On 08/23/2016 SUSAN ABUSAMRA-PIXLER filed a Contract - Business lawsuit against U-HAUL INTERNATIONAL INC ET A. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is YOLANDA OROZCO. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GOVERNMENT EMPLOYEES INSURANCE COMPANY
CHRYSLER GROUP LLC
GEICO GENERAL INSURANCE COMPANY
FCA US LLC
U-HAUL INTERNATIONAL INC.
DOES 1 TO 100
DAWN M. GRANT INSURANCE SERVICES INC.
CHANT & COMPANY A.P.L.C.
MARDIROSSIAN & ASSOCIATES INC. A.P.L.C.
COSGROVE PHILIP R.
ALSTON & BIRD LLP
VANCE NATALIE P.
12/21/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice
2/22/2019: Minute Order
11/22/2016: DEFENDANTS GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; ETC.
12/21/2016: VERIFIED APPLICATION OF SHEILA CARMODY RE DEFENDANTS GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY'S MOTION FOR PRO HAC VICE ADMISSION
12/30/2016: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF FCA US LLC?S DEMURRER TO PLAINTIFFS? COMPLAINT
2/6/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
2/7/2017: NOTICE OF CONTINUED HEARING OF DEFENDANT, FCA US LLC'S DEMURRER TO PLAINTIFFS' COMPLAINT
2/10/2017: CIVIL DEPOSIT
2/15/2017: GEICO INDEMNITY COMPANY AND GEICO GENERAL INSURANCE COMPANY'S NOTICE OF POSTING JURY FEES
2/15/2017: NOTICE OF CASE MANAGEMENT CONFERENCE
2/22/2017: ORDER ON GEICO'S MOTION FOR PRO HAC VICE ADMISSION OF SHEILA CARMODY
2/27/2017: DEFENDANT U-HAUL INTERNATIONAL, INC.'S RESPONSE TO PLAINTIFFS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF KEVIN T. SCOFIELD
2/27/2017: REPLY IN SUPPORT OF DEFENDANT UHAUL INTERNATIONAL, INC.'S MOTION TO COMPEL ARBITRATION AND FOR ORDER STAYING THE ACTION PENDING COMPLETION OF THE ARBITRATION
2/27/2017: DEFENDANT U-HAUL INTERNATIONAL, INC.'S RESPONSE TO PLAINTIFFS' EVIDENTIARY OBJECTIONS TO EXHIBITS SUBMITTED IN SUPPORT OF MOTION TO COMPEL ARBITRATION
3/6/2017: Minute Order
Substitution of Attorney; Filed by FCA US LLC (Defendant)Read MoreRead Less
at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Minute Order ( (Status Conference)); Filed by ClerkRead MoreRead Less
at 10:00 AM in Department 31, Yolanda Orozco, Presiding; Non-Appearance Case Review - HeldRead MoreRead Less
Minute Order ( (Non-Appearance Case Review)); Filed by ClerkRead MoreRead Less
Notice (Geico Indemnity Company and Geico General Insurance Company's Notice of Posting Pro Hac Vice Renewal Fee); Filed by Geico General Insurance Company (Defendant)Read MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 31; Status Conference (Status Conference; Matter continued) -Read MoreRead Less
Minute order entered: 2018-07-18 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
Proof of Service of Summons and ComplaintRead MoreRead Less
at 09:30 AM in Department 308; (Order-Complex Determination; Case Determined to be non-Complex) -Read MoreRead Less
Minute order entered: 2016-10-19 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
Proof of Service (not Summons and Complaint) PROOF OF SERVICERead MoreRead Less
Notice and Acknowledgment of Receipt of Summons and Complaint NOTICE AND ACKNOWLEDGMENT OF RECEIPT-CIVILRead MoreRead Less
Notice and Acknowledgment of Receipt; Filed by Susan Abusamra-Pixler (Plaintiff); Charles Pixler (Plaintiff)Read MoreRead Less
Complaint; Filed by Susan Abusamra-Pixler (Plaintiff); Charles Pixler (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
PLAINTIFFS COMPLAINT FOR: 1. STRICT PRODUCTS LIABILITY; ETCRead MoreRead Less
Case Number: BC631370 Hearing Date: January 06, 2020 Dept: 31
PETITION TO VACATE ARBITRAL AWARD IS DENIED; PETITION TO CONFIRM ARBITRAL AWARD IS GRANTED.
On August 23, 2016, Plaintiffs Susan Abusamra-Pixler (hereinafter “Susan”) and Charles Pixler (hereinafter “Charles”) filed the instant action against Defendants U-Haul International, Inc; Government Employees Insurance Company; Geico General Insurance Company; Dawn M. Grant Insurance Services, Inc; FCA US LLC (f/k/a Chrysler Group, LLC); and Does 1 to 100. The Complaint asserts causes of action for:
Strict Products Liability;
Breach of Contract;
Breach of the Implied Covenant of Good Faith and Fair Dealing;
Negligent Infliction of Emotional Distress;
Violation of California Unfair Competition Law; and
On March 6, 2017, the Court granted Defendant U-Haul International, Inc.’s (hereinafter “Defendant”) motion to compel arbitration and stay action pending the completion of arbitration. On October 24, 2019, the Arbitrator, issued a Final Award.
On December 6, 2019, Defendant filed a Petition to Confirm Arbitration Award. In response, on December 11, 2019, Plaintiff Susan filed her opposing Petition to Vacate Arbitration Award. On December 31, 2019, Plaintiff Charles filed a Joinder in Petition to Vacate Arbitration Award.
Per CCP § 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”
Per CCP § 1285.4, “A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) Set forth the names of the arbitrator; and (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”
Per CCP § 1286, “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”
CCP § 1285.2 provides that “[a] response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.”
The grounds upon which a court may vacate an arbitration award are limited by CCP § 1286.2. “[W]here parties have agreed their dispute will be resolved by binding arbitration, judicial intervention is limited to reviewing the award to see if statutory grounds for vacating or correcting the award exist.” (Corona v. Amherst (2003) 107 Cal.App.4th 701, 706.) A petition to vacate may be based upon a determination that “[t]he award was procured by corruption, fraud or other undue means.” (CCP § 1286.2(a)(1).)
Defendant moves to confirm the Final Award of Arbitrator Chris Cottle (Ret.) on Plaintiffs’ claims against Defendant in the matter entitled Susan Abusamra-Pixler, et al. v. U-Haul International, Inc., American Arbitration Case No. 01-18-0000-2177. Plaintiffs, in return, seek to vacate it. Plaintiffs move to vacate the Arbitration Award on the grounds that it was procured by other undue means pursuant to Section 1286.2(a)(1).
The Court notes at the outset that the Joinder filed by Plaintiff Charles is untimely, as it was filed only 3 court days before the hearing on this motion, in violation of Code of Civil Procedure section 1005(b). Accordingly, the Court does not consider Plaintiff Charles’ joinder.
Corruption, Fraud, or Other Undue Means
“Section 1286.2, subdivision (a)(1) states that an award may be vacated if the award is secured by corruption, fraud or other undue means. Fraud, as that term is used in section 1286.2, subdivision (a)(1), is that perpetrated by the arbitrator or a party. Only extrinsic fraud which denies a party a fair hearing may serve as a basis for vacating an award. [Citations.] As to undue means, a Ninth Circuit panel has defined the term thusly: “Although the term has not been defined in any federal case of which we are aware, it clearly connotes behavior that is immoral if not illegal. [Citation] (‘Undue’ means ‘more than necessary; not proper; illegal,’ and ‘denotes something wrong, according to the standard of morals which the law enforces.’ ‘Undue influence’ means any ‘improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered.’).” [Citations.] Undue means can include representation of a party where an attorney is operating under a conflict of interest. [Citation.] Undue influence occurs when there is bribery or intimidation of the arbitrator. [Citation.]
Improper ex parte communications between an arbitrator and a litigant can serve as a basis for a corruption, fraud or other undue means finding. [Citation.] In the case of an ex parte communication between an arbitrator and an attorney, our colleagues in Division Six of this appellate district described why it was inappropriate to vacate the arbitration award: “ . . . In the absence of a showing that the arbitrator was improperly influenced or actually considered evidence outside the original arbitration proceedings such that appellants needed a further opportunity to be heard on the stop notice claim, appellants cannot demonstrate that the amended award was procured by corruption, fraud, undue means, or misconduct of the arbitrator within the meaning of section 1286.2, subdivisions (a), (b) or (c).” [Citation.]
Defendants have the burden of showing the arbitrator committed error. [Citations.] Defendants must show they were prejudiced by the alleged corruption, fraud or undue means. ([Citation] [“In order that the claimed departure from the usual procedure be held to amount to misconduct of the arbitrators sufficient to vacate the award it must be shown that such departure had prejudiced the rights of the buyer.”]; [citation] [“The obvious meaning of this subdivision is that the misconduct or error complained of, to whatever class it may belong, must be of such a character that the rights of the party complaining were prejudiced thereby.”]; [citation] [“Absent a showing of prejudice, even if error had been committed, the lower court was required to affirm the award.”]; [citation] [“an award will not be vacated for any error that does not prejudice the rights of the party complaining”]; [citations])” (Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, 825-826.)
“As the courts of this state have repeatedly emphasized, the merits of a controversy that has been submitted to arbitration are not subject to judicial review. . . Judicial review is severely limited because that result “vindicates the intentions of the parties that the award be final, and because an arbitrator is not ordinarily constrained to decide according to the rule of law ....” [Citation]” (Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1313.) “[A]n arbitrator's decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 6.)
“The merits of the controversy, the manner in which evidence was weighed or the mental processes of the arbitrators in reaching their decision are not subject to judicial review.” (Betz v. Pankow (1993) 16 Cal.App.4th 919, 927.) “[T]he merits of the controversy are for the arbitrator, not for the courts. It is not appropriate for courts to review the sufficiency of the evidence before the arbitrator [citation] or to pass upon the validity of the arbitrator's reasoning [citations].” (Rodrigues v. Keller (1980) 113 Cal.App.3d 838, 843.)
Plaintiff Susan (hereinafter “Plaintiff”) moves to vacate the arbitration award on the grounds that it was procured by other undue means pursuant to Section 1286.2(a)(1). Plaintiff argues that Defendant’s repeated and deliberate use of statutorily inadmissible evidence procured the Arbitration Award by undue means. Plaintiff asserts that such inadmissible evidence includes evidence of settlement, liability insurance, assets, financial status, wealth, and findings of fault by the California Highway Patrol. Plaintiff contends that in the Final Award, the Arbitrator overruled most of Plaintiff’s objections to Defendant’s inadmissible statements. Plaintiff argues that additionally, and while the Arbitrator eventually excluded the fault opinions by the police officer and insurers, the admissibility and reference to such evidence in the Opening Statement and through the arbitration process made it impossible for Plaintiff to have a fair hearing. Plaintiff discusses at great length why certain evidence that was presented by Defendant during the arbitration proceedings was inadmissible.
In opposition, Defendant argues that the grounds for vacating arbitration awards are very limited and evidentiary disputes are not grounds to vacate an arbitration award. Defendant asserts that Plaintiff is asking the Court to reconsider the Arbitrator’s evidentiary rulings, even the ones that were in her favor. Defendant contends that no case has ever found evidentiary objections to be the sort of “other undue means” that could vacate an arbitration award. Defendant argues that moreover, the Final Award does not rely on the supposedly “poisonous” evidence. Defendant asserts that on the contrary, the only time the Final Award even refers to any of the evidence Plaintiff complains of, the Arbitrator sustained her objections and refused to consider it.
Defendant contends that Plaintiff is trying to vacate the award on improper grounds, as her petition focuses on the sufficiency of the evidence. Defendant argues that the Final Award was not “poisoned” because it does not rely on any of the evidence that Plaintiff objected to. Defendant asserts that the Arbitrator sustained Plaintiff’s objections to the evidence she claims somehow “poisoned” the Arbitrator’s decision.
In reply, Plaintiff argues that Defendant does not deny that its attorney engaged in deliberate and intentional misconduct throughout the arbitration proceeding. Plaintiff asserts that the focus of her petition to vacate is Defendant’s misconduct, not evidentiary rulings. Plaintiff contends that the law supports her position that the misconduct prejudiced the fairness of the arbitration process.
The Court finds that Plaintiff has failed to present sufficient evidence to support a finding that the Arbitration Award was procured by undue means. As noted above, judicial review of an Arbitration Award is severely limited. Plaintiff requests that the Court vacate the Arbitration Award because Defendant improperly presented evidence to the Arbitrator at various times during the arbitration process. While Plaintiff argues that such tactics rendered the arbitration proceedings unfair, caselaw holds otherwise. “In the absence of a showing that the arbitrator was improperly influenced or actually considered evidence outside the original arbitration proceedings such that appellants needed a further opportunity to be heard . . ., appellants cannot demonstrate that the . . . award was procured by corruption, fraud, undue means, or misconduct of the arbitrator within the meaning of section 1286.2, subdivisions (a), (b) or (c).” (A.M. Classic Const., Inc. v. Tri-Build Development Co. (1999) 70 Cal.App.4th 1470, 1476.)
Nothing before the Court indicates that the Arbitrator relied on any of the evidence Plaintiff objected to or argues poisoned the proceedings. In fact, the Final Award specifically states:
Claimants filed objections to some of the proposed evidence referred to in Respondent's opening brief. The arbitrator agrees that the opinions contained in the police report of the accident, and the opinions of the insurer, are inadmissible and they have not been considered. With respect to other objections, the arbitrator has not considered any facts alleged in the opening brief that were not supported by testimony at the hearing. Argument is not evidence. That being said, the objections to statements in the briefs are overruled except with respect to the opinions of the police and of the insurers.
(Akaragian Decl., Exh. 8, p. 7.) (emphasis added.)
The Final Award does not make reference to any of the evidence Plaintiff asserts “poisoned” the proceedings, except in the preceding paragraph. Accordingly, it cannot be said that the Arbitrator relied on such evidence nor can Plaintiff claim that she was prejudiced as a result of Defendant presenting such evidence.
The cases cited by Plaintiff to support her argument that the Arbitration Award was procured by undue means involve situations in which the party moving to vacate the award was not afforded an opportunity to be heard. Here, that is clearly not the case, as the Arbitrator specifically addressed and ruled on Plaintiff’s objections. Moreover, the cases Plaintiff cites to regarding misconduct involved jury trials, which presents a set of circumstances vastly different from those found in arbitration proceedings.
Based on the foregoing, Plaintiff’s motion to vacate the arbitration award is DENIED.
Petition to Confirm Arbitration Award
The procedural requirements of a petition to confirm an arbitration award require the petition to:
(a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.
(b) Set forth the names of the arbitrators.
(c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.
(Code of Civ. Proc., §1285.4.)
Here, in both the Petition to Vacate Arbitration Award and Petition to Confirm Arbitration Award, the parties attach a copy of the rental contract signed by Plaintiff Charles, which incorporated by reference Defendant’s Arbitration Agreement. (Akaragian Decl., Exh. 4; Benoff Decl., Exh. A, B.) The Petition to Confirm also indicates that Chris Cottle (Ret.) served as the arbtirator. (Benoff Decl. ¶ 7.) Finally, both Petitions attach a copy of the Final Award issued on October 24, 2019 and served on October 25, 2019. (Akaragian Decl., Exh. 8; Benoff Decl., Exh. F.)
The Court finds that Defendant’s petition to confirm arbitration award complies with the procedural requirements of Code of Civil Procedure section 1285.4.
Based on the foregoing, Defendant’s petition to confirm arbitration award is GRANTED.
Request to Seal
In Defendant’s opposition to the motion to vacate, Defendant requests that the Court order Plaintiff to withdraw confidential materials that she filed and served and to re-file them under seal.
Pursuant to California Rules of Court, Rule 2.551, a motion or application to seal is required. Accordingly, the Court declines to rule upon Defendant’s request. Should Defendant desire to seal confidential records that have been filed with the Court, Defendant must do so by noticed motion or application and in conformity with the Rules of Court.
Plaintiff’s motion to vacate arbitration award is DENIED. Defendant’s motion to confirm arbitration award is GRANTED. The Court declines to rule upon Defendant’s request for an order directing Plaintiff to withdraw confidential materials and re-file them under seal.
Defendant to give notice.