Turnermedia v. Infinity Bail Network

Filed 3/23/07 Turnermedia v. Infinity Bail Network CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order granting petition to vacate an arbitration award and denying petition to confirm award, Superior Court of San Diego County, Michael B. Orfield, Judge. Reversed with directions.

This is an appeal from an order granting a defense motion to vacate an arbitration award and denying a plaintiff's cross-petition to confirm that award. (Code Civ. Proc.,  1286 et seq.; all further statutory references are to the Code of Civil Procedure unless otherwise noted.) In July 2002, plaintiff and appellant Turnermedia, LLC (plaintiff), brought a breach of contract action against defendants and respondents Craig McCarthy and Lisa McCarthy, both individually and doing business as Infinity Bail Network, LLC (defendants). A cross-complaint was filed and counsel entered into a stipulation to submit the matter to binding arbitration, and the case was taken off the civil trial calendar in July 2003. ( 1281.2.) Unsuccessful settlement negotiations were conducted by counsel through April 2004. When no settlement resulted, the selected arbitrator set a hearing for November 2004. Defendants did not attend individually or through their counsel, as at some point counsel had stopped representing them. The arbitrator issued a letter arbitration award in December 2004 (the first award).

After defense counsel, Mr. Testa, raised objections on various grounds and represented that he had now been rehired by defendants, who sought a new hearing, the first award was vacated by the arbitrator and a second hearing set for May 2005. The arbitrator issued a second award in favor of plaintiffs for $89,718.90 plus interest and costs, although there was again no appearance for the defense at the hearing.

Defendants brought a motion in the trial court to have the arbitration award vacated under section 1286.2, asserting alternative grounds that (1) the arbitration agreement included a projected completion date of March 31, 2004, which was not met, and there was no jurisdiction to proceed after that date; or (2) the arbitrator should have disqualified himself when defense counsel objected to his conducting the renewed arbitration proceedings, after the arbitrator had written a letter setting forth procedural topics to be addressed at the hearing (waiver, costs, etc.). Plaintiff responded with a petition to confirm the arbitration award, on the grounds that the arbitration completion date (ACD) had been waived and continued, and that no timely or sufficient disqualification request had been made.

The trial court granted the motion to vacate the arbitration award and denied the petition to confirm, essentially ruling that the stipulation to binding arbitration, including its ACD, should be interpreted as allowing the defense to have the right to withdraw at any time after that date if they did not want to proceed before the selected arbitrator, on the alleged grounds that he could no longer be unbiased. ( 1286.2.)

Plaintiff appeals, claiming the orders vacating the award and denying the petition to confirm the award are erroneous as a matter of law and must be reversed with directions to grant the petition to confirm. On de novo review of the record, we conclude the trial court erred in vacating the arbitration award, and it should instead have granted the companion petition to confirm that award. Defendants waived any right to enforce the ACD through their conduct and that of their attorney while he represented them, and defendants and their attorney did not make a sufficient showing to support any entitlement to disqualify the arbitrator under this agreement or by statute, on lack of disclosure grounds or bias grounds. ( 170.1, subd. (a).) We reverse with directions.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Lawsuit and Arbitration Provision in Contract;

Stipulation to Arbitrate

Plaintiff is an advertising firm which placed certain Yellow Pages ads for defendants in 2001-2002. Defendants, residents of Connecticut, did not pay. In July 2002, plaintiff filed its breach of contract complaint and defendants responded with a cross-complaint. Trial was set for July 25, 2003, but that date was vacated after the parties entered into and the court accepted their "Stipulation Re Binding Arbitration." ( 1281.2.) This submission named Douglas Barker as arbitrator and included the ACD as follows: "Unless stipulated to otherwise by the Arbitration Parties, by and through their respective counsel, the arbitration shall be completed not later than March 31, 2004." The stipulation also included provisions for replacing the arbitrator if he were unable to commence or complete the proceedings.

Counsel for the parties attempted to negotiate settlement, and the defense gave plaintiff until April 17, 2004 to respond to their counteroffer. Nothing further happened toward settlement, except for plaintiff's attorney calling defendants' attorney several times. In September 2004, plaintiff's attorney notified defense counsel he would be seeking an arbitration hearing date from the agreed-upon arbitrator, Mr. Barker.

B. First Arbitration Proceeding; Tentative Award

The arbitrator's office notified both counsel that the hearing date was set for November 3, 2004. Plaintiff sent a notice regarding the evidence to be presented. (Cal. Rules of Court, former rule 1613, current rule 3.823.) A week before the date set, Mr. Testa notified plaintiff and the arbitrator that he no longer represented defendants (individuals and Infinity, which was sometimes also called Aladdin Bail Bonds) and he did not know whether they would be represented in the future.

The arbitrator went ahead with the noticed hearing and sent out a letter dated December 10, 2004, that the award would be in favor of plaintiff, who should prepare a judgment. This was never done, because when defense counsel of record received the letter, he objected that the hearing should not have gone forward and that he had earlier called Barker's office to object. He argued that he was not representing defendants any more and there was a jurisdictional issue about proceeding after the expiration of the stipulated ACD.

Numerous letters were then exchanged back and forth between both sides and the arbitrator. On January 18, 2005, Mr. Testa notified plaintiff and the arbitrator that he had been rehired by defendants and they sought to have the first award vacated and discovery to be allowed, and agreed to participate in a second hearing. Defendants again agreed to another hearing in a letter of February 4, 2005.

The arbitrator sent a letter dated February 14, 2005, vacating the previous award and agreeing to hold a second hearing, based on uncertainty about whether the defendant clients had had adequate notice before. The letter set forth issues to be addressed about any jurisdictional effect of the ACD expiration, with defendants to have the burden to show that deadline was still in effect. The letter also stated that plaintiff would be allowed to seek costs related to the first hearing, regardless of the outcome of the second hearing, since it was not clear whether Mr. Testa had given sufficient notice of the proceedings to his clients, at a time when he was withdrawing from representing them. The arbitrator denied the request for further discovery in writing and stated that the arbitration should occur without any further delay, commenting, "With all due respect, there has been apparent confusion on the defense side in this case. First, Mr. Testa represented the defendants, then he didn't, and now he does. I am willing to give all benefit of doubt to the defense that these were innocent lacks of coordination. However, I am unwilling to make the plaintiff wait any longer for resolution of this matter."

On February 17, 2005, Mr. Testa replied to this letter, telling plaintiff's attorney that a new arbitrator should be appointed so that the matter could go forward, as he believed Mr. Barker should now recuse himself. He asked Mr. Barker to do so because he believed that the February 14 letter showed some kind of bias against him, based on the denial of discovery, the costs proposal, the reference to confusion, and so forth. Mr. Testa again asked plaintiff to agree to a new arbitrator by letter of April 4, 2005.

C. Second Arbitration Proceeding and Award

On April 12, 2005, the arbitrator sent out notices for the second hearing to take place May 9, 2005 and made statutory disclosures that there were no known conflicts of interest. On April 14, 2005, Barker refused the defendants' request to recuse himself, explaining that he had made only procedural rulings and had not yet gone to the merits, similar to an independent calendar judge's rulings, before the scheduled hearing.

Plaintiff sent defense counsel a new notice regarding the evidence to be presented. In response, by letter of April 21, 2005, Mr. Testa again requested that the arbitrator disqualify himself, asserting that under section 1281.91, subdivision (b)(2), the arbitrator could be disqualified without cause, and a new mutually agreeable arbitrator should be appointed. The hearing was conducted without an appearance by the defense. The arbitrator ruled in plaintiff's favor, with the award set at $89,718.90 plus interest and costs. The award was served on defense counsel.

D. Petition to Vacate Award; Petition to Confirm Award; Ruling

Defendants brought a motion to have the arbitration award vacated under section 1286.2, subdivisions (a)(4) and (6). They argued the arbitrator acted in excess of his power by proceeding after the March 31, 2004 ACD in the stipulation. They also argued the arbitrator showed bias by specifying the issues to be addressed at the renewed arbitration proceedings, as outlined above, and by allowing plaintiff to file a costs memo arising out of the first arbitration proceedings.

Plaintiff responded with a petition to confirm the award, arguing that the defendants had agreed to extend the period to complete arbitration by engaging in settlement negotiations and participating in the proceedings, at least until questions arose about whether Mr. Testa still represented them. Plaintiffs argue defendants had received actual notice and either the first or second award should be confirmed.

At oral argument, the court inquired about whether the defendants' conduct had essentially strung plaintiff along. The court then ruled that once the ACD had passed without any written stipulation to extend it, defendants should have been able to withdraw from any proceedings before the original arbitrator, if they no longer agreed to participate. The court stated that although defendants had apparently agreed to proceed to a second hearing before a different arbitrator, they did not have to do so before the original arbitrator. The trial court granted the motion to vacate the arbitration award, and denied the companion petition to confirm that award. The minute order reflects that the case was restored to the civil active list.

E. Appeal; Withdrawal of Attorney for Defendant

Plaintiff appealed. Within a month, this court received a motion from defense counsel Mr. Testa to withdraw as attorney, and it was granted. The order notified respondents that to the extent the artificial entity defendant, Infinity Bail Network, LLC, wished to appear in the matter, it must be done through counsel if at all. No respondent's brief has been filed either by the individuals or by the company respondents.

DISCUSSION

After outlining our standards of review, we will first address the issues raised about the ACD and whether its provisions were waived by defendants' actions in pursuing the various phases of the arbitration proceedings. We then turn to the alternate grounds asserted for vacating the award, whether a disqualification for bias of the arbitrator should have been made during the second phase.

Where, as here, no oral argument has been requested and the respondent has not filed a brief, "we do not treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but examine the record, appellant's brief . . . to see if it supports any claims of error made by the appellant. [Citations.]" (Riddle v. Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.)

I

STANDARD OF REVIEW

"On appeal from an order vacating an arbitration award, we review the trial court's order (not the arbitration award) under a de novo standard. [Citation.]" (Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55-56 (Malek).) This court will independently review whether a trial court has correctly construed the relevant statutes. (Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 Cal.App.4th 925, 933 (Michael).) In part II, post, we will discuss the provisions of section 1283.8, regarding the enforceability of the ACD found in the stipulation to binding arbitration.

In part III, post, the statutes to be interpreted are those pertaining to disqualification of the arbitrator, sections 1281.9 et seq. and 170.1. In addition to our de novo review of the trial court's statutory interpretation, we take into account the rule that it is generally a factual question whether a particular relationship requires disclosure of potential conflicts in each case. (Michael,supra, 88 Cal.App.4th 925, 933.) The substantial evidence test would apply to any trial court determination of such disputed factual issues. (Ibid.)

However, this case does not hinge upon the statutory requirements for disclosures of potential conflicts of interest, such as an arbitrator's personal assets or relationships, previous representation of a party and so forth. ( 1281.9 et seq.) Instead, this is a case dealing with the appearance of impartiality. It is well accepted that an objective test is used to determine whether a judicial officer (or, in this case, an arbitrator) maintains the necessary impartiality to rule upon a given matter, within the meaning of section 170.1, subdivision (a)(6)(A)(iii) (a person aware of the facts might reasonably doubt the judge's impartiality). (United Farm Workers of America v. Superior Court (Maggio) (1985) 170 Cal.App.3d 97, 103-104 (UFW).) We assess the undisputed facts in the record to determine if the statutory requirements for vacating the award under section 1286.2, subdivisions (a)(4) and (6) have been met. (Malek,supra, 121 Cal.App.4th at p. 56.)

II

ARBITRATION COMPLETION DATE

Defendants first sought to have the arbitration award vacated under section 1286.2, subdivision (a)(4), asserting that the arbitrator exceeded his powers and the award could not be corrected. The trial court order does not specify its reasoning, but at oral argument, the court apparently adopted the defense position that under section 1283.8, an agreement in writing to extend the ACD beyond March 31, 2004 was required, and without such a written stipulation extending the time period, the originally named arbitrator could not proceed over an objection raised at any time. ( 1283.8 ["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. The parties to the arbitration may extend the time either before or after the expiration thereof. A party to the arbitration waives the objection that an award was not made within the time required unless he gives the arbitrators written notice of his objection prior to the service of a signed copy of the award on him].")

In this appeal, plaintiff seeks to uphold the first arbitration letter award by arguing that the parties never agreed that the submission to binding arbitration would be null and void, once the ACD had passed. Plaintiff relies on section 1283.8 to argue that defendants never objected in writing to the arbitrator's jurisdiction before the first award was served, and defendants should not be heard to argue the ACD somehow remained binding, since defendants cooperated with the proceedings and made settlement offers extending past that date. Plaintiff argues that defendants waived any reliance on the ACD through their conduct.

As a threshold matter, we note that the first arbitration ruling was stated in a letter from the arbitrator, but no order or judgment was prepared, due to the controversy over whether the defendant clients had actual notice of the proceedings, once Mr. Testa was no longer representing them. We therefore disagree with plaintiff that the first arbitration letter award was enforceable in some manner, since the arbitrator himself properly set it aside, in the interest of giving the defendants individually an opportunity to appear at a renewed hearing, in case they had not received adequate notice from their attorney.

As already outlined, after the first letter award was sent, additional communications took place between counsel, and Mr. Testa notified plaintiff and the arbitrator in January 2005 that he was again representing those defendants. He requested that a second hearing take place and further discovery be allowed. A number of additional issues then arose, including disqualification, as we will address in part III, post.

Our initial inquiry is whether the trial court order vacating the second arbitration award (and denying the request to confirm it) was appropriate and was based upon a correct application of the statutes. With respect to section 1283.8, the trial court apparently relied on the language that "the award shall be made within the time fixed therefor by the agreement," to conclude that no other provisions of the agreement (such as the identity of the arbitrator), could any longer be modified or waived by conduct once that specified time had passed. However, the statute read as a whole does not support that interpretation. The binding arbitration agreement did not require that any extension of the ACD must be in writing, and the undisputed facts in the record support only one conclusion: That defendants impliedly agreed through their conduct and that of their attorney to extend the time within which the award could be rendered and the arbitration completed, and that this implied agreement extended to the entire submission.

Our reading of the binding arbitration agreement, together with the statutes, does not support any conclusion that the defendants could unilaterally withdraw from the arbitration with respect to one particular provision (identity of the arbitrator), since they had agreed to proceed otherwise by waiving the requirements of the ACD provision. Since the parties to the arbitration could, by agreement, "extend the time for completion of the arbitration," the remaining portions of the arbitration provisions were also implicitly continued in effect by such an extension. There is nothing in the agreement or in the statutes to require that the parties lost their ability on a certain date to extend the effectiveness of the whole agreement, even in light of the originally stated deadline for completion. By extending the life span of the arbitration agreement, they also extended its substantive provisions, including its selection of the arbitrator.

The facts in the record demonstrate that the parties, by and through their respective counsel, had the ability to extend the time period within which to complete the arbitration as originally contemplated. For example, in Mr. Testa's letter of February 4, 2005, he wrote the arbitrator that the matter should be heard on the merits at a second arbitration hearing. Two weeks later, he began to request that the arbitrator disqualify himself. Similar letters were sent to plaintiff's attorney. This conduct by the defendants' attorney was not in any way consistent with enforcement of the original ACD, and section 1283.8 does not require or justify any finding that strict compliance with the ACD amounted to a jurisdictional requirement in the parties' stipulation to arbitrate, or otherwise served to limit the scope of the agreement. This conduct waived any objection by defendants that the second phase of the proceedings was no longer authorized by the agreement itself. Defendants did not preserve the ability to set conditions on the continuing validity of the arbitration agreement after the expiration of the specified ACD, with respect to its other terms, because the agreement does not allow that and their overall conduct was detrimentally relied upon by plaintiff.

The authority relied on by plaintiff, Bosworth v. Whitmore (2006) 135 Cal.App.4th 536, 547, arose in a different fact situation, in which there was no arbitration completion date set by agreement. ( 1283.8.) The appellate court ruled that even though the trial court had the ability to set a completion date for the arbitration, there was an abuse of discretion in removing the original arbitrator and appointing a successor. The appellate court found the record did not support any finding that the original arbitrator had failed to act to carry out his duties, so as to justify removal. (Bosworth, supra, at p. 552.) For our purposes here, the discussion of section 1283.8 in Bosworth merely confirms that this section allows the parties to waive the provisions of an agreement requiring an award within a specified period, unless a party gives the arbitrator written notice of a timeliness objection, prior to the service of a signed copy of the award. (Bosworth,supra, at pp. 550-551.) Defendants have not brought themselves within the terms of this statute, and up until the February 17, 2005 letter in which defendants began to object to Mr. Barker's continuing to act as the arbitrator, they had clearly submitted to the jurisdiction of the arbitrator well past the expiration of the ACD, thereby waiving its provisions.

We next address the validity of the order vacating the second arbitration award (as well as the denial of the cross-petition to confirm it), with respect to the remaining ground asserted to the trial court, disqualification.

III

ALLEGED BIAS OF THE ARBITRATOR

Generally, grounds to vacate an award may be shown if an arbitrator has failed to disclose information that could demonstrate bias. " 'Whether an award is tainted by bias because an arbitrator failed to disclose a particular relationship is a factual determination made by the court reviewing the award. [Citation.] The party claiming bias bears the burden of establishing facts supporting its position. [Citation.] The test is objective, i.e., whether the relationship would create an impression of bias in the mind of a reasonable person. [Citation.]' [Citations.]" (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 957 (Guseinov); UFW, supra, 170 Cal.App.3d 97, 103-104.)

Defendant sought to have the arbitration award vacated under section 1286.2, subdivision (a)(6): "An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision . . . ." Section 1281.91 provides for service of a "notice of disqualification" of an arbitrator, which never occurred here, and the only relevant evidence is the set of letters from defense counsel requesting recusal. Although under section 1281.91, subdivision (c), a party may waive the right to disqualify "a proposed neutral arbitrator pursuant to this section" (regarding nondisclosures), the same subdivision goes on to preserve the right of a party who later claims arbitrator bias to seek to have an award vacated under section 1286.2, "or to disqualify an arbitrator pursuant to any other law or statute." ( 1281.91, subd. (c).)

In his April 21, 2005 letter, defendants' attorney relied on section 1281.91, subdivision (b)(2) to seek disqualification without cause, as follows: "A party shall have the right to disqualify one court-appointed arbitrator without cause in any single arbitration, and may petition the court to disqualify a subsequent appointee only upon a showing of cause." However, this arbitrator was not court-appointed, but selected by the parties. Also, the section as a whole deals with proposed neutral arbitrators, not an arbitrator who has already begun to process the case. Defendants were not specifying any failure of the arbitrator to disclose potential conflicts, pursuant to the disclosure requirements of section 1281.9, or the procedures of section 1281.91, subdivisions (a) and (b). (If so, it would have been too late under  1281.91, subd. (c), because it provides, "in no event may a notice of disqualification be given after a hearing of any contested issue of fact relating to the merits of the claim or after any ruling by the arbitrator regarding any contested matter.") In any case, the trial court did not base its ruling on any statutory failure to disclose, nor was there any such failure.

Rather, the issue presented is defendants' claim that due to the arbitrator's February 14, 2005 letter rulings which vacated the previous award and agreed to conduct new proceedings, a different provision for disqualification of a neutral arbitrator should apply, such as found in section 1281.91, subdivision (d): "If any ground specified in Section 170.1 exists, a neutral arbitrator shall disqualify himself or herself upon the demand of any party made before the conclusion of the arbitration proceeding [except for collective bargaining employment arbitrations]." Section 170.1, subdivision (a) (6)(A)(iii), provides as follows: "A judge shall be disqualified if any one or more of the following is true: A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."

We therefore evaluate the record to see if objective grounds for disqualifying this arbitrator are apparent, once defendants' attorney Mr. Testa began to object to Mr. Barker continuing to act as an arbitrator, after February 17, 2005. We have rejected above any interpretation of the arbitration agreement that would allow defendants to unilaterally withdraw from the stipulation to binding arbitration that they were otherwise complying with, merely to obtain a change of arbitrator. We next consider whether the arbitrator was required to recuse himself upon receiving the letters from Mr. Testa, after he issued the preliminary rulings about the next phase of the arbitration.

By analogy, where there is no ground for disqualification on the basis of a conflict of interest, then disclosure of the nonconflict is not required, and nondisclosure is not a basis for vacating the arbitration award. (See Guseinov,supra, 145 Cal.App.4th at pp. 955-957.) Similarly, if an objective standard is not met to show bias, there is no basis for vacating the award. (See Britz, Inc. v. Alfa-Leval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1102 [disqualification of an arbitrator for cause in mid-proceeding was sought on the basis of a potential conflict of interest: "[A] trial court considering a petition to confirm or vacate an arbitration award is required to determine, de novo, whether the circumstances disclose a reasonable impression of arbitrator bias, when that issue is properly raised by a party to the arbitration].")

Additional statutory provisions in the arbitration scheme may also be considered on a de novo basis, due to the nature of the ruling on review. Under section 1292.6, a court hearing a petition regarding arbitration retains jurisdiction to determine subsequent petitions involving the same agreement to arbitrate and the same controversy. Under section 1281.8, injunctive relief could have been sought to preserve the effectiveness of the arbitration agreement, as explained in Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 450. There, the court analyzed the availability of injunctive relief under section 1281.8 in the arbitration context, and noted: "[S]ection 1281.8, subdivision (b), authorizes a party to an arbitration agreement to seek a provisional remedy in the trial court pending arbitration 'but only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without provisional relief . . . .' " (Davenport, supra, at p. 450.) "[T]he trial court has authority to grant injunctive relief pending contractual arbitration, but only if it is necessary to preserve the effectiveness of arbitration." (Id. at p. 453.) The trial court ruling in our case does not adequately account for the statutory scheme which would have allowed defendants to seek relief for their perceived complaints against the arbitrator earlier, by seeking remedies from the trial court which had originally sent the matter to arbitration. (See also Orion Pictures Corp. v. Writers Guild of America, West, Inc. (9th Cir. 1991) 946 F.2d 722, 725 [declaratory relief may be available on jurisdictional issues].)

We conclude that the trial court erred in accepting the argument by defendants that their February 17, 2005 letter objecting to the arbitrator's intention to continue to handle the proceedings was adequate to constitute a notice or demand for disqualification under section 1281.9 et seq. Nor have objectively valid grounds for recusal been demonstrated under section 170.1, subdivision (a). The procedural background of this case was that the matter was taken off the civil trial calendar a week before the scheduled trial date in July 2003, because of the stipulation to binding arbitration. Both parties benefited from vacating the trial date, and they engaged in settlement negotiations. Defendants offered to allow plaintiff to consider their settlement offer past the March 31, 2004 date, which shows a waiver of that time limitation, as already discussed above. When the arbitrator agreed to vacate the first award and proceed to a second hearing, at the request of defendants, they initially complied with those proceedings. When the arbitrator issued procedural rulings about the issues to be addressed in the second phase, these did not objectively constitute prejudging the case or demonstrating bias against defendants. Rather, they showed an effort to manage the case in an orderly way that would allow the clients' respective positions to be heard on the merits. Defendants' and their attorney's choices not to attend the second scheduled hearing, of which they had notice, does not justify vacating the award on any of the grounds asserted below. Defendants failed to show their interpretation of the submission was reasonable or correct.

In conclusion, there is nothing in the record to justify a disqualification of the arbitrator under the objective standard for determining bias, in light of the manner in which the defendants' arguments were presented and the nature of their objections. Accordingly, the trial court erred in granting the petition to vacate the award, and it should have granted the petition to confirm the award.

DISPOSITION

The judgment granting the motion to vacate the arbitration award and denying appellant's petition to confirm the arbitration award is reversed, and the trial court is directed to enter a different order granting the petition to confirm the second award, in accordance with the views set forth in this opinion. Appellant shall recover its costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

AARON, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.