Giacomazza v. Coldwell Banker

Filed 9/27/06 Giacomazza v. Coldwell Banker CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Minning, Judge. Affirmed.

Law Office of Mark J. Leonardo and Mark J. Leonardo for Plaintiff and Appellant.

Law Offices of Michael T. Whittington and Michael T. Whittington for Defendants and Respondents.

___________________

INTRODUCTION

Plaintiff Michele V. Giacomazza appeals from a judgment entered pursuant to stipulation after the trial court confirmed a binding arbitration decision in favor of defendants. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 28, 1997, plaintiff entered into a commercial real estate purchase contract to buy a hotel located in Bakersfield, California, from defendant Lincoln Bakersfield Partners and other defendants for $1,300,000 at the Los Angeles office of defendant Dean Walsh as agent of defendant Coldwell Banker, the seller’s broker. While the contract expressly required plaintiff to deposit a check for $50,000 into escrow the day after the contract was signed, there is no proof that plaintiff did so. Several weeks later, plaintiff learned from a telephone call to the escrow officer that defendants had cancelled the escrow. The purchase was never completed.

Plaintiff, in pro. per., filed suit on October 20, 1999 in Los Angeles. The trial court sustained defendants’ demurrer with leave to amend. Plaintiff filed his first amended complaint on March 16, 2000. Pursuant to plaintiff’s requests, the court clerk entered defendants’ defaults on May 18, 2000, apparently unaware that defendants had already filed a demurrer to the first amended complaint on May 3, 2000.

The trial court sustained defendants’ demurrer with leave to amend. Plaintiff filed a second amended complaint on June 26, 2000. Then on October 30, 2000, plaintiff filed a third amended complaint. On April 18, 2001, defendants filed their answer to the third amended complaint.

On November 13, 2001, plaintiff filed a motion for default judgment against defendants for their failure to comply with four sets of discovery demands made during the period from May 2000 through August 2001. After a hearing at which defendants did not appear, the trial court granted the motion in part by ordering defendants’ answer stricken and their defaults entered on January 18, 2002. This was the second default entered against defendants in the course of the trial court proceedings. On February 14, 2002, defendants filed a motion to vacate the order and set aside the defaults on the basis of surprise pursuant to Code of Civil Procedure section 473, subdivision (b), claiming they received no notice of the motion and hearing.

At the March 6, 2002 hearing on defendants’ motion, the trial court set aside the defendants’ defaults entered on January 18, 2002. In addition, at the trial court’s suggestion, plaintiff in pro. per. and defendants’ counsel orally stipulated in open court to binding arbitration. The stipulation and the court’s subsequent order for binding arbitration were entered in the minutes.

Prior to arbitration, plaintiff engaged counsel to represent him. On August 7, 2002, plaintiff filed an ex parte application for an order vacating the stipulation for binding arbitration on the grounds that he did not knowingly waive his right to a jury trial. A hearing was held on the same day and continued for further proceedings to August 23, 2002. The trial court denied plaintiff’s motion, and it ordered plaintiff’s specific performance cause of action bifurcated from the causes of action to be arbitrated.

After a change in the selected arbitrator and a series of continuances, the arbitration hearings were held on June 17 and 18, 2003. On July 1, 2003, after the matter was submitted for decision, plaintiff made a written request to the arbitrator for a stay in the proceedings and issuance of a discovery order on defendants. The arbitrator denied the request and on July 7, 2003 issued the final arbitration decision that each of plaintiff’s causes of action was defeated. Among the reasons the arbitrator enumerated for the decision was “the failure [of plaintiff] to prove the $50,000 down payment was ever made.”

Plaintiff then filed a motion to vacate the arbitration award on the basis that the arbitrator engaged in misconduct in violation of Code of Civil Procedure section 1286.2, subdivision (a)(2), by the arbitrator’s corruption in regard to his ex parte communications with defendants’ counsel; subdivision (a)(3), by the arbitrator’s misconduct substantially prejudicing plaintiff’s rights by considering any information about plaintiff’s fee waiver; and subdivision (a)(5), by the arbitrator’s refusal to postpone the hearing upon plaintiff showing sufficient cause for the postponement, that is, to conduct additional discovery. After a hearing, the trial court denied plaintiff’s motion on December 2, 2003, indicating at the hearing that the matters raised by plaintiff are not sufficient under the statute to vacate the arbitration award.

On February 3, 2004, plaintiff and defendants filed a stipulation to confirm the arbitration award as judgment and to have judgment entered in favor of defendants, who were to recover their costs of suit, with plaintiff to take nothing. Both plaintiff and his lawyer signed the stipulation. The trial court issued an order for entry of judgment. Notice of entry of judgment was filed on December 10, 2003. Notice of the entry of order dismissing plaintiff’s specific performance cause of action, with prejudice, was filed February 10, 2004. On February 17, 2004, plaintiff, once again in pro. per., filed a notice of appeal.[1] Judgment was entered by the trial court on April 7, 2004. Prior to the filing of his opening brief on appeal, plaintiff engaged the same attorney who represented him in the trial court to represent him on appeal.

DISCUSSION

Plaintiff contends the trial court erred in four instances, any one or all of which warrant that the judgment against plaintiff be reversed and the matter be returned to the trial court for further proceedings. Specifically, plaintiff contends the trial court erred in allowing litigation to continue after defendants’ defaults were entered on May 18, 2000; granting defendants’ motion to set aside the January 18, 2002 defaults entered against them; ordering the case into binding arbitration; and denying plaintiff’s motion to vacate the arbitration award based upon the arbitrator’s improper actions.

Prior to considering plaintiff’s contentions, we note that plaintiff stipulated to the judgment from which he has appealed. Plaintiff and his attorney both signed a stipulation specifically agreeing to confirm the arbitration decision, have it incorporated in a judgment approved by order of the court, and have the judgment entered. The stipulation makes no reference to preserving any of plaintiff’s issues now on appeal. Neither did plaintiff preserve the issues by forcing defendants to file a motion for the court to confirm the award, pursuant to Code of Civil Procedure sections 1285 and 1285.2. In regard to arbitration awards as well as civil judgments, “‘if a person voluntarily acquiesces in or recognizes the validity of a judgment or decree, or otherwise takes a position inconsistent with the right of appeal therefrom, he thereby impliedly waives his right to have such judgment, order or decree reviewed by an appellate court . . . .’” (Louis Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 661.)

To the extent that the parties’ stipulation was intended to be an agreement by the parties to conclude the litigation, plaintiff’s appeal is moot and may be dismissed. (Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 24.) On the other hand, plaintiff and defendants may have agreed to the stipulation simply as a procedural means of expediting the issuance of the judgment in order to begin the appeal process. The latter conclusion is supported by the fact that plaintiff, reverting to pro. per. status, filed a notice of appeal only 14 days after the stipulation was filed. The strongest indicator that there was such an understanding among the parties is that defendants do not seek dismissal of the appeal.

We have the inherent power to dismiss an appeal on our own motion if the appeal is moot. (See, e.g., Agnew v. Superior Court (1953) 118 Cal.App.2d 230, 233; 9 Witkin, Cal. Procedure (4th ed., 1997) Appeal, § 631, p. 661; see also Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921.) Given the ambiguity in this case and the indicators concerning the parties’ intent to preserve the right to appeal, we will proceed with consideration of the merits of each of plaintiff’s contentions.

Waiver of May 18, 2000 Defaults

First, plaintiff contends that the trial court lacked jurisdiction to render judgment, in that after service of plaintiff’s first amended complaint, defendants’ defaults were entered on May 18, 2000 and defendants never sought to have the defaults set aside. Review of the record shows, however, that plaintiff never pursued his rights to request a default prove-up hearing or entry of a default judgment. Rather, for almost four years--until final judgment was entered--plaintiff continued participating in the litigation as if no valid defaults had been entered. Plaintiff filed a second and then a third amended complaint, made multiple discovery demands and brought related motions to compel when defendants failed to respond appropriately, had defendants’ defaults taken a second time for discovery abuses, stipulated to binding arbitration, moved to vacate the stipulation, presented his case in arbitration, moved to have the arbitration decision vacated, and then ultimately stipulated to the confirmation of the arbitration decision and entry of judgment, all after the May 18, 2000 defaults were entered.

Plaintiff’s filing of the second and third amended complaints of necessity incorporated substantive changes to correct defects identified in defendants’ successful demurrers to the prior versions of the complaint. In the absence of any effort to obtain a default judgment, plaintiff’s filing substantively amended complaints after defendants’ defaults were entered on May 18, 2000 constituted a waiver of the defaults. (Ford v. Superior Court (1973) 34 Cal.App.3d 338, 342-343; see 6 Witkin, Cal. Procedure, supra, Proceedings Without Trial, § 151, p. 567.) In any event, plaintiff failed to take action at the time a procedure was available to him to enforce the defaults, and he may not now attack the judgment entered years later in order to achieve effectively the same enforcement. (Cf. Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc., supra, 82 Cal.App.4th at p. 659.) The trial court did not abuse its discretion in finding that the entry of defendants’ defaults on May 18, 2000, absent any enforcement motions by plaintiff, did not divest the court of jurisdiction to render judgment in the case.

Setting Aside January 18, 2002 Defaults

Plaintiff contends that on May 6, 2002, the trial court improperly granted defendants’ motion to set aside the January 18, 2002 defaults entered after defendants failed to appear or otherwise respond to plaintiff’s motion to compel discovery. Defendants sought to set aside the defaults pursuant to Code of Civil Procedure section 473, subdivision (b), based on surprise, in that they had no notice of plaintiff’s motion or the hearing on it, through no negligence or fault of their own. (Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.)

At the hearing on defendants’ set aside motion, the trial court acknowledged that plaintiff had provided proofs of service on defendants but also found the proofs to be insufficient evidence of notice, in that they did not specify the documents that were served.

It is well established that due process requires that defendants be given notice before their defaults are taken. (Greenup v. Rodman (1986) 42 Cal.3d 822, 829.) In reviewing the trial court’s order setting aside the defaults, we apply the standard that “[a] ruling on [a Code of Civil Procedure section 473] motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice.” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.) Given that the record supports a finding that defendants had not been given notice and an opportunity to appear at the hearing as required by law, the trial court did not abuse its discretion in setting aside the defaults.

Denial of Motion to Vacate Binding Arbitration Stipulation

Plaintiff next contends that the trial court erred in ordering the case into binding arbitration and denying plaintiff’s motion to vacate the stipulation and order for binding arbitration, thereby denying plaintiff his right to a jury trial. On appeal, we determine if there is substantial evidence to support a finding that an enforceable agreement to submit to binding arbitration was formed under California contract law, and we defer to the trial court’s determination as to credibility and weight of the evidence. (Trabuco Highlands Community Assn. v. Head (2002) 96 Cal.App.4th 1183, 1189-1190; City of Vista v. Sutro & Co. (1997) 52 Cal.App.4th 401, 407.)

A fundamental contract element is free and mutual consent of the parties. (Civ. Code, §§ 1550, 1565.) There is abundant evidence that plaintiff freely and knowingly consented to binding arbitration. With no indication of hesitancy or uncertainty, plaintiff said “Yes” when the trial court asked him in open court if he would stipulate to binding arbitration. During the hearing, the court referred to “binding arbitration” several times and also twice indicated that as a result of the stipulation, the matter would get arbitrated and “done with.” During the hearing, including after the recess given for the parties to select an arbitrator, plaintiff had opportunity to ask the court about the significance of the arbitration being binding but did not ask or give any indication he did not understand. At the hearing on plaintiff’s motion to vacate the binding arbitration stipulation, the trial court stated: “I recall my memory of this proceeding. . . . It is my belief [plaintiff] knew exactly what he was doing when he came in here.” Whether a party has given valid consent to be bound by a contract is determined objectively by the reasonable meaning of the party’s words and actions, and not from the party’s unexpressed understanding or intention. (Russell v. Union Oil Co. (1970) 7 Cal.App.3d 110, 114.) The objective evidence in the instant case supports a finding that plaintiff gave free and mutual consent to binding arbitration.

The only evidence offered by plaintiff to show he did not knowingly and voluntarily agree the arbitration would be binding was declared to be false by defendants’ counsel. In his declaration in support of his motion, plaintiff stated that while walking to the Alternative Dispute Resolution office after the hearing, he asked defendants’ attorney what was the meaning of the court’s ruling and that defendants’ attorney indicated that plaintiff could proceed to trial if he did not agree with the arbitrator’s decision. Defendants’ attorney stated in his declaration, by contrast, that there was no such conversation and that plaintiff’s statement was false. The trial court apparently assessed credibility in favor of defendants’ counsel, thus rejecting plaintiff’s purported evidence. We have no authority to disturb the trial court’s finding on credibility on appeal. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421, citing Estate of Joslyn (1995) 38 Cal.App.4th 1428, 1434.)

Substantial evidence supports a finding that the oral stipulation by plaintiff and defendants’ counsel to binding arbitration in open court created a valid contract. The stipulation and related order were confirmed in the court’s minute order. Such a documented oral consent of the parties in open court to binding arbitration constitutes a waiver of a jury trial by each of the parties pursuant to Code of Civil Procedure section 631, subdivisions (a) and (d)(3).

Plaintiff relies on the case of Redondo Beach v. Kumnick (1963) 216 Cal.App.2d 830 to support his contention that an effective waiver of jury trial requires the waiving party expressly to state that he or she is waiving a jury trial, and there was no such express waiver by plaintiff during the hearing. Redondo Beach is readily distinguishable from the instant case on its facts. There the question whether one of the defendants waived a jury trial arose only after the defendant had made a written demand for a jury trial, and subsequently on the first day of trial, was asked to join in an oral jury trial waiver with other parties. The court concluded that the defendant did not waive a jury trial because the trial judge expressly asked each of the other parties if they waived the jury but never asked defendant. (Id. at pp. 835-836.) In the instant case, the matter had not yet been set for trial at the time the parties stipulated to binding arbitration, and plaintiff does not contend that he ever made a written demand for a jury trial. We conclude that the trial court did not err in denying plaintiff’s motion to vacate the stipulation to binding arbitration. (City of Vista v. Sutro, supra, 52 Cal.App.4th at p. 407.)

Denial of Motion to Vacate Arbitration Award

Plaintiff contends that the trial court erred in denying plaintiff’s motion to vacate the arbitration award based upon the arbitrator’s improper actions, which constituted grounds for vacating the award pursuant to Code of Civil Procedure section 1286.2, subdivisions (a)(2), (3) and (5).[2] Specifically, the alleged improper actions of the arbitrator are: (1) requiring plaintiff to disclose confidential information about his obtaining fee waivers and using the information to assess plaintiff’s credibility, which constituted misconduct (id., subd. (a)(3)); (2) engaging in ex parte communications with defendants’ counsel during the arbitration process, thereby showing bias and corruption (id., subd. (a)(2)); and (3) denying plaintiff’s request for an extension of time for discovery constituting substantial prejudice to plaintiff’s rights (id., subd. (a)(5)).

In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9, “[o]ur Supreme Court . . . reiterated the strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution. . . . Because of this important public policy, arbitration awards are subject to an extremely narrow judicial review. We cannot review the merits of the controversy, the validity of the arbitrator’s reasoning, or the sufficiency of the evidence supporting an arbitrator’s award. . . . The exclusive grounds for vacating an arbitration award are those listed in [Code of Civil Procedure] section 1286.2. . . . ‘[E]very reasonable intendment must be indulged in favor of the award.’ . . .” (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1344-1345, citations omitted.) “‘We must accept the trial court’s resolution of disputed facts when supported by substantial evidence, . . . presume the trial court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determinations of credibility and the weight of the evidence.’” (Trabuco Highlands Community Assn. v. Head, supra, 96 Cal.App.4th at p. 1189.) Where a petition to vacate an award was heard in the trial court on conflicting affidavits, the court on appeal will presume, in support of the trial court’s action in denying the petition, that the facts were established according to the affidavits of the respondents. (Manson v. Wilcox (1903) 140 Cal. 206, 209.)

Plaintiff first claims that it was misconduct for the arbitrator to inquire about the fee waiver he obtained or to use the fee waiver as a basis for assessing plaintiff’s credibility, in that the fee waiver information was confidential pursuant to California Rules of Court, rule 985(h).[3] Rule 985 confidentiality, however, expressly applies solely to the completed fee waiver application and its contents, which includes personal financial information. In his final decision, the arbitrator expressly acknowledged that he did not consider plaintiff’s actual fee waiver application in rendering his decision but only statements plaintiff made to him about the fee waiver and a blank fee waiver application form which plaintiff’s counsel provided to him. The facts established by the declaration of defendants’ counsel opposing plaintiff’s motion show that during testimony in the arbitration proceedings, plaintiff voluntarily disclosed the fact that he had obtained a fee waiver. Plaintiff does not contend and offers no evidence that the arbitrator had access to plaintiff’s actual application or to information contained in it. While noncompliance with an applicable statute, such as plaintiff claims herein, may be the basis for arbitrator misconduct (See Turner v. Cox (1961) 196 Cal.App.2d 596, 602-603), plaintiff has failed to show any rule 985 confidentiality violation by the arbitrator.

Additionally, in order for an arbitrator’s action to amount to misconduct sufficient to vacate an award, the complaining party must show not only the misconduct but also that it prejudiced the party’s rights. (Pacific Vegetable Oil Corporation v. C. S. T., Ltd. (1946) 29 Cal.2d 228, 240.) Plaintiff has failed to show that the arbitrator’s consideration of fee waiver information was prejudicial to him. Plaintiff implies that, if the fee waiver information had not been considered, the arbitrator would have found plaintiff to be credible, and the arbitrator would not have decided that the cause of the breach of contract was plaintiff’s failure to pay the $50,000 deposit to open escrow. The arbitrator’s decision, however, clearly indicates that the fee waiver information was only one of a number of factors that raised doubts about plaintiff’s credibility, and the absence of any documentary evidence that plaintiff paid the deposit was the primary factor in the arbitrator’s decision that plaintiff was responsible for the contract breach. Plaintiff has failed to meet his burden to show arbitrator misconduct resulting from prejudicial statutory noncompliance. We conclude that there is substantial evidence to support a finding by the trial court that the arbitrator’s consideration of fee waiver information did not constitute grounds for vacating the arbitration decision under Code of Civil Procedure section 1286.2.

Plaintiff next claims that the arbitrator and defendants’ counsel engaged in ex parte communications,[4] showing that the arbitrator was biased in favor of defendants and corrupt in rendering his decision and thus the award must be vacated pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(2). We disagree. To support his claim of bias, plaintiff must demonstrate that there was a preexisting business or social relationship between the arbitrator and defendants’ counsel which would color the arbitrator’s judgment (Luster v. Collins, supra, 15 Cal.App.4th at p. 1345) and create the impression of bias in the mind of a reasonable person (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 162). Additionally, in order for ex parte communications to constitute grounds for vacating an arbitration decision, plaintiff must show his rights were prejudiced by the conduct. (Good v. Kaiser Foundation Hospital (1984) 152 Cal.App.3d 819, 823.)

Plaintiff appears to concede in his brief on appeal that “there was not a preexisting relationship between [defendants’] counsel . . . and the arbitrat[or].” In any event, plaintiff presents no information that the arbitrator and defendants’ counsel knew each other prior to the arbitration or ever had any social, professional, or business relationship other than their conversations during the two days of arbitration hearings.

Plaintiff contends, rather, that their casual conversation during the hearings indicated that defendants’ counsel and the arbitrator developed a relationship which resulted in the arbitrator’s becoming sufficiently biased in favor of defendants to merit vacating the award. The contention is simply not supported by the record. Defendants’ counsel’s declaration established that he never engaged in any prohibited ex parte communications with the arbitrator during the arbitration proceeding and their conversations were “small talk” about such matters as the weather, parking at the arbitrator’s building, and recommended places for lunch.

Defendants’ counsel’s sworn statement that the communications were “small talk” is consistent with what plaintiff claims to be the substance of the ex parte communications between the arbitrator and defendants’ counsel. According to plaintiff, they discovered they had attended the same university several years ago and talked about knowing some of the same people and professors. In other conversations, they talked about restaurants, hotels, the arbitrator’s child, and playing golf. Plaintiff also points out other instances of their talking together within his sight, but outside his hearing range, including two times they were briefly in the same room with the door closed. Plaintiff makes no claim or showing that the arbitrator and defendants’ counsel discussed substantive matters relevant to the issues being arbitrated. Mere ex parte conversation does not constitute grounds for disqualifying an arbitrator or for vacating an award after it is rendered. (Good v. Kaiser Foundation Hospital, supra, 152 Cal.App.3d at p. 823.)

We conclude that substantial evidence in the record supports a finding that the ex parte communications between defendants’ counsel and the arbitrator do not show actual bias constituting grounds for vacating the arbitration award pursuant to Code of Civil Procedure section 1286.2. (Evans v. CenterStone Development Co., supra, 134 Cal.App.4th at p. 161.)

Plaintiff asserts that even if actual bias is not proven, the appearance of bias is sufficient grounds to vacate the award. Plaintiff asserts that pursuant to Banwait v. Hernandez (1988) 205 Cal.App.3d 823, arbitrators are required to disclose “‘to the parties any dealings that might create an impression of possible bias.’” (Id. at p. 827, italics added, quoting Coatings Corp. v. Casualty Co. (1968) 393 U.S. 145, 149.) Plaintiff fails to mention that the Banwait court goes on to recognize a qualification of the standard for possible bias: “[D]isclosure is necessary only where the circumstances create a reasonable impression of possible bias. . . . ‘It is not unusual in this day and age for attorneys practicing law in the same community to be friendly acquaintances. Absent more, such does not create [an] “impression of possible bias“ . . . .’ [Citation.]” (Banwait, supra, at p. 829.)

Whether there was required disclosure by the arbitrator is not an issue here. Before the close of the arbitration hearings, plaintiff already knew about the nature of the relationship between defendants’ counsel and the arbitrator upon which his assertion of bias and corruption is based. He acquired that knowledge from his own observations. Yet plaintiff has not sought vacation of the award on grounds of failure to make such a disclosure under Code of Civil Procedure section 1286.2, subdivision (a)(6) and section 1281.91. Substantial evidence supports a finding that plaintiff failed to show more than a friendly acquaintanceship between the arbitrator and defendants’ counsel, and therefore, there is no reasonable impression of possible bias. (Banwait v. Hernandez, supra, 205 Cal.App.3d at p. 829.)

Plaintiff also contends the ex parte communications showed that there was corruption by the arbitrator, which qualified as a ground for vacating the award pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(2). Plaintiff briefly discusses cases in which an arbitrator fails to disclose prior relationships but represents that no cases were found that characterized or defined “corruption” within the meaning of the statute. We have identified one such characterization: “[W]here an . . . arbitrator fails to disclose matters required to be disclosed by [Code of Civil Procedure] section 1281.9, subdivision (e), and a party later discovers disclosure should have been made, that failure to disclose constitutes one form of ‘corruption’ for purposes of section 1286.2, subdivision (b), and thus provides a ground for vacating an award.” (Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 Cal.App.4th 925, 937.)[5] As noted previously, disclosure is not an issue here, in that plaintiff had direct knowledge of much of the communication which he has asserted constitutes grounds for vacating the award. Accordingly, there is no substantial evidence showing arbitrator corruption.

In summary, plaintiff has failed to meet his burden to show any ex parte communications and actions constitute arbitrator corruption or bias, or even the appearance of bias, which qualifies as grounds to vacate the award pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(2).

Lastly, plaintiff asserts that the arbitrator’s refusal to stay the arbitration to allow him additional time for discovery constitutes grounds for vacating the award pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(5). In a nonjudicial arbitration as in the instant case, where a stay is requested for further discovery, the requesting party has the burden of showing the materiality of any evidence expected to be discovered and the party’s diligence in seeking to procure it sooner. (Moore v. Griffith (1942) 51 Cal.App.2d 386, 389.) The requesting party must also show that he or she was substantially prejudiced by the arbitrator’s refusal to stay the arbitration. (Code Civ. Proc., § 1286.2, subd. (a)(5).)

In the instant case, the record supports a finding that the discovery plaintiff sought was not material to the arbitrator’s decision, plaintiff was not diligent in seeking it prior to his request for a discovery extension, and that not being allowed to conduct the requested discovery did not substantially prejudice his rights. Plaintiff’s request was speculative in nature. The discovery plaintiff sought was the identity of defendants’ insurer and certain claims information on the property. He asserted it might lead to evidence that would impeach some of the defendants’ testimony and show that defendants, not plaintiff, caused the sale to fall through because defendants decided to pocket insurance proceeds from vandalism damage to the property instead of consummating the sale to plaintiff. Thus, plaintiff’s request was for evidence that, if it existed and was discovered, would pertain only indirectly, if at all, to proof the defendants caused the breach of contract. Plaintiff did not seek, for example, any documents to overcome the material evidence already before the arbitrator that showed that the breach was caused by plaintiff’s failure to submit the $50,000 deposit check to open escrow as required by the contract.

As to diligence, plaintiff did not make the discovery request until several days after the parties had each rested their case at the close of the hearings and the matter had been submitted for decision. Plaintiff’s counsel submitted the request to the arbitrator by fax a little more than two days prior to the scheduled decision issue date. In his declaration opposing the motion to vacate, defendants’ counsel stated that plaintiff had already extensively examined the individual defendant knowledgeable about the property’s insurance coverage and claims for several hours in a deposition prior to the arbitration hearing, and that no additional surprise information was provided by the defendant in his testimony during the arbitration hearing. In the arbitration decision, the arbitrator noted that plaintiff had ample prior opportunity, including at least five years for discovery prior to the arbitration hearings, a fact that is confirmed by the chronology of the case. Then during the arbitration proceedings, plaintiff was given additional time to obtain and submit further documentary evidence. We conclude there is substantial evidence to support a finding that plaintiff failed to show the requisite diligence. Accordingly, the trial court properly declined to vacate the arbitration decision on the basis of the arbitrator’s refusal to grant plaintiff’s request for a stay for further discovery.

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] We treat the notice of appeal as timely filed after entry of judgment. (Cal. Rules of Court, rule 2(e).)

[2] Code of Civil Procedure section 1286.2, subdivision (a), specifies the following grounds for vacating an arbitration award: “(2) There was corruption in any of the arbitrators. (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. . . . (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.”

[3] California Rules of Court, rule 985(h) states: “[Confidentiality] No person shall have access to the application [to proceed in forma pauperis] except the court and authorized attachés, persons authorized to verify the information pursuant to subdivision (b) and Government Code section 68511.3, and any person authorized by the applicant. No person shall reveal any information contained in the application except as authorized by law.”

[4] We note that plaintiff apparently also engaged in ex parte communications with the arbitrator. In his final decision, the arbitrator indicated that, after the matter had been submitted for decision, plaintiff inappropriately made ex parte statements to him by voicemail and faxes, and he urged plaintiff’s counsel to have plaintiff cease communications.

[5] Former Code of Civil Procedure section 1286.2, subdivision (b), is now subdivision (a)(2). (Stats. 2001, ch. 362, § 7.)

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.