Palm Springs Homes, Inc. v. Western Desert, Inc.

• Decision Date: 18 April 1963
• Citation: 215 Cal.App.2d 270,30 Cal.Rptr. 34
• Parties: Application of PALM SPRINGS HOMES, INC., a corporation, and Pauline K. Boltz, Petitioners and Respondents, for an Order Confirming Award of Arbitrators v. WESTERN DESERT, INC., Respondent and Appellant. Civ. 7060.
• Court: California Court of Appeals Court of Appeals

Page 34

30 Cal.Rptr. 34

215 Cal.App.2d 270

Application of PALM SPRINGS HOMES, INC., a corporation, and Pauline K. Boltz, Petitioners and Respondents, for an Order Confirming Award of Arbitrators v. WESTERN DESERT, INC., Respondent and Appellant.

Civ. 7060.

District Court of Appeal, Fourth District, California.

April 18, 1963.

Dubsick & Helon and Manfredo, Best & Forbes, Fresno, for appellant.

Hindin, Sterling, McKittrick & Powsner and Maurice J. Hindin, Beverly Hills, for respondents.

GRIFFIN, Presiding Justice.

On February 15, 1958, Western Desert, Inc., respondent and appellant herein (hereinafter referred to as appellant), and Palm Springs Homes, Inc., petitioner and respondent (hereinafter referred to as respondent) entered into a written agreement which was attached to the application for an order confirming the award of the arbitrators and marked exhibit 'A.' Paragraph 20 thereof provided that all questions as to the rights and obligations of the parties, arising under the agreement, are to be settled and determined by arbitration. After the execution of the agreement, petitioner and respondent Pauline K. Boltz succeeded to certain of the contractual rights of respondent Palm Springs Homes, Inc., under the aforesaid agreement, and became bound by all of the terms of the agreement. Thereafter, certain disputes arose between the parties and, in accordance with the provisions of the aforesaid agreement, the disputes were submitted to arbitration.

This appeal comes to us on portions of the clerk's transcript alone. A statement of other alleged facts is supplied by respondents' counsel in their briefs. They differ in many respects to the statements set forth in appellant's opening brief. We will set forth some of the undisputed facts to clarify the issues presented.

About October 20, 1959, the arbitrators made their first award. Neither party applied to the court for confirmation of that award and business continued as usual under the contract. Between October 20, 1959 and February 12, 1960, further disputes arose between them. Included among them, as particularly enumerated, was a dispute in relation to the filing of mechanic's liens on 67 parcels of land of respondents upon which houses had been built. Between December 13, 1959 and January 22, 1960, appellant, on March 9, 1960, filed an action in the superior court to foreclose these liens. Respondents, in the arbitration hearing, contended that appellant also committed a breach of the agreement in reference to the submission of all controversies to arbitration by filing the liens as indicated, and claimed that the contract should be declared breached and terminated.

On February 12, 1960, appellant executed a formal submission agreement in writing to determine and decide the issues and controversies between the parties. After hearing, the arbitrators, on May 9, 1960, made an award (denominated second award), declaring the issues presented and the rights of the parties. It awarded $30,645.61 to respondent Palm Springs Homes, Inc., as the total balance due under the agreement. It held that the appellant here breached the agreement by filing the mechanic's liens and allowed no damage for the breach. It held that respondents were entitled to a rescission of the agreement, which latter holding was interlocutory in character. It fixed attorneys' and arbitrators' fees, etc. and decided the remaining issues against appellant.

On August 1, 1960, respondents herein made an application to the court for an order confirming the second award, and due notice thereof was given. While this application was pending, the arbitrators held further hearings in reference to the rescission of the contract, as ordered in the second award, and all parties appeared, presented evidence, and on December 29, 1960 the arbitrators made and filed a third award, being a final declaration of rescission of the contract, upon condition respondents pay appellant $4,503.

On January 10, 1961, an application was made to confirm this third and supplemental award and due notice was given. The hearing was set for April 7, 1961, and at that time all parties appeared. Counsel for respondents relates in his brief that as of that date appellant herein had not filed an answer to either application of respondents to confirm the award and the supplement thereto, and had not filed any motion to modify or vacate any of the awards; and respondents apparently made some objections to appellant's contesting the order because the three months' statutory time to file a motion to modify the award after the filing of the award had expired. (Citing Code Civ.Proc., § 1290.) That section provides:

'Notice of a motion to vacate, modify or correct an award must be served upon the adverse party, or his attorney, within three months after award is filed or delivered as prescribed by law for service of notice of a motion in an action.'

The record does not affirmatively show what transpired at the hearing on April 7, 1961. Respondents claim in their brief that appellant then orally asked that the awards be modified and that a rescission of the contract be not allowed. It is conceded that appellant had not previously filed any motion to modify or vacate the second or third awards and that more than three months had expired since the filing of the third award. The facts which then occurred are in dispute and the record itself does not disclose them. Respondents' brief recites that at the hearing the appellant herein asked leave of the court to file an answer and to file a motion to modify the award of the arbitrators; that respondents herein objected on the ground that the time within which to file a motion to modify the award of the arbitrators had expired; that the court, however, overruled the respondents' objections and granted leave to the appellant herein to file its answer and to file a motion to modify the award; that the court thereupon invited the appellant to offer any evidence which it desired to present in opposition to the petition to confirm the award and in support of its motion to modify the award; that the appellant announced that it would offer no evidence in support of its position; that the trial court thereupon heard the arguments of both of the parties and took all matters under submission; that thereafter, on April 14, 1961, the appellant herein filed its answer to the application and supplement to the application for order confirming the award of the arbitrators and incorporated therein its motion to modify the award, and it also filed a memorandum of points and authorities, in support of its motion to modify the award of the arbitrators; that the court thereafter entered a minute order on May 16, 1961, confirming the award of the arbitrators; and that on July 31, 1961, the court signed its findings of fact and conclusions of law and its judgment confirming the award.

Appellant filed no reply brief contesting this narration of facts, and there is no reporter's transcript of the testimony before us, if any was taken. In the opening brief of appellant, it recites:

'From the point and authority filed therein * * * it must be assumed that the judgment entered in this matter was based at least in part on the failure of appellant to file its motion to modify the award within three months after the award was filed and delivered, as provided by Section 1290 of the Code of Civil Procedure.'

These points and authorities state:

'Where respondent (petitioner herein) has applied for a court order to confirm the arbitrators' award, complainant's response thereto or motion to modify need not be filed within the 90 day period provided by Section 1290, C.C.P.' [Citing ...