Case Number: 19STCP01306 Hearing Date: December 13, 2019 Dept: 47

Michael Fletcher v. Matthew Fletcher, et al.

MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Plaintiff Michael Fletcher

RESPONDING PARTY(S): Defendant County of Los Angeles, erroneously sued as Los Angeles County Child Support Services Dept.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff holds the legal title to a piece of real property on which the County asserts a lien based on child support Plaintiff owes. He seeks a declaratory judgment that Defendant Matthew Fletcher is the equitable owner of the property and that his ownership is free of the lien asserted by the County. He also seeks damages, including punitive damages.

Plaintiff moves for judgment on the pleadings.

TENTATIVE RULING:

On the Court’s own motion, Plaintiff Michael Fletcher’s motion for judgment on the pleadings is CONTINUED to January 14, 2020, at 8:30 a.m. NO FURTHER BRIEFING IS ALLOWED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 13, 2019 ___________________________________

Randolph M. Hammock

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.

Case Number: 19STCP02549 Hearing Date: December 16, 2019 Dept: 24

Petitioner Loren K Israel LLC’s petition to Vacate the Final Arbitration Award is DENIED. Respondent Selma Records LLC’s request to confirm the award is GRANTED. Respondent has not demonstrated a basis for the requested attorneys’ fees.

On December 29, 2017, Petitioner Loren K Israel LLC (“Petitioner” or “Israel”) filed the instant petition to vacate a contractual arbitration award.

According to Israel’s arbitration claim, Respondent Selma Records LLC (“Respondent” or “Selma”) hired Israel, a music industry producer specializing in the development of artists, to develop singer-songwriter James Mason (“Mason”) into a successful songwriter with hits on the music charts. Selma was to pay Israel $250,000.00 over a six-month period. Although Selma paid Israel $100,000.00 through April, 2018, it unilaterally repudiated the agreement and failed to make additional payments. Petitioner brought a claim for breach of contract to JAMS.

Respondent answered and filed a counter claim in the arbitration, claiming that under the agreement Israel was to provide specific services to Mason, including song writer training, promotional and branding training/instruction, direction for theme-building on album artwork, and public relations instructions, after acceptable songs were written and recorded by Mason. Respondent claimed that Petitioner breached these provisions and stopped paying for that reason. Respondent sought to recover the previously paid $100,000.00. Claimant denied it breached the contract and asserting several affirmative defenses.

On February 12, 2019, Hon. Rosalyn Chapman (Ret.) (the “Arbitrator”) presided over the evidentiary hearing. On March 13, 2019, the Arbitrator issued an award of $108,749.66 against Petitioner in favor of Respondent.

On June 21, 2019, Petitioner moved to vacate the arbitration award. On July 19, 2019, Respondent filed an opposition. On December 6, 2019, Petitioner filed a reply.

Legal Standard

When an arbitrator has issued an award, the decision is ordinarily final and not reviewable for error by the trial court. (Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 72.) The exceptions to this rule of finality are specified by statute. (Ibid.) Grounds for vacating an award include: (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. (CCP § 1286.2(a).) “On its face, the statute leaves no room for discretion. If a statutory ground for vacating the award exists, the trial court must vacate the award.” (Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 845.)

Timeliness

A request to vacate or correct an arbitration award must be “served and filed” within 100 days of service of the award. (CCP § 1288.) “In order to comply with the purpose of expeditious resolution of disputes through arbitration, time limits in which to challenge arbitration awards must be strictly enforced.” (Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 395.) Service of a petition within California shall be made in the manner provided by law for the service of a summons, unless provided for by contract. (CCP §1290.4(b)(1).) The timing requirements for filing and serving a petition to vacate an arbitration award are jurisdictional. (Abers v. Rohrs (2013) 217 Cal.App.4th 1119, 1212; Knass, supra, 228 Cal.App.3d at 395[section 1288’s timing requirements must be strictly enforced]; Santa Monica Coll. Faculty Assn. v. Santa Monica Cmty. Coll. Dist. (2015) 243 Cal.App.4th 538, 545 [“the filing and service deadline for a petition to vacate is jurisdictional; noncompliance deprives a court of the power to vacate an award unless the party has timely requested vacation.”].) Section 1286.4 expressly limits the court’s power to vacate an award, stating that a “court may not vacate an award unless… a petition or response requesting the award be vacated has been duly served and filed…”

Here, the Petition to vacate was untimely. As noted above, a request to vacate or correct an arbitration award must be “served and filed” within 100 days of service of the award. (CCP § 1288; see also CCP § 1286.4 [“[t]he court may not vacate an award unless: (a) A petition [to vacate] has been duly served and filed].) “The requirements for serving a petition to vacate an arbitration award are governed by section 1290.4 which specifies that “[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…” (Abers, supra, 217 Cal.App.4th at 1205 [emphasis added].) The statute therefore explicitly requires service of 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.

The Petition alleges that the Final Award was served on March 13, 2019. (Pet. ¶ 9.) Therefore, the 100-day period expired on June 21, 2019. (CCP § 1288.8.) Respondent offers an expiration date of July 7, 2019, 100 days after the Arbitrator’s final ruling on Petitioner’s request for correction dated March 29, 2019. Under either calculation, the petition was untimely served.

Service was not complete until written notice of the time and place of the hearing was given. (CCP § 1290.4(a).) According to the initial proofs of service, Petitioner only served the Petition, the memorandum of points and authorities, and the Cooper declaration on June 20, 2019. According to Petitioner’s July 26, 2019 notice of hearing, Petitioner gave notice of the hearing on July 25, 2019. Therefore, the instant petition was untimely.

Petitioner admits that it failed to provide the statutorily required “written notice of the time and place of the hearing. Petitioner simply argues that it did not have to, in direct contravention of the explicit language found in CCP section 1290.4. Petitioner unhelpfully cites to CCP section 1290.2, which requires at least 10 days’ notice of the hearing date. Petitioner does not explain how a statute providing at least 10 days’ notice for the hearing would save their untimely petition.

Therefore, the Court is without jurisdiction to rule on the petition to vacate. Accordingly, Petitioner’s motion to vacate is DENIED.

Merits

Alternatively, the Court would deny the motion on the merits. Petitioner brings the following grounds for vacating the Final Arbitration Award. (Pet., Ex. A [the “Final Award”].) Petitioner cites the following grounds: 1) the arbitrator exceeded her authority by excusing Selma from sending a notice of termination pursuant to section 15(b) of the contract and considering an argument that Selma did not raise in violation of JAMS rules (CCP § 1286.2(a)(4)); 2) the arbitrator exceeded her authority by unilaterally re-writing the contract regarding the start of the performance while considering parol evidence, and by holding that Israel was in breach because he did not reasonably adapt to Mason’s requirements and work with third parties, both of which are akin to arbitrarily remaking the contract (CCP § 1286.2(a)(4)); and 3) the arbitrator failed to consider the testimony of Messenger and Heller (CCP § 1286.2(a)(5)). The Court does not find justification for vacating the award on any of these cited grounds.

CCP section 1286.2(a)(4)

First, Israel contends that the arbitrator violated the rules of arbitration by considering a defense that Israel did not raise. Petitioner argues that by excusing Selma from the section 15(b) notice, the arbitrator denied Israel the right to rely on the written standard found in section 15 of the contract. Petitioner insists that this is an arbitrary remaking of the contract. (See Pac. Gas & Elec. Co. (1993) 15 Cal.App.4th 576, 592.) However, Petitioner mischaracterizes the findings of the arbitrator. The arbitrator did not determine any issues that Petitioner did not have notice of. Principally, this is because the arbitrator made a mere factual finding that Respondent was excused from performance, including section 15(c), due to Petitioner’s breach. (See Brown v. Grimes (2011) 192 Cal.App.4th 265, 277 [the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact].)

Interestingly, Petitioner’s arbitration claim was based on its position that Respondent repudiated the contract on April 26. To put it simply: Petitioner put this at issue. Petitioner simply disagrees with the fact that the Arbitrator found that the repudiation was justified based on the evidence before her. This is not the type of conduct that provides grounds for vacatur under CCP section 1286.2(a)(4). The Court cannot state that the arbitrator exceeded her authority by adjudicating the facts presented by both parties and applying the law to those facts.

Nor can the Court state that this was even a modification of the contract, as the arbitrator did not remove section 15, she only held that Respondent was excused from performance. (See Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1185 [to excuse performance of a contract term in a specific factual setting is not to modify or change the term.].) Further, the Court should also note that it appears the arbitration record shows Respondent did comply with section 15 in June 2018, and that the parties were in negotiations starting on April 26, 2018 regarding the disputed breaches.

Petitioner additional contentions regarding modification are equally without merit for the same reason. First, this appears to be a clear question of law of contractual interpretation that was properly before the arbitrator. It has long been held that interpretation of a written instrument is essentially a judicial function. (Parsons v. Bristol Dev. Co. (1965) 62 Cal.2d 861, 865.) Moreover, “[C]ourts will not review the arbitrator’s reasoning or the sufficiency of the evidence supporting the award.” (Cooper v. Lavely & Singer Prof’l Corp. (2014) 230 Cal.App.4th 1, 12.) The Court cannot hold that the arbitrator exceeded her authority by interpreting the contract. (Final Award, at 8-9.)

The arbitrator properly took parol evidence to determine the duties of the parties pursuant to clearly ambiguous terms of the contract. (See Parsons, supra, 62 Cal.2d at 865 [discussing when extrinsic (parol) evidence is admissible].) The arbitrator properly determined that the terms of the services Israel was to provide to Mason were ambiguous. In fact, the Court would go so far as to concur with the arbitrator that the terms were ambiguous. (See Pet., Ex. B, Schedule A (the “Description of Services”).) The Description of services has simply general terms that “[d]uring April and May 2018 and as [Israel] deems appropriate thereafter, Consultant will provide [Mason] with songwriter training and production models.” (Ibid.) Each “service” has similarly ambiguous terms. How an arbitrator was to determine what those services reasonably entailed without parol evidence is left to the imagination.

Critical to this disposition is that the Arbitrator did not base her award solely on the fact Israel should have provided services to Kaufmann, a non-party, or that the parties started earlier than their stated intentions in the terms of the contract. The Final Award makes no suggestion that this formed the sole basis of the breach. Thus, even if the Court were to interpret those acts as modifications, they were not material to the Final Award and caused no prejudice to Petitioner. The Final Award notes that Selma’s repudiation of the contract was justified because Israel breached the contract. Importantly, the Arbitrator found a breach because Israel never satisfactorily performed under the contract at any point in time, including during April 2018. (Final Award, at 15-16.) Thus, even if Petitioner is correct and the proper interpretation of the contract was that he had no duty prior to April 2018 or to provide services to a third party, the Arbitrator’s factual finding a breach of contract is still supported by the record and cannot be disturbed by this Court.

According to the Arbitrator, the Agreement required Petitioner to “reasonably and diligently adapt[] his teaching technique.” (Final Award, at 16.) The Arbitrator found that Petitioner’s actions constituted only “minimal efforts,” well below the best efforts that the Arbitrator determined the contract required. The Court cannot dispute the Arbitrator’s conclusions of law and findings of fact. Therefore, Petitioner fails to show how vacatur is appropriate under these facts.

CCP section 1286.2(a)(5)

Lastly, Petitioner asserts that the Arbitrator improperly refused to allow it to call certain witnesses. However, the record clearly shows that Petitioner elected not to call at the evidentiary hearing, despite the fact that both witnesses were on petitioner’s case-in-chief witness list. The record does not show that Petitioner was denied the opportunity to present this evidence. The record instead shows that Petitioner simply chose not to. (See Final Award, at 3 [“Although other rebuttal witnesses were present, and available to testify, Claimant decided not to call those witnesses and rested its case”].) When Petitioner realized that this may have been a tactical error on its part, it requested re-opening of the hearing. The Arbitrator determined that Petitioner waived calling additional witnesses in its Final Award and noted that Petitioner was given the opportunity to present those witnesses. (Ibid.)

As stated by Petitioner’s authority: “Notice and an opportunity to be heard are essential ingredients to a fair hearing, and these principles apply to arbitration hearings.” (Emerald Aero, LLC v. Kaplan (2017) 9 Cal.App.5th, 1125,1142.) Petitioner was given such notice and an opportunity to be heard. The record does not show that the arbitrator refused to hear the evidence, since Petitioner was given the opportunity to present those witnesses. To the extent that Petitioner was prejudiced by this, it has itself to blame.

Accordingly, the petition to vacate is DENIED.

The Court Must Confirm the Award

Further, CCP § 1286 states: 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 proceedings.

Here, Petitioner brought a petition to vacate the award. The award was not vacated or corrected. Therefore, the Court must confirm the award and render judgment in in conformity with the Final Award. (CCP § 1287.4.) Petitioner does not dispute that post-award interest should be included in this judgment. (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 27 [“a successful party to arbitration is entitled to post-award, pre-judgment interest under Civil Code section 3287, subdivision (a)”].)

Attorneys’ Fees

Respondent requests that the Court award fees for opposing this motion, per the arbitration agreement. However, the parties’ arbitration clause states that the parties will bear their own attorney’s fees and costs. (Pet., Ex. B § 16 [“Each Party will pay its own costs and attorneys’ fees, if any.”].) Further, Respondent does not notice any amount or provide a factual basis for any fees actually incurred. Accordingly, Respondent’s unsupported request for attorneys’ fees is DENIED.

Moving party is ordered to give notice.