SBD

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  1. I think you are reading too much into the statutory meaning of the word and ignoring the the plain meaning of the word "or" which is referring to the word bankrupt. It says IF you become INSOLVENT or BANKRUPT, then..... The words insolvent and bankrupt are not adjectives, but are nouns. As we all should know that a noun is a person, place, thing, or idea. The use of the word "or" means synonymous or similar. In fact if you look up either word in a dictionary you will find that they are both synonyms of each other. I.E. Interchangeable not separate or distinct. Also, regarding the SOL, it is not based on what law the contract states it is governed by, but rather the State where the contract was signed or where the consumer lives when the action is filed per the FDCPA. 811. Legal actions by debt collectors [15 USC 1692i] (a) Any debt collector who brings any legal action on a debt against any consumer shall -- (1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or (2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity -- (A) in which such consumer signed the contract sued upon; or ( in which such consumer resides at the commencement of the action. ( Nothing in this title shall be construed to authorize the bringing of legal actions by debt collectors.
  2. Is it possible that these debt collectors or creditors know about your loan that you are about to get from the bank? If they do know due to a settlement offer or somehow finding out through pulling your credit report, then it is in their best interest to try and get a judgment against you as quickly as possible so that they can collect directly from the bank account where your loan funds are deposited. I would try to force them into arbitration which will extend the time for you to attempt to settle with them and anyone else for that matter.
  3. A statement is not proof that you agreed to pay what they say you owe. Nor is it proof that you ever received any of those statements that they produce. They must prove the obligation first based on a writing, not a writing as a basis for proving a contract that the terms of which the court is left to guess.
  4. A contract does not have to be in writing to be considered a contract. A contract can be express or implied and can be written or oral. They are saying that they lent you some money and you did not pay them back all of what you owe them. This would be considered an oral contract if not in writing and the SOL for an oral contract is much less than a written contract. I think it is 2 years in California. Here are some arguments based on the oral contract or Insufficiency of Contract Allegations. Regarding the selling of the account to investors in a pooled trust as a derivative, the basic argument is that the Plaintiff never loaned you anything because he has already been paid in full by the investors in the service pool. The Plaintiff was at most servicing the loan for the investor owner and was never entitled to any payments you may have sent to them. The entity that may have given you the loan has not been brought into the lawsuit and Plaintiff has not shown they they have any authority to bring the case on their behalf. The case below is analogous in some ways to this scenario in that the Plaintiff is suing on an alleged contract without offering any consideration which is no contract at all.
  5. Here are the instructions. Here is a link to a document to use for the proof of service. The court will not hear the case unless you serve the other party and file the proof of service along with the request for exparte and the documents you want to file. All must be submitted to the court.
  6. I believe that the other party must be served all papers at least 16 days before the hearing date. You can file the documents at anytime, even after 16 days before the hearing as long as the other party doesn't object. The way that I have done this is by filing a Supplement to your motion to read something like this: TO THE HONORABLE JUDGE XXXXXX Defendant [your name] files this Supplement to his Motion to Compel Arbitration for one narrow purpose: to inform the Court of developments that are relevant to the issues in this motion and have occurred since Defendant filed his Motion to Compel Arbitration. To that end, Defendant files herewith Defendant's Supplement to Defendant's Motion to Compel Arbitration, which documents the following recent events. Then list the events that have occurred like filing with JAMS and their response. Then finish with your request to stay pending arbitration. SBD
  7. I am very confused about what you wrote above. It sounds like they filed a lawsuit against you in the Superior Court and then dismissed it when they found out you were actually going to defend. Is this correct? Then you filed a lawsuit against them in the Superior Court and right before the time allowed for them to file a response, they instead filed a Notice of Removal to the Federal Courts. Is this correct?? If what I have written above is correct, then the ball is your court, not theirs. They do not need any extension but might be trying to delay you from challenging the Removal to the Federal Court. One the Notice of Removal is filed in the Federal Court, you have 30 days to object to the removal and to argue that the case should stay in the Superior Court. If they originally filed their lawsuit in the Superior Court, they would probably have a hard time convincing the judge not to remand your case back. They like the Superior Court when they are the Plaintiff and get judges not familiar with the FDCPA and the FCRA. This works in their favor. The same is not true when they are the Defendant in the Superior Court because they may lose due to the judge not being familiar with the FDCPA and the FCRA. Crap1 will always be Crap1 and their attorneys get their law degrees and their ethics from Crap1 Crook University no matter how nice they claim to be. They do not need an extension but are instead waiting out the time you have to ask for a remand.
  8. There could be another reason this was done in this manner, one which will be to your benefit if your company pays their bills on time. The reason that they checked your credit could be to add you onto the card as a joint card member with you company. In that case, each and every charge along with each and every payment made on that card will show up on both the company credit report and your credit report. This is one of the ways those that are trying to build or rebuild their credit use to increase their credit scores. For instance, a while back I had my mother add me to her Visa credit card account which had a $20,000 limit. She used it every month by charging several thousand dollars and paid it off every month when she got the bill. Adding that account to my credit report gave me an additional $15,000 - $20,000 per month in additional available credit.
  9. The following information is from Jurisdictionary, one of the best and easiest to understand legal reference I have ever used. It was the first legal reference I had bought and to this day, I still go back to it now and then to remind myself what I need to do to win my case in court. The text below is from several PDF sources titled "How to Win", "Motions", and "Forms". Jurisdictionary® Winning lawsuits begins with knowing the rules. Can you imagine winning at poker or baseball if you didn’t know the rules? Of course not! The same is true going to court. And, the consequence of not understanding what’s going on in court is much more severe. The stakes are higher and potentially catastrophic. On the other hand, if you know the rules and are a person who should win your case, you probably will win. That’s why we have the rules we have: So the good guys can win! Indeed, the rules are written for that purpose. Justice for all (who know and abide by the rules). The court system itself is established on these rules. Without them courts could not function. There must be rules. Lawsuits are fights. See this now. Litigation is not a parlor game. In the balance hang the lives and fortunes of both sides. If you don't know what weapons are at your disposal, you’re not prepared to fight. No need to suffer loss from ignorance. The principles of civil law are easy to understand. In fact, it’s quite a bit of fun using the official rules to force your opponents to follow them to-the-letter and obey the law. Live free! Learn the rules! When I was just a 1st year law student, local circuit judge Harry Fogle (whose widow gave me his notes so I could write The Trial of Jesus offered free with all Jurisdictionary® tutorial orders) came to “preside” over some mock hearing exercises. We were there that day to learn how to make motions. When it came my turn I tentatively approached the bench where I encountered the demanding stare of this venerable old judge who asked in a somewhat gruff voice, “And what do you want?” I replied, “I’d like to make a motion that the …” He didn’t let me finish. “Well,” he demanded impatiently, “make your motion!” “If it please the court,” I began again, only to be interrupted once more. “Are you going to make your motion or not?” “Well, your honor,” I stammered, “I’d like to move the court to …” At this the kind but stern old gentleman leaned forward a bit and with a softened voice suggested, “Why don’t you move the court, Mr. Graves?” The familiar lightning of instant awareness struck, and I immediately responded with a knowing smile, “I move the court to …” I don’t remember what the motion was, but once I got to the point of moving the court, instead of trying to be polite and respectful and merely suggesting what I wanted to do or telling the court what I’d like to do and got the meat-and-potatoes of the matter and moved the court, Judge Fogle said not another word until I’d finished my motion and then declared, “Motion granted!” The point of this exercise was for us to understand that motions are intended to move the court, to cause the court to act … not to beg it to act or to tell it how much we wish it would act. No. No. Motions move the court. They’re not disrespectful. They are efficient. They tell the court o what you want the judge to do, o why you’re entitled as a matter of law, o what citations to statute or case law justify the court’s action, and o to move! Remember this: Every judge is a public servant, paid for by taxes and duty-bound to follow and do what the law requires. He or she is not authorized to make up the rules as your case moves through the Courthouse. It’s always wise to be polite to the court, but unless you instruct the judge in the law and the facts and insist on your rights (rather than standing there with your hat in your hand, obsequiously staring at your shoes and begging the court for mercy) you’ll be missing the power that is yours to win your lawsuit. Make the judge obey the law! Do it politely, if you can, but do it! Here's how to get what you want. Move the court. Everything that happens in court results from motions. Either one side or the other moves the court or the court may move itself. Every motion seeks to change the court's position. Motions force courts to decide issues. Motions require courts to move. Once a court is moved, the court must act. The court has no option. It cannot ignore a motion. It must grant the motion or deny it ... and, very importantly, if you move the court to state on the public record why it granted or denied your motion, i.e., "by what authority" it acts, the court must do so. The judge does not have a choice. Judges must obey the law just like everyone else! Use this power. Move the court! Don't expect any judge to act without a motion. Don't sit back and expect a judge to do what's right. Judges are humans, just like you. Don't wait. Don't hesitate. Move the court. This is how you win. Don't wait for justice to come your way. Life just doesn't work that way. Anything worth having (and justice is certainly no exception) is worth working for. Move the court. Move the court to do what's right and, if the court doesn't do what you believe justice and fair play demand, move the court to clearly state its reasons. Move the court to cite the law upon which it relies. Don't allow the court to make its own laws. Require the court to obey the rules and laws of the land just like everyone else must do in free societies. Force the court to honor the Rule of Law. Refuse to allow any judge to act without clearly stating the law that justifies the judge's decisions. Say, "I move the court to state by what authority it denies my motion." Don't take no for an answer. Fight for your rights. Justice is secured by moving the court to grant justice. Justice is not secured by hoping. Justice is not secured by wishing. Justice is secured by moving judges to grant justice ... and by demanding that the court state its reasons for doing anything you believe is unjust or unfair. Move the court to explain itself. Move the court to take judicial notice of the rules and laws that control it. Move the court to take judicial notice of commonly known facts about which reasonable persons cannot disagree. Move the court to prevent the other side from violating the rules in any way whatsoever. Finally, move the court to grant its judgment in your favor. If the court denies your motions, move the court to tell you why ... on the record. You can move your courts, and by moving them properly you improve justice for us all and secure liberty for future generations. It is perfectly proper to demand that courts act fairly to dispense justice. It is perfectly proper to require courts to answer you in writing. It makes good sense to do so. Require the court to state on the record by what authority it acts or refuses to act. This is your power to win. Use it! Move the court to open a window if the courtroom is too stuffy for you. Move the court to explain on the record everything it does to restrict what you believe should be your free right to continue living without interference from others. Move the court in any way you believe necessary to obtain justice, and make a record of every word that is said. It is your right to move the court. Do so! Move the court until you get what you want. Exercise your rights. Speak the truth. Make a record of every word. Demand a successful outcome … on the record. This is how you win your case!!
  10. From what you have written, you have two conflicting orders. Do you actually have the order from the court? Has an official order been made by the judge? When the case is filed in the court and you file a motion to compel arbitration and to stay the case, the judge has to rule one way or the other. If he orders arbitration, then you will need that order to submit the case to the arbitration forum which gives the arbitrator subject matter jurisdiction. If he denies the motion to compel, you can immediately appeal that decision which will stay the trial court action until the issue is resolved in the appellate court. The same is not true for the party opposing arbitration. They can not appeal the decision and have to wait until the case is decided in arbitration.
  11. The letter below worked for me on a repo motorcycle!! I wrote the following letter in response to a collection letter from Arrow Financial regarding a repossessed Kawasaki motorcycle. The Certified letter was sent to HSBC, Kawasaki, and Arrow Financial. Arrow Financial Response Letter
  12. I wrote the following letter in response to a collection letter from Arrow Financial regarding a repossessed Kawasaki motorcycle. The Certified letter was sent to HSBC, Kawasaki, and Arrow Financial. Arrow Financial Response Letter
  13. Here is a link to my Memorandum of Points and Authorities in support of Writ of Mandamus. SBD
  14. I am currently fighting with the Bank as both Plaintiff in unlawful foreclosure/FDCPA case and Defendant in unlawful detainer case. I quickly figured out that it was more important to play close attention to the unlawful detainer case than my civil case. If I am evicted from my house, my civil case will just be for damages and I will end up homeless. The whole point of my civil case was to save my home, not get some token for compensation. This is a link to my trial brief that I submitted right before trial on June 24, 2009. One important thing that I learned which has saved me from eviction is that in California if you want the judge to issue a Statement of Decision that addresses the issues to be decided during your trial, you have to request during the trial before the case is submitted. California Code of Civil Procedure Section 632 is the statute. I requested a statement of decision during trial and the judge made his decision on July 6, 2009 without any statement other than judgement for Greenpoint for Possession. That was all he wrote, but because I was on record requesting a Statement of Decision and submitted a written request as well as oral request during the trial, I filed a Writ of Mandamus in the appellate division of the Superior Court. The Writ of Mandamus requests the Appellate Division to order the Superior Court Judge to issue a proper Statement of Decision and showing them that an appeal would not be proper in this case because the appellate court would just remand anyway ordering the judge to issue the Statement of Decision. I also requested a Stay of all further proceedings until the Writ was decided which was granted on July 20, 2009. The Appellate Division of the Superior Court issued an Order to Show Cause on September 8, 2009 why relief should not be granted and why Greenpoint should not be sanctioned for trying to evict us on August 5, 2009 even though the court issued a stay on July 20, 2009. Greenpoint took the entire 30 days allowed to file their Return last week and I have 15 days to Reply. After that, oral argument will be scheduled where I will argue my case in front of all three appellate judges. As you can see, we are not going anywhere and now all of a sudden the bank wants to see if we qualify for a Loss Mitigation/Loan Modification alternative. Go Figure!! SBD
  15. Here is the message I just received which is sent from boardstuff@creditinfocenter.com.
  16. [g] Party Who Had Award Vacated Is Entitled to Post-Arbitration Costs and Attorney's Fees Code Civ. Proc. § 1293.2 provides that the court must award costs, as provided in Code Civ. Proc. §§ 1021-1038, in any judicial proceeding under Code Civ. Proc. §§ 1280-1294.2 connected with arbitration. This includes attorney's fees pursuant to Code Civ. Proc. § 1033.3(a)(10)(A) when they are authorized by the contract. Plaintiff in Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal. App. 4th 508, 28 Cal. Rptr. 3d 584 , sought to recover a real estate brokerage commission. The arbitrator awarded the commission to plaintiff Marcus & Millichap (MM), which petitioned to confirm the award. Woodman, and its managing partner, who was also named in the award, petitioned to vacate the award. That petition was granted, as was Woodman's petition for post-award costs and attorney's fees incurred in the judicial proceedings. The award was vacated on the ground that the managing partner was not a signatory of the arbitration agreement and that the arbitrator exceeded her powers by entering an award against him. Plaintiff sought to have the award corrected to delete Woodman's managing partner. When that motion was denied, plaintiff filed a petition to compel the managing partner to arbitrate. That petition was granted. MM did not appeal the order vacating the arbitration award, but did appeal the order granting defendants' costs and attorney's fees. The basis for seeking to set aside the order awarding post-award costs and attorney's fees under Code Civ. Proc. § 1293.2 was that the matter had not yet been resolved, so no one was yet the prevailing party. The court of appeal affirmed the award of post-award costs and attorney's fees, although with a dissent which claimed the majority treated the matter too technically, and should have come to a contrary result based on equitable principles ( 129 Cal. App. 4th 508, 518) . The award of costs pursuant to Code Civ. Proc. § 1293.2, including attorney's fees when authorized by the contract, is mandatory. The court's determination under Code Civ. Proc. § 1293.2 which party, if either, is the prevailing party in a post-arbitration judicial proceeding is a judicial function distinct from the arbitrator's decision to award or not to award fees in the arbitration itself ( 129 Cal. App. 4th 508, 513) [see Code Civ. Proc. § 1032(4)(a) (defining ''prevailing party'')]. As a matter of law, with respect to the postarbitration judicial proceedings Woodman and its managing partner were the prevailing parties ( 129 Cal. App. 4th 508, 514) . They were entitled to post-award costs and attorney's fees despite the order for another arbitration, because the order vacating the award without ordering rehearing was final and appealable [see Code Civ. Proc. § 1294©] ( 129 Cal. App. 4th 508, 514-515) . Because no rehearing was ordered and the order vacating the arbitration award was not appealed, no claim of either party remained before the court or otherwise subject to judicial determination, the trial court's rulings are final. Further, the defendants did not have to prevail on the contract claim to be entitled to postarbitration fees and costs. The listing agreement provided for attorney's fees ''in any litigation, arbitration or other legal proceedings.'' That contract language, as well as Code Civ. Proc. § 1293.2 required postarbitration judicial proceedings be considered a discrete legal proceeding for purposes of determining entitlement to attorney's fees ( 129 Cal. App. 4th 508, 516) . MBNA America Bank, N.A. v. Gorman (2006) 147 Cal. App. 4th Supp. 1, 54 Cal. Rptr. 3d 724 , was an appeal to the Appellate Division of the Superior Court from an order of the superior court denying plaintiff's petition to confirm an arbitration award against defendant card holder for sums owed to plaintiff on the ground that under Badie v. Bank of America (1998) 67 Cal. App. 4th 779, 79 Cal. Rptr. 2d 273 (discussed at § 20.133[3][a]) a mailed insert or ''bill stuffer'' cannot serve as a waiver of the procedural right of trial by jury or as a basis for enforcement of an ADR clause by a unilaterally issued change in the original agreement ( 147 Cal. App. 4th Supp. 1, 4 ). After plaintiff's petition was denied, defendant moved for costs and attorney's fees under both the attorney's fee provision in the credit card agreement and the private attorney general doctrine codified at Code Civ. Proc. § 1021.5. The trial court awarded defendant costs and fees in the amount of $23,490.77, finding that he was the prevailing party in this proceeding. The plaintiff appealed. The only issue on appeal was the grant of attorney's fees and costs to defendant. The Appellate Division affirmed ( 147 Cal. App. 4th Supp. 1, 13) , also awarding defendant his costs and attorney's fees on the appeal ( 147 Cal. App. 4th Supp. 1, 13-14) . Plaintiff contended the order denying the petition to confirm was not a final award as required before contractual attorney's fees can be awarded under Civ. Code § 1717 because there was no final determination of the contractual rights giving rise to the dispute. The Appellate Division noted that Code Civ. Proc. § 1293.2 mandates that the court award costs in any judicial proceeding under Code Civ. Proc. § 1280 et seq. as provided in Code Civ. Proc. § 1021 et seq. A petition to confirm or vacate an arbitration award is covered by Code Civ. Proc. § 1280 et seq. [see Code Civ. Proc. § 1285]. Code Civ. Proc. § 1032(a)(4) defines ''prevailing party'' to include a defendant as against whom plaintiffs who do not recover any relief. Thus, defendant was the prevailing party in the judicial proceeding on plaintiff's petition to confirm the arbitration award: the petition was denied and plaintiff did not recover any relief against defendant. Thus, under the mandate in Section 1293.2, the trial court was required to award defendant his costs, which under Code Civ. Proc. § 1033.5(a)(10) includes attorney's fees if they are authorized by contract, statute, or law. The credit card agreement contained a unilateral attorney's fees provision in favor of plaintiff; but Civ. Code § 1717(a) implies a bilateral right to attorney's fees ( 147 Cal. App. 4th Supp. 1, 7) . The Appellate Division discussed other tests for who is a prevailing party, each of which bolstered its conclusion that defendant was the prevailing party on petition to confirm the award ( 147 Cal. App. 4th Supp. 1, 7-8) . Because the trial court's order was silent on the legal basis for the award, the Appellate Division also considered whether the trial court properly granted attorney's fees under Code Civ. Proc. § 1021.5, and affirmed the award on that basis too ( 147 Cal. App. 4th Supp. 1, 8-14) . Although plaintiff contended the award under the private attorney general doctrine could not be upheld because the denial of the petition to confirm the award was not ''binding precedent,'' the Appellate Division said that although the order did not formally enjoin plaintiff from enforcing the arbitration agreement against other customers, it should effectively deter plaintiff from doing so at least with regard to customers similarly situated to defendant ( 147 Cal. App. 4th Supp. 1, 10) . By similarly situated, the Appellate Division meant those of plaintiff's customers against whom the arbitration agreement would be unenforceable for the same reasons it was found to be unenforceable against plaintiff in the trial court proceedings ( 147 Cal. App. 4th Supp. 1, 10 n. 2 ).
  17. [d] Deemed Admission If Response Untimely Evans Co. v. Millmen's Union No. 550 (1984) 159 Cal. App. 3d 815, 205 Cal. Rptr. 731 , involved arbitration of a dispute under a collective bargaining agreement. After the award was made by the arbitrator, the employer timely filed a petition to vacate the award. The union failed to file a response to the petition within the period prescribed by Code Civ. Proc. § 1290.6. The trial court held that the employer's allegations in the petition to vacate were deemed admitted. The trial court ultimately granted the petition, after applying substantive federal law, and the union appealed. The court of appeal affirmed, holding that the union's untimely response was not ''duly filed'' as required by Code Civ. Proc. § 1290. Therefore, the trial court had properly concluded that the allegations in petitioner's petition were deemed admitted ( 159 Cal. App. 3d 815, 819) . [e] Time for Filing Petition to Vacate Award Plaintiff in Louise Gardens of Encino Homeowners' Association, Inc. v. Truck Insurance Exchange (2000) 82 Cal. App. 4th 648, 98 Cal. Rptr. 2d 378 , demanded an appraisal of the amount of loss it sustained in the 1994 Northridge earthquake. The appraisal was conducted in accordance with Ins. Code § 2071, which provides that each party select a competent and disinterested appraiser and then they select a competent and disinterested umpire. The appraisers appraise the loss; and if they cannot agree, submit their differences to the umpire. The appraiser chosen by defendant disclosed his prior associations with defendant and its affiliates, including that during the three years immediately preceding his appointment by defendant, he had served as an appraiser designated by the defendant or its affiliates on 15 occasions, 11 of which involved appraisals which were then still pending. In addition, he had served four times during the same period as a consultant to the law firm which was then representing defendant in these proceedings. Based on those disclosures, plaintiff demanded defendant's appraiser be replaced and filed a petition for his removal. The trial court denied the petition, under former Code Civ. Proc. § 1282(e), which provided grounds for disqualification of party arbitrators. Admittedly, that denial was not appealable. Later, defendant commenced a declaratory relief action against plaintiff claiming plaintiff had breached the cooperation provisions of the policy and was therefore estopped to claim any benefits under it. That action was still pending in the trial court, but had been stayed pending resolution of the issues raised in this appeal. When the appraisal was returned, plaintiff accepted $440,000, which represented the difference between the appraisal award and the amount previously paid by defendant. Plaintiff never sought to vacate the award, much less within the 100 day period specified in Code Civ. Proc. § 1288. Instead, it filed a cross complaint in defendant's declaratory relief action. Still later, over 14 months after its receipt of the appraisal award, plaintiff filed a petition to confirm the award so that plaintiff could appeal the ruling refusing to remove the appraiser. The petition was granted, and judgment entered thereon. Plaintiff appealed, and defendant filed a timely cross appeal. The court of appeal affirmed the judgment. An agreement to conduct an appraisal contained in a policy of insurance constitutes an ''agreement'' within the meaning of Code Civ. Proc. § 1280(a), and therefore is considered an arbitration agreement subject to the statutory contractual arbitration law. While the court recognized that one of the grounds for vacating an appraisal award is the failure of an arbitrator who was subject to disqualification on the grounds set out in former Code Civ. Proc. § 1282 (e) [now Code Civ. Proc. § 1281.9(a)(1) (applicable only to neutral arbitrators)] to disqualify himself or herself as required by former Code Civ. Proc. § 1286.2(f), [now Code Civ. Proc. § 1286.2(a)(6)( ] relief must be sought in a timely manner. A court cannot vacate an award unless a petition requesting that relief has been duly filed and served not later than 100 days after the date of service of a signed copy of the award on the petitioning party [Code Civ. Proc. § 1288] ( 82 Cal. App. 4th 648, 658) . A party to an arbitration may not circumvent the 100 day time requirement in which to seek the vacation of an award by attempting to raise his or her objections to the award in an appeal from the judgment entered following an order of confirmation. A party who fails to timely file a petition to vacate under Code Civ. Proc. § 1286 may not thereafter attack that award by other means on grounds which would have supported an order to vacate ( 82 Cal. App. 4th 648, 659) . The court concluded that plaintiff could not avoid the consequences of its failure to file a timely petition to vacate by appealing from the post-confirmation judgment ( 82 Cal. App. 4th 648, 660) . As a further ground for affirming the judgment confirming the award, the court of appeal noted that plaintiff had accepted the benefits of the judgment, which resulted in waiver of the right to appeal from it ( 82 Cal. App. 4th 648, 661) . The parties in Knass v. Blue Cross of California (1991) 228 Cal. App. 3d 390, 279 Cal. Rptr. 124 , stipulated to binding arbitration of a pending lawsuit. An award in defendant's favor was served in July, 1989. In September, the court ordered judgment entered in defendant's favor, and notice of entry of judgment was served on plaintiff in November. In January, 1990, plaintiff appealed, contending that the arbitrator's award should be vacated. The court of appeal affirmed the award for defendant, holding that Code Civ. Proc. § 1287.4 does not allow a party to challenge an arbitration award for the first time on appeal. The 100-day time limit in Code Civ. Proc. § 1288 may not be circumvented by appealing the judgment confirming the award ( 228 Cal. App. 3d 390, 395-396) . [f] Arbitrator's Testimony May Not Be Considered Evid. Code § 703.5 provides that no person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, is competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could do any of the following: Give rise to civil or criminal contempt. Constitute a crime. Be the subject of investigation by the State Bar or Commission on Judicial Performance. Give rise to disqualification proceedings under Code Civ. Proc. § 170.1(a)(1) or (6). Evid. Code § 703.5 does not apply to a mediator with regard to any mediation under Fam. Code § 3160 et seq. Trabuco Highlands Community Assn. v. Head (2002) 96 Cal. App. 4th 1183, 117 Cal. Rptr. 2d 842 involved a dispute between a condominium association and member/homeowners. They stipulated to arbitration, but the homeowners always maintained they did not agree to ''binding'' arbitration. There were letters evidencing an agreement for nonbinding arbitration, but the association claimed the homeowners orally modified the agreement during the arbitration hearing to agree to binding arbitration. The award issued (in favor of the association) was entitled ''Binding Arbitration Award and Decision''. Homeowners made it clear at association meetings that they did not agree to binding arbitration, but did nothing until, some five months after issuance of the award, the association moved to have it confirmed. Homeowners opposed the confirmation and both parties submitted declarations. The arbitrator submitted a letter indicating his notes conformed with the association's position and that the homeowners agreed to ''seek a final resolution of this dispute''. Homeowners objected that the letter was not a declaration and was hearsay, but the court referred to the letter in ruling that the arbitration was binding and confirming the award. After losing a motion for reconsideration, the homeowners appealed. The court of appeal reversed, finding that the trial court reached its decision by impermissible means [ 96 Cal. App. 4th 1183, 1188] . The court of appeal remarked that the trial court expressly noted that it was relying on the letter by the arbitrator. By doing so, the trial court abdicated its function to determine whether the arbitrator exceeded his powers in a most fundamental way: by issuing a binding award after the parties agreed to nonbinding arbitration [ 96 Cal. App. 4th 1183, 1190] . The court of appeal said the problem went beyond the fact that the arbitrator's letter was hearsay: arbitrator testimony concerning the arbitration is expressly prohibited (except in circumstances not relevant here) by Evid. Code § 703.5. Therefore, it was inappropriate to rely after the fact on the arbitrator's characterization of the arbitration as binding. Because the trial court appeared to have relied on the arbitrator's statement, reversal was required for proper consideration of whether the parties agreed to binding arbitration [ 96 Cal. App. 4th 1183, 1191] .
  18. Ovitz v. Schulman (2005) 133 Cal. App. 4th 830, 35 Cal. Rptr. 3d 117 , arose out of defendant's employment with plaintiffs' joint venture. The employment agreement contained an arbitration provision. Dispute arose regarding whether defendant resigned or was wrongfully terminated. After the parties agreed to arbitration in accordance with the American Arbitration Association (AAA)'s Rules for Resolution of Employment Disputes, the proposed neutral arbitrator submitted a worksheet, purportedly making the required disclosures. The worksheet did not in fact contain the disclosure required by Cal. Rules of Ct, Appen. Div., VI, Standard 12 ( regarding the proposed neutral arbitrator's intention, while that arbitration was pending, to entertain offers of employment from a party or a lawyer for a party, including offers to serve as a dispute resolution neutral in another case. Arbitration began on September 8, 2003. After 23 days of hearings and twenty-one witnesses, the arbitrator ruled on May 12, 2004, that the joint venture and related parties were entitled to $1,878,739.15 in attorney fees and costs. On May 27, 2004, after the joint venture parties had circulated a proposed draft of the award, the AAA informed all parties' attorneys that the arbitrator had accepted employment in another arbitration in which the law firm representing the joint venture parties was representing a party. The arbitrator conducted a preliminary hearing in the second arbitration as early as March 1, 2004. The precise date of the arbitrator's appointment in the second case was not clear, but declarations suggested that the arbitrator and the attorneys for the law firm representing the joint venture parties had discussions in the second case as early as January or February 2004. On June 3 and 14, 2004, defendant's counsel sent letters to the AAA requesting the arbitrator's disqualification for failure to disclose that he would entertain offers of employment from the law firm representing the joint venture parties, and further failed to disclose his employment by that firm in the second arbitration. The AAA denied that disqualification request. The trial court denied the joint venture parties' petition to confirm the award, and granted defendant's cross-petition to vacate the award. After denial of their motion for reconsideration, the joint venture parties appealed. The court of appeal affirmed ( 133 Cal. App. 4th 830, 856) . The portions of the opinion considering the failures of disclosure are discussed at § 20.420[3][g]. After deciding that Code Civ. Proc. § 1286.2(a)(6)(A) required the award to be vacated, the court of appeal considered joint venture parties' contention that Code Civ. Proc. § 1286.2(a)(6)(A) is preempted by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). The court of appeal concluded after reviewing the relevant statutory language, that the congressional purpose of the FAA, did not result in the FAA's preemption of section 1286.2(a)(6)(A). Under the FAA, an award must be vacated if there ''was evident partiality or corruption in the arbitrators, or either of them'' [9 U.S.C. § 10(a)(2)]. The joint venture parties argued that, for two reasons, section 10(a)(2) of the FAA preempted Code Civ. Proc. § 1286.2(a)(6)(A). First, the FAA's ''evident partiality'' permits vacating an arbitration award for inadequate disclosure only if the undisclosed facts create a reasonable impression of partiality, and second, that a party who has constructive knowledge of a ground for disqualification but remains silent is deemed to have waived the right to disqualify. The court of appeal disposed of the second contention first, saying that federal rule, based on a case, not statute, was not accepted in all federal courts ( 133 Cal. App. 4th 830, 849) . Also, the only evidence that defendant had constructive knowledge was presented in the declarations filed in support of the motion for reconsideration, and the trial court did not find them credible. Finally, the waiver rule could have no greater preemptive effect than section 10(a)(2) itself; and the court of appeal chose to rest its decision on consideration of the preemptive effect of section 10(a)(2) alone. The court considered the language of 9 U.S.C. § 10(a)(2) ( 133 Cal. App. 4th 830, 850) , and the fact that that language strongly suggests that section 10 applies only in federal court proceedings: ''the United States court in and for the district wherein the award was made.'' Similarly, section 12 of the FAA, which provides the procedure for presenting a motion to vacate, refers to a motion in district court ( 133 Cal. App. 4th 830, 851) . Further, Code Civ. Proc. § 1286.2(a)(6)(A) is not inconsistent with the purpose of the FAA. Absent an express preemption provision, federal statutory language does not resolve the question of preemption. Rather, there is no evidence that Congress intended to preempt postaward and state court litigation rules so long as the basic policy upholding the enforceability of arbitration agreements is given full effect court ( 133 Cal. App. 4th 830, 852) . By its terms, section 1286.2(a)(6)(A) does not undermine the enforceability of arbitration agreements. It merely requires the vacating of an award if the arbitrator failed timely to disclose a ground for disqualification of which he was aware. Indeed, because it applies to vacating an arbitration award, section 1286.2(a)(6)(A) presupposes that the arbitration agreement has been enforced and the arbitration held. Further, the legislative purpose of section 1286.2(a)(6)(A) and the California disclosure requirements as a whole seek to enhance both the appearance and reality of fairness in arbitration proceedings, thereby instilling public confidence. The court did not agree with the joint venture parties that the disclosure rules undermine the arbitration process by allowing a party to seize on a technicality to vacate an arbitration award ( 133 Cal. App. 4th 830, 853) . Nor was section 1286.2(a)(6)(A) inconsistent with the parties' arbitration agreement, which specified that the intended their arbitration to be subject to all of the disclosure requirements imposed by the AAA and the California Code of Civil Procedure. From the outset of the arbitration proceeding, the parties contemplated that the California disclosure requirements applied, in addition to AAA disclosure requirements ( 133 Cal. App. 4th 830, 854) . The arbitration agreement provided that judicial review would be limited as provided by Code Civ. Proc. § 1286.2 or other applicable law. Even if ''other applicable law'' meant the FAA, section 10(a)(2) of the FAA does not preempt Code Civ. Proc. § 1286.2(a)(6)(A) ( 133 Cal. App. 4th 830, 855) . Defendant/appellant in International Alliance of Theatrical Stage Employees, etc. v. Laughon (2004) 118 Cal. App. 4th 1380, 14 Cal. Rptr. 3d 341 sued plaintiff/respondent for sex discrimination and entered into a settlement agreement by which they agreed that any dispute about the terms of the settlement agreement would be submitted to binding arbitration before one of four named arbitrators, one of whom was John Kagel. A dispute arose that was submitted to arbitration before Kagel, who was informed of his selection as arbitrator on April 23, 2001. Kagel had previously served as the neutral arbitrator in one noncollective bargaining arbitration involving another union represented in that arbitration by the same firm that represented plaintiff in this arbitration and in numerous collective bargaining cases in which that law firm served as counsel. Kagel never disclosed this prior service. On the first day of the arbitration hearing between these parties, plaintiff/respondent introduced as an exhibit Kagel's June 13, 2001, decision in the noncollective bargaining matter. Kagel did not acknowledge that he had failed to disclose his service as an arbitrator in that matter nor did he alert defendant's counsel that his service as an arbitrator might be grounds for disqualification. The award was introduced to support of claims of plaintiff regarding breaches of confidentiality agreements or follow-up of settlement agreements. Kagel issued an award largely in favor of plaintiff, which defendant petitioned to vacate on the ground that Kagel had failed to disclose certain matters that might serve as a basis for his disqualification, including his prior employment as an arbitrator in cases involving plaintiff or its counsel. The trial court denied the petition to vacate and confirmed the award, finding that there was no obvious bias or prejudice in the manner in which Kagel conducted the hearings and that when the prior award was introduced as evidence, defendant made a knowing, voluntary and intelligent waiver of the grounds disclosed therein for disqualification. Defendant appealed. The court of appeal reversed, concluding that pursuant to Code Civ. Proc. § 1281.9(a)(4), the arbitrator was required to disclose his service as a neutral arbitrator in the noncollective bargaining matter, his failure to do so was not waived, and the nondisclosure of this required disclosure was a ground for vacation under Code Civ. Proc. § 1286.2(a)(6)(A) ( 118 Cal. App. 4th 1380, 1382) . Code Civ. Proc. § 1281.9(a)(4) specifies that an arbitrator must disclose the names of the parties to all prior or pending noncollective bargaining cases involving any party to the arbitration or lawyer for a party for which the proposed neutral arbitrator served or is serving as neutral arbitrator. The proposed neutral arbitrator must disclose all matters required to be disclosed to all parties in writing within 10 calendar days of service of notice of the proposed nomination or appointment [Code Civ. Proc. § 1281.9(]. Thus, 10 days after he was proposed as the neutral arbitrator in the matter, Kagel was required to disclose his service as neutral arbitrator in the prior matter. Had Kagel done so, defendant would have been entitled to disqualify him within 15 days after the disclosure statement was served [Code Civ. Proc. § 1281.91 ((1)] ( 118 Cal. App. 4th 1380, 1385) . A party who does not move to disqualify an arbitrator prior to the commencement of arbitration may nevertheless seek vacation of an arbitration award on the ground that the arbitrator failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware [Code Civ. Proc. § 1286.2(a)(6)(A)]. This statute provides that if such a failure occurs, ''the court shall vacate the award'' ( 118 Cal. App. 4th 1380, 1385-1386) . The explicit language of the statute supported defendant's argument that the trial court was required to vacate the arbitration award once it was shown that Kagel had failed to make the required disclosure in a timely fashion. Thus, Code Civ. Proc. § 1286.2, as amended in 2001, mandates that a court ''shall'' vacate an arbitration award if, among other reasons, the arbitrator making the award ''failed to disclose ... a ground for disqualification of which the arbitrator was then aware.'' The grounds include those enumerated in the six subparagraphs of Code Civ. Proc. § 1281.9(a). Those subparagraphs are preceded by general description of the matters which must be disclosed (a description also added in 2001) as ''all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial, including all of the following:'' [Code Civ. Proc. § 1281.9(a)]. This statutory language makes clear that, when it amended both Code Civ. Proc. §§ 1281.9 and 1286.2(a)(6)(A) in 2001, the Legislature intended that the failure to disclose the sort of prior relationship involved in this case necessarily satisfies the ''might cause a reasonable person to question'' standard ( 118 Cal. App. 4th 1380, 1386) . The court further found that because no effective disclosure of the disqualifying information took place, the trial court erred in finding that defendant ''knowingly'' waived any objection to Kagel's failure to disclose his prior service as a neutral arbitrator by failing to object when the opinion in the prior arbitration was offered into evidence during the arbitration. At the very least, defendant was entitled to the functional equivalent of the disclosure mandated by statute, i.e., an explicit, formal proffer of the disqualifying information [Code Civ. Proc. § 1281.9] and an opportunity to object [Code Civ. Proc. § 1281.91] ( 118 Cal. App. 4th 1380, 1390-1392) .
  19. Discussion of Authorities [a] Misconduct of Neutral Arbitrator Comments to Ethics Standards for Neutral Arbitrators [see Cal. Rules of Ct., Appen., Div. VI], adopted effective July 1, 2002, indicate that in addition to providing grounds for vacatur of an arbitrator's award based on a neutral arbitrator's failure to comply with disclosure requirements, other obligations under the standards may also constitute grounds for vacating an arbitration award under Code Civ. Proc. § 1286.2(a)(3) if the rights of a party were substantially prejudiced by a violation of those standards [see Cal. Rules of Ct., Appen., Div. VI, Comment to Standard 1]. Arbitrators Exceeded Their Powers The arbitration clause in the contract involved in DiMarco v. Chaney (1995) 31 Cal. App. 4th 1809, 37 Cal. Rptr. 2d 558 , provided that ''the prevailing party shall be entitled to reasonable attorney's fees and costs.'' The arbitrator denied the relief plaintiff requested and denied all requests for attorney's fees and costs. The defendant moved the trial court to correct the arbitration award, contending that the arbitrator exceeded his power by not applying the attorney fee provision. The trial court ultimately granted a second motion to correct and confirm the award as corrected, and entered judgment awarding defendant $19,575 in attorney's fees. Plaintiff appealed. The court of appeal affirmed in part and reversed in part. The court held that under the clause, the award of attorney's fees to the prevailing party was mandatory; the arbitrator had exceeded his power in denying them. The court had power to correct the award in this respect ( 31 Cal. App. 4th 1809, 1814-1815) . The trial court erred by determining the amount of attorney's fees to be awarded, because this was a matter for the arbitrator. The trial court should have remanded the matter to the arbitrator to make this determination ( 31 Cal. App. 4th 1809, 1816-1817) . Bellflower Education Assn. v. Bellflower Unified School Dist. (1991) 228 Cal. App. 3d 805, 279 Cal. Rptr. 179 , involved allegations by a teacher that proper probationary and evaluation procedures had not been used in ''not reelecting'' her to her position for a third academic year. The teacher had been on probation for the previous two years. The school district contended that Educ. Code § 44929.21 provides that nonreelection of probationary employees may not be subject to arbitration. However, the violation of evaluation procedures was within the scope of collective bargaining. The arbitrator held that the district had violated its evaluation procedures, and ordered the district to cease and desist from conducting further evaluations in violation of these procedures and to reinstate the grievant. The arbitrator's award was vacated, and appeal followed. The court of appeal reversed the judgment vacating the arbitration award, but remanded to the trial court to issue a judgment confirming the award after correcting it to delete the order of reinstatement. Under Educ. Code § 44929.21, nonreelection of probationary employees may not be subject to arbitration. An arbitration award that exceeds the powers vested by the agreement may be vacated ( 228 Cal. App. 3d 805, 812) . By confirming the award except for the reinstatement provision, the trial court could correct the award without affecting the merits of the decision and thereby avoid vacating the award in its entirety ( 228 Cal. App. 3d 805, 812-813) . [c] Arbitrator Failed to Disqualify Self Code Civ. Proc. § 1286.2(a)(6) does not apply to arbitration proceedings conducted under collective bargaining agreements between employers and employees or between their respective representatives. Code Civ. Proc. § 1281.9 as amended effective January 1, 2002, requires proposed neutral arbitrators to disclose six categories of potential grounds for disqualification, including the existence of any grounds specified in Code Civ. Proc. § 170.1, for disqualification of a judge [see Code Civ. Proc. § 1281.9(a)(1)], and any disclosures required by the by far broader Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Cal. Rules of Ct., Appen., Div. VI, Standards 7 and 12, adopted effective July 1, 2002, and Cal. Rules of Ct., Appen., Div. VI, Standard 8, effective January 1, 2003 [Code Civ. Proc. § 1281.9(a)(2)]. If any ground specified in Code Civ. Proc. § 170.1 exists, a neutral arbitrator must disqualify himself or herself on demand of any party made before the conclusion of the arbitration proceeding [Code Civ. Proc. § 1281.91(d); Cal. Rules of Ct., Appen., Div. VI, Standard 10(a)(5)]. For all other grounds of disqualification, a party must serve notice of disqualification within the times specified in Code Civ. Proc. § 1281.91(a) or ( or the grounds for disqualification are waived unless the proposed neutral arbitrator made a material omission or a material misrepresentation in his or her disclosure [Code Civ. Proc. § 1281.91©; Cal. Rules of Ct., Appen., Div. VI, Standard 10(a)(1)-(4)]. Notwithstanding any contrary request, consent, or waiver by the parties, an arbitrator must disqualify himself or herself if he or she concludes at any time during the arbitration that he or she is not able to conduct the arbitration impartially [Cal. Rules of Ct., Appen., Div. VI, Standard 10©]. NOTE: The California Ethics Standards will not apply in any arbitration in which the parties have agreed to arbitrate in accordance with New York Stock Exchange (NYSE) Arbitration Rules or the National Association of Securities Dealers (NASD) Code of Arbitration Procedure. Both preempt the California Ethics Standards to the extent that the Securities and Exchange Commission has approved those rules and procedures in accordance with the Securities Exchange Act of 1934 [ Credit Suisse First Boston Corp. v. Grunwald (9th Cir. 2005) 400 F.3d 1119, 1147-1148 (NASD rules); Mayo v. Dean Witter Reynolds (N.D. Cal. 2003) 258 F. Supp. 2d 1097, 1112 , as corrected at 260 F. Supp. 2d 979 ; accord Wilmot v. McNabb (N.D. Cal. 2003) 269 F. Supp. 2d 1203 ; Jevne v. Superior Court (JB Oxford Holdings, Inc.) (2005) 35 Cal. 4th 935, 28 Cal. Rptr. 3d 685, 111 P.3d 954] . NYSE Rules and NASD Code of Arbitration Procedure have their own disclosure requirements [see NYSE Arbitration Rule 610; NASD Code of Arbitration Procedure, Rule 10312].
  20. FORM 20.260 Supporting Petition to Vacate Arbitration Award MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE AWARD [AND ORDER REHEARING OF CONTROVERSY] THE AWARD SHOULD BE VACATED BECAUSE __________________ [OF CORRUPTION OF A PARTY or OF CORRUPTION OF AN ARBITRATOR or OF MISCONDUCT OF AN ARBITRATOR or THE ARBITRATORS EXCEEDED THEIR POWERS or THE ARBITRATORS ACTED CONTRARY TO THE ARBITRATION STATUTES]. A. Petition to Vacate Award. A party to an arbitration in which an award has been made may petition the court to vacate the award (Code Civ. Proc. § 1285). B. Grounds for Vacating Award. If the requirements of Section 1286.4 of the Code of Civil Procedure are met, the court must vacate an award on the grounds set out in Section 1286.2 of the Code of Civil Procedure (see Code Civ. Proc. § 1286.2). [EITHER] C. Award Procured by Undue Means. The court shall vacate the award on a determination that the award was procured by corruption, fraud, or other undue means (Code Civ. Proc. § 1286.2(a)(1)). [AND/OR] D. Corruption of Arbitrator. The court shall vacate the award on a determination that there was corruption in any of the arbitrators (Code Civ. Proc. § 1286.2(a)(2)). [AND/OR] E. Misconduct of Neutral Arbitrator. The court shall vacate the award on a determination that the rights of the party seeking an order vacating the award were substantially prejudiced by conduct of a neutral arbitrator (Code Civ. Proc. § 1286.2(a)(3)). [AND/OR] F. Arbitrators Exceeded Their Powers. The court shall vacate the award on a determination that the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision on the controversy submitted (Code Civ. Proc. § 1286.2(a)(4); DiMarco v. Chaney (1995) 31 Cal. App. 4th 1809, 1814-1815, 37 Cal. Rptr. 2d 558; see also Bellflower Education Assn. v. Bellflower Unified School Dist. (1991) 228 Cal. App. 3d 805, 812-813, 279 Cal. Rptr. 179 (confirming as corrected)). [AND/OR] G. Prejudicial Conduct by Arbitrators. The court shall vacate the award on a determination that the rights of the party seeking an order vacating the award were substantially prejudiced by the refusal of the arbitrators to postpone the hearing on sufficient cause being shown therefor, by the refusal of the arbitrators to hear evidence material to the controversy, or by other conduct of the arbitrators contrary to the provisions of Sections 1280 through 1294.2 of the Code of Civil Procedure (Code Civ. Proc. § 1286.2(a)(5)). [AND/OR] H. Arbitrator Failed to Disqualify Self. The court shall vacate an award on a determination that an arbitrator making the award either: .Failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware. When the matter the proposed neutral arbitrator failed to disclose in a timely fashion was one of the matters required to be disclosed by Code of Civil Procedure Section 1281.9(a), the court is required by Code of Civil Procedure Section 1286.2(a)(6)(A) to vacate the award. There is no room for argument that the undisclosed matter is not one that might cause a reasonable person to question the arbitrator's impartiality. By its 2001 amendments to Code of Civil Procedure Sections 1281.9 and 1286.2(a)(6)(A), the Legislature intended that failure to disclose any of the matters enumerated in Code of Civil Procedure Section 1281.9(a) satisfy the ``might cause a reasonable person to question'' standard [Section 1286.2(a)(6)(A) is not preempted by the Federal Arbitration Act] (Code Civ. Proc. § 1286.2(a)(6)(A); Ovitz v. Schulman (2005) 133 Cal. App. 4th 830, 835, 849-854, 35 Cal. Rptr. 3d 117; International Alliance of Theatrical Stage Employees, etc. v. Laughon (2004) 118 Cal. App. 4th 1380, 1386-1387, 1392-1394, 14 Cal. Rptr. 3d 341); or .Was subject to disqualification on grounds specified in Code Civ. Proc. § 1281.91, but failed on receipt of timely demand to disqualify himself or herself as required by that provision (Code Civ. Proc. § 1286.2(a)(6)(; see Code Civ. Proc. § 1281.91(d) (refers to grounds for disqualification of judge in Code Civ. Proc. § 170.1) [The right to disqualify a proposed neutral arbitrator in accordance with Code of Civil Procedure Sections 1281.9 and 1281.91 cannot be waived by agreeing to arbitrate in accordance with rules that provide some other means of determining whether the proposed neutral arbitrator is to be disqualified. The statutory scheme is designed to primarily to serve the public purpose of promoting public confidence that the arbitration process allows individual rights to take precedence (Azteca Construction, Inc. v. ADR Consulting, Inc. (2004) 121 Cal. App. 4th 1156, 1168, 18 Cal. Rptr. 3d 142)]. [CONTINUE] [Optional] I. Deemed Admission If Response Untimely. The allegations in a petition to vacate an arbitration award are deemed admitted if the opposing party did not file a response within the time period set out in Section 1290.6 of the Code of Civil Procedure (Code Civ. Proc. § 1290; Evans Products Co. v. Millmen's Union No. 550 (1984) 159 Cal. App. 3d 815, 819, 205 Cal. Rptr. 731). [Optional] J. Time for Filing Petition to Vacate Award. A petition to vacate an award must be served and filed not later than 100 days after the date of service of a signed copy of the award on petitioner (Code Civ. Proc. § 1288; Louise Gardens of Encino Homeowners' Association, Inc. v. Truck Insurance Exchange (2000) 82 Cal. App. 4th 648, 658-659, 98 Cal. Rptr. 2d 378; Louise Gardens of Encino Homeowners' Association, Inc. v. Truck Insurance Exchange (2000) 82 Cal. App. 4th 648, 658-659, 98 Cal. Rptr. 2d 378; Knass v. Blue Cross of California (1991) 228 Cal. App. 3d 390, 395-396, 279 Cal. Rptr. 124). [Optional] K. Earliest Time Petition May Be Filed. [see § 20.250[1], Paragraph E.] [Optional] L. Arbitrator's Testimony May Not Be Considered. An arbitrator's testimony concerning the arbitration is expressly prohibited (except in circumstances not relevant here) by Evidence Code § 703.5. Therefore, it is inappropriate to rely on the arbitrator's __________________ [specify, i.e., declaration] in determining whether to confirm or vacate this award [Evid. Code § 703.5; Trabuco Highlands Community Assn. v. Head (2002) 96 Cal. App. 4th 1183, 1191, 117 Cal. Rptr. 2d 842]. [Optional] M. Party Who Had Award Vacated Is Entitled to Post-Arbitration Costs and Attorney's Fees. Code of Civil Procedure Section 1293.2 is applicable to petitions to vacate awards and is mandatory. The court's determination under Code of Civil Procedure Section 1293.2 which party, if either, is the prevailing party in a post-arbitration judicial proceeding is a judicial function distinct from the arbitrator's decision to award or not to award fees in the arbitration itself. The prevailing party in a proceeding to vacate an award is entitled to costs, including attorney's fees incurred in that post arbitration judicial proceeding if they are provided for by the contract (Code Civ. Proc. § 1293.2; Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group, Inc. (2005) 129 Cal. App. 4th 508, 513-516, 28 Cal. Rptr. 3d 584 (distinguishing situation in which it may be too soon to tell which is prevailing party for purposes of award of costs and attorney's fees); see MBNA America Bank, N.A. v. Gorman (2006) 147 Cal. App. 4th Supp. 1, 7-10, 54 Cal. Rptr. 3d 724 (on denial of petition to confirm; also upholding alternate ground of fee award pursuant to Code Civ. Proc.§ 1021.5). Dated: ____________ Respectfully submitted, __________________ [firm name, if any] By: __________________ [signature] __________________ [typed name] Attorney for __________________ [party's status and name]
  21. California-Complaint for Declaratory Relief, Temporary Restraining Order, and Preliminary and Permanent Injunction to Prevent Arbitration--General Form 1. Defendant is a domestic corporation and has its principal place of business in ___________________ County, California [or allege other capacity and residence]. [2. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES I-_____, inclusive, and therefore sues these defendants by these fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained.] [3. Agency allegation, if desired, e.g., At all times herein mentioned, defendant ___________________ (name) was the agent and employee of defendant ___________________ (name) and, in doing the things herein mentioned, was acting in the scope of his/her authority and employment.] 4. On or about ____________________ [date], plaintiff and defendant entered into a written contract by which ___________________ [describe general effect of agreement]. The agreement contains an arbitration clause which provides in Paragraph ____________________ as follows: ___________________ [set forth relevant portions of clause]. A copy of the agreement is attached as Exhibit ''A'' and made a part of hereof. 5. On or about ____________________ [date], a controversy arose between plaintiff and defendant concerning ___________________ [describe controversy]. 6. ___________________ [Allege facts showing why the controversy, or any particular issues thereof, is not subject to arbitration, e.g., The arbitration clause herein set forth expressly excludes from arbitration the issues as to ___________________ (specify) which are directly involved in the present dispute between plaintiff and defendant. Plaintiff has not agreed to submit those issues to arbitration.] 7. On or about ____________________ [date], defendant delivered to plaintiff a demand for arbitration and initiated arbitration before ___________________ [specify agency conducting arbitration, e.g., the American Arbitration Association] and threatens to submit the full controversy alleged herein to that arbitration. The arbitration clause herein set forth permits either party to proceed with arbitration ex parte if the other party does not appoint an arbitrator and does not participate in the arbitration. 8. A bona fide dispute exists between plaintiff and defendant in that: a. Defendant contends that ___________________ [set forth contentions, e.g., the entire controversy set forth in this complaint is subject to arbitration, and the arbitrators have exclusive jurisdiction to determine whether or not any issues are to be excluded from arbitration]. b. Plaintiff, however, contends that ___________________ [set forth opposing contentions, e.g., the arbitration is limited in scope to the issues which the parties agreed to arbitrate; the agreement of the parties set forth herein expressly excludes from arbitration the issues as to ___________________ (specify); settlement of the existing controversy between the parties involves a determination of those nonarbitrable issues; and the entirety of the controversy is not subject to arbitration and that arbitration may not proceed until those nonarbitrable issues are first determined by a court of competent jurisdiction]. 9. Unless defendant is restrained by the court from proceeding with the arbitration pending hearing on plaintiff's Order to Show Cause and pending trial of this action, and unless he/she is permanently enjoined as herein prayed, defendant threatens to proceed with arbitration as herein alleged and plainttiff will, as a proximate result, suffer great and irreparable injury and will be compelled to submit to arbitration and to subsequent court action. Plaintiff has no adequate remedy at law. [10. The agreement herein alleged provides for recovery of attorney's fees as follows: ___________________ (set forth relevant provision). Plaintiff has incurred reasonable attorney's fees to date in the sum of $____________________ and will incur additional attorney's fees according to proof.] WHEREFORE, plaintiff prays judgment against defendant as follows: 1. That the court determine that the existing controversy between plaintiff and defendant [regarding the issues of whether ___________________ (specify)] is not subject to arbitration under the agreement alleged in this complaint. 2. For an order requiring defendant to show cause, if any, why he/she should not be enjoined during the pendency of this action from further proceeding with arbitration. 3. For a temporary restraining order, apreliminary injunction, and a permanent injunction, all enjoining defendant from proceeding with arbitration of the controversy alleged herein [until the issues of whether ___________________ (specify) are first determined by a court of competent jurisdiction]. 4. For costs of suit incurred herein [including a reasonable attorney's fee in the sum of $____________________, and additional fees according to proof]. 5. For such order and further relief as the court may deem proper. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Plaintiff VERIFICATION I, ___________________ [name], am the plaintiff in this action. I have read the foregoing complaint and know its contents. The same is true of my own knowledge, except as to those matters that are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ______________________ [date] ______________________ [signature] ______________________ [typed name] CERTIFICATION RE NOTICE [EITHER] I hereby certify that on ____________________ [date], I informed the opposing ____________________ [party or party's attorney] of the time and place this application for a temporary restraining order would be made. [OR] I hereby certify that in good faith I attempted to inform the opposing party of the time and place this application for a temporary restraining order would be made, by ___________________ [specify efforts], but I was unable to do so. [OR] I hereby certify that notice to defendant of the foregoing application for a temporary restraining order should not be required because ___________________ (specify reason)]. [CONTINUE] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ______________________ [date] ______________________ [signature] ______________________ [typed name]
  22. There are excemptions to this rule. This article gives a pretty good description of this regarding the Scott Peterson case and Amber Frey. SBD