Zhao v. Ming Du International
Trade
Filed 1/7/13
Zhao v. Ming Du International Trade CA2/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 FIVE
JIN GENG ZHAO,
Plaintiff and Appellant,
v.
MING DU
INTERNATIONAL TRADE, INC.,
Defendant and Respondent.
B236813
(Los Angeles County
Super. Ct. No.
GC038848)
APPEAL
from an order of the Superior Court of
County, Jan A. Pluim, Judge.
Affirmed.
Law
Offices of Shin P. Yang, Shin P. Yang and Frank Carleo, for Plaintiff and
Appellant.
Cahill
& Associates, Sean T. Cahill, Todd C. Samuels; and Lewis Brisbois Bisgaard
& Smith LLP and Jeffrey A. Miller for Defendant and Respondent.
I. INTRODUCTION
Plaintiff,
Jin Gang Zhao, appeals from the July 15, 2011 judgment
confirming an arbitration award. The arbitrator
awarded plaintiff $15,000 in damages against defendant, Ming Du International
Trade, Inc. doing business as Champ America Travel and Tour. Dissatisfied with the arbitration award,
plaintiff argues: it was error to
confirm the arbitration award because the stipulation for binding arbitration
was void; the stipulation is invalid because defendant never signed the
stipulation document; and defendant’s insurer never gave him any consideration
when he signed the stipulation. In
addition, plaintiff contends the arbitration
award must be vacated. The basis of
the argument for vacating the award is the arbitrator exceeded the scope of his
power when he denied a motion for an uncontested arbitration. We disagree and affirm the judgment
confirming the arbitration award.
II. BACKGROUND
A. Bus Accident
According to the award,
on January 27,
2006, plaintiff boarded a bus owned and
operated by defendant for a scheduled trip to a casino. Plaintiff and other passengers had taken the
bus to the casino on previous occasions.
The bus made a right turn onto Valley Boulevard from the parking lot. The
left rear of the bus collided with the left side of a vehicle entering the
parking lot. The bus driver was unaware
of the collision until the other driver, Heping Meng, came running up to the
side of the bus. This occurred as the
bus driver was driving on Valley
Boulevard. Plaintiff was in the last row of the bus next
to the restroom, either lying down or partially sitting up. Plaintiff was leaning against the restroom
wall when the incident occurred.
Another passenger,
Laishun Li, who sat several rows in front of plaintiff, stated the bus stopped
abruptly while exiting the parking lot.
This caused Mr. Li and many passengers to fall out of their seats
and onto the floor. Mr. Li and
another passenger helped pick up plaintiff from the bus floor. They placed plaintiff back into his
seat. Plaintiff said his lower back and
neck hurt. The award states neither
Mr. Li nor plaintiff saw or heard anything concerning the bus
collision.
Subsequently, the
passengers were instructed to get off the bus.
The passengers got off the bus. A
new bus driver arrived. The passengers
were instructed to get back on the bus.
The passengers including plaintiff got back on the bus and the new
driver drove them to the casino. After
the accident, plaintiff had constant lower back pain, especially at night
resulting in difficulty sleeping.
Plaintiff was advised to drink alcohol to stop the pain and to help him
sleep. So plaintiff started drinking
“Red Sorghum,†a very strong Chinese liquor about a year after the
accident.
B. Trial Court Proceedings Prior To Arbitration
On April 12, 2007, plaintiff and five other passengers sued defendant for negligence
and breach of common carrier duties.
Four passengers settled with defendant by January 1, 2010. Another passenger’s case
was dismissed in March 2010.
On October 18, 2010, defendant’s counsel notified the trial court that the parties had
agreed to binding arbitration. The trial
court stated that the arbitration stipulation had to be signed by the parties
and their lawyers. Defense counsel
replied: defendant was located in China;
defendant was a dissolved corporation; and defendant’s insurance company was
defending the matter. Given defendant’s
absence from the United
States, the trial
court allowed an agent for the insurer to sign the arbitration stipulation on
defendant’s behalf. Plaintiff did not
object to the insurance company representative signing the arbitration
stipulation on behalf of defendant.
On November 10, 2010, the trial court denied plaintiff’s ex-parte application for two
orders. Plaintiff has failed to provide
either motion as part of the record on appeal. First, defendant sought to
notice the appearance of an unidentified person at the arbitration pursuant to
subpoena. Second, plaintiff sought to
compel defendant to comply with the stipulation for binding arbitration or
reset the case for jury trial. The trial
court ruled, “The terms and conduct of the arbitration are to be determined by
the arbitrator.â€
C. Stipulation For Binding Arbitration
On January 5, 2011, the parties entered into a stipulation for binding arbitration. The parties agreed to binding arbitration
before Retired Judge Chris R. Conway.
The stipulation was signed by plaintiff, all counsel, and a
representative of defendant’s insurance carrier.
The stipulation
provides: “Except as may be agreed between
the parties, or their attorneys, or as otherwise provided by law, the
Arbitrator, in his sole discretion, shall control the proceedings and regulate
the order of proof. Following submission
of this matter to binding arbitration, there shall be a Case Management
Conference currently scheduled for November 9, 2010
at 8:30 a.m. at which time the Arbitrator shall establish time, evidentiary and
any other parameters for the Arbitration.
[¶] . . . Further, the parties agree that
PLAINTIFF may present incurred damages subject to evidence code objections,
occurring up and including November 9, 2010. Plaintiff agrees that he will not incur any
additional surgical expenses after November 5, 2010. The Parties further stipulate and agree that
due to necessity DEFENDANT shall be allowed to introduce into evidence the
testimony of investigators Bruce Hanley and Edward Saucerman without hearsay
objection; however, subject to standard evidence code objections including
personal knowledge and foundation.â€
The stipulation also
states: “The award shall be in writing
and signed by the Arbitrator. It shall
include a determination of all questions submitted to the Arbitrator the
decision of which is necessary in order to determine the controversy. Nothing in this agreement is to be construed
as a waiver of any reservation of rights to coverage that Lancer Insurance
Company has or may acquire in this matter.
Any party to the arbitration shall be entitled to have the award of the
Arbitrator entered as a judgment in any court of competent jurisdiction in
accordance with California Code of Civil Procedure §1285 et seq. [¶]
The decision of the arbitrator shall be final and binding. Each party hereto, and the attorney of record
for each respective party, hereby waives any right which each may have to trial
by judge, trial by jury, trial de novo,
new trial, or appeal.â€
D. Arbitrator’s Ruling On Plaintiff’s Motions
Prior to the arbitration,
plaintiff served notice on defendant to attend the arbitration on January 21, 2011. In addition, plaintiff
filed two motions which were denied by the arbitrator on March 1, 2011. The arbitrator denied
plaintiff’s motion to have the arbitration hearing proceed as an uncontested
matter under Code of Civil Procedure
ex parte request back in November 2010, before Judge Jan A. Pluim, when the
matter was still before him, to Notice the Appearance at trial or arbitration
of a principal or driver of the Defendant, Champ America,
and that said request was denied by Judge Pluim. In light of Judge Pluim’s order, the
Arbitrator believes it would be improper to now let the Plaintiff make a second
attempt to accomplish what Judge Pluim would not let him do previously.â€
The arbitrator also
denied plaintiff’s motion to prevent two defense witnesses, Bruce Hanley and
Edward D. Saticerman, from testifying at the arbitration or in the alternative,
to take their depositions. The arbitrator
explained: “Plaintiff contends that the
testimony of these two witnesses lacks foundation and that they have no
personal knowledge of any relevant facts in this matter. Defendant, Champ America,
objects to Plaintiff’s request and points out that the stipulation executed by
the parties to submit this matter to binding arbitration specifically indicated
that these two witnesses could testify at the arbitration hearing. The Arbitrator notes that the stipulation in
question did specifically provide that these two investigators could testify at
the arbitration hearing ‘without hearsay objection, however, subject to
standard evidence code objections including personal knowledge and
foundation.’ The Arbitrator further
notes that as early as October, 2010, Plaintiff knew Defendant, Champ America,
intended to call the two investigators as witnesses but still went ahead and
stipulated that they could testify.
While the Arbitrator believes that the language in the stipulation is
somewhat ambiguous as to exactly what was intended by the parties concerning
the testimony of the two witnesses in question, it is very clear that Plaintiff
agreed the investigators could testify ‘without hearsay objection.’ The Arbitrator believes that to now try and
prevent their testimony on what is really a ‘hearsay’ objection (i.e. not based
on their own personal knowledge but based upon what others told them) is
contrary to the parties[’] stipulation.â€
E. Arbitration And Award
The arbitrator heard
testimony from: plaintiff; Mr. Li;
Dr. Chadwick F. Smith, an orthopedic surgeon who examined plaintiff;
Mr. Hanley; a private investigator hired by defendant to investigate the
bus incident; Dr. Anthony H. Alter, an orthopedic surgeon; John G. Perry,
Ph.D.; and Dr. Stephen L. G. Rothman, a neuroradiologist. According to the award, plaintiff and
Mr. Li testified they were on the bus when it stopped abruptly causing
them to fall on the floor. Mr. Li
and plaintiff believed the bus was not equipped with seat belts. Dr. Perry believed the bus had seat
belts. The arbitrator found the bus
sustained relatively minor damage in the collision after reviewing the
exhibits. Defendant’s investigator,
Mr. Hanley, testified the bus driver said no one was hurt in the accident. Further, the bus driver said he had slowed
the bus gradually when he pulled the bus over to the curb.
Plaintiff, according to
the award, testified his lower back constantly hurt, causing him great
difficulty when he slept. Someone told
him to drink alcohol to stop the pain and he started drinking about a year
after the bus accident. Plaintiff stated
before the bus incident, he did not drink except occasionally at “festivalâ€
time. Plaintiff no longer drinks alcohol
because of his liver disease. He
admitted he had an industrial accident in Ohio in 1999 that resulted in a head
injury and had not worked since that incident.
The award states that
plaintiff first sought medical treatment for his back pain by seeing Grace
Chen, a licensed acupuncturist.
Ms. Chen diagnosed plaintiff as having “‘[t]ension [c]ephalgia and
[l]umbar sprain and strain’†and treated him from January 28, 2006, to July 19,
2009. Plaintiff was discharged with the
following notation: “‘[Plaintiff] showed
improvement while obtaining progressive relief from symptoms: headache and low back pain. The range of motion of the low back was
complete and painless, while no trigger points were found in the muscles
involved.’†Dr. Smith was
plaintiff’s orthopedic surgeon.
Dr. Smith examined plaintiff twice—once on January 7, 2008, and
again on September 16, 2010. Based on
the January 7, 2008 examination, Dr. Smith concluded: the bus accident caused plaintiff’s lower
back pain; the January 7, 2008 magnetic resonance imaging examinations showed
plaintiff had a 5 millimeter disc protrusion at L5-S1; the disc protrusion was
caused by the bus accident; and plaintiff need a partial discectomy and
stabilization of L5-S1 and C5-C6 with exploration of L4-L5 and C4-C5. As of September 16, 2010, plaintiff had not
undergone the surgery recommended by Dr. Smith. In response to an in limine motion,
Dr. Smith was not permitted to offer any other opinions arising out of the
September 16, 2010 medical examination.
The arbitrator ruled, “[H]e had his deposition
taken . . . on September 4, 2008, and offered . . . all
the opinions he had concerning [p]laintiff’s condition as of that date.â€
Dr. Alter, an
orthopedic surgeon who testified on behalf of defendant, examined plaintiff on
March 4, 2008. Dr. Alter
testified: plaintiff suffered relatively
minor back and neck strain and headaches as a result of the January 27, 2006
bus accident; none of plaintiff’s present medical problems were the result of
the accident; contrary to Dr. Smith’s opinion, plaintiff was not a
surgical candidate; and some of the acupuncture treatments plaintiff received
were reasonable. Dr. Rothman, a
neuroradiologist who testified on behalf of defendant, reviewed the magnetic
resonance imaging films of plaintiff’s neck, shoulder and back taken at
Dr. Smith’s request. Dr. Rothman
testified the neck and shoulder films were “normal,†especially for a
50-year-old man. Dr. Rothman
further testified the lumbar films showed some slightly bulging discs that were
of a degenerative nature and not caused by any trauma. Dr. Perry testified the dynamics of the
bus accident were such that plaintiff could not have been injured during the
incident.
The arbitrator ruled
plaintiff’s alcohol use and subsequent liver disease were not caused by the
2006 bus accident. The arbitrator found: “One of the more interesting issues in this
case is Plaintiff’s apparent contention that his alcohol problems and
subsequent liver disease are related to and caused by the accident in question. Unfortunately, the Arbitrator believes that
Plaintiff suffers from some serious credibility issues as to this claim. [Plaintiff] testified, as stated above, that
he did not drink prior to this accident but only started drinking approximately
one year thereafter. Dr. Smith
testified that when he examined the Plaintiff on January 7, 2008,
(approximately two years post accident) the Plaintiff denied alcohol use when
in fact it appears he had been drinking heavily for at least a year at that
time. Further, Anthony Alter, M.D., who
testified on behalf of the defense, stated that his examination of Plaintiff’s
medical records from Los Angeles County/USC Medical Center revealed a notation
back on March 10, 2005, that [plaintiff] was a heavy alcohol user and was
‘jaundice[d]’ from the alcohol use. In
light of the foregoing, the Arbitrator believes and finds that Plaintiff’s
alcohol use predated the accident in question and that the accident did not
cause [plaintiff’s] alcohol issues or his liver disease.â€
The March 28, 2011
arbitration award states: “The Arbitrator
finds: that the Plaintiff, Jingang Zhao,
was involved in an accident on January 27, 2006, when he fell out of his seat
on a bus owned and operated by the Defendant, Ming Du International Trade,
Inc., doing business as Champ America Travel & Tour; that by a slight
tipping of the scales, Plaintiff has met his burden to show that the Defendant
was negligent and that such negligence caused the accident; and that as a
result of the accident, Plaintiff suffered relatively minor ‘soft tissue’
injuries to his neck and lower back. The
Arbitrator further finds that Plaintiff has not met his burden of proof
relative to his claim of a need for surgery to his back as a result of the
accident, or as to any claims that his alcohol problems, subsequent liver
disease and heart problems were caused by the accident in question. [¶]
The Arbitrator finds that the Plaintiff, Jingang Zhao, is entitled to an
award against the Defendant, Ming Du International Trade, Inc., doing business
as Champ America Travel & Tour, as follows:
for Special Damages in the sum of $5,000.00 (for the acupuncture and
physical therapy treatments as testified by Dr. Alter) and General Damages
in the sum of $10,000.00 for a total award of $15,000.00. The Arbitrator notes that Plaintiff did not
make any claim for loss of earnings.â€
On May 3, 2011, the
arbitrator denied plaintiff’s application to correct the arbitration
award. The arbitrator ruled: “The Application is DENIED. The Plaintiff in his Application makes a
number of incorrect statements concerning the Arbitrator’s actions in this
matter. First, the Plaintiff
contends . . . the Arbitrator excluded Plaintiff’s medical
records from Los Angeles County/USC Medical Center. This is incorrect; the record was received
into evidence as Exhibit 4. Secondly,
the Plaintiff contends the Arbitrator precluded the Plaintiff from claiming
damages up to November 10, 2011, when he precluded Dr. Chadwick Smith from
testifying about the Los Angeles County/USC Medical Center records. While this statement is true, the reason for
the preclusion was because Dr. Smith testified during the arbitration
hearing that he had never reviewed those records. The Arbitrator does not understand how
Dr. Smith could have testified about something he never read, i.e., the Los
Angeles County/USC Medical Center records.
There was never any other evidence offered to prove the additional
damages claimed by the Plaintiff up to November 10, 2011.â€
The arbitrator further
explained: “The underlying thrust of
Plaintiff’s Application appears to be that the Arbitrator should have awarded
Plaintiff additional damages for his care and treatment at Los Angeles/USC
Medical Center (amounting to $680,000) and for future back surgery (in the sum
of $250,000). The Arbitration award is very
clear that the Arbitrator found the Plaintiff had not met the burden of proof
to show these damages were caused by the bus
accident . . . . In
fact the overwhelming weight of the evidence was to the contrary, that is these
damages were not caused by the bus accident in question. Plaintiff further contends that Dr. Anthony
Alter testified falsely concerning Plaintiff’s prior use of alcohol (referring
to a March 10, 2005, entry in Exhibit 4) and therefore the additional damages
(i.e. the care and treatment at Los Angeles County/USC Medical Center) should
be awarded. Irrespective of this
contention, the evidence was clear that the Plaintiff had not been truthful
with Dr. Smith concerning his alcohol consumption when he denied in
January, 2008, use of alcohol, yet testified at the arbitration hearing that in
fact he began drinking alcohol approximately one year before seeing
Dr. Smith.â€
As for plaintiff’s
challenge of Mr. Hanley’s testimony, the arbitrator ruled: “Plaintiff once again raises the contentions
that either the testimony of Bruce Hanley should not have been allowed or at a
minimum, Plaintiff should have been allowed to depose Mr. Hanley before
the arbitration hearing. The Arbitrator
notes that back in early October, 2010, Plaintiff knew the Defendant intended
to call Mr. Hanley as a witness at the hearing, and yet made no effort to
take his deposition until February 2011, which the Arbitrator found to be
untimely since the discovery cut off had long since expired. The Arbitrator reaffirms that ruling in this
ruling.â€
Also, the arbitrator
rejected plaintiff’s argument that the arbitration should have proceeded as an
uncontested matter: “Plaintiff also,
again raises the issue that the arbitration should have proceeded as ‘uncontested’
when Defendant, Xiang Shi, failed to appear for the hearing after Defendant had
been served with a Notice pursuant to California Code of Civil Procedure,
section 1987. This request was
previously denied by the Arbitrator.
Such request was clearly contrary to the spirit and intention of the
Stipulation For Binding Arbitration entered into between the parties in
January, 2011. To have granted
Plaintiff’s request would have, in essence, voided the stipulation, since it is
clear that the very intention of the stipulation was to have the matter proceed
to a contested binding arbitration, otherwise the stipulation itself makes no
sense. The stipulation was apparently
the subject of much negotiation and as far as the Arbitrator is concerned is
binding on all the parties. . . .â€
F. Post-Arbitration
Proceedings
On June 22, 2011, the
trial court granted defendant’s petition to confirm the arbitration award. Also, the trial court denied plaintiff’s
petition to vacate the award. On July 15,
2011, the trial court entered judgment awarding plaintiff $15,000.00 in damages
against defendant. However, defendant
was awarded $26,268.03 in costs. On
October 14, 2011, plaintiff filed his notice of appeal.
III. DISCUSSION
A. Standards Of Review
An
arbitration award may be vacated on the grounds specified in section 1286.2,
subdivision (a). (Moncharsh v. Heily & Blase (1992)
3 Cal.4th 1, 33 [“[A]n award reached by an arbitrator pursuant to a contractual
agreement to arbitrate is not subject to judicial review except on the grounds
set forth in sections 1286.2 (to vacate) and 1286.6 (for correction).â€]; Oaktree
Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 68
[“[G]rounds for vacating an arbitrator’s award are statutory and
limited.â€].) In addition, an award may
be vacated where an arbitrator commits clear legal error which denies a
litigant a hearing on an unwaivable important statutory right. (Pearson Dental Supplies, Inc. v. Superior
Court (2010) 48 Cal.4th 665, 669-670, 675-680; see Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, 817.)
In determining whether the
arbitrator exceeded his powers, we engage in the following review: “Section 1286.2, subdivision (a)(4) permits a
trial court to vacate an award where the arbitrator exceeds his or her
powers: ‘[T]he court shall vacate the
award if the court determines . . . : [¶]
. . . [¶]
(4) The arbitrators exceeded
their powers and the award cannot be corrected without affecting the merits of
the decision upon the controversy submitted.’
Our Supreme Court has delineated the scope of
excess of powers justification for vacatur.
(Pearson Dental Supplies, Inc. v. Superior Court, supra, 48
Cal.4th at p. 680 [‘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’]; Cable
Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1354-1364
[parties may restrict arbitrator’s powers by agreeing to expanded merit-based
judicial review of an award]; Gueyffier v. Ann Summers, Ltd. (2008) 43
Cal.4th 1179, 1182 [‘Absent an express and unambiguous limitation in the
contract or the submission to arbitration, an
arbitrator has the authority to find the facts, interpret the contract, and
award any relief rationally related to his or her factual findings and
contractual interpretation.’]; Morris v. Zuckerman (1968) 69 Cal.2d 686,
691 [‘Although the court may vacate an award if it determines that “[the]
arbitrators exceeded their powers and the award cannot be corrected without
affecting the merits of the decision upon the controversy
submitted†. . . , it may not substitute its judgment for
that of the arbitrators.’].)†(
at pp. 830-831.) We independently review
an order denying a petition to vacate an arbitration award. (Haworth
v. Superior Court (2010) 50 Cal.4th 372, 385; Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 646.)
B. Arbitration Stipulation
Plaintiff argues the
arbitration stipulation is void because defendant neither signed nor consented
to the stipulation. Plaintiff also
contends the stipulation is invalid because defendant never waived its
is void because defendant’s insurer signed the stipulation without any
consideration given to plaintiff.
Plaintiff’s arguments are without merit.
Plaintiff,
who was represented by counsel, consented to binding arbitration and waived the
right to a jury trial. Plaintiff signed
the stipulation. Also, plaintiff’s
counsel signed the stipulation.
Plaintiff’s reliance on Blanton v.
Womancare, Inc. (1985) 38 Cal.3d 396, 407, has no merit. There, the plaintiff never consented to the
binding arbitration. Only her lawyer
agreed to arbitrate. Here, there is no
evidence the insurer nor defense counsel was unauthorized to agree to arbitrate
the dispute. Defendant could be bound by
an arbitration agreement entered into by an agent. (DMS
Services, Inc. v. Superior Court (2012) 205 Cal.App.4th 1346, 1353;
Textile Maintenance Co. (2011) 197 Cal.App.4th 733, 743.) And defendant has made no effort to disaffirm
its counsel’s agreement to arbitrate. (
84 Cal.App.4th 64, 78; Gaine v. Austin
(1943) 58 Cal.App.2d 250, 259.) The
present case is materially unlike Blanton. Moreover, plaintiff signed the arbitration
stipulation fully aware defendant and its principal had relocated to
China. Further, plaintiff knew
defendant’s insurance carrier would sign the stipulation. Although defendant never signed the
arbitration, it is not seeking to repudiate the arbitration stipulation and
award. In addition, defendant’s
insurance carrier agreed to arbitration after acknowledging its duty to defend
defendant.
Also,
plaintiff cites no authority for the proposition that an arbitration
stipulation requires payment of consideration. In any event, the exchange of
promises to arbitrate constitutes consideration to support the arbitration
stipulation. (Papdakos v. Soares (1918) 177 Cal. 411, 412 [mutual promises are
concurrent consideration which will support each other]; United Farmers Assn. of Cal. v. Klein (1940) 41 Cal.App.2d 766, 770
[agreement to arbitrate constitutes consideration].) Plaintiff’s absence of consideration argument
has no merit.
Plaintiff also asserts
the carrier could employ its reservation of rights in the stipulation to avoid
paying the arbitration award and judgment.
Thus, plaintiff asserts the agreement to arbitrate was illusory. To begin with, plaintiff has forfeited this
issue because he failed to raise it before participating in the arbitration
hearing. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 30-31;
731-732.) In
any event, no evidence in the record supports this contention.
C. Arbitration Award
Prior to the
arbitration hearing, plaintiff served defendant with a notice to attend under
section 1987, subdivision (b). Plaintiff
then moved to have the matter proceed as uncontested under section 594. Plaintiff’s motion was denied by the
arbitrator. The arbitrator did not
exceed his powers in this regard by allowing the arbitration to proceed as a
contested matter as required by sections 594 and 1987. As noted, the arbitrator first denied
plaintiff’s motion on March 1, 2011, ruling: “The Arbitrator notes that
Plaintiff made an ex parte request back in November 2010, before Judge Jan A.
Pluim, when the matter was still before him, to Notice the Appearance at trial
or arbitration of a principal or driver of the Defendant, Champ America, and
that said request was denied by Judge Pluim.
In light of Judge Pluim’s order, the Arbitrator believes it would be
improper to now let the Plaintiff make a second attempt to accomplish what
Judge Pluim would not let him do previously.â€
Later, in ruling on plaintiff’s motion to correct the award, the
arbitrator ruled: “Plaintiff also, again
raises the issue that the arbitration should have proceeded as ‘uncontested’
when Defendant, Xiang Shi, failed to appear for the hearing after Defendant had
been served with a Notice pursuant to California Code of Civil Procedure,
section 1987. This request was
previously denied by the Arbitrator.
Such request was clearly contrary to the spirit and intention of the
Stipulation For Binding Arbitration entered into between the parties in
January, 2011. To have granted Plaintiff’s
request would have, in essence, voided the stipulation, since it is clear that
the very intention of the stipulation was to have the matter proceed to a
contested binding arbitration, otherwise the stipulation itself makes no sense. The stipulation was apparently the subject of
much negotiation and as far as the Arbitrator is concerned is binding on all
the parties. . . .â€
Pursuant to the
stipulation for binding arbitration,
the parties agreed the arbitrator, “[i]n his sole discretion†would control the
proceedings and regulate the order of proof.
In addition, the stipulation provides:
“The award shall be in writing and signed by the Arbitrator. It shall include a determination of all
questions submitted to the Arbitrator the decision of which is necessary in
order to determine the controversy. . . . [¶] The decision of the arbitrator shall be final
and binding. Each party hereto, and the
attorney of record for each respective party, hereby waives any right which
each may have to trial by judge, trial by jury, trial de novo, new trial, or appeal.â€
The arbitrator acted well within the scope of his powers. (Moshonov
v. Walsh (2000) 22 Cal.4th 771, 775 [“arbitrators 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 arbitratorsâ€]; Moncharsh
v. Heily & Blase, supra, 3 Cal.4th at p. 28.) The trial court did not err in denying
plaintiff’s motion to vacate the arbitration award.
IV. DISPOSTION
The
July 15, 2011 judgment confirming the arbitration award is affirmed. Defendant, Ming Du International Trade, Inc.,
shall recover its appeal costs from plaintiff, Jin Gang Zhao.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
KRIEGLER,
J. FERNS,
J.
name="_ftn1" title="">[1] Future statutory references are to the Code of Civil
Procedure.
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
