Child Care of Irvine v. Sup. Ct

Filed 3/15/06 Child Care of Irvine v. Sup. Ct. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Dennis S. Choate, Judge. Petition granted.

Steiner & Libo, Leonard Steiner for Petitioners.

No appearance for Respondent.

Silverstein & Huston, Mark W. Huston and Steven A. Silverstein for Real Parties in Interest.

* * *

Petitioners Child Care of Irvine and Dante E. Facchina seek relief from the trial court's order sending an arbitration case back to the same arbitrator after granting petitioners' request to vacate the arbitration award. Petitioners contend the trial court erred in returning the case to the original arbitrator over their objections. We agree and grant the petition. The trial court is ordered to vacate its prior order and issue a new order consistent with this opinion.

facts

This case arises out of an underlying action filed in June 1999 by petitioners against real parties in interest Ahmed Malley, Azeez Malley and Jamal Abdelmutti (collectively the Malleys). The Malleys appeared in the action and requested the case be submitted to binding arbitration per the parties' agreements. In November 1999, the trial court granted the Malleys' request and ordered the matter to binding arbitration. At least one day of testimony took place, but nothing more happened. In April 2005, the arbitrator granted the Malleys' motion to dismiss the arbitration proceedings. Although the award does not cite authority for the decision, the arbitrator apparently relied on Code of Civil Procedure section 583.310 (all statutory references are to this Code) because petitioners did not bring the arbitration to completion within five years of its commencement. The arbitrator found the Malleys to be the prevailing parties and awarded them fees and costs.

The Malleys filed a petition to confirm the arbitration award, which petitioners opposed. Petitioners' opposition included a request to vacate the arbitration award.

The trial court denied the petition to confirm the arbitration award, and vacated the arbitration award. Over petitioners' objection, the court returned the matter to the same arbitrator, Judge Robert J. Polis (retired), for a new arbitration hearing.

Through letters and telephone calls, petitioners asked Judge Polis to disqualify himself. Judge Polis denied the requests. Meanwhile, the Malleys filed a motion before Judge Polis to dismiss the arbitration. The motion was scheduled for hearing on September 19, 2005.

Four days before the arbitration hearing, petitioners filed this petition for writ of mandate and asked for an immediate stay of the hearing on the ground the trial court violated section 1287 by returning the case to the original arbitrator over their objections. We granted petitioners' request for an immediate stay of the arbitration hearing and invited the Malleys to reply by informal letter brief. The Malleys accepted our invitation and filed a letter brief, arguing that because the trial court did not have authority to review Judge Polis's decision for errors of fact or law, remand should be denied and a writ of mandate issued directing the trial court to grant the Malleys' petition to confirm the arbitration award.

DISCUSSION

Petitioners do not seek relief from the portion of the trial court's order vacating the arbitration award, but only from that portion returning the case to Judge Polis despite petitioners' objections. We agree that the court erred in sending the case back to the same arbitrator over petitioners' objections.

Section 1287 states: â€