Jones v. Kvistad

CourtCalifornia Court of Appeals
Writing for the CourtMOLINARI
Citation97 Cal.Rptr. 100,19 Cal.App.3d 836
PartiesAudree L. JONES, Plaintiff and Appellant, v. David KVISTAD, doing business as Kvistad Construction Company, defendant and Respondent. David KVISTAD, Plaintiff and Respondent, v. Audree L. JONES, Defendant and Appellant. Civ. 27233.
Decision Date03 September 1971

Page 100

97 Cal.Rptr. 100
19 Cal.App.3d 836
Audree L. JONES, Plaintiff and Appellant,
v.
David KVISTAD, doing business as Kvistad Construction Company, defendant and Respondent.
David KVISTAD, Plaintiff and Respondent,
v.
Audree L. JONES, Defendant and Appellant.
Civ. 27233.
Court of Appeal, First District, Division 1, California.
Sept. 3, 1971.

Page 102

[19 Cal.App.3d 839] John J. Ford, III, San Francisco, for appellant.

Stanley W. Blackfield, Hayward, Douglas & McEnhill, Crosby, Heafey, Roach & May, Professional Corp., Oakland, for respondent.

MOLINARI, Presiding Justice.

This is an appeal by Audree L. Jones (hereinafter 'Jones') from judgment entered on an arbitrators' award. 1

Page 103

Jones contracted with David Kvistad (hereinafter 'Kvistad') to construct an apartment house according to plans and specifications drawn by Jones' architect. Construction was commenced and substantially completed. Jones claimed that the construction was not in exact conformity with the architect's plans and instituted an action against Kvistad for breach of contract. Kvistad brought a separate action to foreclose a mechanic's lien. The two actions were consolidated and, on agreement of counsel for the respective parties, the matter was submitted to arbitration.

Following arbitration proceedings the arbitrators made their award determining that after credits and offsets Kvistad was entitled to the sum of $7,419.53. The award reflected that among the credits to which Jones was entitled was the sum of $8,194.82 representing the value of the work done by another contractor to correct deficiencies and to repair water damage, and the value of uncompleted contract work.

Kvistad, pursuant to Code of Civil Procedure section 1285, 2 filed a petition in the court below to confirm the award. Jones thereupon filed a response in which she prayed that the award be modified in certain particulars. Among the modifications sought was a request that the court 'Correct the valuations * * * to show an additional $75,000 damages attributable to the general contractor.' At the hearing of said petition one of the arbitrators testified that the three arbitrators had agreed that the property had [19 Cal.App.3d 840] depreciated in value to the extent of $75,000 by reason of the improper construction, but that neither this amount nor the reduced market value of the building was reflected in the award because the market value of the building was not a matter for arbitration.

The trial court made its order confirming the award as made by the arbitrators. In said order the court found that the arbitrators did not consider the depreciation in the market value of the building to be within the scope of the arbitration, and specifically determined that such was not an issue embodied in the arbitration agreement. A judgment confirming the award was thereupon entered ordering that Kvistad recover from Jones the sum of $7,419.53, together with costs.

Jones contends that the arbitrators improperly excluded the depreciation in market value of the building in awarding damages. She urges that we should modify the award to reflect a credit in her favor in the amount of $75,000, or, in the alternative, that we should reverse the order with directions that the arbitrators decide the issue of the reduction in the market value of the building.

Before reaching the merits of Jones' contention we observe that an award that has not been confirmed or vacated has the force and effect of a contract in writing between the parties to the arbitration (§ 1287.6), and that it becomes a judgment if a court grants a petition to confirm it. (§ 1285; Walter v. National Indem. Co., 3 Cal.App.3d 630, 634, 83 Cal.Rptr. 803.) When an award has been made any party to an arbitration may seek to confirm it; if a party is dissatisfied with the award he may petition the court to correct or vacate it. (§§ 1285; 1285.2.) Accordingly, where an arbitration award has been made, the superior court is limited in the extent of the relief it may grant. It may confirm the award as made or correct the award and confirm it as corrected, or it may vacate the award. 3 (§ 1286; Beckett v. Kaynar Mfg. Co., Inc., 49 Cal.2d 695, 698, 321 P.2d 749.) If the award is confirmed, judgment must be entered in conformity therewith. (§ 1287.4.)

It is well settled that every intendment will be indulged to give effect to arbitration proceedings (Ulene v. Murray Millman of California, Inc., 175 Cal.App.2d 655, 660, 346 P.2d 494; Riley v. Pig'n

Page 104

Whistle Candy Co., 109 Cal.App.2d 650, 650--651, 241 P.2d 294), and that when an award is made on an unqualified submission the findings of the arbitrators on questions of law as well as on questions of fact are final and conclusive and may not be reviewed by the courts except as provided by statute. (Crofoot v. Blair Holdings Corp., 119 Cal.App.2d 156, 186, 260 P.2d [19 Cal.App.3d 841] 156; B.S.B Constr. Co. v. Rex Constr. Co., 200 Cal.App.2d 327, 334, 19 Cal.Rptr. 167; Hohn v. Hohn, supra, 229 Cal.App.2d 336, 343, 40 Cal.Rptr. 125.)

In the present case Kvistad petitioned to confirm the award and Jones, by her response, pursuant to section 1285.2, sought to correct the award. Jones' response did not seek to vacate the award, although, on this appeal for the first time, Jones appears to assert that such was the nature of her petition by way of response. The sole grounds for correcting an arbitrators' award are found in section 1286.6 and a dissatisfied litigant is limited thereto. (Durand v. Wilshire Ins. Co., 270 Cal.App.2d 58, 60, 75 Cal.Rptr. 415; see Ulene v. Murray Millman of California, Inc., supra, 175 Cal.App.2d 655, 660--661, 346 P.2d 494.) That section provides that an award may be corrected and confirmed as corrected '* * * if the court determines that: (a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or (c) The award is imperfect in a matter of form, not affecting the merits of the controversy.'

The thrust of Jones' contention on appeal is that the arbitrations failed to find on the issue of depreciation of market value. This contention is not embraced within any of the subdivisions of section 1286.6. Clearly it is beyond the purview of subdivisions (a) and (c), and most certainly it is not a matter...

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41 practice notes
  • Service Employees International Union v. County of Napa, AFL-CI
    • United States
    • California Court of Appeals
    • December 19, 1979
    ...their employees Page 815 to a private person arbitrator from whose decision there is ordinarily no appeal. (See Jones v. Kvistad (1971) 19 Cal.App.3d 836, 842-843, 97 Cal.Rptr. 100; Shammas v. National Telefilm Associates (1970) 11 Cal.App.3d 1050, 1056, 90 Cal.Rptr. No contrary implication......
  • Moncharsh v. Heily & Blase, No. S020997
    • United States
    • United States State Supreme Court (California)
    • July 30, 1992
    ...Cal.Rptr. 909; State Farm Mut. Auto. Ins. Co. v. Guleserian (1972) 28 Cal.App.3d 397, 402, 104 Cal.Rptr. 683; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840-843, 97 Cal.Rptr. 100; Allen v. Interinsurance Exchange (1969) 275 Cal.App.2d 636, 641, 80 Cal.Rptr. 247; Durand v. Wilshire Ins. Co. ......
  • Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
    • United States
    • California Court of Appeals
    • January 20, 1977
    ...work and not the difference between the value of the property and its value had the improvements been constructed. (Jones v. Kvistad, 19 Cal.App.3d 836, 843, 97 Cal.Rptr. 100; Kitchel v. Acree, 216 Cal.App.2d 119, 123, 30 Cal.Rptr. 714; Shell v. Schmidt, 164 Cal.App.2d 350, 357--366, 330 P.......
  • Davis v. Kitt Energy Corp., No. 17668
    • United States
    • Supreme Court of West Virginia
    • December 21, 1987
    ...Pacific Co., 338 F.2d 655 (9th Cir.Or.1964), cert. denied 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965); Jones v. Kvistad, 19 Cal.App.3d 836, 97 Cal.Rptr. 100 (1st Dist.1971); General Constr. Co. v. Hering Realty Co., 201 F.Supp. 487 (E.D.S.C.1962) app. dismd. 312 F.2d 538 (4th Cir.S.C......
  • Request a trial to view additional results
41 cases
  • Service Employees International Union v. County of Napa, AFL-CI
    • United States
    • California Court of Appeals
    • December 19, 1979
    ...their employees Page 815 to a private person arbitrator from whose decision there is ordinarily no appeal. (See Jones v. Kvistad (1971) 19 Cal.App.3d 836, 842-843, 97 Cal.Rptr. 100; Shammas v. National Telefilm Associates (1970) 11 Cal.App.3d 1050, 1056, 90 Cal.Rptr. No contrary implication......
  • Moncharsh v. Heily & Blase, No. S020997
    • United States
    • United States State Supreme Court (California)
    • July 30, 1992
    ...Cal.Rptr. 909; State Farm Mut. Auto. Ins. Co. v. Guleserian (1972) 28 Cal.App.3d 397, 402, 104 Cal.Rptr. 683; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840-843, 97 Cal.Rptr. 100; Allen v. Interinsurance Exchange (1969) 275 Cal.App.2d 636, 641, 80 Cal.Rptr. 247; Durand v. Wilshire Ins. Co. ......
  • Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co.
    • United States
    • California Court of Appeals
    • January 20, 1977
    ...work and not the difference between the value of the property and its value had the improvements been constructed. (Jones v. Kvistad, 19 Cal.App.3d 836, 843, 97 Cal.Rptr. 100; Kitchel v. Acree, 216 Cal.App.2d 119, 123, 30 Cal.Rptr. 714; Shell v. Schmidt, 164 Cal.App.2d 350, 357--366, 330 P.......
  • Davis v. Kitt Energy Corp., No. 17668
    • United States
    • Supreme Court of West Virginia
    • December 21, 1987
    ...Pacific Co., 338 F.2d 655 (9th Cir.Or.1964), cert. denied 380 U.S. 988, 85 S.Ct. 1362, 14 L.Ed.2d 280 (1965); Jones v. Kvistad, 19 Cal.App.3d 836, 97 Cal.Rptr. 100 (1st Dist.1971); General Constr. Co. v. Hering Realty Co., 201 F.Supp. 487 (E.D.S.C.1962) app. dismd. 312 F.2d 538 (4th Cir.S.C......
  • Request a trial to view additional results

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