GREENTEK CONSTRUCTION, INC. VS RAFAEL CORREA, ET AL.

Tentative Rulings

Case Number: 20STCP03622    Hearing Date: May 12, 2021    Dept: 26

Greentek Construction, Inc. v. Correa, et al.

CORRECT ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Greentek Construction, Inc.’s Petition to Correct Arbitration Award is DENIED AND THE ARBITRATION AWARD IS CONFIRMED IN FAVOR OF RESPONDENTS RAFAEL CORREA AND MARGARET CORREA IN THE AMOUNT OF $13,900.00.

RESPONDENTS ARE AWARDED $1,240.50 IN COSTS AND DENIED THE REQUEST FOR ATTORNEY’S FEES WITHOUT PREJUDICE TO BRINGING A MOTION PURSUANT TO CAL. RULES OF COURT, RULE 3.1702.

RESPONDENTS ARE TO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On November 3, 2020, Petitioner Greentek Construction, Inc. (“Petitioner”) filed the instant Petition to Correct Arbitration Award against Respondents Joseph Correa and Margaret Correa (“Respondents”). Respondents filed a response to the Petition on December 14, 2020 and Petitioner filed a reply brief on February 4, 2021.

A petition to vacate or correct 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.) The subject arbitration award (“the Award”) was issued on August 31, 2020. (Brief in Support of Petition, Exh. 3.) The Petition was timely filed on November 3, 2020. The Petition was also timely served on November 6 and 10, 2020. (Proofs of Service, filed 11/17/20.)

The Petition initially came for hearing on March 9, 2021 at which time the Court found that the Petition did not include any supporting declarations or exhibits and Respondents’ opposition was based on the lack of evidence in support of the Petition. (Minute Order, 03/09/21.) It was not until Petitioner filed a reply brief on February 4, 2021 that it provided exhibits in support of the Petition. (Ibid.) The Court found it appropriate to continue the hearing to give Respondents an opportunity to respond to the evidence included with the Reply. (Ibid.)

Respondents filed a Supplemental Response on April 26, 2021.

Discussion

Pursuant to Code of Civil Procedure section 1286.6, the court shall correct the arbitration award and confirm it as corrected if the court determines that:

(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

(b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or

(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.

(Code Civ. Proc., § 1286.6.) On October 31, 2020, the arbitrator issued an award in favor of Respondents in the amount of $13,900.00. (Reply, Exh. 4.) Petitioner moves to correct the award on the following grounds: (1) there is an evident mistake or miscalculation of figures because the arbitrator did not consider the issues raised by Respondent in the Submission to Mandatory Binding Arbitration; (2) there is a clerical error because the arbitrator did not consider the issues raised by Respondent in the Submission to Mandatory Binding Arbitration; and (3) the arbitrator exceeded his authority by including damages for items that were not part of the underlying contract.

The two issues raised in Petitioner’s Submission to Mandatory Arbitration were “whether [Respondent] agreed to revised dimensions” and “whether [Respondent] received additional consideration in exchange.” (Reply, Exh. 3.) In opposition, Respondents contend that the arbitrator was presented all of Petitioner’s claims through briefing prior to the arbitration and through evidence at the arbitration, including expert witness testimony.

Petitioner has not shown that the arbitrator failed to consider the two issues raised in its Submission to Mandatory Arbitration. Petitioner points to no evidence of such failure other than that the written award does not expressly address the two issues. Yet no authority is cited regarding the extent to which the written award must expressly set forth all the issues raised by the parties. In Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 45, the Court of Appeals explained that the arbitrator’s failure to explicitly address one of the appellant’s arguments does not amount to exceptional circumstances that warrant overturning an award. (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 46 [“Prima Donna's claim about the arbitrator’s failure to address ‘good faith’ amounts only to a contention that the arbitrator made a legal error—a question not subject to judicial review.”].)

Furthermore, as in Prima Donna Development, the evidence here is that Petitioner was allowed to present all its issues, arguments and evidence in support thereof. (See ibid.) Respondents’ attorney, who represented them through the arbitration, attests that both parties were provided the opportunity to submit arbitration briefs, pictures, exhibits, receipts and witness lists prior to the arbitration. (Supp., Opp., G. Correa Decl., ¶¶3-5.) While Petitioner’s witness list included four witnesses, it only called one witness at the arbitration. Petitioner also submitted an application to the arbitrator to correct the award, which was denied on September 30, 2020. (Supp. Opp., G. Correa Decl., ¶13.) This tracks with the arbitration proceeding in Prima Donna Development, which the Court of Appeal found allowed the parties to bring their claims and did not prevent them from receiving a review on the merits. ((Prima Donna Development Corp., supra, 42 Cal.App.5th 46 [“The arbitration process allowed for discovery (including motions to compel discovery) . . . a multi-day arbitration hearing, written discovery, evidentiary rulings, and a reasoned, written award that applied the relevant principles of California law . . . .”].)

Therefore, Petitioner has not shown that there was an evident mistake or miscalculation of figures or a clerical error from the arbitrator’s failure to consider the issues raised in Petitioner’s Submission to Mandatory Admission.

Petitioner also argues that the arbitrator exceeded his authority by including damages for items that were not part of the underlying contract. Specifically, that the parties’ agreement did not contemplate that Petitioner would “remove existing brick and dirt surface[s] and replace [those surfaces] with concrete,” but the arbitrator attributed liability to Petitioner for failing to do so. In opposition, Respondents point out that the construction plans submitted for approval by Petitioner did include this work, as attested to by Respondents’ expert at the arbitration. (Supp., Opp., G. Correa Decl., ¶8 and Exh. A.) Petitioner had the chance to cross-examine the expert. (Id. at ¶8.) Therefore, Petitioner has not shown that the arbitrator’s decision to include damages for failure to “remove existing brick and dirt surface[s] and replace [those surfaces] with concrete” exceeded his authority. 

Based on the foregoing, the Court denies the Petition to Correct Arbitration Award and confirms the arbitration award in Respondents’ favor. “A party to an arbitration may seek to vacate or correct the award or to have it confirmed. Upon a petition seeking any of those results, the court must confirm the award, unless it either vacates or corrects it.” (Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658.)

Finally, Respondents request an award of attorney’s fees and costs, to which they are entitled as provided for in Code of Civil Procedure section 1293.2. (MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th.Supp. 1, 7.) Costs under section 1293.2 are awarded pursuant to the provisions of Code of Civil Procedure section 1021, et seq. A prevailing party is entitled to recover costs, which can also include attorney’s fees, as a matter of right.  (Code Civ. Proc., §§ 1032, subd. (a)(4); 1033.5, subd. (a)(10).) The right to attorney’s fees may arise out of contract, statute or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)  

While Respondents are entitled to costs as the prevailing party, they have not shown the right to attorney’s fees under contract, statute or law. Respondents cite to no provision of the contract, nor to any statute or law that awards them attorney’s fees. Therefore, the request for costs is granted in the amount of $1,240.50 and the request for attorney’s fees is denied without prejudice to Respondents bringing a motion under Cal. Rules of Court, Rule 3.1702.

Conclusion

Petitioner Greentek Construction, Inc.’s Petition to Correct Arbitration Award is DENIED AND THE ARBITRATION AWARD IS CONFIRMED IN FAVOR OF RESPONDENTS RAFAEL CORREA AND MARGARET CORREA IN THE AMOUNT OF $13,900.00.

RESPONDENTS ARE AWARDED $1,240.50 IN COSTS AND DENIED THE REQUEST FOR ATTORNEY’S FEES WITHOUT PREJUDICE TO BRINING A MOTION PURSUANT TO CAL. RULES OF COURT, RULE 3.1702.

RESPONDENTS ARE TO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS’ SERVICE OF THIS ORDER.

Respondents to give notice. 

Case Number: 20STCP03622    Hearing Date: March 9, 2021    Dept: 26

Greentek Construction, Inc. v. Correa, et al

CORRECT ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Greentek Construction, Inc.’s Petition to Correct Arbitration Award is CONTINUED TO MAY 12, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On November 3, 2020, Petitioner Greentek Construction, Inc. (“Petitioner”) filed the instant Petition to Correct Arbitration Award against Respondent Joseph Correa and Margaret Correa (“Respondents”). Respondents filed a response to the Petition on December 14, 2020 and Petitioner filed a reply brief on February 4, 2021.

A petition to vacate or correct 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.) The subject arbitration award (“the Award”) was issued on August 31, 2020. (Brief in Support of Petition, Exh. 3.) The Petition was timely filed on November 3, 2020. The Petition was also timely served on November 10 and 20, 2020. (Proofs of Service, filed 11/17/20.) The Petition does not include any supporting declarations or exhibits.

Respondents’ opposition is based on the lack of evidence in support of the Petition. It is not until the filing of the reply brief on February 4, 2021 that Petitioner provides exhibits in support of the Petition.

The Court is not inclined to rule on the merits of the Petition at this time given the late-filed exhibits and the lack of any further response by Respondents. In order to ensure that Respondents have an opportunity to address the evidence submitted in support of the Petition on February 4, 2021, the hearing on the Petition to Correct Arbitration Award is CONTINUED TO MAY 12, 2021 AT 10:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. ANY SUPPLEMENTAL RESPONSE TO THE PETITION IS TO BE FILED AND SERVED AT LEAST NINE (9) COURT DAYS PRIOR TO THE NEW HEARING DATE. NO FURTHER BRIEFING ALLOWED.

Moving party to give notice.