Horn v. Gurewitz

• Decision Date: 18 April 1968
• Citation: 67 Cal.Rptr. 791,261 Cal.App.2d 255
• Court: California Court of Appeals Court of Appeals
• Parties: Stephen HORN, Plaintiff and Respondent, v. Albert GUREWITZ, Defendant and Appellant. Civ. 23694.

Page 791

67 Cal.Rptr. 791

261 Cal.App.2d 255

Stephen HORN, Plaintiff and Respondent, v. Albert GUREWITZ, Defendant and Appellant.

Civ. 23694.

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

April 18, 1968.

Cerf, Robinson & Leland, San Francisco, for appellant.

Rubenstein & Hawkins, San Francisco, for respondent.

TAYLOR, Associate Justice.

On this appeal from a judgment confirming an arbitration award, the contentions are that no arbitration proceeding took place as only written agreements to arbitrate are enforceable; that the summary hearing of the trial court did not conform to the statute and prevented appellant from showing that he was deprived of due process of law.

Appellant and respondent are insurance brokers who became involved in a dispute over the payment of certain return commissions. These commissions in the amount of $1,424.28 became payable to the insured after certain policies, originally placed by respondent, were cancelled by appellant as the new broker for the insured. As the parties are members of the Insurance Brokers Association of California (hereafter Association), they orally agreed to submit their dispute to the Association's Grievance Committee (hereafter Committee) and likewise orally agreed to abide by the Committee's decision. At a duly noticed hearing on March 11, 1965, appellant and respondent personally submitted the matter to the eight-member Committee.

On March 15, 1965, the Committee rendered its written decision (set forth in full below) ¹ in favor of respondent. On November 9, 1965, respondent filed his verified petition for confirmation of the award, setting forth the above facts and attaching a copy of the Committee's decision quoted below.

Appellant's verified response to the petition conceded the existence of dispute and the oral agreement to submit the matter to the Committee, but averred that: he never consented or conceded that the Committee was acting as a board of arbitration or had any powers to so act; that he was never informed that the Committee would so act; he was not informed of his right to counsel or his right to have witnesses present; and, therefore, was deprived of an opportunity to present his evidence to the Committee. The trial court found that appellant's allegations were not true; that the Committee had acted as a board of arbitration in settling a dispute properly submitted, and entered its judgment confirming the award in favor of respondent.

Appellant's contention that only written agreements to arbitrate are enforceable misconstrues the import of the instant proceeding. The California Arbitration Act (Code Civ.Proc. §§ 1280--1294.2, hereafter statutes) encompasses two distinct kinds of proceedings: enforcement of agreements to arbitrate (Code Civ.Proc. §§ 1281--1281.6) and enforcement of written awards in disputes orally or otherwise submitted (Code Civ.Proc. §§ 1285--1287). The statutory definition of 'award,' as rewritten by the California Law Revision Commission in 1960 and enacted without change by the Legislature in 1961, provides: 'As used in this title: * * * (b) 'Award' includes but is not limited to an award made pursuant to an agreement not in writing.' (Code Civ.Proc. § 1280, subd. (b), as amended by Stats.1961, ch. 461, § 2, p. 1540.) Although the language has not previously been construed, the Law Revision Commission's comment (set forth below) ² leaves no doubt that the purpose of the 1961 amendment was to make enforceable written awards made pursuant to an oral agreement.

We turn next to the relevant portions of the statute relating to the enforcement of awards. Section 1285 provides: 'Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.' Significantly, this section is not limited to any particular kind of award, and can only be construed in accordance with the definition of 'award' quoted above. Section 1285.2 provides: 'A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.'

Sections 1285.4 and 1285.6 set forth the requisites of the petition and response which are identical. Each shall: '(a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the respondent denies the existence of such an agreement.

'(b) Set forth the names of the arbitrators.

'(c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.'

Appellant erroneously argues that the first requirement relating to the written agreement buttresses his contention that only written agreements are enforceable. A careful reading of the section, however, discloses that the requirement is either the substance of the agreement or a copy thereof, unless the existence of the agreement is denied. Here, the substance of the agreement was properly set forth by the petition, as was a copy of the written award. This interpretation of section 1285.6 is consistent with the above interpretation of section 1285 to include written awards based on oral agreements, like the one in the instant case.

Appellant also argues that the written award here was not an arbitration award as it was not specifically designated as such. However, all that the statute requires with respect to the form and contents of an award is set forth in section 1283.4 as follows: 'The award shall be in writing and signed by the arbitrators concurring therein. It shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.' The award in the instant case clearly meets each and all of the three requirements of this section.

Section 1285.8 provides that both the petition and response state the grounds for relief. Section 1286 then sets forth the extent of relief available as follows: 'If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.' The four alternatives are the only choices available to the court in a confirmation proceeding. Furthermore, the final alternative of dismissal is available only after the court determines that such person was not bound by the arbitration award and was not a party to the arbitration (Code Civ.Proc. § 1287.2; Murry v. Civil Service Employees Ins. Co., 254 A.C.A. 875, 62 Cal.Rptr. 659). Obviously, appellant here, having admitted submission of the dispute, is not such a person. In view of the admitted submission, appellant's argument that he had no choice in the selection of the arbitrators, is equally without merit.

As appellant does not claim that the award before us should be corrected, he necessarily is asking that the award be vacated. However, vacation of an award may be had in a confirmation proceeding only on proof of one of five statutory grounds set forth in section 1286.2, quoted below. ³ An examination of these grounds indicates that appellant is relying only on the last one.

This brings us to his contention that the court, by failing to follow the proper procedure required by section 1290.2 (set forth below), ⁴ deprived him of an opportunity to show that he was deprived of due process at the proceedings before the Committee. Appellant erroneously argues that the use of the term 'summary proceedings' required the court to obtain affidavits as in proceedings on a motion for summary judgment. We note, however, that the 1961 enactment of section 1190.2 left unchanged the substance of the prior statute ⁵ under which it was held that unless evidence is proffered, the hearing is presumed to have been conducted without error in the exclusion of evidence (Beckett v. Kaynar Mfg. Co., Inc., 49 Cal.2d 695, 321 P.2d 749). The record does not indicate that appellant made any offer to indicate to the trial court what evidence had been excluded to his detriment. As on this appeal, he maintained that he did not know the Committee proceedings were arbitration. The trial court chose to believe respondent's assertion that the submission was made with the knowledge that the Committee would act as a...