Judge Upinder S. Kalra, Case Number: 21STCV47142, Date: 2024-04-11 Tentative Ruling

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On December 6, 2023, Arbitrator Lizbeth Hasse (the Arbitrator) issued an Arbitration Award in favor of Respondent The Lobster, LLC and against Claimant Chris Prell, with no fees or costs awarded to Respondent. The Final Award finds that Respondent did not discriminate against Claimant due to age or disability, did not deny him any entitlement to accommodation or interactive process due to a known disability, did not subject him to harassment, and did not retaliate against Claimant or wrongfully terminate or fail to re hire him. The Final Award requires a denial of all relief sought by Chris Prell.

Defendant filed the instant Petition to Confirm Arbitration Award on December 18, 2023. On March 8, 2024, Plaintiff filed an opposition. To date, no reply has been filed.

“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 respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., (CCP) § 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.” (CCP § 1286.)

Filing Requirements of a Petition to Confirm Arbitration Award (CCP § 1285.4)

Code of Civil Procedure section 1285.4 states: “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.

Here, Defendant attached a copy of the JAMS Arbitration case no. 5220001457 final award. (Pet., Exhib. S(c).) Defendant also identified the arbitrator. (Id.)

(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.

(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: ¶ (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.

Here, Defendant filed a proof of service indicating service on Plaintiff on December 18, 2023 via electronic service.

Code of Civil Procedure section 1283.6 provides that: “The neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.”¿This requirement may be satisfied by service by the arbitrator or upon proper service of the Award with the Petition. (See Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.)

A party may seek a court judgment confirming an arbitration award by filing and serving a petition no more than four years, but not less than 10 days, after the award is served. (CCP §§ 1288, 1288.4.)

Defendant filed the instant petition approximately 12 days after service of the Award, making it timely under Code of Civil Procedure sections 1288 and 1288.4.

“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.) As previously indicated, “[o]nce 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.) “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.]’” (Id. at p. 1063, emphasis added.)

Defendant has demonstrated that on December 6, 2023, the arbitrator issued an Arbitration Award in its favor and against Plaintiff. However, Plaintiff opposes the petition to confirm for numerous reasons. Plaintiff argues that the arbitrator’s decision should be vacated pursuant to section 1286.2(A)(4).

Code of Civil Procedure section 1286.2, subdivision (a), states, in pertinent part:

“Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following:

(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. . . .”

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.)

Plaintiff states that the arbitrator exceeded her powers under section 1286.2 for several reasons , including the following: By ignoring the parties’ agreement to follow California law and JAMS rules. In particular, Plaintiff claims that the arbitrator refused to follow the statutory framework and related public policies behind the FEHA body of law in determining that Plaintiff did not carry his burden to establish his claims by a preponderance of the evidence. Under the applicable burden of proof, Plaintiff asserts that he easily prevails in proving several bases of liability.[1]

Plaintiff also contends that Defendant failed to engage in a legally required interactive process for accommodating disabilities, an obligation that the arbitrator overlooked, thus affecting the decision unfairly. Plaintiff alleges that the arbitrator wrongfully refused to consider relevant testimony and applied the law incorrectly.[2] Specifically, Plaintiff asserts the arbitrator excluded critical cross-examination and other evidence material to the case.[3] Plaintiff states that there were misapplications of law and procedural errors, including misreading legal orders, misinterpreting statutory limitations, and improperly excluding evidence of discrimination and retaliation.[4]

“[I]t is the general rule that, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or law.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11 (Moncharsh).) “When parties contract to resolve their disputes by private arbitration, their agreement ordinarily contemplates that the arbitrator will have the power to decide any question of contract interpretation, historical fact or general law necessary, in the arbitrator’s understanding of the case, to reach a decision. [Citations.] Inherent in that power is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such error, for ‘“[t]he arbitrator’s resolution of these issues is what the parties bargained for in the arbitration agreement.”’” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184.)

The Court has read and considered the Opposition and supporting exhibits and declarations. The Court also has carefully reviewed the Arbitrator’s Award. Clearly, the arbitrator consistently made rulings on questions of fact and law in favor of Defendant.[5] Just as obviously, Plaintiff strongly disagrees with these findings. Dissatisfaction with the arbitrator’s decision is not a valid basis to challenge an award. It appears to the Court that Defendant’s challenge to the arbitration award is not based on a violation of the arbitrator’s authority under the Code of Civil Procedure, but rather, a disagreement with the arbitrator’s application of California law. First, our Supreme Court has expressly stated, this is not a basis to vacate an arbitration award. (Moncharsh, supra, 3 Cal.4th at 28.) Second, even if the Court could properly review the award for the sufficiency of the evidence or legal or factual errors, the Court has found none. In sum, the Court finds that the arbitrator did not violate any provision of Code of Civil Procedure section 1286.2. The Court therefore finds that the arbitrator did not exceed his authority under Code of Civil Procedure section 1286.2(a)(4).

[1] This appears to be an attempt to challenge the sufficiency of the evidence, in reverse. In other words, Plaintiff seems to argue that since there was sufficient evidence for Plaintiff to prevail, and they did not win, the award was wrongly issued. That is not the law.

[2]Actually, the arbitrator considered and rejected Plaintiff’s argument. Plaintiff argued in his closing brief that an employer cannot terminate an employees on leave. This misstates the law. The arbitrator noted this misstatement and refuted the claim by citing to Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 940 [“the guarantee of reinstatement to the same or comparable position does not preclude an employer from terminating the employee's employment as part of a work force reduction.”].)

[3]The Court is puzzled by this contention. The Court reviewed the impeachment evidence that was purportedly excluded. (Denis Dec. at ¶6 [“The significance of the unfair ‘gift’ given to Mr. Kull and Lobster by this strange and extraordinary ‘ruling’ of the Arbitrator is evident from what the deposition transcript contained. Armstrong in deposition admitted that when employees go out on medical leave that he receives notice and knew Prell was on leave. (Armstrong depo Page 74:5 to 74:24; 162:4 to 162: 12 ). Before the re-opening, Mickey Barnes, the GM most were happy with was also terminated via pretext who was over 53 years old. (Forseth, Pociecha) On February I, 2021 , Claimant learned that Barnes had been fired and inquired that he would be able to return to work on February 23, 2021 so he sent an email showing his strong desire to return to work with the Lobster and in fact sent at least two emails expressing his desire to return. (Ex. 628) The email from Luis Garcia was forwarded to Armstrong who forwarded it to Mr. Robert Kull on February 3, 2021. (Id.) Within days of the email being forwarded to Kull, Claimant was terminated on February 8, 2021 and Mr. Armstrong admitted that Mr. Kull was aware of the Mr. Prell being on disability leave when he was terminated. Further, Mr. Armstrong admitted that he had HR training, where he should have known that terminating an employee on medical leave was illegal, especially without an interactive process. However, he did admit to now knowing what an interactive process.”].) Plaintiff raised a substantially similar argument in their closing brief. (Denis Dec. Ex. 1, Closing Brief at p. 9, [“Within days of the email being forwarded to Kull, Claimant was terminated on February 8, 2021 and Mr. Arn1strong admitted that Mr. Kull was aware of the Mr. Prell being on disability leave when he was terminated. Further, Mr. Armstrong admitted that he had HR training, where he should have known that tenninating [sic] an employee on medical leave was illegal, especially without an interactive process. However, he did admit to now knowing what an interactive process was.”].)

[4]Among the contentions is that the arbitrator ignored prehearing Order No. 4. The Court reviewed the order. The Cort disagrees. The arbitrator did not violate or misapply the order in issuing the Award.

[5]For example, the arbitrator began by crediting the employer’s explanation that terminating Plaintiff was for valid, non-discriminatory reasons. “As Govind Armstrong testified. he decided not to pursue Mr. Prell to return to employment because in his assessment (and as his contemporaneous notes regarding prospective re-hires stated), Mr. Prell was unreliable and showed ‘poor judgment.’ Some of the instances Mr. Armstrong recalled as evidence of this unreliability and poor judgment were Mr. Prells soliciting fellow employees to borrow money, his improper or deficient ‘tipping out’ with respect to others (busboys or bar-tenders during bis shift), his frequent placing of ‘special orders’ in the kitchen (off-menu items) causing disruption, and a particularly egregious event when a group of guests dissatisfied with Mr. Prell 's service and/or their meal, left without paying after Mr. Prell returned their credit card to them against company policy. Mr. Armstrong and others also testified to Mr. Prell’s not being at as high a level of performance as he seemed to deem himself (he considered himself at times one of the three best servers at The Lobster).” (Award at p. 13.) Then, the arbitrator applied these factual findings to the law.

“[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358. Thus, the legitimate reasons stated and shown are facially unrelated to any prohibited bias and preclude a finding of discrimination by The Lobster with respect to the termination or decision not to rehire Claimant.” (Award at p. 16.) The arbitrator also firmly rejected Plaintiff’s other claims. “There is no basis for Claimant's accusations that the employer took adverse employment action against Claimant in the form of retaliation, failure to accommodate, failure to engage in an interactive process to identify or implement an effective, reasonable accommodation for an employee with a disability or family leave need.” (Award at p. 16.) Similarly, the arbitrator rejected the failure to accommodate claim based on findings of fact and law. “Mr. Prell affirmatively informed each of them that he needed no further accommodation. As for the disability leaves requested, any additional accommodation or interactive process was uncalled for and would have been pointless because Mr. Prell received the full accommodation he requested without question, and Mr. Prell gave the restaurant no information regarding a need for anything further.” (Award at p. 20.)