Rivera v. Shivers

• Decision Date: 31 August 2020
• Docket Number: G057919
• Citation: 54 Cal.App.5th 82,268 Cal.Rptr.3d 392
• Parties: Wilfred RIVERA, Plaintiff, Cross-defendant and Respondent, v. Robert SHIVERS et al., Defendants, Cross-complainants and Appellants.
• Court: California Court of Appeals Court of Appeals

54 Cal.App.5th 82

268 Cal.Rptr.3d 392

Wilfred RIVERA, Plaintiff, Cross-defendant and Respondent,

v.Robert SHIVERS et al., Defendants, Cross-complainants and Appellants.

G057919

Court of Appeal, Fourth District, Division 3, California.

Filed August 31, 2020

John A. Bunnett, Downey, for Defendants, Cross-complainants and Appellants.

Natalie Panossian-Bassler, Moorpark, for Plaintiff, Cross-defendant and Respondent.

OPINION

BEDSWORTH, ACTING P. J.

INTRODUCTION

Arbitration is a recognized method of dispute resolution created by one of two means – contract or statute. The differences are important. Here we are called upon to determine whether an arbitration originally statutory in nature morphed into a contractual arbitration as the result of a vague stipulation by counsel for the parties. The stipulation failed to specify whether the parties had agreed to binding or nonbinding arbitration. Nevertheless, neither side ever seems to have entertained the notion that the completed arbitration was anything but binding, and treated it as such. The trial judge, however, had other ideas, deciding on his own that the arbitration was not what the parties intended, a conclusion he derived from their actions rather than their explicit words. As a result, he denied the appellants' petition to confirm, vacated the award, and set a trial date in the case. We reverse and remand with instructions to confirm the award.

FACTS

Beginning in 2008, appellants Robert Shivers and Linda Shivers rented a residential property in La Habra from respondent Wilfred Rivera. Almost seven years later, Rivera filed an unlawful detainer action against Mr. and Mrs. Shivers, alleging they had not paid rent. He later amended his pleading to add causes of action based on the allegation they had damaged the property and taken appliances when they vacated it. Mr. and Mrs. Shivers filed a cross-complaint, alleging Rivera had failed to make repairs to the property and had left it untenantable.

The case was originally assigned to limited civil jurisdiction but was later reclassified to unlimited civil. Upon reassignment, the new trial judge ordered counsel to meet and confer regarding the appointment of a referee under Code of Civil Procedure ¹ section 638, and a status conference on the subject was scheduled for March 19, 2018.

Rivera sought leave to amend the complaint to add Mr. and Mrs. Shivers' three children, Courtney, Jacqueline, and Andrew,² because they were also allegedly liable under the parties' rental agreement. Mr. and Mrs. Shivers opposed this motion. At the status conference, the parties advised the court they could not agree on a referee. The court took the matter under submission, but warned that a referee would be appointed if the parties could not agree on one.

Thereafter, in a minute order dated April 19, 2018, the trial court, instead of appointing a referee, sua sponte ordered the matter to judicial arbitration. The motion for leave to amend the complaint was heard and denied, and the parties advised the court they had stipulated to Lawrence A. Strid as their judicial arbitrator.

Undeterred by the denial of his motion for leave to amend, Rivera filed a Doe amendment to the complaint, adding the Shivers children as defendants. Mr. and Mrs. Shivers moved to strike the amendment, and a hearing was scheduled and later continued. When the hearing was finally held on September 7, 2018, the trial court took the motion to strike off calendar, pending completion of the arbitration or reference.

Another scheduled status conference took place approximately three months later, at which time counsel informed the trial court that arbitration before a retired judge, the Honorable Dennis Choate, at ADR Services, Inc., was set to proceed on January 30, 2019. The court continued the status conference to February 11, 2019. Several days later, however, one of the Shivers children filed a motion to dismiss the case against all three children for failure to prosecute; one of her siblings joined that motion.

The Shivers children's motion was heard prior to the date set for the arbitration before Judge Choate. The trial court took the motion off calendar, stating the parties had ignored its previous orders sending the matter to "non-statutory arbitration" and staying the litigation pending the outcome of the arbitration.³ As a result of what it viewed as the flouting of its previous orders, the trial court set an order to show case regarding dismissal of the underlying case for failure to prosecute the arbitration. That hearing was scheduled to take place on February 4, 2019 - a few days after the arbitration before Judge Choate was set to proceed, but prior to the February 11 status conference.

The arbitration before Judge Choate commenced as scheduled on January 30, 2019, but was not completed until February 7, 2019. In the intervening time, the order to show cause hearing was held, and the parties advised the trial court the arbitration was in progress. Consequently, the trial court set a status conference for April 8, 2019, noting in the minute order the following: "Pursuant to stipulation of parties, arbitration is proceeding as binding arbitration."

On March 13, 2019, Judge Choate issued his arbitration findings, which were in Mr. and Mrs. Shivers' favor. The result appeared largely to be based on Judge Choate's conclusion Rivera was combative, untruthful, and not credible as a witness. Judge Choate ordered that Mr. and Mrs. Shivers recover $22,500 in damages and that Rivera take nothing. Additionally, he awarded them a sizeable amount in attorney fees and costs as prevailing parties.

Judge Choate did not file the award with the court. Rather, Mr. and Mrs. Shivers filed a petition on April 3, 2019 to confirm the award, citing section 1285.4. The petition included a copy of an undated stipulation signed only by counsel agreeing to "arbitrate the pending action." The same day, the Shivers children refiled their motion to dismiss. Both the petition to confirm and the motion to dismiss were scheduled to be heard on the same day.

The court held its planned status conference on April 8, 2019, and counsel advised that the "binding arbitration" had been "completed with an award." Counsel also informed the court of the upcoming hearing on the petition to confirm and motion to dismiss.

On June 3, 2019, Rivera filed an opposition to the petition to confirm, arguing that Judge Choate had failed to disclose that he had a professional mentoring relationship at one time with the Shivers' counsel's father, a late judge of the Los Angeles County Superior Court. Rivera argued that Judge Choate was biased and asked the trial court to vacate the March 13, 2019 award and to order the parties to arbitrate before a new arbitrator. Rivera attached to his opposition Judge Choate's disclosure statement, which did not disclose this relationship.

In their reply brief, Mr. and Mrs. Shivers argued that Rivera's request to vacate the award was untimely because it was not filed within 10 days of the petition to confirm, as is required under section 1290.6. They also argued that Judge Choate was unaware that his former mentor was counsel's father until opening arguments were to begin, at which time he disclosed the relationship, and Rivera raised no objection.

The trial court granted the Shivers children's motion to dismiss. However, it denied Mr. and Mrs. Shivers' petition to confirm and set a trial date in the case. At the hearing, the trial court expressed concern that the stipulation for arbitration was entered into by counsel rather than the parties and concluded the arbitration had been nonbinding. Mr. and Mrs. Shivers promptly appealed the ruling.

DISCUSSION

Where a party files a petition to confirm an arbitration award pursuant to section 1285 et seq., "the court shall confirm the award as made" unless it "vacates the award or dismisses the proceeding." (§ 1286.) To the extent the trial court makes findings of fact in this decision, "we affirm the findings if they are supported by substantial evidence," but if "the trial court resolved questions of law on undisputed facts, we review the trial court's rulings de novo." ( Cooper v. Lavely & Singer Professional Corp. (2014) 230 Cal.App.4th 1, 11-12, 178 Cal.Rptr.3d 322.) Here, neither party disputes the facts in the record and so the trial court's rulings present pure questions of law which we review de novo.

I. Judicial or Contractual Arbitration

One major point of confusion was whether the arbitration before Judge Choate was judicial or contractual in nature. The distinction is critical. Contractual arbitration is regulated by section 1280 et seq. and "generally results in a binding and final decision." ( Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 342, 79 Cal.Rptr.2d 308, 965 P.2d 1178.) Except as provided by sections 1286.2 and 1286.6, the awards resulting from such arbitrations are not subject to judicial review. (See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 12-13, 10 Cal.Rptr.2d 183, 832 P.2d 899 ( Moncharsh ).)

By contrast, the statutory system of judicial arbitration, governed by section 1141.10 et seq., "generally does not result in a binding or final decision ... but instead allows a trial de novo at the election of any party by timely request therefor[.]" ( Mercury Ins. Group v. Superior Court, supra , 19 Cal.4th at p. 343, 79 Cal.Rptr.2d 308, 965 P.2d 1178.) Such a request must be filed within 60 days of "the date the arbitrator files the award with the court." (§ 1141.20, subd. (a).) Thus, a great deal hinges on the characterization of the proceeding as judicial or contractual.

There is one attribute shared by judicial and contractual arbitration - the parties can voluntarily submit to either. (§§ 1141.12, 1281.) Contractual arbitrations are, as their moniker suggests, always a matter of agreement. And while judicial arbitrations can be stipulated or mandatory, the court's power to order the parties to judicial...