Lovret v. Seyfarth

• Decision Date: 13 January 1972
• Citation: 101 Cal.Rptr. 143,22 Cal.App.3d 841
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the Arbitration between Ivar LOVRET, Plaintiff, Respondent and Appellant, v. Frieda SEYFARTH et al., Defendants, Appellants and Respondents. Civ. 37636, 37937.

Page 143

101 Cal.Rptr. 143

22 Cal.App.3d 841

In the Matter of the Arbitration between Ivar LOVRET, Plaintiff, Respondent and Appellant, v. Frieda SEYFARTH et al., Defendants, Appellants and Respondents.

Civ. 37636, 37937.

Court of Appeal, Second District, Division 5, California.

Jan. 13, 1972.

Leslie Mann, Jr., Pomona, for plaintiff, respondent-appellant lovret.

Roberts & Piatt and Harry R. Roberts, Pomona, for defendants, appellants-respondents Seyfarth.

AISO, Associate Justice.

These consolidated appeals (2d Civ. Nos. 37636 and 37937) are, respectively, from minute orders made on November 25, 1969, and August 14, 1970, after entry on October 31, 1967, of a judgment which purported to correct and confirm, as corrected, an arbitration award. The judgment was rendered and caused to be entered by Court Commissioner Pfau acting as a temporary judge, ¹ but without a stipulation of the parties.

In No. 37636, Frieda Seyfarth and Herman Seyfarth, ² defendants and appellants, appeal from the November 25, 1969, order which was made by the same temporary judge in response to a motion by plaintiff and respondent Ivar Lovret, entitled, 'motion to modify interlocutory and conditional judgment, and to order issuance of writ of execution.' The order in the part relevant here reads: '(T)he court now finds and orders as follows: Ivar Lovret has complied with tender condition precedent as described in Judgment herein. ( ) Let Execution issue consistent with said Ivar Lovret's further declaration re amounts unpaid.'

In No. 37937, plaintiff Ivar Lovret appeals from the order of August 14, 1970, made by Judge John A. Arguelles, which: (1) recalled and quashed the writ of execution issued at Lovret's instance, (2) vacated the levy of execution of funds ($1,117.64 approximately) belonging to the Seyfarths in the Pomona Main Office of the United California Bank and turned over to the custody of the Marshal of Los Angeles County, (3) vacated the order of November 25, 1969, as to both Seyfarths, and (4) vacated the judgment entered October 31, 1967, and provided in lieu thereof: 'Said Judgment to be set aside in its entirety as to Frieda Seyfarth only; and said Judgment to be vacated and set aside as to Defendant Herman Seyfarth with a direction that the matter as to Herman Seyfarth be returned to arbitration for further proceedings resulting in a final determination of the issues.'

I.

The initial question is the determination of the validity of the two orders before us on this appeal. Resolution of this question may be made on the basis of procedural laws without getting into the substantive merits of the dispute. Consequently, at this point we recite only the facts and procedural background necessary to make this determination.

On June 25, 1965, a building construction contract between Mr. and Mrs. Herman Seyfarth of 4033 Mt. Baldy Road, Claremont, California, and Ivar Lovret (the contractor) was entered into wherein Lovret agreed 'to construct and complete in a good, workmanlike and substantial manner,' and to furnish 'all labor, materials, tools and equipment therefor,' a frame and stucco dwelling on 'Lots 16 & 17, Tract No. 13731 M.B. 314--6--7 County of Los Angeles, State of California,' for $34,950. The contract contained an arbitration provision ³ and one for court costs and reasonable attorney's fee to the successful party. ⁴ The construction contract, however, was signed only by the husband, Herman Seyfarth, and the contractor, Ivar Lovret.

During the course of construction, a controversy arose between the Seyfarths and Lovret as to whether Lovret was performing in compliance with the contract. The matter was referred to arbitration and Arthur F. O'Leary was appointed arbitrator. The proceedings were commenced against Herman only, but later Frieda was also made a party to the arbitration. ⁵ The arbitrator held hearings on June 10, 17, August 12, and October 28, 1966, and made his award on December 16, 1966, which provided as follows:

'(A) IVAR LOVRET, hereinafter sometimes referred to as CONTRACTOR, shall tender to FRIEDA SEYFARTH and HERMAN SEYFARTH, hereinafter sometimes referred to as OWNERS, a full release of any and all liens which CONTRACTOR claims against OWNERS or OWNERS' property, and which assertedly arise out of the construction contract dated June 25, 1965. Upon such tender the OWNERS shall forthwith pay to CONTRACTOR the sum of SIX THOUSAND ONE HUNDRED EIGHTY SIX DOLLARS and NINE CENTS ($6,186.09), and OWNERS shall accept delivery of the aforesaid lien releases.

'(B) The Counterclaim filed by the OWNERS against the CONTRACTOR is denied.

'(C) The administrative fees and expenses of the American Arbitration Association, which total $641.04, shall be borne equally by the parties. Therefore, CONTRACTOR shall pay to the Association $31.48, ⁶ and the OWNERS shall pay to the Association $30.52.

'(D) This Award is in full settlement of all Claims and Counterclaims submitted by either party against the other under the construction contract dated June 25, 1965.'

Copies of this award were mailed to the then respective attorneys of record for Lovret and the Seyfarths on December 16, 1666.

On January 30, 1967, Lovret filed his petition in the superior court to confirm the award and for entry of judgment thereon. Among other things, the petition alleged in paragraph I the making of the contract of June 25, 1965, between Lovret and Frieda and Herman, and attached a copy thereof as Exhibit 'A'. Lovret further alleged in paragraph VI: 'Petitioner has tendered a full release of all liens which he had claimed against the Seyfarths as required by the award.' In paragraph VII, he averred: 'In spite of demand upon the Seyfarths for payment of the award, the Seyfarths refuse to do so, and it has, therefore, become necessary for petitioner to employ attorneys to bring this suit to enforce the terms of the award.'

On February 2, 1967, Lovret noticed a hearing on his petition for February 23, 1967. On March 15, 1967, he noticed a hearing for April 6, 1967. On April 6, 1967, the hearing was continued to April 20, 1967.

On April 14, 1967, Frieda and Herman filed an 'Answer to Petition to Confirm Award.' This answer denied only the allegations of paragraphs VI and VII, set forth above, and pleaded affirmatively that the award required releases not only of Lovret's mechanic's lien, but also 'all material and labor releases from the various sub-contractors and materialmen who either supplied said materials or performed labor on said premises commonly known as 4033 Mt. Baldy Road, Claremont, California, and more particularly described as: Lots 16 and 17 of Tract 13731 as per Map recorded in Book 314 at Page 6 & 7 of Maps, Records of Los Angeles County, California' (italics added) ⁷ and that Lovret had refused to tender such releases to them. They further alleged that this was what the arbitrator had intended and that they were ready, willing and able to pay Lovret the $6,186.09 upon receiving such releases.

On April 20, 1967, the parties appeared before Temporary Judge Pfau. As earlier noted, no stipulation, written or oral, by the parties agreeing to Commissioner Pfau acting as temporary judge is in the record. The only document in this regard is a county clerk's certificate that Glenn M. Pfau was duly appointed judge pro tempore of the Superior Court of Los Angeles County of the State of California, pursuant to court order of Louis H. Burke, Presiding Judge, dated November 24, 1958, and Pfau's oath of office as judge pro tempore taken on May 3, 1961. At this April 20, 1967, hearing, the testimony of a subcontractor (Dodson) was taken. Pursuant to stipulation, the Seyfarths' answer was ordered deemed a request to correct award and each party in open court waived the provisions of Code of Civil Procedure section 1288.2. ⁸ Further hearing was continued to April 27, 1967.

On April 27, 1967, the matter was ordered off calendar. On May 8, 1967, the parties filed a written stipulation that the matter previously set for April 27, 1967, be continued to June 8, 1967, and that further notice of hearing be waived.

On June 5, 1967, Lovret filed a declaration, which listed twenty subcontractors or materialmen and declared that he had obtained releases from all of them with the exception of Richard Dodson, the painter, and Carey E. Prock Construction Co. 'In any event,' he further declared, 'I can indemnify against any possible claims by Mr. Prock, as well as Mr. Dodson, the painter.' He attached to his declaration seventeen waivers of mechanic's liens from such subcontractors or materialmen.

On June 8, 1967, the parties appeared through respective counsel of record. It was stipulated that the exhibits attached to Lovret's declaration could be considered without their formal incorporation into Lovret's declaration. Findings of fact and conclusions of law were waived in open court and the matter was submitted.

On June 12, 1967, Temporary Judge Pfau announced his intended decision to correct the award and to confirm the award as corrected. ⁹

On September 19, 1967, the Seyfarths discharged their attorney, Ben T. Kayashima and filed a Pro se document entitled 'Petition to Vacate Award and for Rehearing.' On September 25, 1967, the Seyfarths substituted themselves out and Kayashima, Tessier & Schaefer by Phillip E. Schaefer in as their attorneys of record.

The temporary judge made numerous changes on the proposed form of judgment and on October 27, 1967, he signed and caused to be filed the judgment confirming award of arbitrator, ¹⁰ which was entered October 31, 1967. We find no notice of entry of this judgment, either from the clerk or Lovret's counsel, in the record.

We omit certain other Mesne proceedings, which appear immaterial to this portion of the opinion, and come to the order of November 25, 1969, made by Temporary Judge Pfau (mentioned at the outset as being the order from which the Seyfarths appeal). Their...