Case Number: EC061987 Hearing Date: May 23, 2014 Dept: B

Petition for Appointment of Neutral Arbitrator

This case arises from the Plaintiff’s claim that the Defendant breached a purchase agreement for real property. No trial is set because the parties filed a stipulation to stay the case while they submit this dispute to arbitration. A post arbitration status conference is set for August 11, 2014.

This hearing concerns the Defendant’s motion to appoint a neutral arbitrator for the arbitration. CCP section 1281.6 identifies the following procedures for selecting an arbitrator. First, if the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. Second, if the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. Third, in the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the Court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

In addition, section 1281.6 states that when a petition is made to the Court to appoint a neutral arbitrator, the Court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the Court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the Court shall appoint the arbitrator from the nominees.

The parties have been unable to select an arbitrator. Both sides also agree that the purchase agreement does not provide any method for selecting an arbitrator. A review of paragraph 34B reveals that it requires disputes to be decided by binding arbitration; however, it does not identify a method for selecting an arbitrator.

Accordingly, under section 1281.6, the Court may appoint an arbitrator by nominating five persons from lists of persons supplied by the parties, obtained from a governmental agency concerned with arbitration, or private disinterested association concerned with arbitration. The Defendant has provided the following list of six persons in exhibit B to their motion:

1) Kenneth Feingold
2) Mark Loeterman
3) Christine Page
4) Anita Rae Shapiro
5) Deborah Rothman (replaced in reply by Paul Jeffrey Carter).
6) Joan Kessler

In their reply, the Defendant replaced Deborah Rothman with Paul Jeffrey Carter. Also, the Defendant provides information about the persons on his list in exhibits B, C, D, and E.

The Plaintiff provides the following list of persons on page 3 of their response:

1) Gregory O’Brien, Ret. Judge;
2) Lawrence Crispo, Ret. Judge;
3) Victor Person, Ret. Judge;
4) George Calkins, Esq.;
5) Lawrence Teplin, Esq.;
6) Joyce Fahey, Ret. Judge; and
7) Andrew Kauffman, Ret. Judge.

The Plaintiff did not provide any information about the persons on his list.

Accordingly, the Court hereby nominates five persons from these lists or a government agency or private association. The Court

1. The Hon. Lawrence Crispo, retired
2. The Hon. Victor Person, retired
3. Kenneth Feingold
4. Joan Kessler
5. The Hon. Gregory O’Brien, retired

Within five days from today’s date the parties shall jointly select one of the five Court nominees above. An Order to Show Cause regarding the appointment of an arbitrator will be heard on May 30, 2014, five court days after this nomination hearing. If the parties select an arbitrator before the OSC, and so notify the Court, then the OSC will be discharged and no appearances are necessary. If the parties do not select an arbitrator, then the Court may select an arbitrator from the five nominees at the May 30, 2014 hearing regarding the appointment of an arbitrator.