Luster v. Collins, D016376

• Decision Date: 18 May 1993
• Docket Number: No. D016376,D016376
• Citation: 15 Cal.App.4th 1338,19 Cal.Rptr.2d 215
• Parties: Arnold LUSTER, Plaintiff and Respondent, v. R.S. COLLINS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 215

19 Cal.Rptr.2d 215

15 Cal.App.4th 1338

Arnold LUSTER, Plaintiff and Respondent, v. R.S. COLLINS, Defendant and Appellant.

No. D016376.

Court of Appeal, Fourth District, Division 1, California.

May 18, 1993.

Rehearing Denied June 16, 1993.

Review Denied Aug. 12, 1993.

Nachand & Agnew and Charles D. Nachand, Escondido, for defendant and appellant.

Smith & Peltzer and Wesley W. Peltzer, San Marcos, for plaintiff and respondent.

WIENER, Acting Presiding Justice.

This case involves the ongoing dispute between two neighbors, plaintiff Arnold Luster and defendant R.S. Collins, over an easement 30 feet wide and about 1200 feet long, located on the borders of their respective properties. The easement burdens Collins's property.

Collins appeals the judgment entered after Luster successfully moved to confirm three arbitration awards dated November 10, 1989, January 13, 1990, and April 26 1991. Collins contends the awards must be vacated because the arbitrator exceeded the scope of his authority in several respects, the arbitrator was biased and Luster lacked standing at the third arbitration hearing. ¹ For reasons set forth below we affirm in part and reverse in part, remanding for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

The easement which is the source of this litigation can generally be described as having three parts. The first part of the easement is paved; the second is a dirt road leading to a cul de sac; and the final part, also unimproved, ends at the northerly line of Luster's property.

In November 1987 Luster sued Collins, claiming Collins's placement of a barbed-wire fence, trees, and irrigation equipment on the easement interfered with his ability to use the easement. With the help of a retired superior court judge, the parties agreed to settle the dispute. Their written settlement agreement reconfirmed Luster's right to use the easement and set forth rules governing the use of the easement, including the administration of gates located on the easement, the improvement of the unpaved portions of the easement, and the installation of fences bordering the easement.

The agreement further acknowledged the likelihood of future conflict and confirmed the parties' mutual desire to use arbitration as "a ready and inexpensive means for resolving" potential disagreements, specifying all disputes concerning "the road improvement, the removal and replacement of the fence, administration of locked gates, use of the easement and other related matters" would be submitted to binding arbitration. The arbitrator was granted broad authority to proceed "in accordance with procedures as determined by the arbitrator which shall be appropriate for the specific dispute."

The parties later stipulated each arbitration would "proceed ... as authorized by the provisions of C.C.P. § 1280, et seq.", the judgment of the arbitrator would be binding and nonappealable, the arbitrator would have sole discretion as to the form of the judgment, and "[i]n addition to other powers authorized by statute, the Arbitrator would be empowered to grant equitable relief."

Less than two months later, an arbitration hearing was held to resolve disputes regarding the settlement agreement's meaning and how it should be implemented. As later modified, ² the November 10, 1989, Arbitration Award clarified various provisions of the agreement, ordered Collins to pay Luster $2,323 for Collins's unreasonable interference with Luster's use of the easement, and made numerous injunctive orders including (1) ordering the parties to refrain from harassing each other; (2) enjoining Collins from interfering with Luster's use and improvement of the unpaved portions of the easement; (3) ordering Collins to remove all trees and irrigation material located within certain boundaries of the surface area of the easement; and (4) ordering Collins to remove threatening signs located on the easement.

Pursuant to stipulation, in March 1991 the same arbitrator conducted a supplemental hearing, resulting in an April 26, 1991, arbitration award. ³ Of concern here, the arbitrator (1) ordered Collins to remove all trees located on the easement below the cul-de-sac area and to pay $50 per day per tree for each day he failed to do so; (2) found Collins violated the previous award by failing to remove signs at the entrance of the easement and ordered Collins to pay Luster $50 per day for each day Collins did not do so; (3) ordered Collins to keep the front gate locked from 9 p.m. to 6 a.m. every day; (4) found Collins failed to pay Luster the $2,323 and ordered him to do so; and (5) ordered Collins to pay to Luster's son-in-law Danilo Acevedo $500 for having harassed Acevedo. Shortly thereafter, a surveyor identified twenty-four trees within the easement, rendering Collins liable for $1,200 per day for each day the trees were not cut.

Both parties went to superior court--Collins petitioning to vacate the April 26th arbitration award and Luster petitioning to confirm and/or modify the awards. ⁴ After two hearings and oral argument, the court entered a judgment, denying the Petition to Vacate, granting the Petition to Confirm the Awards and ordering the parties to return to the same arbitrator to determine several items of damages, including the amount of damages for failure to remove the trees. Collins appeals from this judgment. ⁵

DISCUSSION

I. STANDARD OF REVIEW

Our Supreme Court recently reiterated the strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9, 10 Cal.Rptr.2d 183, 832 P.2d 899.) Because of this important public policy, arbitration awards are subject to an extremely narrow judicial review. We cannot review the merits of the controversy, the validity of the arbitrator's reasoning, or the sufficiency of the evidence supporting an arbitrator's award. (Id. at p. 11, 10 Cal.Rptr.2d 183, 832 P.2d 899; Morris v. Zuckerman (1968) 69 Cal.2d 686, 691, 72 Cal.Rptr. 880, 446 P.2d 1000.) The exclusive grounds for vacating an arbitration award are those listed in section 1286.2. (See ante, fn. 1.) Of particular significance to this case is Collins's assertion that the arbitrator exceeded his powers under section 1286.2, subdivision (d). Absent proof of one of the five grounds contained in section 1286.2, a court may not vacate an award for legal or factual error even if the error clearly appears on the face of the award and it causes substantial injustice. (Moncharsh, supra, 3 Cal.4th at p. 27-28, 10 Cal.Rptr.2d 183, 832 P.2d 899.) "[E]very reasonable intendment must be indulged in favor of the award." (Lauria v Soriano (1960) 180 Cal.App.2d 163, 168, 4 Cal.Rptr. 328.)

II. CONTENTIONS WITHOUT MERIT

We briefly discuss and reject certain of Collins's arguments. First, there is no merit to Collins's claim the arbitrator exceeded his authority by failing to decide two issues submitted by Collins: Luster's obligation to install a larger culvert (a sewer or drain crossing under a road) and damages to Collins's irrigation piping. Our review of the award establishes the arbitrator considered and made findings as to each of those issues. In any event, an arbitrator's failure to render express findings on disputed questions does not invalidate the award where, as here, the award " 'serves to settle the entire controversy.' (Sapp v. Barenfeld [1949] 34 Cal.2d 515, 522-523, .)" (Rodrigues v. Keller (1980) 113 Cal.App.3d 838, 170 Cal.Rptr. 349.)

Collins's contention that the arbitrator was biased is also meritless. To support a claim of bias, a party must demonstrate the arbitrator had an interest in the subject matter of the arbitration or a pre-existing business or social relationship with one of the parties which would color the arbitrator's judgment. (See Banwait v. Hernandez (1988) 205 Cal.App.3d 823, 826-829, 252 Cal.Rptr. 647.) Collins has failed to point to any evidence in the record showing the existence of such relationship in this case.

We also hold Luster has standing even though he transferred the property to his daughter Cindy Acevedo three months before the March 1991 arbitration hearing. When a party transfers an interest in the subject matter of a pending action, the proceeding may be continued in the name of the original party. (See Code Civ.Proc., § 385; see Parker v. Superior Court of Riverside County (1970) 9 Cal.App.3d 397, 400-401, 88 Cal.Rptr. 352.) In any event, by failing to raise the issue at the arbitration hearing, Collins waived his right to assert error here. (See United Food & Commercial Worker's Union v. Clougherty Packing Co. (1984) 154 Cal.App.3d 282, 288, 201 Cal.Rptr. 183.)

III. SCOPE OF AUTHORITY

Section 1286.2, subdivision (d) requires a court vacate an arbitration award when the arbitrator exceeds his powers. Where, as here, parties stipulate to binding arbitration, the scope of an arbitrator's authority is determined by the arbitration agreement. (See Cobler v. Stanley, Barber, Southard, Brown & Associates (1990) 217 Cal.App.3d 518, 530, 265 Cal.Rptr. 868.) "[A]mbiguities in the scope of arbitration are resolved in favor of arbitrability." (Social Services Union v. Alameda County Training & Employment Bd. (1989) 207 Cal.App.3d 1458, 1464, 255 Cal.Rptr. 746.)

Collins contends the arbitrator acted outside the scope of his authority by ordering Collins to (1) keep the entrance gate locked at night and remove trees from the area of the easement below the cul-de-sac; (2) pay $50 per day each day he failed to remove trees and signs from the easement; and (3) pay $500 for harassing Luster's son-in-law.

We examine these contentions separately, keeping in mind the parties' broad arbitration agreement and the limited scope of our review.

A.

The parties specifically agreed they would arbitrate issues relating to the administration of the gates and the use and improvement of the...