Tarver v. Zapata CA2/3 ( 2021 )

Filed 9/16/21 Tarver v. Zapata CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CHARLES WINSTON TARVER, B299630
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC503844
v.
ROGER ZAPATA et al.,
Defendants and Respondents;
MARTHA ZAPATA et al.,
Defendants and Appellants.
APPEALS from a judgment of the Superior Court of Los
Angeles County, Malcolm H. Mackey, Judge. Affirmed as
modified.
Law Offices of Robert K. Kent, Robert K. Kent; Law Offices
of Steven Wolfson and Steven Wolfson for Plaintiff and
Appellant.
Ensberg Law Group and Nancy J. Skovholt for Defendants
and Appellants Martha Zapata and R&R Sales Enterprises, Inc.
Murchison & Cumming and Edmund G. Farrell for
Defendants and Respondents So Cal Realty & Loans, Inc. and
Roger Zapata.
_______________________________________
INTRODUCTION
Plaintiff and appellant Charles Winston Tarver filed the
present action against Roger Zapata, So Cal Realty & Loans, Inc.
(So Cal Realty), Martha Zapata, and R&R Sales Enterprises, Inc.
(R&R Sales) (collectively, defendants) alleging, among other
things, breach of an agreement for the purchase of real estate.
The parties stipulated that the matter should be resolved
through binding arbitration, as required under the purchase
agreement.
More than five years after the matter was sent to
arbitration, defendants moved to dismiss Tarver’s case for lack of
diligent prosecution under Code of Civil Procedure1 sections
583.310 and 583.360. The arbitrator dismissed the case. The trial
court confirmed the award and entered judgment in favor of
Roger Zapata and So Cal Realty. Tarver appeals, arguing
exclusively that the arbitrator erred in granting defendants’
motion to dismiss. Martha Zapata and R&R Sales also appeal
and ask us to correct the judgment to include them.
Arbitration awards are entitled to substantial deference by
our courts and as a general matter, the courts of appeal do not
vacate an arbitration award, even if plain errors of fact or law
appear on the face of the award. All of Tarver’s arguments
1All undesignated statutory references are to the Code of Civil
Procedure.
2
challenge the arbitrator’s legal and factual findings, which are
not reviewable. We will, however, correct the court’s clerical error
omitting Martha Zapata and R&R Sales Enterprises, Inc. from
the judgment, and affirm the judgment as modified.
FACTS AND PROCEDURAL BACKGROUND
1. Arbitration Award
Tarver filed the present action in March 2013, generally
alleging that defendants failed to disclose substantial defects in
the residence he purchased from them. His complaint included a
cause of action for breach of contract and the contract at issue
contained an arbitration provision. In September 2013, the
parties stipulated, and the court ordered, that the matter would
proceed to binding arbitration. No arbitration proceedings took
place, however.
In November 2018, defendants filed a motion to dismiss
Tarver’s action under sections 583.310 and 583.3602 due to
Tarver’s failure to proceed to arbitration with reasonable
diligence. Tarver opposed the motion, arguing mainly that the
five-year period set forth in section 583.310 was effectively tolled
while the arbitration was pending. The arbitrator granted the
motion and dismissed the action with prejudice as to all
defendants.
2 Section 583.310 provides: “An action shall be brought to trial within
five years after the action is commenced against the defendant.”
Section 583.360 provides: “(a) An action shall be dismissed by the court
on its own motion or on motion of the defendant, after notice to the
parties, if the action is not brought to trial within the time prescribed
in this article. [¶] (b) The requirements of this article are mandatory
and are not subject to extension, excuse, or exception except as
expressly provided by statute.”
3
2. Confirmation of the Arbitration Award
In March 2019, Roger Zapata and So Cal Realty filed a
petition to confirm the arbitration award under section 1285.
Tarver did not file a timely opposition to the petition. Instead,
approximately two months after the petition was filed—and just
a few days before the hearing on the petition was set to take
place—Tarver filed an ex parte application asking the court to
postpone the hearing, facilitate substitution of counsel, and allow
new counsel to file an opposition to the petition to confirm the
arbitration award. The application purported to set forth
“relevant true facts that were not presented to the Arbitrator”
regarding Tarver’s efforts to bring the matter to arbitration in a
timely manner. The application was supported by declarations
from Tarver and his proposed new counsel.
The court denied the ex parte application but allowed
Tarver to file a formal opposition to the petition to confirm the
arbitration award. Tarver subsequently filed an opposition that
was essentially identical to his ex parte application and was
similarly supported by declarations from Tarver and his proposed
new counsel attesting to their diligence in prosecuting the
arbitration.
During the May 31, 2019 hearing, defendants reiterated
that the court should grant the petition and confirm the
arbitration award in favor of all four defendants. The court found
that no valid ground to correct or vacate the arbitration award
existed and granted the petition to confirm the award. The court
also confirmed that it was rendering judgment in favor of all four
defendants.
4
3. Judgment and Appeals
Roger Zapata and So Cal Realty submitted a proposed
judgment to the court that omitted Martha Zapata and R&R
Sales as prevailing parties. Over the objection of Martha Zapata
and R&R Sales, the court signed the proposed judgment.
The judgment was filed on July 3, 2019. Tarver timely
appeals. Martha Zapata and R&R Sales filed a timely cross-
appeal.
DISCUSSION
1. The court properly confirmed the arbitration award.
Each of Tarver’s arguments on appeal is directed to the
arbitrator’s ruling on defendants’ motion to dismiss. As we
explain, however, the correctness of the arbitrator’s decision is
not properly before us.3 Instead, we consider only whether the
court properly confirmed the arbitration award. On that point,
Tarver offers no argument and therefore fails to establish the
court erred.
1.1. Standard of Review
We review the court’s decision on a petition to confirm or
vacate an arbitration award de novo. (Advanced Micro Devices,
Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.) If the court’s
3 Tarver’s additional contention that the arbitrator that decided the
motion to dismiss, Chris R. Conway, was not the arbitrator agreed
upon by the parties is not sufficiently developed in his opening brief.
Regardless, this contention is contradicted by Tarver in his opposition
to the motion to dismiss: “On September 19, 2018 the parties agreed to
utilizing Honorable Chris Conway as the arbitrator, with a[n]
upcoming date for said arbitration.”
5
ruling relies on a determination of disputed factual issues, we
apply the substantial evidence test on those particular issues.
(Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217.)
Tarver contends that “[a]ppellate review is limited to
whether the trial court abused its discretion in ruling on the
Motion to dismiss.” But as we explain post, the issue before us is
whether the court properly granted defendants’ petition to
confirm the arbitration award—not whether the arbitrator’s
decision to dismiss Tarver’s action was correct.
1.2. Review of Arbitration Awards
“The [California Arbitration Act (§ 1280 et seq.) (CAA)] is ‘a
comprehensive statutory scheme regulating private arbitration in
this state.’ (Moncharsh [v. Heily & Blase (1992)] 3 Cal.4th [1,] 9.)
‘Through this detailed statutory scheme, the Legislature has
expressed a “strong public policy in favor of arbitration as a
speedy and relatively inexpensive means of dispute resolution.” ’
(Ibid.)” (Sheppard, Mullin, Richter & Hampton, LLP v. J-M
Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 72.)
“Pursuant to … section 1285, any party to an arbitration in
which an award has been made may petition the court to
‘confirm, correct or vacate the award.’ Once a petition to confirm
an award is filed, the superior court must select one of only four
courses of action: It may confirm the award, correct and confirm
it, vacate it, or dismiss the petition. [Citation.] ‘[I]t is the general
rule that, with narrow exceptions, an arbitrator’s decision cannot
be reviewed for errors of fact or law.’ (Moncharsh v. Heily & Blase
(1992) 3 Cal.4th 1, 11.) Under section 1286.2, the court may
vacate the award only under ‘ “very limited circumstances.” ’
[Citation.] Neither the trial court, nor the appellate court, may
‘review the merits of the dispute, the sufficiency of the evidence,
6
or the arbitrator’s reasoning, nor may we correct or review an
award because of an arbitrator’s legal or factual error, even if it
appears on the award’s face. Instead, we restrict our review to
whether the award should be vacated under the grounds listed in
section 1286.2. [Citations.]’ ” (EHM Productions, Inc. v. Starline
Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063–1064,
final brackets in original, fn. omitted.)
Section 1286.2, subdivision (a), provides: “Subject to
Section 1286.4, the court shall vacate the award if the court
determines any of the following:
“(1) The award was procured by corruption, fraud or other
undue means.
“(2) There was corruption in any of the arbitrators.
“(3) The rights of the party were substantially prejudiced
by misconduct of a neutral arbitrator.
“(4) The arbitrators exceeded their powers and the award
cannot be corrected without affecting the merits of the decision
upon the controversy submitted.
“(5) The rights of the party were substantially prejudiced
by the refusal of the arbitrators to postpone the hearing upon
sufficient cause being shown therefor or 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 this
title.
“(6) An arbitrator making the award either: (A) failed to
disclose within the time required for disclosure a ground for
disqualification of which the arbitrator was then aware; or
(B) was subject to disqualification upon grounds specified in
Section 1281.91 but failed upon receipt of timely demand to
disqualify himself or herself as required by that provision.
7
However, this subdivision does not apply to arbitration
proceedings conducted under a collective bargaining agreement
between employers and employees or between their respective
representatives.”
1.3. Tarver’s arguments challenge the correctness of
the arbitrator’s decision and are beyond the
scope of review.
Tarver summarizes the issues on appeal as follows:
“A. Was the litigation stayed by the Trial Court for the
duration of the Arbitration?
“B. Did the new Arbitrator have the authority to dismiss
the Arbitration based on the ‘five-year statute’ ([§ 583.310]) when
the underlying litigation had been stayed by the Trial Court?
“C. Did Respondents misrepresent the true facts
concerning readiness for Arbitration, the true facts being that
Appellant was ready to proceed to Arbitration in mid-2014 and it
was Respondents who would not agree to schedule a date for the
Arbitration Hearing because of their ongoing discovery?
“D. Did Respondents deceive new Counsel for Appellant
and the new ‘Arbitrator’ (the Hon. Chris R. Conway (Ret.)) by
concealing that the Parties had agreed in 2013 that the Hon.
Charles ‘Skip’ Rubin would serve as Arbitrator and there was no
refusal or inability by Judge Rubin to serve as Arbitrator and no
Court Order or agreement between the Parties to replace Judge
Rubin as Arbitrator.
“E. Did the new Arbitrator, Judge Conway, abuse his
authority and duty by failing to promptly set an Arbitration
Hearing date?”
Each of these arguments is addressed to the correctness of
the arbitrator’s decision to dismiss Tarver’s action which, as we
8
have explained, is beyond the scope of our review. Throughout his
opening brief, Tarver focuses exclusively on the arbitrator’s
dismissal of his case. For example, in summarizing the relief he
seeks from this court, Tarver asserts that “the facts and the
applicable law clearly support a reversal of the Trial Court’s
Order [sic] dismissing the litigation based on the five-year statute
and restoring [sic] this matter to the Civil Active List and
confirming [sic] that the matter is to proceed to Arbitration before
Judge Rubin … .” And under the heading “summary of the
appellant’s argument,” Tarver begins by stating “[section]
583.310 requires that an action be brought to trial within five (5)
years of its filing. The statute is procedural rather than
jurisdictional[,]” and he then explains that “[a]ppellate courts
may independently determine the proper interpretation of a
statute,” such as section 583.310.
Under well-settled authority, we decline Tarver’s invitation
to review the correctness of the arbitrator’s award. (E.g.,
Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184
[noting “[a]rbitrators do not ordinarily exceed their contractually
created powers simply by reaching an erroneous conclusion on a
contested issue of law or fact, and arbitral awards may not
ordinarily be vacated because of such error”]; California Union
Square L.P. v. Saks & Company LLC (2020) 50 Cal.App.5th 340,
348.)
Tarver does mention section 1286.2 in the section headed
“conclusion.” There, he asserts for the first time that, “[t]he
underlying Motion to Dismiss that led to the Arbitration Award
dismissing the litigation was predicated on false and misleading
statements as set forth above. When an Arbitration Award has
been procured by fraud, the award must be vacated. [Section]
9
1286.2(a)(1)[.]” Tarver provides no further analysis, however, and
this single reference to the statute is insufficient to establish
error. (See, e.g., Kurinij v. Hanna & Morton (1997) 55
Cal.App.4th 853, 867 [noting “an appellant must present
argument and authorities on each point to which error is asserted
or else the issue is waived”]; Keyes v. Bowen (2010) 189
Cal.App.4th 647, 655–656 [observing matters not properly raised
or that lack adequate legal discussion will be deemed forfeited].)
In sum, Tarver fails to demonstrate that the court erred by
granting the petition to confirm the arbitration award.
2. The court’s judgment inadvertently omits two of the
four defendants.
The judgment entered by the court states that the
judgment was entered only as to Roger Zapata and So Cal Realty.
In their cross-appeal, Martha Zapata and R&R Sales correctly
assert that the court erred by omitting them from the judgment.
We conclude the error is clerical and correct it.
“It is well settled that clerical errors in a judgment, where
they are shown by the record, may be corrected at any time.
(Dreyfuss v. Tompkins (1885) 67 Cal. 339, 340.) A court of general
jurisdiction has power after judgment, pending an appeal and
even after affirmance of the judgment on appeal, and regardless
of lapse of time, to correct clerical errors whether made by the
court, clerk or counsel so that its records will conform to and
speak the truth. (See 7 Witkin, Cal. Procedure, supra, Judgment,
§ 68, pp. 502–503.) And an appellate court may correct a
judgment containing an obvious clerical error or other defect
resulting from inadvertence by modifying the judgment. (See
9 Witkin, supra, Appeal, §§ 615–616, pp. 600–601.)” (Hennefer v.
Butcher (1986) 182 Cal.App.3d 492, 506–507 (Hennefer).) Of
10
course, “[a]n amendment that substantially modifies the original
judgment ... may not be made by the court under its authority to
correct clerical error ... unless the record clearly demonstrates
that the error was not the result of the exercise of judicial
discretion.” (In re Candelario (1970) 3 Cal.3d 702, 705.) This
criterion has been met.
It is apparent from the record that Martha Zapata and
R&R Sales were inadvertently omitted from the judgment. First,
the arbitrator’s order dismissed Tarver’s action with prejudice as
to all defendants. Second, as required under section 1285, the
petition to confirm the arbitration award named Martha Zapata
and R&R Sales as parties to the arbitration award and their
counsel argued at the hearing on the petition. Third, under
section 1286, given that the court did not correct or vacate the
award, it was required to confirm the arbitration award as made.
(§ 1286 [“If a petition or response under this chapter is duly
served and filed, the court shall confirm the award as made,
whether rendered in this state or another state, unless in
accordance with this chapter it corrects the award and confirms it
as corrected, vacates the award or dismisses the proceeding.”]) In
other words, the court’s act of confirming the arbitration award in
favor of all four defendants was not discretionary. And, finally,
the court clearly stated its intention to enter judgment in favor of
all four defendants. At the end of the hearing on the petition to
confirm the arbitration award, the court announced its ruling. To
clarify, counsel for Roger Zapata and So Cal Realty asked the
court, “As a result of you confirming – granting the petition to
confirm the award, judgment is rendered in favor of all the
defendants?” The court answered, “Correct.”
11
The court’s clarification notwithstanding, counsel for Roger
Zapata and So Cal Realty submitted a proposed order and
judgment stating that judgment was rendered in favor of So Cal
Realty and Roger Zapata only. Martha Zapata and R&R Sales
filed objections to the proposed order and judgment because they
were not included. They asked the court to modify the order and
judgment to include all defendants. The July 3, 2019 minute
order overruled the objections without explanation, and the court
signed the proposed judgment even though it did not properly
reflect the arbitrator’s dismissal order or its own ruling
announced from the bench.
“If a trial judge through inadvertence or mistake signs an
order different from that which he intended because of the error
of an attorney draftsman, it may readily be corrected. ([7 Witkin,
Cal. Procedure,] §§ 70–71, pp. 505–506.) ‘In these times busy
judges must of necessity rely heavily upon the attorneys to
prepare orders and judgments accurately so that they express
that which was done at the trial and that which the judge had
called for.’ [Citation.]” (Hennefer, supra, 182 Cal.App.3d at
p. 507.) Accordingly, we will modify the judgment to correct the
clerical error so that judgment will be rendered in favor of all four
defendants.
12
DISPOSITION
The second sentence of the judgment is modified to read,
“Accordingly, it is hereby ordered, decreed, and adjudged that
judgment be entered in favor of Roger Zapata, So Cal Realty &
Loans, Inc., Martha Zapata and R&R Sales Enterprises, Inc. and
against plaintiff Charles Winston Tarver.” As so modified, the
judgment is affirmed. Respondents Roger Zapata, So Cal
Realty & Loans, Inc., Martha Zapata and R&R Sales Enterprises,
Inc. shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
13