Brooks v. Bechtel
Filed 3/26/13 Brooks
v. Bechtel CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
RUFUS L.
BROOKS,
Plaintiff and Appellant,
v.
BECHTEL
CORPORATION et al.,
Defendants and Respondents.
A132926
(San Francisco County
Super. Ct. No. CPF-10-510509)
Appellant
Brooks, a former employee of respondent Bechtel Corporation, appeals in pro per
from orders of the San Francisco Superior Court denying his petition to vacate
several arbitration decisions of an arbitrator appointed by the
(JAMS). Those decisions dismissed with
prejudice appellant’s several claims against Bechtel Corporation and several of
its officers and employees (hereinafter collectively referred to as Bechtel)
relating to their alleged failure to pay him overtime wages and other asserted
improper actions toward him. We affirm
the orders appealed from and the subsequent judgment of the superior
court.
On
August 12, 2005, appellant, a resident of Orlando, Florida, signed an
commenced work on a Bechtel telecommunications project in central Florida. This project apparently ended sometime before
June 2007,
and appellant’s employment was terminated.
Pursuant
to the arbitration clause in his employment agreement, appellant filed a claim
based on the circumstances of his employment, its termination, and Bechtel’s
alleged refusal to rehire him. These
claims were first submitted to arbitration in Florida before the
(AAA). That arbitration apparently began
in August 2007 but ended a few months later, in early 2008, when the arbitrator
entered an order to show cause based on appellant’s apparent discovery
violations.
In
April 2008, appellant then initiated another arbitration, this time with JAMS;
it alleged a claim for overtime pay. A
few months later, apparently in July 2008, he filed a second JAMS arbitration demand,
this time based on alleged race and age discrimination and retaliation. R. Wayne Thorpe was appointed to conduct the
arbitration.
Bechtel
counter-claimed in the JAMS arbitration based on appellant’s many alleged inappropriate and personal actions in 2007,
actions directed toward several Bechtel officers and employees. These actions included repeated telephone
calls and e-mail communications to the offices of those individuals, including
Bechtel’s President, which included aggressive and threatening wording and
terminology, and a statement that he would “Declare War†on Bechtel. As a result of these actions, in October 2007
Bechtel advised appellant that he was ineligible for rehire. But appellant’s aggressive actions toward the
corporation and some of its officers and employees continued well into 2008;
they included several e-mails containing significant profanity and accusations
of racial prejudice (appellant is Black).
They also included several harassing telephone calls.
At
this point, i.e., in June 2008, Bechtel sought and obtained a temporary
injunction against appellant from a Florida court. The following month, that court denied
appellant’s motion to dissolve the injunction.
In its opinion, the court found that appellant’s contacts with Bechtel
were “inappropriate, harassing and threatening,†that some of his e-mails to it
“suggested violence†and would reasonably generate fear in its recipients, and
made other specific findings along the same lines.
Notwithstanding
this opinion and the existing injunction, in August and September 2008
appellant regularly picketed outside the building which contained the offices
of Bechtel’s Florida counsel and, in so doing, carried with him and displayed a
variety signs accusing Bechtel and its President of hiring “killers.†Some of these signs even displayed the
direct-dial telephone number of Bechtel’s President and the office phone number
of its Orlando attorney. Based largely
on these actions, Bechtel then sought to have appellant held in contempt. The trial court agreed that he should be held
in contempt, and sentenced him to 120 days in jail; at Bechtel’s request,
however, that sentence was suspended.
However, on October 6, 2008, the court entered a detailed, 10-page order
finding appellant in contempt of court and specifying the reasons it so
held. Appellant appealed the contempt
order but, albeit without an opinion, a Florida appellate court affirmed the
trial court’s contempt order the following year. (See Brooks
v. Bechtel Corp. (Fla.Ct.App. 2009) 25 So.3d 571.
Well
before that affirmance, however, in April 2009, Bechtel moved to dismiss with
prejudice appellant’s claims against it in the JAMS arbitration. It based this motion mainly on appellant’s
alleged attempts to bribe an arbitration witness, Scott Cuen, his alleged
attempts to tamper with other designated arbitration witnesses, and other
alleged misconduct. JAMS arbitrator
Thorpe determined that the motion stated a prima facie case and ordered an
evidentiary hearing. Such was conducted
on May 12, 2009. After that hearing, the
arbitrator found that appellant had (1) attempted to bribe witness Cuen, (2)
tampered with and threatened two other witnesses, Kari Walrich and Bill Olson,
(3) engaged in a variety of other conduct which was expressly contrary to prior
orders of the arbitrator, and (4) given “evasive and deceptive†testimony at
the arbitration hearing.
Although
he sought and received several orders granting him a continuance to file a
post-hearing brief, appellant filed no such brief. Rather, he filed several motions seeking to
remove Thorpe as the assigned JAMS arbitrator, another motion to stay the
arbitration, and a petition in the Florida court asking it to preclude the arbitrator
from ruling on Bechtel’s motion to dismiss the JAMS arbitration because of the
arbitrator’s alleged misconduct. All
these motions and the petition were denied.
On
October 28, 2009, Arbitrator Thorpe entered a First Interim Award dismissing
all of appellant’s claims with prejudice.
Among other things, that award stated that appellant’s conduct “was
committed willfully, in bad faith, and with knowledge that the conduct was
improper and potentially violative of the law.â€
He continued by saying that “I have never before witnessed conduct so
fundamentally disrespectful of our legal system.†In terms of relief, this award concluded that
Bechtel had no obligation to reemploy appellant due to his conduct beginning in
2007, and that it was entitled to its attorney fees and costs. Via later awards, the arbitrator determined
that Bechtel should be awarded $20,000 in attorney fees (reduced from an
earlier award of $35,000).
On
June 18, 2010, appellant filed a petition in San Francisco Superior Court seeking
to vacate the arbitrator’s several decisions.
and, also, a cross-petition to confirm the three arbitration awards noted
above. A hearing on these matters was
set for January 24, 2011, but later continued until April 18, 2011. However, appellant did not appear—either in
person or telephonically—at that hearing
and, at it, the trial court (Judge Peter Busch) adopted its tentative ruling,
filed the day before, denying appellant’s petition to vacate and granting
Bechtel’s petition to confirm.
On
June 1, 2011, that court filed a formal order to the same effect. It denied appellant’s petition and granted
Bechtel’s cross-petition because (1) the former was “untimely under the Federal
Arbitration Act†and (2) “it lacks merit.â€
Bechtel served a notice of entry of this order the following day.
On
June 22, 2011, appellant filed a motion in the superior court asking for a new
trial along with a supporting declaration.
On August 1, 2011, that court denied the motion both as untimely
and as presenting “no grounds on which the court should re-visit its June 1,
2011 order.†The same day, appellant
filed a timely notice of appeal.
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For
several reasons, the trial court was correct in the orders it issued and in its
judgment in favor of respondents.
Before
noting and discussing those reasons, however, some words are in order regarding
the judicial review of the rulings and conclusions of an arbitrator in a case
in which the parties agreed to have the case decided via an arbitration
conducted pursuant to the Federal Arbitration Act (FAA), as these parties
did. The law is very clear on that
subject. As the United States Supreme
Court held in Hall Street Associates,
L.L.C. v. Mattel, Inc. (2008) 552 U.S. 576, 588 (Hall Street Associates), the FAA provides “a national policy
favoring arbitration with just the limited review needed to maintain
arbitration’s essential virtue of resolving disputes straightaway.†More recently, that Court has written that a
litigant seeking to have a court overturn an arbitration ruling provided under
the FAA “must clear a high hurdle.†(
International Corp. (2010) 559 U.S. 662 [130 S.Ct. 1758, 1767].)
Our
own Supreme Court has cited and quoted the holding in Hall Street Associates. (See
Cable Connection, Inc. v. DIRECTV, Inc. (2008)
44 Cal.4th 1334, 1353.) That court has
also made clear its own view of the very limited scope of judicial review of
arbitrations conducted under the FAA, as contrasted with arbitrations conducted
pursuant to California law. (See
Court (2010) 48 Cal.4th 665, 677-679, especially fn. 3; see also
187 Cal.App.4th 234, 249-254; Christensen
v. Smith (2009) 171 Cal.App.4th 931, 937-938.) These authorities make clear that, in
California, the scope of appellate review of arbitrations conducted pursuant to
the FAA—as this one was—is extremely limited.
Now
to the arguments presented in appellant’s in pro per briefs to us. First of all,
his only substantive argument is that the arbitrator erred in finding that
appellant attempted to bribe witness Cuen to change his prior testimony against
appellant because Cuen was allowed to testify, and was administered the oath,
telephonically.
We
will deal with that contention shortly, but what is important for present
purposes is that, in his Preliminary Order No. 24 and Interim Award of October
18, 2009, the arbitrator stated no fewer than four reasons for his dismissal of the case. He stated:
“The Conclusions leading to dismissal of this case are based upon
numerous Findings of Fact set forth above; I will not repeat them here but some
of the more significant are as follows:
1. Mr. Brooks attempted to bribe
Cuen, and admits to attempting to pay him in connection with his testimony,
knowing that the witness had testified adversely to him; 2. Mr. Brooks attempted to intimidate the
witnesses Walrich and Olson into not testifying and/or changing their testimony
knowing their testimony had been and would be adverse to him; 3. Mr. Brooks repeatedly engaged in conduct in
this case, in at least one deposition, in multiple telephone conferences, and in
multiple emails, which violated fundamental concepts of civility, decency, and
respect, and in some of those instances violated Preliminary Order No. 14; and,
4. His testimony in the May 12 hearing
was evasive and deceptive, compounded by his repeated refusals to testify based
upon assertion of his Fifth Amendment rights, in at least these respects: a. his
explanation and refusals to testify about the purpose of the lie detector test
he proposed to Cuen; b. the purpose of
his communications to Goodman Network employees. [¶] All of the conduct referenced in the
preceding paragraph was committed willfully, in bad faith, and with knowledge
that the conduct was improper and potentially violative of the law. Indeed, throughout these proceedings Mr.
Brooks has himself recognized, and even insisted, that much of the conduct at
issue here carries with it potential criminal liability.â€
However,
in his briefs to us, appellant addresses only the first issue, i.e., his
alleged attempt to bribe Cuen. He does
not even mention, in either brief, the other three reasons articulated by
Arbitrator Thorpe, and has thus waived any contest to those conclusions of the
arbitrator. Put another way, even if
appellant is correct in his argument that Cuen should not have been allowed to
testify via telephone, there are, as the arbitrator found, three additional and
independent reasons why the trial court was correct in not overturning the
arbitrator’s decision in Bechtel’s favor.
Any one of those reasons was an adequate and correct basis for denial of
appellant’s petition to vacate the arbitrator’s ruling against appellant and in
favor of Bechtel. Further, appellant’s
argument—as noted, his only arguably substantive argument—that the arbitrator
erred in allowing Cuen’s testimony to be given via telephone (and his oath to
be administered similarly) is unavailing.
First
of all, our examination of the record reveals no objection by appellant when
Bechtel called Cuen as a witness and examined him via the telephone. Indeed, appellant himself called and examined
two witnesses via the telephone.
Appellant cannot complain about a process and procedure in which he
himself indulged and, further, which he did not complain about during the
course of the arbitration. As the Ninth
Circuit has held several times, “a party may not sit idle through an
arbitration process and then collaterally attack that procedure on grounds not
raised before the arbitrators when the result turns out to be adverse.†(Marino
v. Writers Guild of America, East, Inc. (9th Cir. 1993) 992 F.2d 1480,
1483-1484; see also United Steelworkers
of America v. Smoke-Craft, Inc. (9th Cir. 1981) 652 F.2d 1356,
1360-1361.) In any event, telephonic
testimony is regularly permitted in arbitration proceedings. (See, e.g., Young v. UAW-Labor Employment & Training Corp. (10th Cir. 1996)
95 F.3d 992, 999 & Al-Haddad
Commodities Corp. v. Toepfer Inter. Asia Ltd. (E.D.Va. 2007) 485 F.Supp.2d
677, 686.)
Regarding
the issue of Cuen’s testimony as to appellant’s efforts to bribe him, there was
considerable substantiating evidence to this effect. Thus, Bechtel presented to the arbitrator—and
did so without any objection from appellant—a sworn affidavit from Cuen that
mirrored his telephonic testimony regarding appellant’s offer to pay. Such evidence was expressly permitted by the
arbitration agreement in effect here and by California law (see, e.g.,
229 Cal.App.2d 269, 276-277).
Additionally, in his testimony in the arbitration, appellant expressly
admitted to sending two e-mails to Cuen, each offering to pay him $10,000 for
taking and passing a polygraph test regarding the claim by appellant that Cuen
had lied in deposition testimony he had previously given.
“refused to answer a number of questions based on his
issues,†including the testimony of Cuen.
For
all these reasons, the superior court was clearly correct in finding that
appellant’s petition to overturn the arbitrator’s award “lacks merit†and thus
confirming that award.
The appealed-from
orders and the subsequent judgment of the San Francisco Superior Court are all
affirmed.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
“apparentlyâ€â€”and will repeat that word hereafter—because both parties’ briefs
and the record provided us (in clerk’s transcript form by appellant and
augmented in electronic format by respondent via its Motion to Augment) lack
some precise dates regarding the parties’ pre-litigation relationship.
Neither in this petition—nor in any other filing with the superior court or
this court—does appellant explain why his petition was filed in California and
not in Florida.
