because of the arbitrator’s legal or factual error, even an error appearing on the face of the award”].) The Court therefore finds that the arbitrator did not exceed his authority under Code of Civil Procedure section 1286.2(a)(4).

Conclusion

            As Plaintiff has complied with the procedural requirements for a petition to confirm an arbitration award, and the Court has rejected Defendant’s challenge to the arbitration award, Plaintiff’s Petition to Confirm the Arbitration Award is GRANTED.

Petition to Vacate Arbitration Award

            Defendant petitions to vacate the arbitration award. For the reasons stated above in connection with the petition to confirm the arbitration award, Defendant’s petition is DENIED.

CONCLUSION:

            Accordingly, Plaintiff’s Petition to Confirm the Arbitration Award is GRANTED.

            Defendant’s Petition to Vacate the Arbitration Award is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated: December 15, 2023                             ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.