Brooks v. Bechtel CA1/2 ( 2013 )

Filed 3/26/13 Brooks v. Bechtel CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RUFUS L. BROOKS,
Plaintiff and Appellant,
A132926
v.
BECHTEL CORPORATION et al., (San Francisco County
Super. Ct. No. CPF-10-510509)
Defendants and Respondents.
I. INTRODUCTION
Appellant Brooks, a former employee of respondent Bechtel Corporation, appeals
in pro per from orders of the San Francisco Superior Court denying his petition to vacate
several arbitration decisions of an arbitrator appointed by the Judicial Arbitration and
Mediation Services (JAMS). Those decisions dismissed with prejudice appellant’s
several claims against Bechtel Corporation and several of its officers and employees
(hereinafter collectively referred to as Bechtel) relating to their alleged failure to pay him
overtime wages and other asserted improper actions toward him. We affirm the orders
appealed from and the subsequent judgment of the superior court.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2005, appellant, a resident of Orlando, Florida, signed an
employment agreement with Bechtel and commenced work on a Bechtel
1
telecommunications project in central Florida. This project apparently ended sometime
before June 2007,1 and appellant’s employment was terminated.
Pursuant to the arbitration clause in his employment agreement, appellant filed a
claim based on the circumstances of his employment, its termination, and Bechtel’s
alleged refusal to rehire him. These claims were first submitted to arbitration in Florida
before the American Arbitration Association (AAA). That arbitration apparently began
in August 2007 but ended a few months later, in early 2008, when the arbitrator entered
an order to show cause based on appellant’s apparent discovery violations.
In April 2008, appellant then initiated another arbitration, this time with JAMS; it
alleged a claim for overtime pay. A few months later, apparently in July 2008, he filed a
second JAMS arbitration demand, this time based on alleged race and age discrimination
and retaliation. R. Wayne Thorpe was appointed to conduct the arbitration.
Bechtel counter-claimed in the JAMS arbitration based on appellant’s many
alleged inappropriate and personal actions in 2007, actions directed toward several
Bechtel officers and employees. These actions included repeated telephone calls and e-
mail communications to the offices of those individuals, including Bechtel’s President,
which included aggressive and threatening wording and terminology, and a statement that
he would “Declare War” on Bechtel. As a result of these actions, in October 2007
Bechtel advised appellant that he was ineligible for rehire. But appellant’s aggressive
actions toward the corporation and some of its officers and employees continued well
into 2008; they included several e-mails containing significant profanity and accusations
of racial prejudice (appellant is Black). They also included several harassing telephone
calls.
At this point, i.e., in June 2008, Bechtel sought and obtained a temporary
injunction against appellant from a Florida court. The following month, that court denied
1
We say “apparently”—and will repeat that word hereafter—because both parties’
briefs and the record provided us (in clerk’s transcript form by appellant and augmented
in electronic format by respondent via its Motion to Augment) lack some precise dates
regarding the parties’ pre-litigation relationship.
2
appellant’s motion to dissolve the injunction. In its opinion, the court found that
appellant’s contacts with Bechtel were “inappropriate, harassing and threatening,” that
some of his e-mails to it “suggested violence” and would reasonably generate fear in its
recipients, and made other specific findings along the same lines.
Notwithstanding this opinion and the existing injunction, in August and September
2008 appellant regularly picketed outside the building which contained the offices of
Bechtel’s Florida counsel and, in so doing, carried with him and displayed a variety signs
accusing Bechtel and its President of hiring “killers.” Some of these signs even displayed
the direct-dial telephone number of Bechtel’s President and the office phone number of
its Orlando attorney. Based largely on these actions, Bechtel then sought to have
appellant held in contempt. The trial court agreed that he should be held in contempt, and
sentenced him to 120 days in jail; at Bechtel’s request, however, that sentence was
suspended. However, on October 6, 2008, the court entered a detailed, 10-page order
finding appellant in contempt of court and specifying the reasons it so held. Appellant
appealed the contempt order but, albeit without an opinion, a Florida appellate court
affirmed the trial court’s contempt order the following year. (See Brooks v. Bechtel
Corp. (Fla.Ct.App. 2009) 25 So.3d 571.
Well before that affirmance, however, in April 2009, Bechtel moved to dismiss
with prejudice appellant’s claims against it in the JAMS arbitration. It based this motion
mainly on appellant’s alleged attempts to bribe an arbitration witness, Scott Cuen, his
alleged attempts to tamper with other designated arbitration witnesses, and other alleged
misconduct. JAMS arbitrator Thorpe determined that the motion stated a prima facie
case and ordered an evidentiary hearing. Such was conducted on May 12, 2009. After
that hearing, the arbitrator found that appellant had (1) attempted to bribe witness Cuen,
(2) tampered with and threatened two other witnesses, Kari Walrich and Bill Olson, (3)
engaged in a variety of other conduct which was expressly contrary to prior orders of the
arbitrator, and (4) given “evasive and deceptive” testimony at the arbitration hearing.
Although he sought and received several orders granting him a continuance to file
a post-hearing brief, appellant filed no such brief. Rather, he filed several motions
3
seeking to remove Thorpe as the assigned JAMS arbitrator, another motion to stay the
arbitration, and a petition in the Florida court asking it to preclude the arbitrator from
ruling on Bechtel’s motion to dismiss the JAMS arbitration because of the arbitrator’s
alleged misconduct. All these motions and the petition were denied.
On October 28, 2009, Arbitrator Thorpe entered a First Interim Award dismissing
all of appellant’s claims with prejudice. Among other things, that award stated that
appellant’s conduct “was committed willfully, in bad faith, and with knowledge that the
conduct was improper and potentially violative of the law.” He continued by saying that
“I have never before witnessed conduct so fundamentally disrespectful of our legal
system.” In terms of relief, this award concluded that Bechtel had no obligation to
reemploy appellant due to his conduct beginning in 2007, and that it was entitled to its
attorney fees and costs. Via later awards, the arbitrator determined that Bechtel should be
awarded $20,000 in attorney fees (reduced from an earlier award of $35,000).
On June 18, 2010, appellant filed a petition in San Francisco Superior Court
seeking to vacate the arbitrator’s several decisions.2 Bechtel filed an opposition to this
petition and, also, a cross-petition to confirm the three arbitration awards noted above. A
hearing on these matters was set for January 24, 2011, but later continued until April 18,
2011. However, appellant did not appear—either in person or telephonically—at that
hearing3 and, at it, the trial court (Judge Peter Busch) adopted its tentative ruling, filed the
day before, denying appellant’s petition to vacate and granting Bechtel’s petition to
confirm.
On June 1, 2011, that court filed a formal order to the same effect. It denied
appellant’s petition and granted Bechtel’s cross-petition because (1) the former was
“untimely under the Federal Arbitration Act” and (2) “it lacks merit.” Bechtel served a
notice of entry of this order the following day.
2
Neither in this petition—nor in any other filing with the superior court or this
court—does appellant explain why his petition was filed in California and not in Florida.
3
Prior to this date, appellant unsuccessfully attempted to file a motion to continue
the April 18 hearing.
4
On June 22, 2011, appellant filed a motion in the superior court asking for a new
trial along with a supporting declaration. On August 1, 2011, that court denied the
motion both as untimely4 and as presenting “no grounds on which the court should re-
visit its June 1, 2011 order.” The same day, appellant filed a timely notice of appeal.5
III. DISCUSSION
For several reasons, the trial court was correct in the orders it issued and in its
judgment in favor of respondents.
Before noting and discussing those reasons, however, some words are in order
regarding the judicial review of the rulings and conclusions of an arbitrator in a case in
which the parties agreed to have the case decided via an arbitration conducted pursuant to
the Federal Arbitration Act (FAA), as these parties did. The law is very clear on that
subject. As the United States Supreme Court held in Hall Street Associates, L.L.C. v.
Mattel, Inc. (2008) 552 U.S. 576, 588 (Hall Street Associates), the FAA provides “a
national policy favoring arbitration with just the limited review needed to maintain
arbitration’s essential virtue of resolving disputes straightaway.” More recently, that
Court has written that a litigant seeking to have a court overturn an arbitration ruling
provided under the FAA “must clear a high hurdle.” (Stolt-Nielsen S.A. v. AnimalFeeds
International Corp. (2010) 559 U.S. 662 [130 S.Ct. 1758, 1767].)
Our own Supreme Court has cited and quoted the holding in Hall Street
Associates. (See Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334,
4
Code of Civil Procedure sections 659, subdivision (a)(2), and 1008, subdivision
(a), require, respectively, that such a motion be filed within 15 days from service of
notice of entry of judgment or 10 days from notice of the entry of an order. In his briefs
to us, appellant argues that the trial court was wrong in so finding, and that any delay was
the responsibility of the Superior Court clerk’s office. However, we conclude that we
need not address this argument because the alternative basis for the trial court’s denial of
appellant’s petition, i.e., that “it lacks merit” is clearly correct for the several reasons
discussed hereafter.
5
Later, on October 21, 2011, the trial court entered (pursuant to 9 U.S.C. § 13) a
judgment on its order denying appellant’s petition to vacate and granting Bechtel’s cross-
petition to confirm.
5
1353.) That court has also made clear its own view of the very limited scope of judicial
review of arbitrations conducted under the FAA, as contrasted with arbitrations
conducted pursuant to California law. (See Pearson Dental Supplies, Inc. v. Superior
Court (2010) 48 Cal.4th 665, 677-679, especially fn. 3; see also Countrywide Financial
Corp. v. Bundy (2010) 187 Cal.App.4th 234, 249-254; Christensen v. Smith (2009) 171
Cal.App.4th 931, 937-938.) These authorities make clear that, in California, the scope of
appellate review of arbitrations conducted pursuant to the FAA—as this one was—is
extremely limited.
Now to the arguments presented in appellant’s in pro per briefs to us. First of all,
his only substantive argument is that the arbitrator erred in finding that appellant
attempted to bribe witness Cuen to change his prior testimony against appellant because
Cuen was allowed to testify, and was administered the oath, telephonically.
We will deal with that contention shortly, but what is important for present
purposes is that, in his Preliminary Order No. 24 and Interim Award of October 18, 2009,
the arbitrator stated no fewer than four reasons for his dismissal of the case. He stated:
“The Conclusions leading to dismissal of this case are based upon numerous Findings of
Fact set forth above; I will not repeat them here but some of the more significant are as
follows: 1. Mr. Brooks attempted to bribe Cuen, and admits to attempting to pay him in
connection with his testimony, knowing that the witness had testified adversely to him; 2.
Mr. Brooks attempted to intimidate the witnesses Walrich and Olson into not testifying
and/or changing their testimony knowing their testimony had been and would be adverse
to him; 3. Mr. Brooks repeatedly engaged in conduct in this case, in at least one
deposition, in multiple telephone conferences, and in multiple emails, which violated
fundamental concepts of civility, decency, and respect, and in some of those instances
violated Preliminary Order No. 14; and, 4. His testimony in the May 12 hearing was
evasive and deceptive, compounded by his repeated refusals to testify based upon
assertion of his Fifth Amendment rights, in at least these respects: a. his explanation and
refusals to testify about the purpose of the lie detector test he proposed to Cuen; b. the
purpose of his communications to Goodman Network employees. [¶] All of the conduct
6
referenced in the preceding paragraph was committed willfully, in bad faith, and with
knowledge that the conduct was improper and potentially violative of the law. Indeed,
throughout these proceedings Mr. Brooks has himself recognized, and even insisted, that
much of the conduct at issue here carries with it potential criminal liability.”
However, in his briefs to us, appellant addresses only the first issue, i.e., his
alleged attempt to bribe Cuen. He does not even mention, in either brief, the other three
reasons articulated by Arbitrator Thorpe, and has thus waived any contest to those
conclusions of the arbitrator. Put another way, even if appellant is correct in his
argument that Cuen should not have been allowed to testify via telephone, there are, as
the arbitrator found, three additional and independent reasons why the trial court was
correct in not overturning the arbitrator’s decision in Bechtel’s favor. Any one of those
reasons was an adequate and correct basis for denial of appellant’s petition to vacate the
arbitrator’s ruling against appellant and in favor of Bechtel. Further, appellant’s
argument—as noted, his only arguably substantive argument—that the arbitrator erred in
allowing Cuen’s testimony to be given via telephone (and his oath to be administered
similarly) is unavailing.
First of all, our examination of the record reveals no objection by appellant when
Bechtel called Cuen as a witness and examined him via the telephone. Indeed, appellant
himself called and examined two witnesses via the telephone. Appellant cannot complain
about a process and procedure in which he himself indulged and, further, which he did
not complain about during the course of the arbitration. As the Ninth Circuit has held
several times, “a party may not sit idle through an arbitration process and then
collaterally attack that procedure on grounds not raised before the arbitrators when the
result turns out to be adverse.” (Marino v. Writers Guild of America, East, Inc. (9th Cir.
1993) 992 F.2d 1480, 1483-1484; see also United Steelworkers of America v. Smoke-
Craft, Inc. (9th Cir. 1981) 652 F.2d 1356, 1360-1361.) In any event, telephonic
testimony is regularly permitted in arbitration proceedings. (See, e.g., Young v. UAW-
Labor Employment & Training Corp. (10th Cir. 1996) 95 F.3d 992, 999 & Al-Haddad
Commodities Corp. v. Toepfer Inter. Asia Ltd. (E.D.Va. 2007) 485 F.Supp.2d 677, 686.)
7
Regarding the issue of Cuen’s testimony as to appellant’s efforts to bribe him,
there was considerable substantiating evidence to this effect. Thus, Bechtel presented to
the arbitrator—and did so without any objection from appellant—a sworn affidavit from
Cuen that mirrored his telephonic testimony regarding appellant’s offer to pay. Such
evidence was expressly permitted by the arbitration agreement in effect here and by
California law (see, e.g., Frantz v. Inter-Insurance Exchange (1964) 229 Cal.App.2d 269,
276-277). Additionally, in his testimony in the arbitration, appellant expressly admitted
to sending two e-mails to Cuen, each offering to pay him $10,000 for taking and passing
a polygraph test regarding the claim by appellant that Cuen had lied in deposition
testimony he had previously given.6 As the arbitrator also noted, appellant also “refused
to answer a number of questions based on his Fifth Amendment rights. These questions
cover[ed] a wide variety of issues,” including the testimony of Cuen.
For all these reasons, the superior court was clearly correct in finding that
appellant’s petition to overturn the arbitrator’s award “lacks merit” and thus confirming
that award.
6
Copies of these e-mails were also attached to Bechtel’s (successful) motion to
dismiss the arbitration.
8
IV. DISPOSITION
The appealed-from orders and the subsequent judgment of the San Francisco
Superior Court are all affirmed.7
_________________________
Haerle, J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
7
After this case was fully briefed, Bechtel filed a motion and supporting papers
asking this court to impose sanctions of $30,000 on appellant for filing a frivolous appeal.
This is, admittedly, a close issue because, as the arbitrator found and the San Francisco
Superior Court readily agreed, appellant’s claims against Bechtel clearly lack merit.
However, because of the result we reach in this appeal, appellant’s in pro per status, and
his occupation as a construction worker, we conclude that we should deny Bechtel’s
motion, and thus do so.
9