Sapp v. Barenfeld

CourtUnited States State Supreme Court (California)
Writing for the CourtTRAYNOR; GIBSON; SCHAUER
Citation34 Cal.2d 515,212 P.2d 233
Decision Date06 December 1949
PartiesSAPP et al. v. BARENFELD et al. L. A. 20682.

Page 233

212 P.2d 233
34 Cal.2d 515
SAPP et al.
v.
BARENFELD et al.
L. A. 20682.
Supreme Court of California, in Bank.
Dec. 6, 1949.
As Modified Dec. 13, 1949.

Page 236

[34 Cal.2d 517] Laurence J. Rittenband, Los Angeles, and Leo Jay Ross, Beverly Hills, for appellants.

Knight, Gitelson & Ashton and Alfred Gitelson, Los Angeles, for respondents.

TRAYNOR, Justice.

On December 31, 1946 appellants contracted to reconstruct a building owned by respondents that had been damaged by fire. It was agreed that appellants were [34 Cal.2d 518] to restore the building to the condition it was in immediately before the fire in accord with the original plans and specifications. Work was to begin within fifteen days and to be completed within 180 days thereafter. Any dispute arising under the contract was to be submitted to arbitration. A dispute arose over the alleged failure of the appellants to perform the work according to the specifications and to finish it on time. Appellants denied these allegations and sought additional compensation under the contract for extra work performed. On September 2, 1947, the parties agreed in writing to submit their dispute to arbitration. Respondents and appellants each appointed one arbitrator and these two selected a third. All three were qualified architects. on November 19, 1947 the arbitrators rendered a unanimous opinion, finding that appellants had failed to confrom to the specifications in several instances. After deducting the cost of the work necessary to remedy the defects from the balance due appellants under the contract, the arbitrators made an award of $6966.45 to appellants. Pursuant to Section 1287 of the Code of Civil Procedure, appellants petitioned the superior court for an order confirming the award. Respondents contested the petition and moved to vacate the award under Sections 1288(c) and (d) of the Code of Civil Procedure. After a hearing on affidavits, the trial court found (1) that 'Said arbitrators were guilty of misconduct in that they based their award in a large part upon information procured ex parte from third persons, with no notice to the parties hereto that they intended to adopt such a procedure, and gave the parties hereto no opportunity to cross-examine such third persons' and (2) that 'Said arbitrators so imperfectly executed their powers that a mutual, final and definite award, upon the subject matter submitted was not made, in that said arbitrators failed to pass upon respondents Barenfelds' claim for damages for delay in completing the building which was the subject of the controversy.' The court entered an order vacating the award, and this appeal followed.

Appellants do not contend that the trial court's findings of fact are not supported by substantial evidence. They admit that those findings are supported by the evidence and are therefore conclusive on this appeal. The finality of the court's findings of fact cannot, however, be extended to the legal conclusions it derives therefrom, and if those conclusions are incorrect, as appellants assert, the judgment must be reversed.

The findings of the trial court do not support respondents'[34 Cal.2d 519] broad assertions that they were denied notice and hearing. The court found only that the arbitrators had consulted ex parte with a third person as to a specific matter within the submission and that respondents were not present at that consultation. This finding lends no support to respondents' contention that they were wholly denied notice and hearing and that the trial court so found.

The evidence in fact clearly establishes that the arbitrators did hold informal hearings, at each of which the respondents were present and vigorously prosecuted their claims, presenting evidence in support thereof. Respondents' affidavits contradict their allegations that they were denied a hearing and indicate

Page 237

clearly that they were afforded ample opportunity to present their claims to the arbitrators. Although respondents allege that, as far as they know, the arbitrators never held any hearings, the evidence conclusively establishes that this allegation is untrue. Respondents' attorney, by letter to the arbitrators, suggested 'that the arbitrators and the parties meet at the building involved and that the hearings be there held.' Pursuant to this suggestion, the arbitrators made a tour of inspection of the building on September 23, 1947, at which time Abraham Barenfeld was present. Barenfeld states in his affidavit that, on that inspection, he accompanied the arbitrators and 'From time to time as we walked through I would point out objections to various items in the building which had been either improperly constructed or not constructed at all by the petitioners.' Another tour of inspection was conducted on October 9, 1947, Abraham Barenfeld being again present together with one of the Sapps. Both parties actively participated in the discussion of the alleged defects, and respondent 'again stated various objections to the arbitrators that I had to the work of construction by the petitioners which I had not mentioned on their first visit.' The arbitrators made a final tour of inspection on October 21, 1947. Jack Barenfeld admits that he was present at that time and 'pointed out to them numerous items in the building which had been either improperly constructed or not constructed at all.'

There is no evidence that any other hearings were held. There is clear and uncontradicted evidence, supported by the affidavits of the respondents, that these tours of inspection were for all purposes fair and effective hearings that placed no restriction upon respondents' opportunity to advance all [34 Cal.2d 520] relevant claims. Since respondents were present at each of the hearings and participated therein without objection, they cannot attack the award because no formal notice of hearing was given. 'If a party appears and participates without objection in arbitral proceedings * * * such party cannot later object to the award * * * on the ground that he did not have notice of the hearing * * * This is true, it was held, although formal notice of the hearing was expressly stipulated for in a submission agreement.' Sturges, Commercial Arbitration and Awards, § 152, pp. 382-383; Tennessee Coal Iron & R. Co. v. Roussell, 155 Ala. 435, 46 So. 866, 130 Am.St.Rep. 56; Acme Lumber Co. v. Ruby, 237 Mich. 314, 316, 211 N.W. 631; Mississippi Cotton Oil Co. v. Buster, 84 Miss. 91, 36 So. 146, 147; Jacob v. Pacific Export Lumber Co., 136 Or. 622, 639, 297 P. 848; Canuso v. City of Philadelphia, 326 Pa. 302, 307, 192 A. 133; see 6 Am.Jur., Arbitration & Award, § 104.

Respondents, however, apparently contend...

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121 practice notes
  • Freeman v. State Farm Mut. Auto. Ins. Co.
    • United States
    • United States State Supreme Court (California)
    • May 30, 1975
    ...so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.' (Sapp v. Barenfeld, 34 Cal.2d 515, 523, 212 P.2d 233.) Thus, what an arbitrator would find to be compliance could be something other than compliance as measured by the standards......
  • Moncharsh v. Heily & Blase, No. S020997
    • United States
    • United States State Supreme Court (California)
    • July 30, 1992
    ...or impliedly reject a claim [3 Cal.4th 11] that a party might successfully have asserted in a judicial action." (Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523, 212 P.2d 233; see also Morris v. Zuckerman (1968) 69 Cal.2d 686, 691, 72 Cal.Rptr. 880, 446 P.2d 1000; Grunwald-Marx, Inc. v. L.A. Jo......
  • CABLE CONNECTION INC. v. DIRECTV INC., No. S147767.
    • United States
    • United States State Supreme Court (California)
    • August 25, 2008
    ...of judicial review may be expanded by provisions restricting arbitrators' usual broad powers. Crofoot quoted Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523, 212 P.2d 233, for the proposition that “ ‘[a]rbitrators, unless specifically required to act in conformity with rules of law, may base th......
  • GREENSPAN v. LADT LLC., No. B213866.
    • United States
    • California Court of Appeals
    • June 25, 2010
    ...essence of arbitration 111 Cal.Rptr.3d 497is its freedom from the formality of ordinary judicial procedure.’ ” ( Sapp v. Barenfeld (1949) 34 Cal.2d 515, 520, 212 P.2d 233.) “ ‘[W]hen [the parties] have adopted [arbitration], they must be content with its informalities.’ ” ( Id. at p. 521, 2......
  • Request a trial to view additional results
121 cases
  • Freeman v. State Farm Mut. Auto. Ins. Co.
    • United States
    • United States State Supreme Court (California)
    • May 30, 1975
    ...so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.' (Sapp v. Barenfeld, 34 Cal.2d 515, 523, 212 P.2d 233.) Thus, what an arbitrator would find to be compliance could be something other than compliance as measured by the standards......
  • Moncharsh v. Heily & Blase, No. S020997
    • United States
    • United States State Supreme Court (California)
    • July 30, 1992
    ...or impliedly reject a claim [3 Cal.4th 11] that a party might successfully have asserted in a judicial action." (Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523, 212 P.2d 233; see also Morris v. Zuckerman (1968) 69 Cal.2d 686, 691, 72 Cal.Rptr. 880, 446 P.2d 1000; Grunwald-Marx, Inc. v. L.A. Jo......
  • CABLE CONNECTION INC. v. DIRECTV INC., No. S147767.
    • United States
    • United States State Supreme Court (California)
    • August 25, 2008
    ...of judicial review may be expanded by provisions restricting arbitrators' usual broad powers. Crofoot quoted Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523, 212 P.2d 233, for the proposition that “ ‘[a]rbitrators, unless specifically required to act in conformity with rules of law, may base th......
  • GREENSPAN v. LADT LLC., No. B213866.
    • United States
    • California Court of Appeals
    • June 25, 2010
    ...essence of arbitration 111 Cal.Rptr.3d 497is its freedom from the formality of ordinary judicial procedure.’ ” ( Sapp v. Barenfeld (1949) 34 Cal.2d 515, 520, 212 P.2d 233.) “ ‘[W]hen [the parties] have adopted [arbitration], they must be content with its informalities.’ ” ( Id. at p. 521, 2......
  • Request a trial to view additional results

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