G & W Builders v. Bernard Bros.

Filed 7/14/08 G & W Builders v. Bernard Bros. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County. Carlos Baker, Judge. Affirmed.

________

Law Offices of Ted R. Gropman and Ted R. Gropman; Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Defendants and Appellants Bernards Bros., Inc., Seaboard Surety and United States Fidelity & Guaranty Company.

Throckmorton, Beckstrom & Tomassian, Serge Tomassian, Robert S. Throckmorton and Talin Grigorian for Plaintiff and Respondent.

________

After this action had been pending in the trial court for two and a half years plaintiff and the principal defendant agreed to submit all their claims to binding arbitration and to a stay of the action until completion of the arbitration. The stipulation did not include an arbitration completion date. Based on this stipulation, the trial court ordered the matter to arbitration and stayed the action. Thereafter, the court set an arbitration completion date and twice continued that date. When the parties failed to complete the arbitration by the final completion date set by the court, the court vacated the stay and set a trial date. Three months after the court vacated the stay and set a trial date, defendant moved to compel arbitration. The court denied the motion and defendant appeals. We affirm.

FACTS AND PROCEEDINGS BELOW

Bernards Bros., Inc. was the general contractor for the construction of buildings at the Antelope Valley Fairgrounds. Bernards entered into a subcontract with G&W Builders, Inc. (G&W) under which G&W agreed to provide three pre-engineered metal buildings for the total sum of $1.851 million. Disputes arose between G&W and Bernards during and after the project.

In April 2003, G&W filed a complaint against Bernards which, as later amended, alleged causes of action for breach of contract, negligent misrepresentation and recovery on payment and stop notice bonds. In June 2003, Bernards answered, and cross-complained against G&W for breach of contract.

In September 2005, G&W and Bernards stipulated in writing to submit to binding arbitration all claims between them and to stay [the] action in its entirety pending the completion of the above-referenced arbitration. The parties submitted their agreement to the court. The court approved it and stayed the proceedings pending completion of arbitration. At the time, neither the parties agreement nor the courts order set a completion date.

In February 2006, the court held a status conference. Counsel for G&W appeared but counsel for Bernards did not. Counsel for G&W informed the court that the parties had agreed on an arbitrator and had scheduled the arbitration for a date in May 2006, but that counsel for Bernards later advised that he was no longer available for an arbitration in May and wanted the arbitration continued to the end of the year. Nonetheless, counsel for G&W asked the court to set June 1, 2006, as the arbitration completion date and represented that the date would fit the arbitrators schedule. The court ordered that the binding arbitration be completed by June the 1st and set a status conference for June 15, 2006. The court ordered G&W to give notice and Bernards does not claim that it did not receive notice.

In June 2006, counsel for both parties appeared at the status conference and informed the court that the arbitration had not occurred. Each side blamed the other and the arbitrator for this failure. Counsel for Bernards represented to the court that he was convinced we will be able to get this matter arbitrated this year and that he was committed to getting it done this year. He suggested that the parties contact the arbitrator and try to set the arbitration for October 2006. Failing that, counsel stated he was open to selecting a different arbitrator. He also suggested that the court dismiss the action but reserve jurisdiction to enforce the ultimate arbitration award. Counsel for G&W did not address the issue of selecting a new arbitrator. He did ask the court to set a trial date. The court denied this request. Instead, the court continued the arbitration completion date to November 16, 2006, and stated that if it was not completed by that date I will set the matter for trial and vacate the previous order based upon the arbitration not being done in a timely manner. The court set the next status conference for November 2006.

In November 2006, both counsel appeared at the status conference and informed the court that the arbitration had been scheduled for October but the arbitrator cancelled it and no new date had been set nor had the parties selected a new arbitrator. Again, each side blamed the other for the delay and both sides blamed the arbitrator and his staff. The court interjected: Counsel, I dont want to hear any more. Im going to tell you both what we are going to do. We are going to extend the deadline for arbitration to mid December, December the 29th. That is the first thing we are going to do. We are also going to set a trial date today. If the [arbitration] doesnt get done, this case is going to trial. End of subject. The court continued the arbitration completion date to December 29, set another status conference for January 2007 and set a date for trial in June 2007.

On January 11, 2007, Bernards filed a petition to compel arbitration and to stay the action pending completion of the arbitration. The petition was set for hearing in February 2007.

On January 22, 2007, both counsel appeared at the status conference. Counsel for G&W advised the court that he had erred in agreeing to a trial in June 2007 because he would be out of the country on vacation with his family that month. He asked the court to advance the trial to May 2007. Counsel for Bernards stated that he was not available in May and suggested that the trial be continued to August. He also brought to the courts attention that he had filed a petition to compel arbitration scheduled to be heard in a few weeks. The court vacated the June trial date and postponed setting a new trial date until the hearing on Bernardss petition.

On February 8, 2007, the court heard Bernardss petition to compel arbitration and stay court proceedings. The petition alleged that the parties entered into a written arbitration agreement in September 2005 and that G&W had failed and refused to timely cooperate in scheduling the arbitration. In his declaration in support of the petition, counsel for Bernards stated that he and his client were absolutely committed to arbitration and blamed the delay on counsel for G&W for not responding in the summer of 2006 to his letters suggesting arbitration dates, and a change in arbitrators. Counsel for G&W responded in a declaration accusing Bernards and the arbitrator of causing the delays. He stated that counsel for Bernards insisted that he was unavailable for arbitration in the spring and summer of 2006 and that the October 2, 2006 arbitration date agreed to by the parties and the arbitrator was canceled because the arbitrators staff failed to calendar it. He further stated that in October 2006, after the arbitrator cancelled the October date and failed to take part in two telephone conferences, he advised Bernardss counsel that he wanted a new arbitrator. He suggested the names of five alternative arbitrators but Bernardss counsel did not respond to his suggestions.

The court denied Bernardss petition to compel arbitration citing, among other reasons, delays on both sides and . . . scheduling problems with the selected arbitrator. Bernards filed a timely appeal.

DISCUSSION

Bernards contends that the trial court erred in withdraw[ing] the controversy from arbitration and that the court lacked a statutory basis for denying the petition to compel arbitration. We reject both contentions.

We construe the parties September 2005 stipulation as a joint petition to compel arbitration which the trial court granted. As previously noted, the stipulation and order contained no completion date. Later, however, at G&Ws request, the court set a completion date of June 1, 2006, and thereafter twice continued the date.

We agree with Bosworthv. Whitmore (2006) 135 Cal.App.4th 536, that pursuant to Civil Code section 1283.8 the trial court had authority to set an arbitration completion date when the parties failed to agree on one.^[1] In Bosworth, the court addressed the issue of the trial courts power to set an arbitration completion date and concluded that absent an arbitration completion deadline established by agreement, section 1283.8 gives the trial court the power, on petition of a party to the arbitration, to set a date by which the arbitration proceeding must be completed and the award rendered. (Id. at p. 550, fn. omitted.) The court based its conclusion on the legislative history of section 1283.8 and previous opinions which, although not specifically relying on section 1283.8, concluded that as a matter of policy the trial courts have the power to prevent unreasonable delay in the resolution of arbitration proceedings from effectively depriving the parties of the speedy determination arbitration is intended to provide. (Id. at pp. 546-548.)

Bernards, relying on pre-Bosworth cases, contends that section 1283.8 does not authorize the trial court to impose an arbitration completion deadline. Rather, Bernards argues that section 1283.8 only authorizes a court to impose a deadline on the arbitrator to make an award once the arbitration hearing is completed. The cases relied on by Bernards, however, are not persuasive. Except for Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1105 and Baar v. Tigerman (1983) 140 Cal.App.3d 979, 981-982, fn. 4, 985, they do not mention section 1283.8. Furthermore, although these two opinions assumed that section 1283.8 does apply to the time limits within which an arbitrator must render his award after the arbitration hearing is completed, neither opinion suggests that it applies exclusively to such situations. Indeed, neither Britz nor Baar discussed the issue in the case before uswhether section 1283.8 gives the court authority to set an arbitration completion date. Bosworth, however, did consider that issue and held the court does have authority to impose an arbitration completion date. (Bosworth, supra, 135 Cal.App.4th at pp. 545-548.) We agree with Bosworths analysis.

Here, after setting a completion date for June 1, 2006, the court extended it two times, first to November 16, 2006, and later to December 29, 2006. Bernards never objected that the completion dates were unreasonable. It did not object when the court set the June 2007 trial date, and it did not object when the court informed the parties that if the arbitration was not completed by November 2006, it would vacate the stay order based on the parties delay in completing the arbitration.

Bernardss January 2007 petition to compel arbitration was, in effect, a request to continue the arbitration completion date beyond December 29, 2006. We review the courts denial of this request for abuse of discretion. (Cf. Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985 [denial of trial continuance reviewed for abuse of discretion].)

Considering the record as a whole, we find no abuse of discretion. The record supports the courts finding that some of the delay in getting the matter to arbitration was attributable to Bernards. When the last date to complete arbitration passed in December 2006, the arbitration had been pending for 15 months from the date of the order compelling arbitration and 12 months from the date the court set the first arbitration completion date. The court had twice continued the arbitration deadline. During all that time no progress to complete the arbitration had been made beyond selecting the arbitrator. If indeed, as Bernards contends, much of the delay was the fault of the arbitrator, Bernards was not diligent in seeking the courts assistance in replacing the arbitrator. (Code Civ. Proc., 1281.6 [court may appoint a new arbitrator on petition of a party when the current arbitrator fails to act].) Under these circumstances the date set by the court for completion of arbitration was reasonable and it was not error to deny a further continuance.

DISPOSITION

The order is affirmed. Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

VOGEL, J.^*

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] All statutory references are to the Code of Civil Procedure. Section 1283.8 states in relevant part: The award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on petition of a party to the arbitration.

^* Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.