Ahern v. Property Management Associates, Inc. CA2/7

Filed 5/10/22 Ahern v. Property Management Associates, Inc. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THOMAS AHERN, B309773
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC578510)
v.
PROPERTY MANAGEMENT
ASSOCIATES, INC. et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel J. Buckley, Judge. Reversed and
remanded with directions.
Catanzarite Law Corporation, Kenneth J. Catanzarite,
Nicole M. Catanzarite-Woodward and Eric V. Anderton for
Plaintiffs and Appellants.
Gordon Rees Scully Mansukhani, Gary J. Lorch and
Elizabeth B. Vanalek for Defendants and Respondents Property
Management Associates, Inc., Thomas Spear and Joshua Fein.
__________________________
The superior court granted the petition filed by Property
Management Associations, Inc. (PMA), Thomas Spear and
Joshua Fein (collectively PMA parties) to confirm an arbitration
award dismissing the investment fraud claims of Thomas Ahern,
individually and as surviving spouse and successor in interest to
Priscilla Ahern, as barred by governing statutes of limitations;
denied Ahern’s petition to vacate or correct the award; and
entered judgment in favor of the PMA parties on October 16,
2020. The arbitration was conducted pursuant to the arbitration
provision in a cotenancy agreement between BH & Sons, LLC, on
the one hand, and tenant in common investors who had
purchased interests in improved real property in San Diego (the
Aerovault property), on the other hand.
On appeal Ahern argues, among other contentions,
arbitration should not have been compelled because his fraud and
related claims based on acquisition of a tenant in common
interest in the Aerovault property were outside the scope of the
cotenancy agreement’s arbitration provisions.
We addressed this precise issue in Ahern v. Asset
Management Consultants, Inc. (2022) 74 Cal.App.5th 675(Ahern 2022), in which Ahern’s investment fraud claims against
BH & Sons and related individuals and entities arising from the
purchase of a tenant in common interest in improved real
property in Anaheim (the Amlap property) had been ordered to
arbitration based on the arbitration provision in the cotenancy
agreement for the Amlap property. The cotenancy agreements
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between BH & Sons and the tenant in common investors in the
Amlap and Aerovault projects are substantially similar, and the
arbitration provisions in the two agreements are identical.1
We reversed the judgment confirming the arbitration
award in Ahern 2022, agreeing with the Ahern the trial court had
erred in compelling arbitration of the claims. (Ahern 2022, supra,
74 Cal.App.5th at p. 679.) We first explained the tenant in
common purchase and sale agreement by which the investors
acquired their interests in the Amlap property, allegedly due to
fraudulent representations in promotional materials developed
and distributed by Asset Management Consultants, Inc., and its
affiliate BH & Sons, contained no arbitration provision. The
cotenancy agreement, which concerned the operation and
management of the Amlap property and the respective rights of
the tenants in common in those decisions once the investment
interests had been acquired, did require arbitration, but its
language was particularly narrow. It specifically provided for
arbitration only of disputes arising in connection with the
interpretation and enforcement of provisions of the cotenancy
agreement, omitting any general reference to disputes “related
to” the agreement.
We then considered various arguments advanced in
support of the order compelling arbitration, concluding none had
merit: “[T]he Ahern parties’ lawsuit does not involve the
1 Paragraph 9.8 of the cotenancy agreements for both
projects provided, “Unless the relief sought requires the exercise
of the equity powers of a court of competent jurisdiction, any
dispute arising in connection with the interpretation or
enforcement of the provisions of this Agreement, or the
application or validity thereof, shall be submitted to arbitration.”
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interpretation or enforcement of a provision of the cotenancy
agreement; their claims are not ‘rooted in’ the cotenancy
agreement; and applying Civil Code section 1642’s interpretative
tool does not justify requiring arbitration of a dispute that relates
to the acquisition of the Amlap investment, not to its
management and operation.” (Ahern 2022, supra, 74 Cal.App.5th
at p. 696.)
Because the arguments of Ahern and the PMA parties
concerning the scope of the arbitration provision in the cotenancy
agreement for the Aerovault property claims are essentially the
same as the arguments we addressed in Ahern 2022, after we
filed our opinion in Ahern 2022, we directed the parties to meet
and confer to determine whether they agreed Ahern 2022
controlled and to file a joint status report identifying what, if any,
issues remained for oral argument in the case. In response, in a
report filed April 8, 2022, counsel for the PMA parties stated,
although they disagreed with the decision in Ahern 2022, they
recognized this court would necessarily reach the same decision
as to whether the claims asserted against the PMA parties were
outside the scope of the arbitration provision and hold the matter
should not have been referred to arbitration. They also agreed,
“in light of this foundational ruling, all other issues raised by the
Aherns’ appeal in this matter need not be considered.”
Accordingly, for the reasons discussed in Ahern 2022, the
judgment is reversed.
DISPOSITION
The judgment confirming the arbitration award is reversed.
The matter is remanded with directions to deny the petition to
confirm the arbitration award, to grant the petition to vacate the
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award and to vacate the December 5, 2015 order compelling
arbitration. Ahern is to recover his costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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