Bain v. Countrywide Financial

Filed 7/20/10 Bain v. Countrywide Financial CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John S. Wiley, Judge. Affirmed.

Law Offices of Barry B. Kaufman and Barry B. Kaufman for Plaintiff and Appellant.

Seyfarth Shaw, Karen A. Rooney, and John A. Van Hook for Defendants and Respondents.

INTRODUCTION

Petitioner/appellant Craig R. Bain (Bain) was terminated from his position with respondent Countrywide Financial Corporation (Countrywide) after he made a series of violent and obscene remarks at work. He filed an arbitration demand, alleging, among other things, that he was disabled and was discharged as a result. After a hearing, the arbitrator rejected Bains claims and issued an award for Countrywide, concluding that Countrywide had a legitimate, nondiscriminatory reason for terminating Bain and that Bain had not established that he was disabled or that Countrywide knew he was disabled. The trial court confirmed the arbitration award.

Bain urges on appeal that the award should be vacated because: (1) the arbitrator erred in excluding his treating psychiatrists testimony that Bain suffered from a recognized mental disorder; and (2) Countrywides response to his petition to vacate the arbitration award was untimely. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

I. Underlying Facts[1]

Bain was a first vice president, collateral analyst, with Countrywide from March 3, 2003 to January 13, 2005. In 2004, Bain and Countrywide entered a Mutual Agreement to Arbitrate Claims, which required arbitration of all claims or controversies arising out of, relating to or associated with the Employees employment with [Countrywide].

On December 27, 2004, Bain appeared at work with blood on his face and shirt. He told his coworkers that he gets into rages and wants to go to the park and stab children . . . with knives and bathe in their blood. The following day, Bains supervisor noticed that Bain looked disheveled and sent him home. Bain went home, but returned to work at about 5:00 p.m. that afternoon, wearing a t-shirt and no shoes. Coworkers reported that he appeared to be intoxicated. He entered his work area, banged the keyboard of his computer against the wall of his workstation, and screamed the following: I have not had sex in nine years; Jesus, sorry, bloody fucking Mary; You cant imagine the things I want to do to 14 year old girls. I want to take their cunts and fuck the shit out of them; Jesus fucking Joseph Mary of Christ, fuck me in the ass. Security was called and Bain left the building. Bain cannot recall what he said to his coworkers at Countrywide on December 27 and 28, 2004.

Countrywide placed Bain on administrative leave on December 28, 2004. The following day, Bain requested and was granted a medical leave of absence.

On January 11, 2005, Bains treating physician, Dr. Yip, advised Countrywide that Bain was medically stable to return to work full duty. The next day, Bain emailed Countrywide that his doctor had released him to work his normal 16-hour day.

On January 13, 2005, Countrywide interviewed Bain about the events of December 27 and 28, 2004. It then terminated him, purportedly for violating Countrywides Zero Tolerance for Workplace Violence Policy.[2]

Bain filed an arbitration demand on March 6, 2006. It alleged that Bain was physically and mentally incapacitated due to the exhaustion of working multiple 36 hour shifts over the weeks preceding December 27 and 28, 2004, and that he had become so exhausted that he could not function without accommodations. Accordingly, the arbitration demand said, Countrywide violated the Fair Employment and Housing Act (FEHA) by terminating Bain on account of his work-induced disability (Gov. Code, 12940, subd. (a)), failing to provide reasonable accommodations (Gov. Code, 12940, subd. (m)), and failing to engage in a good faith interactive process (Gov. Code,  12940, subd. (n)).

II. Dispute Concerning the Testimony of Treating Psychiatrist Mel Morgan

In September 2007, the parties exchanged percipient witness lists for the arbitration hearing. In his list, Bain stated that he would call his treating psychiatrist, Dr. Mel Morgan, to testify about his observations of Bain both before and after the incident for which he was terminated, and to offer an opinion regarding Bains mental health condition at or about the time of his breakdown. Dr. Morgan will not be offering any medical opinion about whether Bain was disabled as of the time that he had his breakdown. (Italics omitted.)

The arbitration hearing commenced on September 17, 2007, and concluded on September 21, 2007. On the day Dr. Morgan was scheduled to testify, Bains counsel stated that he was prepared to testify that Bain was disabled when he had his breakdown. Countywide objected to Dr. Morgan testifying to any psychiatric diagnosis because he had not been designated as an expert. The arbitrator agreed and barred Dr. Morgan from giving expert testimony. Dr. Morgan was permitted to, and did, testify about his impressions of Bain before and after December 28, 2004.[3]

III. Arbitration Award

The arbitrator found for Countrywide on all of Bains claims of employment and disability discrimination, finding as follows:

In order to prove a claim for disability discrimination, Claimant has the burden of proving by a preponderance of the evidence that he was qualified to do his job with or without reasonable accommodation; that he suffered from a disability; was subject to an adverse employment decision because of the disability; and was performing his job satisfactor[ily] at the time of termination.

Respondent in this matter argues that Claimant, by his conduct on December 27 and 28, 2004, violated its Zero Tolerance of Workplace Violence Policy. Therefore Claimant was not qualified to do his job even if he was [in] fact disableda fact Respondent refutes. Respondent conducted an investigation of the outbursts on December 27 and 28, 2008 and determined that Claimant had violated its Zero Tolerance policy and planned to terminate Claimant once he was medically cleared to return to work. The investigation demonstrated to Respondent that Claimants coworkers feared for their safety if Claimant remained an employee. Claimants expert, Michael A. Robbins, an attorney, was designated by Claimant as an expert in how to conduct investigations involving employee misconduct. Mr. Robbins opined that the person designated by Respondent to conduct the investigation of Claimants outburst, Kim Lappin, did not conduct a thorough investigation. The main fault found by Mr. Robbins was the fact that Ms. Lappin did not interview all of the witnesses to the outburst. However, Claimant has not produced one witness who can state that they did not fear Claimant would possibly commit a violent act after observing what had occurred at the workplace on December 28, 2004. Claimant himself cannot disclaim the statements attributed to him that were made during the outbursts. An employer may lawfully terminate an employee if the employee threatens violence while in the workplace.

There is no dispute as to the timing of the events that led to Claimants termination. The outbursts occurred on December 27 and 28, 2004. Claimant was immediately placed on administrative leave, then medical leave, placed back on administrative leave and terminated. Claimants position is that he was terminated when Respondent knew that Claimant was disabled.

On the issue of disability Claimant must prove that he was disabled and that he was terminated when Respondent had reasonable belief that he was disabled. Claimant relies upon the various emails he wrote in the months prior to his outburst wherein he stated that the stress of working long hours had taken a toll [on] his health and had resulted in certain medical conditions that he was suffering, the outburst itself and the fact Claimant requested a medical leave of absence after the outburst. However, [at] no time prior to December 27, 2004 did Claimant state that he was disabled or that he desired an accommodation for his physical conditions. Claimant, from the time of the outburst to the time of his termination[,] did not inform Respondent that he was disabled. Based on the deposition of Dr. Yip, Claimants treating physician, he did not form the opinion Claimant was disabled during or after his employment with Respondent. Claimants treating psychiatrist, Dr. Mel Morgan[,] did not testify that he formed the opinion Claimant was at anytime disabled. Dr. Yip did not indicate that Claimant was disabled when he signed the health[care] providers certification that Claimant was able to return to work on January 11, 2005. Claimant on January 12, 2005 wrote an email to Respondent wherein he stated that he was able to return to his normal 16-hour working days. If Claimant cannot establish that he was disabled then he cannot claim that Respondent failed to determine whether accommodation through the interactive process [was] required. Claimant wants to shift the burden to Respondent to investigate what may have caused the outbursts. Claimant contends that if Respondents reasoning for terminating Claimant was the outbursts by Claimant on December 27 and 28, 2004, then Respondent had an obligation under Government Code 12940(a)(1) (FEHA) to investigate the cause of the outbursts and determine if Claimants outbursts were the result of a disability and determine whether an accommodation could have been made through the interactive process. Claimant has not presented any case authority to support this position. The cases cited by Claimant, including the recent case of Gambini v. Total [Renal] Care, Inc. [486] F.3d 1087, are cases where there is an established disability and the employer has an obligation to investigate whether [the] alleged cause for the termination was based on the know[n] disability. There is no evidence presented in this arbitration that establishes that Respondent knew or should have known that Claimant was disabled.

Government Code 12940(n) states that it is unlawful for an employer . . . to [fail to] engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known disability or a known medical condition. Ms. Lappin testified that she did not inquire further of Claimant about his medical condition once she received the health[care] provider certificate from Dr. Yip indicating Claimant is able to return to full time work. It also would seem nonsensical for Ms. Lappin [to] ask Claimant about any accommodation when the next day Claimant stated in an email that he wanted to return to working his normal 16-hour day. Claimant has not met his burden of proving that Respondent[s] conduct comes within the provisions of Government Code 12940(n).

Claimant has not met his burden of proving by a preponderance of the evidence that Respondent Countrywide discriminated against him by terminating Claimant for his conduct on December 27 and 28, 2004. Claimants termination was legally based on Respondents belief that Claimant had violated its Zero Tolerance of Workplace Violence Policy. Claimants termination was not a pretext to avoid his continued employment based on a known disability. Respondent did not violate the law in not conducting an inquiry as to any accommodation that may have existed.

IV. Petitions to Vacate/Confirm the Arbitration Award

Bain petitioned to vacate the arbitration award, and Countywide petitioned to confirm it. On June 11, 2008, the superior court denied the petition to vacate; on October 28, 2008, the court granted the petition to confirm. Judgment was entered on December 19, 2008. Bain timely appealed from the judgment.

DISCUSSION

Bain contends that the arbitrator erred in excluding his treating psychiatrists testimony that Bain was mentally disabled in December 2004. While conceding the narrow scope of judicial review of arbitration awards, Bain urges that under Code of Civil Procedure section 1286.2, subdivision (a)(5), a court must vacate an arbitration award if a partys rights were substantially prejudiced by the arbitrators refusal to hear evidence material to the controversy.^[4]He urges that there was no issue more material to the controversy than the issue of whether Bain suffered from a disability at the time of the verbal outburst for which he was terminated, and thus that the arbitrators exclusion of some of Dr. Morgans testimony unfairly deprived [him] of a fair opportunity to present his side of the dispute.

Bain also urges that the judgment must be reversed because Countrywide failed to timely oppose his petition to vacate. He says that Countywide filed its response to his petition to vacate 57 days late and, thus, the trial court had a nondiscretionary duty to deem admitted the allegations of his petition and to grant the requested relief.

I. Standard of Review

Judicial review of contractual arbitration awards is extremely limited. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10-11 (Moncharsh); Burlage v. Superior Court (2009) 178 Cal.App.4th 524, 529.) A court may not review the merits of the underlying controversy or the arbitrators reasoning, even when an error of law appears on the face of the award and causes substantial injustice. (Moncharsh, supra, at pp. 11, 28; Burlage, supra, at p. 529.) Accordingly, arbitration awards are subject to extremely narrow judicial review, and the exclusive grounds for vacating such awards are those set forth in section 1286.2. (Luce, Forward, Hamilton & Scripps, LLP v. Koch (2008) 162 Cal.App.4th 720, 728.) Unless one of the enumerated grounds exists, a court may not vacate an award even if it contains a legal or factual error on its face which results in substantial injustice. (Ibid.; Marsch v. Williams (1994) 23 Cal.App.4th 238, 243-244.)[5]

We review the trial courts order (not the arbitration award) de novo, but we apply the substantial evidence standard to the extent the trial courts ruling rests upon a determination of disputed factual issues. (Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55-56; Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1364-1365.)

II. The Arbitrators Exclusion of Dr. Morgans Diagnosis

Bain contends that the arbitrator erred in excluding his treating psychiatrists testimony that Bain was mentally disabled in December 2004. For the reasons that follow, we disagree.

A. Section 1286.2, Subdivision (a)(5)

Section 1286.2, subdivision (a)(5), provides in relevant part that a court shall vacate an arbitration award if it determines that [t]he rights of the party were substantially prejudiced by . . . the refusal of the arbitrators to hear evidence material to the controversy. (Italics added.)

Where, as here, a party complains of excluded material evidence under section 1286.2, subdivision (a)(5), the reviewing court should generally focus first on prejudice, not materiality. (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439.) Further, to find substantial prejudice, as the statute requires, the court must accept, for purposes of analysis, the arbitrators legal theory and conclude that the arbitrator might well have made a different award had the evidence been allowed. (Id. at pp. 438-439.)

The court discussed the application of section 1286.2, subdivision (a)(5), in Hall v. Superior Court, supra, 18 Cal.App.4th 427. There, petitioners filed a complaint against the agents and brokers who represented them in the sale of their home, alleging that they withheld information about the buyers financial problems. The complaint did not allege a partnership between the several defendants, but alleged that each acted as an agent for the other. (Id. at p. 430.) The case was submitted to arbitration. After the close of the case, defendant Trompas asked the arbitrator to reopen the hearing for additional evidence on the partnership issue. (Id. at p. 431.) The arbitrator declined to reopen and entered an award for petitioners. Among other things, the arbitrator rejected Trompass contention that he was neither an agent nor a partner of the listing agent, finding as a matter of law that his participation in marketing petitioners home and sharing in the commission made him a partner. (Id. at p. 432.)

The trial court vacated the arbitration award, finding that the arbitrator erred in refusing to reopen the hearing to permit evidence about the partnership theory. (Id. at p. 432.) The Court of Appeal disagreed and reversed. It noted that in both the trial and appellate courts, Trompas had challenged the arbitrators understanding of partnership law. This was impermissible: We do not accept the suggestion, implied by [Trompass] challenges, that section 1286.2, subdivision (e) [now, section 1286.2. subdivision (a)(5)], provides a back door to Moncharsh[, supra, 3 Cal.4th 1,] through which parties may routinely test the validity of legal theories of arbitrators. Instead, we interpret section 1286.2, subdivision (e), as a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a party from fairly presenting its case. (Id. at pp. 438-439.) Thus, [w]here, as here, a party complains of excluded material evidence, the reviewing court should generally focus first on prejudice, not materiality. To find substantial prejudice the court must accept, for purposes of analysis, the arbitrators legal theory and conclude that the arbitrator might well have made a different award had the evidence been allowed. (Id. at p. 439, italics added.) Applied in this manner, the court concluded, section 1286.2, subdivision (e) does not cover the arbitrators actions here. Trompas failed to show substantial prejudice. The arbitrator received an informal offer of proof, determined that even if presented the evidence would not persuade him against the Halls, and denied Trompas the opportunity to replace his offer of proof with actual testimony. The arbitrator did not prevent Trompas from fairly presenting his defense. Instead, the arbitrator concluded that Trompass defense, even with the proffered evidence, lacked merit. The superior court erred in applying section 1286.2, subdivision (e), to vacate the arbitrators award. (Id. at p. 439; see also Burlage v. Superior Court, supra, 178 Cal.App.4th at p. 530 [vacating arbitration award where the effect of arbitrators exclusion of evidence substantially prejudiced [petitioner] and undermined the fundamental principle embodied in section 1286.2, subdivision (a)(5) that an arbitrator must consider material evidence].)

B. Application of These Principles to the Present Case

Under Hall, we are required to sustain the arbitrators exclusion of the testimony of Dr. Morganeven if, as Bain contends, the exclusion was an abuse of discretionif the evidence was not material or if the arbitrators failure to hear it did not substantially prejudice Bain. (See Hall v. Superior Court, supra, 18 Cal.App.4th at p. 438.) We therefore consider the elements of Bains claims against Countrywide and whether the arbitrators failure to consider Dr. Morgans testimony substantially prejudiced Bains ability to establish those claims.

1. Discriminatory Discharge

Bain alleges that he was discharged in violation of Government Code section 12940, subdivision (a), which provides: It shall be an unlawful employment practice . . . [f]or an employer, because of the . . . physical disability, mental disability, [or] medical condition . . . of any person, . . . to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

To establish a prima facie case for disparate treatment discrimination, plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. [Citations.] (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246-1247.) Thus, the employers knowledge of the disability is a necessary element of the cause of action: An adverse employment decision cannot be made because of a disability, when the disability is not known to the employer. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236; see also Yanowitz v. LOreal USA, Inc. (2005) 36 Cal.4th 1028, 1046 [no FEHA retaliation claim where there is no evidence the employer knew that the employee was engaging in protected conduct]; Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1145 [An employee cannot make out a prima facie case of discrimination based on pregnancy under FEHA in the absence of evidence the employer knew the employee was pregnant]; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity].) (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at pp. 1246-1247.)

In the present case, the arbitrator specifically made a finding that

[t]here is no evidence presented in this arbitration that establishes that Respondent knew or should have known that Claimant was disabled. Bain does not challenge this finding. Thus, the exclusion of Dr. Morgans testimony could not have substantially prejudiced Bain because even if the testimony had been admitted, Bain still could not have established a necessary element of his cause of action for disparate treatment discrimination. ( 1286.2, subd. (a)(5).)

2. Failure to Accommodate

Bain alleges that Countywide failed to accommodate his disability in violation of Government Code section 12940, subdivision (m), which provides, in relevant part: It shall be an unlawful employment practice . . . [f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.

Under this section, [g]enerally, [t]he employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employers burden to take positive steps to accommodate the employees limitations. . . . [] . . . The employee, of course, retains a duty to cooperate with the employers efforts by explaining [his or] her disability and qualifications. [Citation.] (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950.) (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)

The arbitrator found that Bain did not give Countrywide notice of his alleged disability. The award states: [At] no time prior to December 27, 2004 did Claimant state that he was disabled or that he desired an accommodation for his physical conditions. Claimant, from the time of the outburst to the time of his termination[,] did not inform Respondent that he was disabled. Bain does not challenge this finding. Thus, the exclusion of Dr. Morgans testimony could not have substantially prejudiced Bain because even if it had been admitted, Bain still could not have established a necessary element of his cause of action for failure to accommodate.

3. Failure to Engage in a Good Faith, Interactive Process

Bain alleges that Countywide failed to engage in a good faith interactive process as required by Government Code section 12940, subdivision (n). That section provides: It shall be an unlawful employment practice . . . [f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.

The interactive process required by the FEHA is an informal process with the employee or the employees representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] . . . [Citation.] (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.) It imposes burdens on both the employer and employee. The employee must initiate the process unless the disability and resulting limitations are obvious. Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations. [Citation.] (Ibid., italics added) [T]he employee cant expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. . . . [Citation.] [Citation.] (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at pp. 1252-1253.)

As discussed above, the arbitrator found that Bain did not give Countywide notice of his disability or request accommodation. Thus, even if the arbitrator erred in excluding the testimony of Dr. Morgan, that error did not substantially prejudice Bains ability to establish his claim under section 12840, subdivision (n), because Bain could not establish a necessary element of his claim for failure to engage in a good faith interactive process. ( 1286.2, subd. (a)(5).)

III. Countrywides Alleged Untimely Filing of its Answer to Bains Petition to Confirm the Arbitration Award

Bain asserts that the trial court was required to grant his petition to vacate the arbitration award because Countrywides response, served May 22, 2008, was untimely. For the following reasons, we disagree.

A. Facts Relevant to the Timeliness Issue

Bain served a petition to vacate the arbitration award (petition) on March 1, 2008. On March 6, Countrywides counsel emailed Bains counsel as follows: I saw that you filed your petition. I am starting a three-week trial on Tuesday. I assume your petition will require heavy involvement from me. [] Therefore, I am requesting that we continue the hearing date to some time that allows me to have until at least mid-April to work on this. . . . We also noticed our petition to confirm the award on the same date and will move it to the new hearing date also.

After a series of emails, on March 21, 2008, the parties filed a Stipulation Re Continuing Hearing Date on Motion to Vacate and Petition to Confirm Arbitration Award From 4/9/08 to 6/11/08 (March 21 stipulation), which the court signed on March 21, 2008. In pertinent part, the stipulation provided as follows:

On March 6, 2008, counsel for the Countrywide Defendants, Karen Rooney, Esq., contacted counsel for Plaintiff, acknowledged receipt of the Petition to Vacate and requested that Plaintiff voluntarily agree to continue the April 9, 2008 hearing date to a later date because (a) Ms. Rooney was going to be engaged in trial through March 31, 2008, and therefore needed additional time to respond to Plaintiffs forthcoming Motion papers, and (b) the Countrywide defendants intend to file a cross-motion to confirm the Smith award and desire to have that cross-motion heard and determined on the same hearing as the motion to vacate.

. . . Counsel for Plaintiff will accommodate Ms. Rooneys calendar conflict by agreeing to continue the April 9, 2008 hearing date to June 11, 2008, with a specific briefing schedule described more fully below. Notwithstanding the due dates for filing the petitions as computed from the Smith Award date, the parties agree and stipulate to the following schedule and agree not to argue that the filing of documents on or before any of these due dates is untimely for any reason: The hearing on Plaintiffs Motion to Vacate the Smith Award and on Defendants Motion to Confirm the Smith Award shall be continued from April 9, 2008, to June 11, 2008, at 8:30 a.m. in Department 50. All papers to be filed in support of the respective Motions shall be served by e-mail (without exhibits) and by overnight delivery (with exhibits) on or before May 9, 2008, and filed the next court day. All opposition papers to the motions shall be personally served by 4:00 p.m. on or before May 22, 2008. All reply papers to the motions shall be personally served by 4:00 p.m. on or before June 2, 2008. The opposition and reply papers shall be filed with the Court on or before June 2, 2008. The parties agree that: (a) nothing contained in this stipulation shall limit the parties right to seek leave of Court to alter or modify any of these dates (or the hearing date) in the event of unanticipated exigent circumstances supported by showing of good cause; and (b) defendants agree they will not assert or argue that Plaintiffs petition to vacate the Smith Award is untimely in any way based on the fact that Plaintiff agreed to this continuance of the hearing and briefing dates described above.

Bain filed a Notice of Motion and Motion to Vacate Arbitration Award (motion) on May 9, 2008. In it, he contended, among other things, that Countrywide had not timely filed an answer to his petition to confirm and, thus, that under section 1290, the allegations of the petition were deemed admitted. He urged that his petition therefore must be granted.

Countrywide filed an opposition to Bains Motion to Vacate (opposition) on May 22, 2008; the following day, it filed an Answer to Verified Petition to Vacate Arbitration Award (answer). Both the opposition and the answer were served on May 22, although the verification to the answer was not served until May 23. In its opposition, Countrywide responded on the merits, and also asserted that its answer to the petition was timely under the March 21 stipulation.

At the June 11 hearing, the trial court suggested that the answer to the petition may have been untimely because the procedural history between the parties leaves unexcused the failure to respond to the petition with an answer in a timely way. Nonetheless, it said, Ive read through the facts that are established, presumptively, and it seems to me that theyre, in essence, consistent with this holding, except for the final fact, which is actually a conclusion of law, which I think cannot fairly be established as a fact, which is, basically, As a matter of law, we win. The courts minute order denying the petition to vacate did not address the timeliness issue.

B. Countrywides Answer Was Timely

Bain contends that Countrywides answer to its petition was untimely because it was filed more than 10 days after the filing of the petition. Pursuant to section 1290, therefore, he asserts that the allegations of the petition are deemed admitted and the trial court was statutorily bound to vacate the [arbitration] award.

We do not agree. While section 1290.6 states that a response to a petition shall be served and filed within 10 days after service of the petition, it also provides that [t]he time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court. In their March 21 stipulation, the parties did exactly as section 1290.6 contemplatesthey extended Countrywides time for serving and filing its answer to May 22 and June 2, 2008, respectively. Thus, Countrywides answer, which was served on May 22 and filed on May 23, was timely.

Bain contends that the March 21 stipulation extended Countrywides time to respond to his motion to vacate the arbitration award, but not to his petition to vacate the arbitration award, and thus that the stipulation did not render the answer timely. We do not agree. The Code of Civil Procedure provides that, Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. ( 1285, italics added.) It further provides that, The court may not vacate an award unless . . . [a]petition or response requesting that the award be vacated has been duly served and filed . . . . ( 1286.4, italics added.) In other words, the statute expressly provides that a request to vacate an arbitration award is made by petition. We are not aware of any provision to vacate an arbitration award by motion, nor has Bain pointed us to any. Accordingly, we conclude that in their March 21 stipulation, the parties interchangeably used the terms motion to vacate and petition to vacate to refer to Bains petition to vacate; any other interpretation would render the references to the motion to vacate a nullity. (See, e.g., Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 602 [Courts must interpret contractual language in a manner which gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless.].) Accordingly, the March 21 stipulation necessarily extended Countrywides time to serve a response to Bains petition to confirm to May 22; Countrywides answer, served May 22, 2008, therefore was timely.

DISPOSITION

The judgment is affirmed. Countrywide shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] The facts stated here are those found by the arbitrator to be true and necessary to the award.

[2] That policy states: Countrywide is committed to providing its employees with a safe and productive workplace. It is Countrywides policy to expressly prohibit any acts or threats of violence by or against Countrywides employees, customers, vendors, or other visitors on Countrywides premises at any time, or while engaged in business with or on behalf of Countrywide, either on or off Countrywides premises.

[3] In a declaration, Dr. Morgan states that he was prepared to testify at the arbitration that it was (and is) my informed medical opinion that, at the time Mr. Bain suffered his reported breakdown at work, he suffered from a recognized mental disorder under the Diagnostic and Statistical Manual of Mental Disorders (Text Revision 2000) (hereinafter DSM-IV) identified as Brief Psychotic Disorder (specifically, DSM 298.8). . . . [It] describ[es] the 298.8 Brief Psychotic Disorder diagnostic criteria which identifies, among other things, the features, specifiers, prevalence and expected course for the disorder. I quote from page 329 of the DSM-IV, which describes the Diagnostic Features as follows: The essential feature of Brief Psychotic Disorder is a disturbance that involves the sudden onset of at least one of the following positive psychotic symptoms: delusions, hallucinations, disorganized speech (e.g., frequent derailment or incoherence), or grossly disorganized or catatonic behavior (Criterion A). An episode of the disturbance lasts at least 1 day but less than 1 month, and the individual eventually has a full return to the premorbid level of functioning (Criterion B). The disturbance is not better accounted for by a Mood Disorder With Psychotic Features, by Schizoaffective Disorder, or by Schizophrenia and is not due to the direct physiological effects of a substance (e.g., a hallucinogen) or a general medical condition (e.g., subdural hematoma) (Criterion C). . . . It was (and remains) my informed medical opinion that Mr. Bain suffered from a DSM-IV 298.8 Brief Psychotic Disorder at the time he experienced his reported breakdown at work on December 28, 2004 because: (a) I personally witnessed a decline in Mr. Bains health in 2004 (which, in our sessions, he attributed to excessive work); (b) I believe that Mr. Bains behavior when he suffered his reported breakdown included at least disorganized speech [and] grossly disorganized behavior which lasted at least 1 day but less than 1 month (as described to me by Mr. Bain and Mr. Kaufman); and (c) I personally witnessed Mr. Bain have a full return to the premorbid level of functioning (based on my meeting with him in mid-January 2005). This opinion is reinforced by the Specifiers identified at page 330 specifically, the reference in the With Marked Stressors(s) section that states: the psychotic symptoms develop shortly after and apparently in response to one or more events that, singly or together, would be markedly stressful to almost anyone in similar circumstances in that persons culture. If Mr. Bain had an overwhelming workload leading up to (and including) the week between Christmas 2004 and New Years 2005 (as was reported to me by Mr. Bain), and Mr. Bain was working non-stop without normal sleep intervals (again, as reported by Mr. Bain), those marked stressors existed in Mr. Bains case. The Associated Features and Disorders portion of the DSM-IV (at page 330) further states, at the first sentence under the heading, that Individuals with Brief Psychotic Disorder typically experience emotional turmoil or overwhelming confusion. Once again, based on the behavior attributed to Mr. Bain on or about December 28, 2004, I believed (and continue to believe) that he suffered from this DSM IV-recognized mental disorder at the time he suffered his reported breakdown at work. This is the diagnosis and medical opinion I would have described in my testimony if I had been allowed to so testify. However, . . . I was not allowed to give that testimony by order of the Arbitrator. [] . . . Instead, all that I was allowed to testify about was my treatment of Mr. Bain, his decline in health in the latter half of 2004, his report to me of his breakdown in late December 2004, his termination from Countrywide, and his eventual return to normal functioning. (Italics omitted.)

[4] All further undesignated statutory references are to the Code of Civil Procedure.

[5] The Supreme Courts recent decision in Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, which was issued after the close of briefing, does not expand the scope of judicial review in the present case. Under Pearson, an arbitrator whose legal error has barred an employee subject to a mandatory arbitration agreement from obtaining a hearing on the merits of a claim based on such right has exceeded his or her powers within the meaning of Code of Civil Procedure section 1286.2, subdivision (a)(4), and the arbitrators award may properly be vacated. (Id. at p. 680.) In the present case, of course, the arbitrator permitted Bain a full hearing on the merits. Here, moreover, unlike in Pearson, there was no prejudice; therefore, we need not reach the question of error.