Forrest v. Hotel Conquistador, Inc.

• Decision Date: 29 June 1961
• Court: California Court of Appeals Court of Appeals
• Parties: , 43 Lab.Cas. P 50,322 In the Matter of the Arbitration Between Sally FORREST and HOTEL CONQUISTADOR, INC., and T. M. Schimberg. Sally FORREST, Respondent, v. HOTEL CONQUISTADOR, INC., and T. M. Schimberg, Appellants. Civ. 25153.

Page 349

14 Cal.Rptr. 349

193 Cal.App.2d 503, 43 Lab.Cas. P 50,322

In the Matter of the Arbitration Between Sally FORREST

and

HOTEL CONQUISTADOR, INC., and T. M. Schimberg.

Sally FORREST, Respondent, v. HOTEL CONQUISTADOR, INC., and T. M. Schimberg, Appellants.

Civ. 25153.

District Court of Appeal, Second District, Division 2, California.

June 29, 1961.

Leo K. Gold and Jacques Leslie, Beverly Hills, for appellants.

Ward, Ryan, Heyler & Traxler, by Charles A. Druten, Beverly Hills, for respondent.

ASHBURN, Justice.

This is an appeal by defendants Hotel Conquistador, Inc. and T. M. Schimberg, from a judgment entered pursuant to an order confirming an award of arbitrators. Appellants' major contention is that the arbitrators were without jurisdiction because the contract between the parties required the arbitration to be conducted by American Guild of Variety Artists but this one was held by American Arbitration Association over the objection of appellants.

On January 7, 1958, respondent Sally Forrest entered into a written contract with appellants whereby she was engaged as a performer at the Hotel Tropicana in Las Vegas, Nevada, for a period of four weeks at $3,500 per week. This was an 'AGVA Standard Form of Artists Engagement Contract.' AGVA is an abbreviation of American Guild of Variety Artists, a voluntary association organized under the laws of the State of New York whose membership consists of actors, singers, dancers and other performers in the variety fields of entertainment. This agreement provides in paragraph 10: 'The Employer and the Artist hereby jointly and severally agree that any and all controversies or claims arising out of or relating to this contract or the breach thereof shall be settled by arbitration, in accordance with the rules then obtaining of the American Arbitration Association (except as may otherwise be provided in the AGVA Rules), and judgment upon the award rendered may be entered in the highest court of the forum, state or federal, having jurisdiction * * *.'

On September 4, 1958, Sally Forrest signed an AGVA 'Complaint Form' with reference to the contract with appellants, which complaint among other things authorized AGVA to take such steps as it might deem necessary to settle the complaint and to protect her rights thereunder including, if necessary, the institution of arbitration proceedings on her behalf. But AGVA took no steps whatever to bring about an arbitration.

On December 19, 1958, Sally Forrest filed with the American Arbitration Association (hereinafter referred to as AAA) her Demand for Arbitration. This Demand contained the following: 'Claimant requests that the hearing of this arbitration be held in the Los Angeles area.' By letter dated December 23, 1958, the Tribunal Clerk of the AAA advised appellants of the demand of Forrest and also stated: 'The contract does not designate the locality where the Arbitration is to be held. The claimant in her demand has requested it be held in the Los Angeles area. The attention of Hotel Conquistador is called to Section 10 of the Rules, herewith enclosed. Unless we hear to the contrary within the prescribed time, the hearing will be held as requested and a list of Arbitrators from this area will go forth from which you may indicate your preference.' Section 10 of the Commercial Rules of the AAA provides in part: 'In the event * * * that any party requests that the hearing be held in a specific locale and the other party files no objection thereto, within seven days after notice of the request, the locale shall be that requested by the party.'

Time for Conquistador and Schimberg to file an answer to the demand for arbitration having been extended, same was received by AAA on January 22, 1959. This Answer admits the making of the contract and alleges in effect that respondent breached the same. No objection or reference of any kind was made to respondent's request for hearing in the Los Angeles area.

On January 23 the AAA transmitted to the parties identical lists of persons from which three arbitrators were to be selected in accordance with Section 12 of its Rules, ¹ each party being instructed to cross off any names to which they objected and to return the list on or before January 30 to the Tribunal Clerk, who would select three arbitrators from those names remaining on the list. The parties were advised that 'Unless this List is received by the Tribunal Clerk within the time specified, all persons named herein shall be deemed acceptable. * * * If the Parties fail to agree upon any of the names, * * * or if for any other reason the appointment cannot be made from the submitted list, the Administrator is authorized to make the appointment from other members of the Panels pursuant to Rule IV.' Sally Forrest returned her selection on January 29, 1959. Appellants did not return the list but, rather, on January 28, by a document entitled 'Objection to Selection of Arbitrators and Supplemental Answer' made their objection to the entire list of arbitrators submitted for the reason that 'said list contains persons solely from the Los Angeles area. As the contract in dispute was executed in Nevada, was to be performed in Nevada and is subject to Nevada law, Hotel Conquistador, Inc. objects to the entire list.' It is also asserted that the AAA did not comply with its Section 12 requiring it to transmit the list 'immediately after the filing of the * * * Demand,' thus it was not fully informed when its Answer was filed, and request was made that the hearing be held in the Las Vegas area. On January 30 the Tribunal Clerk ruled that appellants' objection to the locale was not timely, but 'To afford the Hotel Conquistador full opportunity to participate in the selection of Arbitrators, the Administrator by authority of Section 38 of the Rules is herewith extending the time for the return of the list to seven days from this date.' Appellants did not return the list but, on or about February 6, renewed their objection to the entire list of arbitrators. On February 13, the Tribunal Clerk advised appellants: 'The selection of the locale and the submission of lists of arbitrators was all done in strict conformity with our Rules and procedures. Hotel Conquistador had notice of and ample opportunity to make known its position regarding both locale and the complexion of the Board, and failed to do so in timely fashion as required by our Rules and procedures. The locale and list stand as determined and submitted unless both parties to the proceeding agree otherwise.'

The AAA selected three arbitrators from the six selected on the list returned by Sally Forrest. An arbitration hearing was had on November 11, 1959, resulting in an award in favor of respondent in the sum of $14,455. This award was confirmed and the appeal is from the judgment entered thereon on June 2, 1960. Appellants' motion to vacate the award was denied.

As above stated, appellants' principal contention is that the AAA had no jurisdiction to hear and determine the dispute, their theory being that Section 10 of the contract does not contemplate an arbitration by the AAA, i. e., using its facilities, but, rather, it provides for the arbitration to be conducted by the AGVA in accordance with the rules of the AAA, 'except as may otherwise be provided in the AGVA Rules.' Reference is also made to paragraph 4 of the contract which provides: 'The Artist(s) and the Employer hereby jointly and severally agree that the Artist's obligations...