This case was last updated from Los Angeles County Superior Courts on 11/19/2020 at 06:04:59 (UTC).

DONALD L MCGOWAN VS JAMES WAGNER

Case Summary

On 12/04/2019 DONALD L MCGOWAN filed an Other - Arbitration lawsuit against JAMES WAGNER. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5136

  • Filing Date:

    12/04/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Arbitration

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Petitioner

MCGOWAN DONALD L

Respondent

WAGNER JAMES

 

Court Documents

Notice (name extension) - Notice of supplemental papers

11/2/2020: Notice (name extension) - Notice of supplemental papers

Minute Order - Minute Order (Court Order)

11/12/2020: Minute Order - Minute Order (Court Order)

Certificate of Mailing for - Certificate of Mailing for (Court Order) of 11/12/2020

11/12/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order) of 11/12/2020

Affidavit (name extension) - Affidavit Affidavit

9/21/2020: Affidavit (name extension) - Affidavit Affidavit

Certificate of Mailing for - Certificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 10/14/2020

10/14/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 10/14/2020

Minute Order - Minute Order (Hearing on Petition to Vacate Contractual Arbitration Award)

10/14/2020: Minute Order - Minute Order (Hearing on Petition to Vacate Contractual Arbitration Award)

Minute Order - Minute Order (Hearing on Petition to Vacate Contractual Arbitration Award)

7/23/2020: Minute Order - Minute Order (Hearing on Petition to Vacate Contractual Arbitration Award)

Certificate of Mailing for - Certificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 07/23/2020

7/23/2020: Certificate of Mailing for - Certificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 07/23/2020

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/21/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

3/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Civil Case Cover Sheet - Civil Case Cover Sheet

12/4/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

Petition (name extension) - Petition to Vacate Contractual Arbitration Award

12/4/2019: Petition (name extension) - Petition to Vacate Contractual Arbitration Award

Notice of Hearing on Petition - Notice of Hearing on Petition

12/4/2019: Notice of Hearing on Petition - Notice of Hearing on Petition

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

12/4/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

12/4/2019: First Amended Standing Order - First Amended Standing Order

3 More Documents Available

 

Docket Entries

  • 12/02/2020
  • Hearing12/02/2020 at 11:00 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Petition (name extension)

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  • 11/12/2020
  • DocketMinute Order (Court Order)

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  • 11/12/2020
  • DocketCertificate of Mailing for (Court Order) of 11/12/2020; Filed by: Clerk

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  • 11/12/2020
  • DocketThere being no judge available this date, Hearing on Petition to Vacate Contractual Arbitration Award scheduled for 11/17/2020 at 11:00 AM in Spring Street Courthouse at Department 25 Not Held - Continued - Court's Motion was rescheduled to 12/02/2020 11:00 AM

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  • 11/02/2020
  • DocketNotice of supplemental papers; Filed by: Donald L McGowan (Petitioner)

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  • 10/14/2020
  • DocketUpdated -- Certificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 10/14/2020: Status Date changed from 10/14/2020 to 10/14/2020; As To Parties: removed

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  • 10/14/2020
  • DocketUpdated -- Certificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 10/14/2020: As To Parties: removed

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  • 10/14/2020
  • DocketCertificate of Mailing for (Hearing on Petition to Vacate Contractual Arbitration Award) of 10/14/2020; Filed by: Clerk

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  • 10/14/2020
  • DocketMinute Order (Hearing on Petition to Vacate Contractual Arbitration Award)

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  • 10/14/2020
  • DocketOn the Court's own motion, Hearing on Petition to Vacate Contractual Arbitration Award scheduled for 10/14/2020 at 10:00 AM in Spring Street Courthouse at Department 25 Held - Continued was rescheduled to 11/17/2020 11:00 AM

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6 More Docket Entries
  • 04/21/2020
  • DocketReset - Court Unavailable, Hearing on Petition to Vacate Contractual Arbitration Award scheduled for 05/18/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 07/23/2020 09:00 AM

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  • 03/23/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 03/23/2020
  • DocketThere being no judge available this date, Hearing on Petition to Vacate Contractual Arbitration Award scheduled for 04/08/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 05/18/2020 10:30 AM

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  • 12/04/2019
  • DocketHearing on Petition to Vacate Contractual Arbitration Award scheduled for 04/08/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/04/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 12/04/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 12/04/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 12/04/2019
  • DocketNotice of Hearing on Petition; Filed by: Clerk

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  • 12/04/2019
  • DocketCivil Case Cover Sheet; Filed by: Donald L McGowan (Petitioner)

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  • 12/04/2019
  • DocketPetition to Vacate Contractual Arbitration Award; Filed by: Donald L McGowan (Petitioner)

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Tentative Rulings

Case Number: 19STCP05136    Hearing Date: October 14, 2020    Dept: 25

HEARING DATE: Wed., October 14, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: McGowan v. Wagner PET. FILED: 12-04-19

CASE NUMBER: 19STCP05136

NOTICE: OK (cont’d hearing only)

PROCEEDINGS: PETITION TO VACATE CONTRACTUAL ARBITRATION AWARD

MOVING PARTY: Petitioner Donald McGowan, in pro per

RESP. PARTY: None

PETITION TO VACATE CONTRACTUAL ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

The Petition to Vacate Contractual Arbitration Award is CONTINUED TO NOV 17, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Petition being placed off calendar or denied.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of October 7, 2020 [ ] Late [X] None

REPLY: None filed as of October 7, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On October 3, 2019, arbitrator Daniel Smith with the Contractors State License Board Arbitration Program issued an award requiring Petitioner Donald Leon McGowan (“Petitioner”) to pay Respondent James Wagner (“Respondent”) $7,000.00 (the “Arbitration Award”). (Pet., Exh. 8(c).)

On December 4, 2019, Petitioner filed the instant Petition to Vacate Contractual Arbitration Award (the “Petition”).

At the initial July 23, 2020 hearing, the Court found that Petitioner did not file a proof of service demonstrating the Petition and notice of hearing were served on Respondent in accordance with Code of Civil Procedure section 1290.4. (7/23/20 Minute Order.) The Court also noted Petitioner was required to show that Respondent was served with the Petition by January 11, 2020, 100 days after the parties were served with the Arbitration Award, or the Award could not be vacated. (Id.) On September 21, 2020, Petitioner filed a supplemental declaration.

To date, Respondent has not filed an opposition.

  1. Legal Standard

“Regardless of the particular relief granted, any arbitrator's award is enforceable only when confirmed as a judgment of the superior court.” (O'Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 278.) “Once a petition to confirm an award is filed, the superior court must select one of only four courses of action: it may confirm the award, correct and confirm it, vacate it, or dismiss the petition.” (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.) “Neither the trial court, nor the appellate court, may ‘review the merits of the dispute, the sufficiency of the evidence, or the arbitrator's reasoning, nor may we correct or review an award because of an arbitrator's legal or factual error, even if it appears on the award's face. Instead, we restrict our review to whether the award should be vacated under the grounds listed in section 1286.2. [Citations.]’” (Id.)

Code of Civil Procedure section 1286.2, subdivision (a), states, in pertinent part:

“Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following:

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

(5) The rights of the parties were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

(6) An arbitrator making the award . . . (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. . . .”

(Code Civ. Proc., § 1286.2, subd. (a).)

  1. Discussion

As an initial matter, the Court notes that Petitioner again did not file a proof of service demonstrating he served the Petition in accordance with Code of Civil Procedure section 1290.4. Section 1290.4 provides:

“(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.

(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: ¶ (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.”

Petitioner’s supplemental declaration states that he mailed a copy of the Petition to Respondent on December 4, 2019. (9/21/20 McGowan Decl., ¶ 3.) However, this is insufficient. First, if the parties' agreement to arbitrate does not expressly allow for service by mail, then a copy of the Petition and notice of hearing must be served in the same manner as service of summons. (Code Civ. Proc., § 1290.4.) In addition, service of the Petition and notice of hearing must be completed by someone over the age of 18 who is not a party to the action. (Code Civ. Proc., § 1013a.) Thus, Petitioner must file a proof of service that complies with both Code of Civil Procedure section 1013a and section 1290.4. As noted in the Court’s July 23, 2020 Order, if Petitioner is unable to demonstrate Respondent was properly served with the Petition by January 11, 2020, the Arbitration Award cannot be vacated. (Code Civ. Proc., § 1288.)

Petitioner also argues in his supplemental declaration that the Arbitration Award should be vacated because he believes Respondent and the Arbitrator had significant ex parte communications that prejudiced him, because the Arbitrator allowed Respondent to present his case at length but refused to review Petitioner’s evidence, and because Petitioner’s evidence demonstrates that he may be liable for, at most, a fraction of what was awarded to Respondent. (9/21/20 McGowan Decl., ¶¶ 7-12.) Petitioner supports his contention with a copy of the claim Respondent submitted against Petitioner and an unidentified picture. (Id., Exh. 1.) However, it is unclear whether this was the evidence the Arbitrator allegedly refused to consider or whether Petitioner did not attach the entirety of the evidence presented to the Arbitrator.

Notably, the “vacation of an award for ‘refusal…to hear evidence material to the controversy’ (§ 1286.2, subd. (a)(5)) must rest on more than a simple error in applying the rules of evidence” because if not carefully limited, section 1286.2, subdivision (a)(5) “could swallow the rule that arbitration awards are generally not reviewable on the merits.” (Heimlich v. Shivji (2019) 7 Cal.5th 350, 368.) Section 1286.2, subdivision (a)(5) “does not contemplate vacation of an award merely because arbitrators refuse to consider evidence they find legally irrelevant, even if the irrelevance determination rests upon an incorrect legal foundation.” (Id. at p. 369.) This is important because arbitrators are allowed to make mistakes in rendering their award, and parties are aware of this and agree to be bound by the decision. (Id. at p. 370-71.)

With this in mind, the Court continues the hearing one last time to allow Petitioner to file and serve supplemental papers addressing the deficiencies noted above.

  1. Conclusion & Order

For the foregoing reasons, the Petition to Vacate Contractual Arbitration Award is CONTINUED TO NOV 17, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file and serve supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Petition being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 19STCP05136    Hearing Date: July 23, 2020    Dept: 25

HEARING DATE: Thu., July 23, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: McGowan v. Wagner PET. FILED: 12-04-19

CASE NUMBER: 19STCP05136

NOTICE: NO

PROCEEDINGS: PETITION TO VACATE CONTRACTUAL ARBITRATION AWARD

MOVING PARTY: Petitioner Donald McGowan, in pro per

RESP. PARTY: None

PETITION TO VACATE CONTRACTUAL ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

The Petition to Vacate Contractual Arbitration Award is CONTINUED TO OCTOBER 14, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner is to file supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Petition being placed off calendar or denied.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of July 21, 2020 [ ] Late [X] None

REPLY: None filed as of July 21, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On October 3, 2019, arbitrator Daniel Smith with the Contractors State License Board Arbitration Program issued an award requiring Petitioner Donald Leon McGowan (“Petitioner”) to pay Respondent James Wagner (“Respondent”) $7,000.00 (the “Arbitration Award”). (Pet., Exh. 8(c).)

On December 4, 2019, Petitioner filed the instant Petition to Vacate Contractual Arbitration Award (the “Petition”). To date, no opposition has been filed.

  1. Legal Standard & Discussion

As an initial matter, the Court discusses the timeliness of this Petition. A petition to vacate an arbitration award must be served and filed no later than 100 days after the date of the service of a signed copy of the award on the petitioner. (Code Civ. Proc., § 1288.) Here, the Arbitration Award was served on the parties on October 3, 2019. (Pet., Attach. 8(c).) Thus, the Petition was timely filed on December 4, 2019. However, Petitioner must also demonstrate that Respondent was served with the Petition by January 11, 2020, 100 days after the parties were served with the Arbitration Award, or it cannot be vacated. (Code Civ. Proc., § 1288; Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 398 [“If [the party who lost in the arbitration does] not serve and file a petition to vacate or a response to [a] petition to confirm within the 100–day period from the date of service of the award ..., the award must be treated as final”].)

In addition, service of the Petition and Notice of Hearing must comply with Code of Civil Procedure section 1290.4. However, there is no proof of service on file with the court demonstrating compliance with section 1290.4.

  1. Conclusion & Order

For the foregoing reasons, the Petition to Vacate Contractual Arbitration Award is CONTINUED TO OCTOBER 14, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner is to file supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Petition being placed off calendar or denied.

Moving party is ordered to give notice.