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This case was last updated from Los Angeles County Superior Courts on 05/25/2019 at 13:25:25 (UTC).

SUSAN ABUSAMRA-PIXLER ET AL VS U-HAUL INTERNATIONAL INC ET A

Case Summary

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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1370

  • Filing Date:

    08/23/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

YOLANDA OROZCO

 

Party Details

Plaintiffs and Petitioners

PIXLER CHARLES

ABUSAMRA-PIXLER SUSAN

Defendants and Respondents

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.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHANT & COMPANY A.P.L.C.

MARDIROSSIAN & ASSOCIATES INC. A.P.L.C.

Defendant Attorneys

MOORADIAN ALINA

COSGROVE PHILIP R.

ALSTON & BIRD LLP

VANCE NATALIE P.

 

Court Documents

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/21/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order

2/22/2019: Minute Order

SUMMONS

8/23/2016: SUMMONS

DEFENDANTS GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; ETC.

11/22/2016: DEFENDANTS GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS' COMPLAINT; ETC.

VERIFIED APPLICATION OF SHEILA CARMODY RE DEFENDANTS GEICO GENERAL INSURANCE COMPANY AND GOVERNMENT EMPLOYEES INSURANCE COMPANY'S MOTION FOR PRO HAC VICE ADMISSION

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

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF FCA US LLC?S DEMURRER TO PLAINTIFFS? COMPLAINT

12/30/2016: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF FCA US LLC?S DEMURRER TO PLAINTIFFS? COMPLAINT

NOTICE OF CASE MANAGEMENT CONFERENCE

2/6/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

NOTICE OF CONTINUED HEARING OF DEFENDANT, FCA US LLC'S DEMURRER TO PLAINTIFFS' COMPLAINT

2/7/2017: NOTICE OF CONTINUED HEARING OF DEFENDANT, FCA US LLC'S DEMURRER TO PLAINTIFFS' COMPLAINT

CIVIL DEPOSIT

2/10/2017: CIVIL DEPOSIT

Unknown

2/14/2017: Unknown

Unknown

2/15/2017: Unknown

GEICO INDEMNITY COMPANY AND GEICO GENERAL INSURANCE COMPANY'S NOTICE OF POSTING JURY FEES

2/15/2017: GEICO INDEMNITY COMPANY AND GEICO GENERAL INSURANCE COMPANY'S NOTICE OF POSTING JURY FEES

NOTICE OF CASE MANAGEMENT CONFERENCE

2/15/2017: NOTICE OF CASE MANAGEMENT CONFERENCE

ORDER ON GEICO'S MOTION FOR PRO HAC VICE ADMISSION OF SHEILA CARMODY

2/22/2017: ORDER ON GEICO'S MOTION FOR PRO HAC VICE ADMISSION OF SHEILA CARMODY

DEFENDANT U-HAUL INTERNATIONAL, INC.'S RESPONSE TO PLAINTIFFS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF KEVIN T. SCOFIELD

2/27/2017: DEFENDANT U-HAUL INTERNATIONAL, INC.'S RESPONSE TO PLAINTIFFS' EVIDENTIARY OBJECTIONS TO THE DECLARATION OF KEVIN T. SCOFIELD

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: REPLY IN SUPPORT OF DEFENDANT UHAUL INTERNATIONAL, INC.'S MOTION TO COMPEL ARBITRATION AND FOR ORDER STAYING THE ACTION PENDING COMPLETION OF THE ARBITRATION

DEFENDANT U-HAUL INTERNATIONAL, INC.'S RESPONSE TO PLAINTIFFS' EVIDENTIARY OBJECTIONS TO EXHIBITS SUBMITTED IN SUPPORT OF MOTION TO COMPEL 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

Minute Order

3/6/2017: Minute Order

62 More Documents Available

 

Docket Entries

  • 05/01/2019
  • Substitution of Attorney; Filed by FCA US LLC (Defendant)

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  • 04/18/2019
  • at 08:30 AM in Department 31, Yolanda Orozco, Presiding; Status Conference - Not Held - Continued - Stipulation

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  • 04/18/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 02/22/2019
  • at 10:00 AM in Department 31, Yolanda Orozco, Presiding; Non-Appearance Case Review - Held

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  • 02/22/2019
  • Minute Order ( (Non-Appearance Case Review)); Filed by Clerk

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  • 02/19/2019
  • 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)

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  • 12/21/2018
  • Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 07/18/2018
  • at 08:30 AM in Department 31; Status Conference (Status Conference; Matter continued) -

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  • 07/18/2018
  • Minute order entered: 2018-07-18 00:00:00; Filed by Clerk

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  • 07/18/2018
  • Minute Order

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154 More Docket Entries
  • 10/24/2016
  • Proof of Service of Summons and Complaint

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  • 10/19/2016
  • at 09:30 AM in Department 308; (Order-Complex Determination; Case Determined to be non-Complex) -

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  • 10/19/2016
  • Minute order entered: 2016-10-19 00:00:00; Filed by Clerk

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  • 10/19/2016
  • Minute Order

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  • 10/11/2016
  • Proof of Service (not Summons and Complaint) PROOF OF SERVICE

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  • 10/04/2016
  • Notice and Acknowledgment of Receipt of Summons and Complaint NOTICE AND ACKNOWLEDGMENT OF RECEIPT-CIVIL

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  • 10/04/2016
  • Notice and Acknowledgment of Receipt; Filed by Susan Abusamra-Pixler (Plaintiff); Charles Pixler (Plaintiff)

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  • 08/23/2016
  • Complaint; Filed by Susan Abusamra-Pixler (Plaintiff); Charles Pixler (Plaintiff)

    Read MoreRead Less
  • 08/23/2016
  • SUMMONS

    Read MoreRead Less
  • 08/23/2016
  • PLAINTIFFS COMPLAINT FOR: 1. STRICT PRODUCTS LIABILITY; ETC

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Tentative Rulings

Case Number: BC631370    Hearing Date: July 20, 2020    Dept: 31

DEFENDANT'S MOTION TO SEAL IS GRANTED.

Background

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:

  1. Strict Products Liability;

  2. Negligence;

  3. Breach of Contract;

  4. Breach of the Implied Covenant of Good Faith and Fair Dealing;

  5. Declaratory Relief;

  6. Negligent Infliction of Emotional Distress;

  7. Violation of California Unfair Competition Law; and

  8. Quasi-Contract/Unjust Enrichment.

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. On January 6, 2020, the Court granted Defendant’s motion to confirm arbitration award and denied Plaintiff’s motion to vacate arbitration award. In its January 6, 2020 Minute Order, the Court declined Defendant’s request to seal and ordered Defendant to file a noticed motion or application to seal in conformity with the Rules of Court.

Defendant now seeks to seal certain portions of Exhibit 6 attached to Plaintiff Susan’s (hereinafter “Plaintiff”) Compendium of Exhibits in Support of Petition to Vacate Arbitration Award. Specifically, Defendant moves to seal Exhibit No. 6 – all of Volume 1; pages 479:22-712 of Volume 2; pages 720-760:5, 1049-1057 of Volume 3; pages 1066-1306:21, 1323:13-1411 of Volume 4; pages 1644-1709 of Volume 5; and all pages of Volume 6 of the Reporter’s Transcript of Arbitration Proceedings, dated July 29-31, August 1-2, and August 8 in the matter entitled Susan Abusamra-Pixler, et al. v. U-Haul International, Inc., American Arbitration Association Case No. 01-18-0000-2177.

Legal Standard

California Rules of Court, Rule 2.550(c) states that “[u]nless confidentiality is required by law, court records are presumed to be open.” A party may move to seal records pursuant to California Rules of Court Rules 2.550-2.551. “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (CRC Rule 2.551(b)(1).)

The court may order that a record be filed under seal only if it expressly finds facts that establish:

  1. There exists an overriding interest that overcomes the right of public access to the record;

  2. The overriding interest supports sealing the record;

  3. A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

  4. The proposed sealing is narrowly tailored; and

  5. No less restrictive means exist to achieve the overriding interest.

(CRC Rule 2.550(d).)

Discussion

Defendant moves to seal portions of Exhibit 6 attached to the Compendium of Exhibits in Support of Plaintiff’s Petition to Vacate Arbitration Award filed on December 11, 2019. Defendant argues that the exhibit contains confidential and commercially sensitive information that is competitively sensitive in nature: the design and testing of U-Haul’s products, including confidential design drawings. 

Defendant asserts that Plaintiff agreed that Defendant’s design documents and business processes were confidential information that needed to be protected as evidenced by a stipulated protective order. Arbitrator Cottle entered a Protective Order governing the confidential arbitration. (Kim Decl., Exh. A.) Defendant contends that the Protective Order specifically provides that Plaintiff and Defendant stipulate certain documents and information be deemed “Confidential Material” and not subject to the procedures set forth for designating or objecting to the designation of Confidential:

The parties also hereby stipulate that any of U-Haul International, Inc., or its affiliates' design documents, proprietary business processes, financial and insurance information is deemed Confidential Material pursuant to this Protective Order and the parties have agreed that such documents are not subject to the procedures set forth herein in designating or objecting to the designation of Confidential. Additionally, the parties hereby stipulate that Plaintiffs' personal identifying information, personal health information and insurance information is deemed Confidential Material pursuant to this Protective Order and the parties have agreed that such documents are not subject to the procedures set forth herein in designating or objecting to the designation of Confidential. 

(Kim Decl., Exh. A, ¶ 13.)

Defendant argues that the parties agreed that any material relating to design documents – i.e., engineering, mechanics, R&D, as well as proprietary business processes – was to be deemed Confidential Material. Defendant asserts that portions of Exhibit 6 contain information precisely regarding those subject matters. Defendant contends that, specifically, it seeks to seal the testimony of witnesses who testified regarding design and engineering issues: Craig Libuse, Gene Martindale, James Bertoch, Marco Garcia, Michael Mark Leonard, and David Kling. Defendant argues that these witnesses all testified regarding Defendant’s design, engineering, and other proprietary and commercially sensitive information pertaining to its trailers. Defendant asserts that these matters are automatically Confidential Material subject to the Protective Order.

Defendant also contends that portions of Exhibit 6 should also be sealed because the information refers to Defendant’s proprietary information and all of the requirements set forth under California Rules of Court 2.550(d) have been met here. Citing to Universal City Studios v. Superior Court ((2003) 110 Cal.App.4th 1273, 1285-1286), Defendant argues that competitive harm is an overriding interest that California courts have protected under Rule 2.550(d) by sealing records: “information involves confidential matters relating to the business operations of defendant; public revelation of these matters would interfere with its ability to effectively compete in the marketplace both here in this country and overseas; if made available to the public, there is a substantial probability that their revelation would prejudice the foregoing legitimate interests of defendant; an order sealing [the documents] is narrowly tailored; and other than sealing, no less restrictive means exists to protect defendant's legitimate proprietary interests.” (Id. at 1286.)

Defendant asserts that it has established the existence of an overriding interest the overcomes the right of public access. Defendant contends that the information referenced in Exhibit 6 is directly related to the subject trailer at issue, including its mechanics, engineering, testing, and other related data, which gives it a competitive edge in the marketplace. (Kim Decl. ¶ 3.) Defendant argues that on that basis, there is a substantial likelihood that the disclosure of such information will have an adverse effect on Defendant’s competitive position in the rental industry and is therefore prejudicial to Defendant because its adversaries can take that information for their own commercial use. Defendant asserts that the public’s right to access such confidential proprietary information is weak because such information is not otherwise publicly available.

Defendant contends that the requested order is narrowly tailored and the least restrictive means to protect its overriding interest in maintaining the confidentiality of these documents. Defendant argues that it only asks that the Court seal portions of Exhibit 6 and not the entire transcript.

In opposition, Plaintiff first argues that Defendant’s motion fails to satisfy the requirements by Rules 2.550 and 2.551 because the motion is not supported by a proper declaration. Plaintiff asserts that instead, Defendant’s counsel’s declaration contains only three conclusory paragraphs with no facts whatsoever to justify sealing. Plaintiff contends that additionally, Defendant has failed to make a single factual showing of any overriding interest that would overcome the right of public access, any factual showing of an overriding interest that would support sealing the record, or any factual showing that a substantial probability exists that an overriding interest would be prejudiced if the record is not sealed. Plaintiff argues that Defendant makes no effort to demonstrate why its proposed sealing is narrowly tailored, or why there are no less restrictive means to achieve the overriding interest. Plaintiff asserts that the “Proposed Exhibit 6” contains more than 1,300 pages of an approximately 1,950- page record that are entirely black and marked in bold letters “REDACTED.” Plaintiff contends that trying to seal more than 70% of the record clearly cannot be narrowly tailored as mandated by California Rules of Court, Rule 2.550(d)(4).

Plaintiff argues that Defendant’s arbitration agreement, the document which controlled the arbitration proceeding, nowhere states that the arbitration proceeding is either a confidential arbitration or that the arbitration is a private arbitration. (Akaragian Decl., Exh. 1.) Plaintiff asserts that, in fact, while the agreement does provide for the option of confidentiality, the parties here only agreed to a Protective Order which would govern the discovery in the arbitration, not the arbitration hearing. 

As to Defendant’s attempts to seal the arbitration testimony of Gene Martindale, James Bertoch, Marco Garcia, Michael Leonard, and David King, Plaintiff contends that each had their depositions taken but Defendant never designated any of their testimony confidential. Plaintiff argues that if Defendant truly believed that their testimony included or referred to any Confidential Material, then Defendant would have directed that an appropriate confidentiality legend be affixed to the deposition transcripts. Plaintiff asserts that for Defendant to now claim that their arbitration testimony is confidential is contradictory and inconsistent with its conduct during the litigation.

In reply, Defendant argues that Plaintiff did not cite to any portions of the testimony that she asserts are not Confidential. Defendant asserts that it is entitled to seal 100% of the private and confidential information that Plaintiff improperly filed in the public record pursuant to Rule 2.550(e). Defendant contends that moreover, Plaintiff’s argument that Defendant did not designate certain deposition transcripts as confidential ignores the Protective Order that indicates there was no need to do so because the testimony involved testimony that Plaintiff agreed was confidential without need to be marked or designated: engineering information regarding the subject trailer at issue, including its mechanics, engineering, testing, and other related data. 

The Court finds that there exists an overriding interest in the confidentiality of the testimony relating to the design and testing of Defendant’s products given its proprietary nature, that the overriding interest supports sealing the record, and that a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed.

As noted above, competitive harm may serve as an overriding interest that overcomes the right of public access to the record. Moreover, Defendant notes, and Plaintiff does not dispute, that the information is already subject to a protective order entered in the arbitration proceeding, which supports the conclusion that the documents should be sealed. (See, e.g., Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 484 [“As a practical matter, this has meant documents subject to a protective order often remain outside public purview on a ‘good cause’ showing akin to that which supported issuance of the protective order in the first place.”] [citing Phillips v. General Motors Corp. (9th Cir.2002) 307 F.3d 1206, 1213 [“When a court grants a protective order for information produced during discovery, it already has determined that ‘good cause’ exists to protect this information from being disclosed to the public by balancing the needs for discovery against the need for confidentiality.”]].) Additionally, the “enforcement of binding contractual obligations not to disclose” can form the basis of an order to seal. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1207 fn. 46.) Here, the protective order that was entered in the arbitration proceeding was stipulated to by both parties. 

The Court further finds that the proposed sealing is narrowly tailored in that only portions of Exhibit 6 relating to the design and testing of Defendant’s products which contain testimony of six witnesses are to be sealed rather than the entire transcript. The Court finds that no less restrictive means exists to achieve the overriding interest.

Based on the foregoing, Defendant’s motion to seal is GRANTED.

Conclusion

The parties are strongly encouraged to attend all scheduled hearings virtually. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LAConnect technology. The parties are strongly encouraged to use LAConnect. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Moving party to give notice.

Case Number: BC631370    Hearing Date: January 06, 2020    Dept: 31

PETITION TO VACATE ARBITRAL AWARD IS DENIED; PETITION TO CONFIRM ARBITRAL AWARD IS GRANTED.

Background

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:

  1. Strict Products Liability;

  2. Negligence;

  3. Breach of Contract;

  4. Breach of the Implied Covenant of Good Faith and Fair Dealing;

  5. Declaratory Relief;

  6. Negligent Infliction of Emotional Distress;

  7. Violation of California Unfair Competition Law; and

  8. Quasi-Contract/Unjust Enrichment.

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.

Legal Standard

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).)

Discussion

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.

Conclusion

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.

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