Case Number: BC453450 Hearing Date: June 16, 2014 Dept: 73

Department 73
Rafael A. Ongkeko, Judge presiding

WINDSOR, etc., et al.
Plaintiff(s),
v.
TAYLOR, ET AL.
Defendant(s).

Case No.: BC453450

Hearing Date: 6/16/14

[TENTATIVE] RULING RE:
Plaintiffs’ Petition to Vacate Contractual Arbitration Award

Counsel for plaintiffs/petitioners: Motaz Gerges
Counsel for defendants/respondents /opposing party: Marc Schwartz

The petition (filed 2/13/14) of plaintiffs to vacate contractual arbitration award is GRANTED.

Plaintiffs’ objection to the entirety of the declaration of Marc Schwartz and Exhibits B and C is overruled.

Plaintiffs seek to vacate the award of arbitrator on the ground that the arbitrator exceeded his authority, and the award cannot be fairly corrected. CCP § 1286.2(a)(4)

On 11/1/13, the arbitrator was scheduled to hear defendants’ motion for summary judgment, to which plaintiffs previously had filed written opposition. There was apparently a payment problem on plaintiffs’ part causing a case administrator handling the file on behalf of the arbitrator to warn the parties that the “opposition to [the MSJ] will be disregarded” if the payments were not made. On 10/30/13, two days before the MSJ hearing, plaintiffs requested, and obtained, a clerk’s entry of their voluntary dismissal of the entire action, without prejudice. On 11/1/13, the arbitrator agreed with defendants that regardless of the dismissal’s filing, the arbitrator had jurisdiction to go forward with the MSJ. At the hearing held on 11/1/13, the arbitrator took the time to contact plaintiffs’ counsel, who then appeared by telephone. There is no evidence that the arbitrator’s ruling was known at any time before the 21-page decision was issued (on 11/14/13). Based on the arbitrator’s award, the case administrator’s threat to disregard plaintiff’s opposition was itself disregarded by the arbitrator, who considered the opposition and incorporated plaintiffs’ version of disputed material facts into his order. Plaintiffs contend that their dismissal of the case two days before the MSJ precluded the arbitrator from hearing the MSJ and issuing any award at all. The court agrees.

“A plaintiff has the right to dismiss a defendant or an entire action without prejudice before the commencement of trial. (Code Civ. Proc., § 581, subds. (b), (c).) When a dismissal has properly been filed, the trial court loses jurisdiction to act in the case.” Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 542 (reversing a trial court’s grant of summary judgment even where a dismissal had been filed one day before an unopposed MSJ, because there was good reason not to file opposition).

When a summary judgment motion is involved, the timeliness of a dismissal is suspect if defendants had met their burden and plaintiff failed to file opposition, making the ruling a mere formality (Cravens). Search as the court may, there is no evidence of the arbitrator’s ruling being a foregone conclusion. The cases show that there may be other exceptions, but as indicated above, there is no evidence to support them, such as a tentative ruling against plaintiff or other circumstances that would lead the court to reject the dismissal as improperly filed. Even the case administrator’s threat (even assuming it was also that of the arbitrator) to not consider the opposition, was ignored at the hearing (the arbitrator went through the trouble of calling plaintiffs’ counsel to appear at the hearing) and, later, incorporated plaintiffs’ opposition in the arbitrator’s decision. The evidence does not show the award against plaintiffs was inevitable.

The dismissal without prejudice was timely. If a trial court can be deprived of jurisdiction one day before the MSJ as in the Tire Distributors case where there was good reason not to file opposition, so should an arbitrator be deprived of such jurisdiction when an opposition in fact has been filed and no other evidence of unusual circumstances has been shown. While a certified or other acceptable, copy, of a file-stamped dismissal was not yet available, the record now reflects that the dismissal was filed and entered before both the hearing and the arbitrator’s later decision. In any event, the physical presence of the actual dismissal by the clerk was not material to the arbitrator who nevertheless believed he had jurisdiction.

The requested sanctions are denied.

Unless waived, notice of ruling by moving party, who shall prepare the order consistent with the above.