Filed 1/6/20 Lehman v. Hartwig CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CHARLES B. LEHMAN AND PATRICIA LEHMAN, as Trustees, etc.,

Plaintiffs and Respondents,

v.

JOHN HARTWIG,

Defendant and Appellant.

G056874

(Super. Ct. No. 30-2018-00975060)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.

John Hartwig, in pro. per.; Law Offices of Steven A. Fink and Steven A. Fink for Defendant and Appellant.

Barnett & Rubin, Jeffrey D. Rubin; Law Offices of Robert H. Pourvali and Robert H. Pourvali for Plaintiffs and Respondents.

* * *

INTRODUCTION

Pursuant to the terms of a commercial real property lease, tenant John Hartwig initiated arbitration proceedings to resolve his dispute with landlord Charles B. Lehman and Patricia Lehman, trustees of the Charles B. Lehman Trust. The Lehmans prevailed, and the trial court confirmed the arbitration award.

Hartwig appeals. He describes his appellate challenge as “exceptionally focused and narrow in what it requests from the appellate court.” He claims the trial court deprived him of his constitutional right to due process by failing to honor a prior order by a different trial judge that had consolidated the Lehman petition to confirm the arbitration award with a separate lawsuit filed by Arthur Gross III (Gross lawsuit). Gross was not a party to the lease or arbitration agreement; but his action sought, inter alia, to vacate the Lehman arbitration award. Alternatively, Hartwig contends the trial court was required to give the parties notice and an opportunity to be heard as to why the two matters should not remain consolidated before it ruled on the Lehman petition to confirm the arbitration award.

Hartwig’s appeal is premised on the assumption the Lehman petition and Gross lawsuit were consolidated. But the prior order at the center of this appeal deemed the Lehman petition and the Gross lawsuit related, not consolidated. The trial court did not err in granting the Lehman petition and confirming the arbitration award. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The parties’ written commercial lease agreement included typical dispute resolution provisions, i.e., in the event of a dispute the parties were to attempt mediation and, if that did not succeed, proceed with arbitration and entry of a judgment on the arbitration award. After a failed mediation effort, Hartwig initiated contractual arbitration with JAMS. He asserted claims for fraud, negligence, breach of contract, intentional misrepresentation, breach of the covenant of good faith and fair dealing, and intentional and negligent interference with prospective economic advantage. The parties engaged in discovery in accordance with the arbitration provisions.

Gross is not, and does not purport to be, a licensed attorney. He was not a party to the Hartwig/Lehman lease; but he claims to be the assignee, with the Lehmans’ consent, of Hartwig’s interest in the lease. Other than Gross’s assertion, nothing in the appellate record supports this claim. Gross is not a party to this appeal.

The appellate record includes a September 8, 2016 “assignment of rights” from Hartwig to Gross of Hartwig’s interest in the lease dispute with the Lehmans. Gross and Hartwig signed a mutual revocation of this assignment of rights in March 2017. The revocation stated the assignment of rights was “null and void.”

Additionally, effective February 1, 2016, Hartwig gave Gross an 11-month limited power of attorney “specifically for actions regarding” the Hartwig/Lehman lease. By its own terms, the power of attorney terminated on January 1, 2017.

In August 2017, several months before the arbitration hearing, but after the Hartwig assignments to Gross expired, the arbitrator granted a motion by the Lehmans and third party witnesses to preclude Gross from appearing on behalf of Hartwig in the arbitration proceeding, participating in depositions, or undertaking any other actions that would constitute the practice of law without a license. The order reads in part: “Nothing contained herein is intended to restrict Gross from attending [depositions or the arbitration hearing] as an advisor or consultant to [Hartwig].”

Also in August 2017, shortly after the arbitrator’s ruling, Gross sued JAMS, the arbitrator, and the Lehmans. Gross sought general and punitive damages in excess of $1 million. Although the arbitration hearing had not yet been conducted, Gross also asked that the arbitration award be vacated. The Gross lawsuit was assigned for all purposes to the Honorable David R. Chaffee.

The arbitration hearing was conducted over several days in November 2017. Hartwig did not appear. In February 2018, the arbitrator entered a final award in favor of the Lehmans and against Hartwig on all claims. The arbitrator awarded the Lehmans damages of $128,500.38, arbitration costs and fees of $35,117, and attorney fees of $144,383, for a total award against Hartwig of $308,000.38.

After the arbitration award issued, the Lehmans filed and served a petition to confirm the arbitration award. The petition was assigned to the Honorable Robert J. Moss. The Lehmans also filed a notice of related case, advising the Gross lawsuit was then pending in Judge Chaffee’s department. (Cal. Rules of Court, rule 3.300(a).)

On April 12, 2018, Hartwig and Gross (the latter designating himself as “Assignee for John Hartwig”) filed, but did not serve, a “notice of special appearance” and a “supplemental notice of special appearance” to oppose the Lehman petition to confirm the arbitration award. Judge Moss was scheduled to hear the Lehman petition the following day; on the hearing date, however, he determined the Gross lawsuit and the Lehman petition were related cases and transferred the Lehman petition to Judge Chaffee for all purposes.

On July 27, 2018, Judge Chaffee heard arguments on the Lehman petition and a variety of motions in the Gross lawsuit. The trial court issued detailed tentative rulings in advance of the hearing, which it adopted as its final rulings. First, Judge Chaffee granted the Lehman petition to confirm the arbitration award. He then determined the ruling on the Lehman petition mooted Gross’s request (filed in the Gross lawsuit) to consolidate his lawsuit with the Lehman petition. The balance of the trial court’s rulings concerned the defendants’ pleading challenges to the Gross lawsuit. As Hartwig was not a party to the Gross lawsuit, those rulings are not relevant to this appeal; we do not discuss them.

Judgment was entered in the Lehmans’ favor on the petition, and Hartwig timely filed a notice of appeal.

DISCUSSION

I.

THERE WAS NO CONSOLIDATION ORDER.

The linchpin of Hartwig’s appeal is Judge Moss’s April 13, 2018 minute order. Hartwig describes it as an order that consolidates the Lehman petition with the Gross lawsuit. It does not. The order simply deems the Lehman petition and the Gross lawsuit related.

Pursuant to rule 3.300(a) of the California Rules of Court, a pending civil action may be related to another civil action (whether still pending or already resolved by dismissal or judgment) if the two matters “[a]rise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact” or “[a]re likely for other reasons to require substantial duplication of judicial resources if heard by different judges.” (Id., rule 3.300(a)(2), (4).) An order to relate cases may be made only after service of a notice on all parties that identifies the potentially related cases. No written motion is required. (Id., rule 3.300(h)(1).) The Judicial Council provides a standard form for this purpose. When a trial court agrees the cases listed in the notice are related, all are typically assigned to the trial judge in whose department the first case was filed. (Id., rule 3.300(h)(1)(A).)

Related cases are not consolidated cases. Related cases maintain their separate identities, but are heard by the same trial judge. Consolidated cases, on the other hand, essentially merge and proceed under a single case number. A different procedure must be followed before a trial court orders the consolidation of civil actions. (Code Civ. Proc., § 1048; Cal. Rules of Court, rule 3.350.) Moreover, unless all parties in the involved cases stipulate, consolidation requires a written, noticed motion. (Cal. Rules of Court, rule 3.350(a); Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 514.)

Judge Moss’s order relating the cases did not constitute an order for consolidation. At oral argument on appeal, Hartwig’s appellate counsel conceded this point. The order was therefore not an impediment to the trial court’s consideration of the Lehman petition to confirm the arbitration award.

II.

THE TRIAL COURT PROPERLY GRANTED THE PETITION
TO CONFIRM THE ARBITRATION AWARD.

Judge Chaffee was not required to consider Gross’s motion to consolidate his lawsuit with the Lehman petition before confirming the arbitration award. Arbitration awards are confirmed, corrected or vacated in summary proceedings. When a petition to confirm an arbitration award meets all the statutory requirements (Code Civ. Proc., §§ 1285, 1285.4), the trial court is required to grant it unless an opposing party has filed and served a timely and meritorious response or petition to correct or vacate the award or dismiss the petition (Code Civ. Proc., § 1286; Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 9).

The deadline to file and serve either a response to a petition to confirm or a separate petition to vacate an arbitration award is 100 days after the award is served on the parties. (Code Civ. Proc., §§ 1288, 1288.2.) The “deadline for a petition to vacate is jurisdictional; noncompliance deprives a court of the power to vacate an award.” (Santa Monica College Faculty Assn. v. Santa Monica Community College Dist. (2015) 243 Cal.App.4th 538, 544; see Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211-1212 [“In the absence of such service and filing, the court has no option but to confirm the award if requested to do so within four years of its issuance”].)

Although Hartwig’s April 12, 2018 notice of special appearance did not raise any statutory grounds to vacate the arbitration award, the trial court gave him the benefit of the doubt and construed it as a petition to vacate the award. As such, Hartwig’s notice of special appearance was timely filed. But filing alone is not enough; Hartwig was also required to timely serve his special notice of appearance on the Lehmans. No proof of service was attached to the filing or presented to the trial court. On this basis, the trial court concluded Hartwig’s failure to demonstrate service meant he did not timely oppose confirming the arbitration award. The trial court did not err.

Despite this conclusion, the trial court addressed Hartwig’s objections to the Lehman petition. Instead of raising statutory grounds for opposing confirmation of the arbitration award (Code Civ. Proc., § 1286.2, subd. (a)), Hartwig argued the trial court lacked jurisdiction to rule on the Lehman petition because no summons had been issued.

A summons was not required. The parties’ arbitration agreement does not specify the manner of service for a petition to confirm the award. As the party who initiated the arbitration, however, Hartwig had already appeared in the proceedings. Accordingly, Code of Civil Procedure section 1290.4, subdivision (c) controls the manner of service of the Lehman petition to confirm the arbitration award: “If the arbitration agreement does not provide the manner in which such service shall be made and the person on whom service is to be made has previously appeared in the proceeding or has previously been served in accordance with subdivision (b) of this section, service shall be made in the manner provided in Chapter 5 (commencing with Section 1010) of Title 14 of Part 2 of this code.” The Lehmans left a copy of their petition to confirm the arbitration award at Hartwig’s home with his spouse, and then mailed a copy to him at the same address. This was sufficient. (Code Civ. Proc., §§ 1011-1013.)

Hartwig also contended the Lehman petition to confirm the arbitration award constituted improper venue shopping because the Gross lawsuit was filed first. The trial court found the Gross lawsuit could not be considered as a petition to vacate the arbitration decision “for the simple reason that there was no final arbitration award issued at the time the Complaint was filed (in August of 2017). The final award did not issue until seven months later in February of 2018 which is just when the Trust initiated the present action to confirm the award.” Hartwig does not pursue this argument on appeal. Again, the trial court did not err.

At oral argument, for the first time, Hartwig’s appellate counsel argued Hartwig’s rights in the arbitration proceeding were violated when the arbitrator ordered Gross not to engage in any activities constituting the practice of law without a license. Appellate counsel contends that ruling violated Hartwig’s rights under JAMS Comprehensive Arbitration Rules and Procedures, rule 12(a), which provides in relevant part: “The Parties, whether natural persons or legal entities such as corporations, LLCs or partnerships, may be represented by counsel or any other person of the Party’s choice. . . . The representative of a Party may act on the Party’s behalf in complying with these Rules.” Arguments on appeal made for the first time at oral argument will not be considered. (People v. Pena (2004) 32 Cal.4th 389, 403; Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1408; In re Marriage of Armato (2001) 88 Cal.App.4th 1030, 1047, fn. 1.)

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

DUNNING, J.*

WE CONCUR:

MOORE, ACTING P. J.

GOETHALS, J.

* Retired judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.