Case Number: BS144894 Hearing Date: May 05, 2014 Dept: 34

Moving Party: Petitioner Mike Terry (“petitioner”)

Resp. Party: None

Petitioner’s petition to vacate the arbitration award is DENIED.

PRELIMINARY COMMENTS:

The court finds it troubling that this petition to vacate the arbitration award is unopposed. Assuming that this petition was properly served, the court would have expected respondent to have replied. After all, respondent — at least according to petitioner — received an arbitration award of almost $190,000. Normally, parties respond to motions or petitions that might deprive them of $190,000.

Nonetheless, this petition is unopposed. The court does not understand why, but the court need not have that information in order to rule on this petition.

BACKGROUND:

Petitioner filed this petition on 9/13/13. Petitioner seeks to vacate an arbitration award which required petitioner to pay respondent $189,918.68. Petitioner argues that the award was obtained by corruption, fraud, or other unfair means; the arbitrator exceeded his or her authority and the award cannot be fairly corrected; and the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute.

At a case management conference on 3/7/14, the Court noted that petitioner had failed to set the petition for hearing or serve notice of the hearing on respondent. On 4/3/14, petitioner filed a notice of hearing on the petition, which includes proof of service on respondent’s counsel.

ANALYSIS:

“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.” (Code Civ. Proc., § 1288.) It is unclear if this petition is timely because petitioner fails to provide a copy of the award or any other evidence as to when a copy of the award was served. The petition states that the award was served on 6/6/13, which is 103 days before the instant petition was filed. (See Pet., ¶ 9a.) Petitioner alleges that the award was actually served on 6/10/13. (Id., ¶ 9b.) There is no evidence as to the date of service of the award, and it is therefore impossible for the Court to determine whether the instant petition is timely. However, the Court will not deny the petition on this ground.

There are only limited statutory grounds for vacating an arbitration award. (See CCP § 1286.2(a).) These include where:

(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. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.

(Code Civ. Proc., § 1286.2(a).)

The general rule is that a court will not review “the merits of the controversy, the validity of the arbitrator’s reasoning, or the sufficiency of the evidence.” (Jordan v. DMV (2002) 100 Cal.App.4th 431.)

In an attachment to the petition, petitioner makes several assertions in support of the request to vacate the award. (See Pet., Attachment 10c(2).) In particular, petitioner asserts that:

· The prevailing party “was not a proper party to the arbitration.” (Id., ¶ 1.)

· The real party was a suspended Corporation. (Id.)

· The arbitrator’s award included Corporate Legal Services, Inc., a wholly-owned corporation “that was not even in existence during the time period at issue in the arbitration proceeding.” (Id., ¶ 3.)

· “Petitioner was represented by incompetent counsel” and hence “was deprived of a fair hearing. . .” (Id. ¶ 4.)

· “The arbitration award was based upon fraudulent testimony. . .” (Id. ¶ 5.)

· “The proceeding was unjust and unfair because the arbitrator did not dismiss the proceeding when the other party did not appear at the agreed upon arbitration hearing date . . .” (Id. ¶ 6.)

· “The proceeding was unjust and unfair because the arbitrator allowed the opposing party to file his brief and offer additional evidence beyond the deadline agreed to between the parties and the arbitrator.” (Id. ¶ 7.)

The above statements are mere assertions, devoid of evidence. These assertions are not made under penalty of perjury. Petitioner provides absolutely no evidence to support these assertions. In particular, petitioner provides no evidence which establishes that respondent was not a real party in interest; that the real party was a suspended corporation; that the award included a corporation that did not exist at the time period at issue; that petitioner’s counsel at the arbitration was incompetent; that respondent provided fraudulent testimony at the arbitration; that the respondent did not appear at the arbitration hearing or that this should have been cause for the arbitration to be dismissed; or that the arbitrator improperly allowed the respondent to file an untimely brief or offer additional evidence.

Because petitioner fails to provide a copy of the award or any other evidence regarding the arbitration, this court cannot determine what the arbitrator did or found during the arbitration hearing. Indeed, this Court has no evidence as to whether an arbitration award was even rendered against the petitioner.

Petitioner has failed to sufficiently support his request to vacate the arbitration award.

Petitioner’s petition is DENIED.