Evans v. Terminix International Co.

Filed 1/23/07  Evans v. Terminix International Co. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Merced County.  Ronald W. Hansen, Judge.

            Jamar James Evans, in pro. per., for Plaintiff and Appellant.

            Law Offices of Paul C. Lo and Paul C. Lo, Weintraub, Stock & Grisham, James H. Stock, Jr., and J. Gregory Grisham for Defendant and Respondent.

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            Jamar Evans (appellant) went to work for Terminix International (respondent) in August 2002.  He signed a written employment contract which mandated that any disputes between them would be subject to binding arbitration administered by the American Arbitration Association (AAA).  Respondent terminated appellant's employment in October 2002.  Appellant filed a wrongful termination suit against respondent.  The court granted respondent's motion to compel arbitration. 

            The originally selected arbitrator disqualified himself and a new arbitrator was appointed.  An arbitration hearing was held and the arbitrator ruled in favor of respondent.  Appellant moved the court to vacate the arbitration award and respondent moved the court to confirm the award.  The court denied the motion to vacate, confirmed the award and judgment was entered in respondent's favor.  Appellant appeals. 

FACTS

            Appellant went to work for Terminix on or about August 1, 2002.  He signed a written employment contract that included a written arbitration agreement mandating that all disputes arising out of his employment would be submitted to binding arbitration administered by the AAA.  In October 2002 Terminix terminated his employment.  Thereafter, appellant filed a civil lawsuit alleging that his employment termination was wrongful.^[1]  Respondent successfully moved the court for an order compelling arbitration.  The matter was referred to the AAA.  Norman Brand was selected as arbitrator.  The parties engaged in some discovery but, prior to the scheduled arbitration hearing, appellant requested that Mr. Brand disqualify himself and he did so in February 2005.  

            Through the selection process of the AAA, Phillip Borowsky was selected as the new arbitrator in June 2005.  An arbitration hearing was conducted on October 26, 2005, at which time the parties presented evidence and argument.  On December 7, 2005, Arbitrator Borowsky issued an award in favor of respondent and against appellant.  Appellant filed a petition to vacate the arbitration award.  Respondent filed a motion to confirm the award.  On March 7, 2006, the superior court denied the petition to vacate and granted the petition to confirm the arbitration award.  Appellant filed a notice of appeal.

CONTENTIONS

            Appellant's contention on appeal, as this court understands it, is that the arbitration award should be vacated under Code of Civil Procedure section 1286.2, subdivision (a)  (6) because Arbitrator Borowsky failed to make certain disclosures.^[2]  Respondent argues that appellant's contention fails for lack of factual support in the record.^[3] 

DISCUSSION

            In his opening brief, appellant makes reference to the trial court's obligation to vacate arbitration awards if the parties' rights were prejudiced or there was corruption with the arbitrator.  He relies on section 1286.2 which provides in relevant part:

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