Spadaro v. Bark Avenue

Filed 11/18/08 Spadaro v. Bark Avenue CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge. Affirmed.

Charlotte Spadaro, in pro. per., for Plaintiff and Appellant.

Law Offices of Craig A. Holtz and Jeffrey Cabot Myers for Defendants and Respondents.

* * * * * *

Appellant Charlotte Spadaro appeals from a judgment confirming an arbitration award in favor of respondents Bark Avenue, LLC and Jay Blumberg. Respondents have moved for terminating and monetary sanctions against appellant for pursuing a frivolous appeal. We affirm the judgment and deny the motion for sanctions.

FACTS AND PROCEDURAL HISTORY

Appellant filed this action against respondents in August 2005 asserting claims for fraud, conversion, breach of contract, intentional infliction of emotional distress and alter ego. She then demanded arbitration under a written contract dated May 2005. The May 2005 contract provided for appellant to board animals with Bark Avenue. Appellant apparently claimed respondents agreed to board and care for appellants animals (approximately 90 dogs and 40 cats) for five to six weeks while knowing their boarding facilities, staff and supplies were inadequate. She claimed that at the time the boarding contract ended at least seven animals were missing, although two were later returned to appellant. She also claimed respondents continued to withhold animals from appellant.

The kennel contract provided that [a]ny controversy or claim arising out of or relating to this contract, or the breach thereof, or as the result of any claim or controversy involving the alleged negligence by any party to this contract, shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judg[]ment upon the award rendered by an arbitrator may be entered in any court having jurisdiction thereof.

The dispute proceeded to arbitration, and the matter was tried to an arbitrator on January 17 and 18, 2007. At the close of evidence, appellant moved to amend her claim to conform to proof, adding to her original claims a claim for injunctive relief. The motion was granted over respondents objections. The arbitrator also allowed appellant to reopen her evidence to offer additional testimony from one of the witnesses.

The arbitrator issued an interim award in February 2007. The interim award set forth the arbitrators findings of fact upon the evidence. The interim award proposed to deny appellants claims and find respondents the prevailing parties.

The arbitrators findings state: The agreement to board [appellants] animals was reached in unique circumstances. On May 12, 2005, the City of Rialto, in combination with other agencies, seized over 180 dogs and cats from premises operated by [appellant]. The seizure was carried out pursuant to a search warrant citing animal abuse and public nuisance [citation]. The seized animals were placed in a county pound for over 2 weeks where they were at risk of being euthanized if not removed. [Appellants] ability to retrieve the animals depended on being able to find suitable third party facilities to house them, as [appellant] was not allowed to return them to her premises in Rialto. []

[Appellant] requested [respondent] Bark Avenues help by temporarily boarding many of the impounded animals. Bark Avenue operated a doggie day care and animal rescue facility . . . . Bark Avenue agreed to take in some 90 dogs and 40 cats on a temporary basis for a fee substantially discounted from Bark Avenues usual boarding charges . . . . [] Bark Avenues facility and staff were clearly [temporarily] overwhelmed . . . . Because many of the animals were malnourished, sick and in need of medical treatment, Bark Avenues resources were badly strained in cleaning up and caring for them. Proper[] housing and caring for the animals [were] made more difficult by [appellants] insistence that certain animals be grouped together and by the fact that some animals had not been vaccinated, altered or domesticated. In addition, [appellant] would remove various animals from boarding and substitute others in their place. The care of the animals improved after adjustments were made to deal with the situation. . . .

. . . The weight of the evidence shows that [r]espondents intent in agreeing to provide reasonable care for [appellants] animals was to help provide a temporary home to save the animals from being destroyed [citation]. Like [appellant], [r]espondents are animal lovers and savers. . . . []  . . .  [] [T]here is no accurate documentation showing when the missing animals actually were in [r]espondents[] custody. Nor can it be verified that they were actually missing . . . .

Indeed, evidence that [one dog] may [have] been advertised for adoption at some point is not inconsistent with testimony [at trial] that [appellant] said she desired to find homes for some of her boarded animals. Further, [i]f any of [appellants] animals were adopted out or otherwise transferred while being boarded at Bark Avenue, it was not done for the purpose of intentionally depriving [appellant] of possession. The weight of the evidence compels the conclusion that any such action was taken believing in good faith that the animal was available for placement. . . .

Appellant moved to reconsider, correct or vacate the interim award. The arbitrator denied this motion and issued a final award incorporating its interim award by reference. The final award included about $31,000 in attorney fees and about $6,000 in costs. The arbitrator awarded substantially less in fees and costs than requested by respondents.

Respondents filed a petition to confirm the arbitration award, and appellant petitioned the court to vacate the award.

After considering submitted documents and argument, the superior court granted respondents motion to confirm the arbitrators award and denied appellants petition to vacate the award. The court found appellant was not substantially prejudiced by any refusal to grant a continuance or hear evidence. In fact, the record reflected that the arbitrator gave appellant a long continuance to prepare her case and even permitted the reopening of the hearing to permit appellant to recall a witness. The superior court further found that (1) any alleged error in evidentiary rulings by the arbitrator were errors of law that do not provide a basis for vacating the award, and (2) any such error did not result in the violation of some explicit public policy that is well defined and dominant. Additionally, the court ruled, any such error did not invoke a question of public policy under either the criminal embezzlement statutes or the Civil Code sections regarding kennels that would support vacating the award. Moreover, such issues were fully addressed in the arbitration and also in appellants motion to vacate, which was heard and denied by the arbitrator.

The court therefore granted respondents petition to confirm the arbitration award, denied appellants petition to vacate the award and entered a judgment for respondents. Appellant filed a timely notice of appeal.

CONTENTIONS

Appellant contends the arbitrator committed substantial and material legal error, the arbitration award violated her statutory rights and public policy, and the arbitrator exceeded his authority in making the award.

Respondents move for terminating and monetary sanctions against appellant for pursuing a frivolous appeal, arguing appellant is abusing the process and the appellate system to indulge her inability to accept reality and has brought the instant appeal to delay enforcement of the order awarding respondents fees and costs.

DISCUSSION

1. Arbitration Award

Our Supreme Court has held that, except when parties might agree otherwise (see Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1355-1356), judicial review of private, binding arbitration awards is generally limited to the statutory grounds for vacating (Code Civ. Proc., 1286.2)^[1]or correcting ( 1286.6) an award. (Moshonov v. Walsh (2000) 22 Cal.4th 771, 775 (Moshonov); Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28 (Moncharsh).) A court may not vacate or correct an award because of an arbitrators legal or factual error, even when the error appears on the face of the award. (Moshonov, supra, at p. 775; Moncharsh, supra, at p. 28.) It is within the powers of the arbitrator to resolve the entire merits of a controversy submitted to arbitration by the parties. ( 1286.2, subd. (a)(4), 1286.6, subd. (b); Moncharsh, supra, at p. 28.) [A]rbitrators do not exceed[] their powers within the meaning of section 1286.2, subdivision (d) and section 1286.6, subdivision (b) merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators. (Moshonov, supra, at pp. 775-776, quoting Moncharsh, supra, at p. 28.)

The merits of a controversy include all the contested issues of law and fact submitted to the arbitrator for decision, because the arbitrators resolution of such issues is what the parties bargained for in the arbitration agreement. (Moshonov, supra, 22 Cal.4th at pp. 775-776; Moncharsh, supra, 3 Cal.4th at p. 28.) A contrary holding would permit the exception to swallow the rule of limited judicial review since a litigant otherwise could always contend the arbitrator erred and thus exceeded his powers. (Moncharsh, supra, at p. 28.)

Section 1286.2 provides for a limited review of an arbitrators award, directing that the court shall vacate an award if it determines an arbitrator exceeded his powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. ( 1286.2, subd. (a)(4).) An arbitrator exceeds his powers when he acts without subject matter jurisdiction [citation], decides an issue that was not submitted to arbitration [citations], arbitrarily remakes the contract [citation], upholds an illegal contract [citation], issues an award that violates a well-defined public policy [citation], issues an award that violates a statutory right [citation], fashions a remedy that is not rationally related to the contract [citation], or selects a remedy not authorized by law [citations]. In other words, an arbitrator exceeds his powers when he acts in a manner not authorized by the contract or by law. (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443 (Jordan).)

We review a determination of whether an arbitrator has exceeded his powers de novo and give substantial deference to the arbitrators determination of his contractual authority. (Jordan, supra, 100 Cal.App.4th at pp. 443-444; see also OFlaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1056.)

In the present case, appellant contends the arbitrator prejudiced the hearing by refusing to continue the hearing and hear evidence. (See 1286.2, subd. (a)(5).) She asserts the arbitrator committed substantial and material legal error in that the award violates well-defined public policy or a statutory right. (Moncharsh, supra, 3 Cal.4th at p. 32.) She also argues the arbitrator exceeded his powers by adding an imaginary clause to the contract that did not exist, reading the contract as providing or implying the boarded animals did not have to be returned to Appellant anyway. (Boldface omitted; see  1286.2, subd. (a)(4).) We disagree.

The record shows the arbitrator did not refuse to continue the hearing or hear evidence. The arbitrator granted appellant a lengthy extension of the arbitration hearing to prepare her case. The record does not support her contention that the arbitrator refused to hear evidence. In fact, the arbitrator reopened the matter to permit appellant to recall a witness. Any errors in admitting or excluding evidence are errors of law, which do not provide reason to vacate the arbitration award. Moreover, appellant has not demonstrated that the award violated any public policy or statutory right prohibited by the terms of the parties agreement or not available in a court of law. (See Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1187-1188 (Gueyffier).) We note, for example, that notwithstanding appellant claims the award had the effect of sanctioning embezzlement, the arbitrator determined no conversion of animals was proved and appellant did not meet her burden of showing any animals were missing.

The arbitrators decision should be the end, not the beginning, of the dispute. [Citation.] (Moncharsh, supra, 3 Cal.4th at p. 10.) When parties have contracted to resolve their disputes by private arbitration, their agreement normally contemplates that the arbitrator will have the power to decide any question of contract interpretation, historical fact or general law necessary, in the arbitrators understanding of the case, to reach a decision. (Gueyffier, supra, 43 Cal.4th at p. 1184.)

Appellant has not demonstrated that the arbitrator exceeded his jurisdiction or that the trial court erred in confirming the arbitration award and entering judgment.

2. Motion for Sanctions

Appellant argues her appeal is subjectively made in good faith because she has made meaningful and significant arguments.^[2] She asserts the appeal is also objectively well taken because she made the identical arguments in the court below and the superior court judge stated, I think youve done as well as you could with your papers. She justifies her appeal on the basis that [t]rial [c]ourt judges might be hesitant to grant relief which might not be so common, leaving decisions requiring more thorough legal interpretation to the Court[] of Appeal.^[3]

It is not appropriate to base an appeal merely upon the mistaken idea a trial court has not given a matter a thorough legal interpretation. There is no showing the trial court in this case did not give appellants case a thorough legal analysis, and, indeed, the record demonstrates the court reviewed the record and considered the arguments carefully before ruling. Nevertheless, we cannot indisputably say that any reasonable attorney would agree that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

Respondents motion for terminating and monetary sanctions is denied.

DISPOSITION

The judgment is affirmed. Respondents are to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

RUBIN, Acting P. J. BIGELOW, J.

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] We note both appellants opening and reply briefs are in gross violation of California Rules of Court, rule 8.204(a)(1)(C), which requires that a party must [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. The opening brief, not to mention the reply brief, also violates the requirement of rule 8.204(a)(2)(C) that a party must [p]rovide a summary of the significant facts limited to matters in the record. (Italics added.) Both of appellants briefs are riddled with references to matters outside the record.

^[3] The court actually stated: Ms. Spadaro, I did read . . . the award. I read the whole thing. I know how passionately you feel about this. But the matter went to arbitration[.] [There are] very limited grounds o[n] which you can upset and vacate an arbitration. I think youve done as well as you could with your papers. [] But the motion is denied. . . . (Italics added.) The courts comments by no means applauded or endorsed the substantive merit of appellants position.