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This case was last updated from Los Angeles County Superior Courts on 03/30/2021 at 21:50:00 (UTC).

MARSHALL GELLER VS ST. CLOUD CAPITAL II, LLC ET AL.,

Case Summary

On 10/24/2017 MARSHALL GELLER filed a Contract - Other Contract lawsuit against ST CLOUD CAPITAL II, LLC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MITCHELL L. BECKLOFF. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8258

  • Filing Date:

    10/24/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MITCHELL L. BECKLOFF

 

Party Details

Plaintiff

GELLER MARSHALL

Defendants

SCGP III SBIC LLC

ROZELLE KACY

ST. CLOUD CAPITAL II LLC

SCGP II LLC

LAUTZ ROBERT

ST. CLOUD CAPITAL III SBIC LLC

HOM BENJAMIN

Attorney/Law Firm Details

Plaintiff Attorneys

FROST CHRISTOPHER

FROST CHRISTOPHER LYNN

AUSTIN RYAN DOW

Defendant Attorneys

PILLSBURY & WINTHROP

DYER AARON STUART

VANDERFORD RYAN JOSEPH

 

Court Documents

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ARBITRATION)

12/10/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ARBITRATION)

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ARBITRATION)

3/18/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ARBITRATION)

Declaration - DECLARATION OF AARON S. DYER IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

5/12/2020: Declaration - DECLARATION OF AARON S. DYER IN SUPPORT OF MOTION TO CONFIRM ARBITRATION AWARD

Motion re: - MOTION RE: TO CONFIRM ARBITRATION AWARD

5/12/2020: Motion re: - MOTION RE: TO CONFIRM ARBITRATION AWARD

Declaration - DECLARATION DECLARATION OF RYAN J. VANDERFORD ISO DEFENDANTS' CONSOLIDATED (1) REPLY IN SUPPORT OF THEIR MOTION TO CONFIRM ARBITRATION AWARD AND ENTER JUDGMENT THEREON, AND (2) OPPOSITIO

9/23/2020: Declaration - DECLARATION DECLARATION OF RYAN J. VANDERFORD ISO DEFENDANTS' CONSOLIDATED (1) REPLY IN SUPPORT OF THEIR MOTION TO CONFIRM ARBITRATION AWARD AND ENTER JUDGMENT THEREON, AND (2) OPPOSITIO

Reply - REPLY REPLY IN SUPPORT OF OPPOSITION

10/6/2020: Reply - REPLY REPLY IN SUPPORT OF OPPOSITION

Notice - NOTICE NOTICE OF LACOURTCONNECT VIDEO APPEARANCE

10/9/2020: Notice - NOTICE NOTICE OF LACOURTCONNECT VIDEO APPEARANCE

Request for Dismissal

1/29/2021: Request for Dismissal

Complaint

10/24/2017: Complaint

Legacy Document - LEGACY DOCUMENT TYPE: Stipulation and Order

12/14/2017: Legacy Document - LEGACY DOCUMENT TYPE: Stipulation and Order

Minute Order - Minute order entered: 2017-12-14 00:00:00

12/14/2017: Minute Order - Minute order entered: 2017-12-14 00:00:00

Legacy Document - LEGACY DOCUMENT TYPE: Notice

12/22/2017: Legacy Document - LEGACY DOCUMENT TYPE: Notice

Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

1/17/2018: Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

1/17/2018: Legacy Document - LEGACY DOCUMENT TYPE: Proof-Service/Summons

Minute Order - Minute order entered: 2018-04-13 00:00:00

4/13/2018: Minute Order - Minute order entered: 2018-04-13 00:00:00

Notice of Continuance - Notice of Continuance STATUS CONFERENCE RE: ARBITRATION

10/16/2018: Notice of Continuance - Notice of Continuance STATUS CONFERENCE RE: ARBITRATION

Notice of Case Reassignment and Order for Plaintiff to Give Notice

11/30/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ARBITRATION;)

4/16/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE ARBITRATION;)

37 More Documents Available

 

Docket Entries

  • 02/04/2021
  • Docketat 08:30 AM in Department M; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Vacated by Court

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  • 01/29/2021
  • DocketRequest for Dismissal; Filed by MARSHALL GELLER (Plaintiff)

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  • 10/30/2020
  • Docketat 08:30 AM in Department M; Hearing on Motion to Vacate (Motion to Vacate Arbitration Award) - Not Held - Rescheduled by Court

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  • 10/14/2020
  • Docketat 08:30 AM in Department M; Hearing on Motion to Vacate (Motion to Vacate Arbitration Award) - Not Held - Vacated by Court

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  • 10/14/2020
  • Docketat 08:30 AM in Department M; Hearing on Motion - Other (Confirm Arbitration Award) - Not Held - Vacated by Court

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  • 10/14/2020
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by Clerk

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  • 10/13/2020
  • DocketNotice of Settlement; Filed by ST. CLOUD CAPITAL II, LLC (Defendant); ST. CLOUD CAPITAL III SBIC, LLC (Defendant); SCGP II, LLC (Defendant) et al.

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  • 10/13/2020
  • DocketNotice of Settlement; Filed by MARSHALL GELLER (Plaintiff)

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  • 10/09/2020
  • DocketNotice (Notice of LACourtConnect Video Appearance); Filed by ST. CLOUD CAPITAL II, LLC (Defendant); ST. CLOUD CAPITAL III SBIC, LLC (Defendant); SCGP II, LLC (Defendant) et al.

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  • 10/06/2020
  • DocketReply (Reply In Support Of Opposition); Filed by MARSHALL GELLER (Plaintiff)

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52 More Docket Entries
  • 12/14/2017
  • Docketat 08:30 AM in Department M; Non-Appearance Case Review (Non-Appearance (Case Review); Court Makes Order) -

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  • 12/14/2017
  • Docketat 08:30 am in Department WEM, Mitchell L. Beckloff, Presiding; Non-Appearance (Case Review) - Court Makes Order

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  • 12/14/2017
  • DocketStipulation and Order; Filed by ST. CLOUD CAPITAL II, LLC (Defendant); ST. CLOUD CAPITAL III SBIC, LLC (Defendant); SCGP II, LLC (Defendant) et al.

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  • 12/14/2017
  • DocketMinute order entered: 2017-12-14 00:00:00; Filed by Clerk

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  • 12/14/2017
  • DocketStipulation and Order (TO STAY ACTION PENDING BINDING ARBITRATION; ); Filed by Attorney for Defendant

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  • 10/24/2017
  • DocketSummons Filed; Filed by Attorney for Plaintiff

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  • 10/24/2017
  • DocketCivil Case Cover Sheet

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  • 10/24/2017
  • DocketComplaint Filed

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  • 10/24/2017
  • DocketSummons; Filed by Plaintiff

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  • 10/24/2017
  • DocketComplaint; Filed by MARSHALL GELLER (Plaintiff)

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Tentative Rulings

Case Number: SC128258    Hearing Date: October 14, 2020    Dept: M

CASE NAME: Marshall Geller v. St. Cloud Capital II, LLC et al

CASE NUMBER: SC128258

MOTION: Petitions to Confirm/Vacate the Arbitration Award

HEARING DATE: 10/14/2020

Background

On May 12, 2020, St. Cloud Capital II, LLC; St. Cloud Capital III SBIC, LLC; SCGP II, LLC; SCGP III SBIC, LLC; Kacy Rozelle; Benjamin Hom; and Robert Lautz (“Petitioners” or “Defendants”) filed a petition seeking an order to confirm the arbitration award. On August 7, 2020, Marshall Geller filed a petition to vacate the arbitration pursuant to Code of Civil Procedure section 1286.2, subdivisions (a)(3), (5)-(6). Geller argues that the arbitrator was biased against him under section 1286.2(a)(6). Geller also argues that the arbitrator engaged in misconduct and/or that Geller’s rights were prejudiced by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrator contrary to the provisions of this title.

Legal standard

“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.” (Code Civ. Proc., §1285.) The petition must “(a) [s]et 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. [and] (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” (Code Civ. Proc., § 1285.4.) The petition must also “name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) A petition to confirm an award must be served and filed within four years after the date the petitioner was served with a signed copy of the award. (Code Civ. Proc., § 1288.)

“A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.” (Code Civ. Proc., § 1285.2.) A response shall, “[u]nless a copy thereof is set forth in or attached to the petition . . .(a) [s]et forth the substance of or have attached a copy of the agreement to arbitrate unless the respondent denies the existence of such an agreement[;] (b) [s]et forth the names of the arbitrators[;] [or] (c) [s]et forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” (Code Civ. Proc., § 1285.6 [emphasis added].)

“A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Code Civ. Proc., § 1288.)

When a petition to confirm an award is filed, the superior court has four courses of conduct available: to confirm the award, to correct and confirm it, to vacate it, or to dismiss the petition. (Cooper v. Lavely & Singer Professional Corp. (2014) 230 Cal.App.4th 1, 10.) Arbitration awards are subject to very limited judicial review, and the merits of the controversy are not reviewable on a petition to confirm, vacate, or correct. (Cinel v. Christopher (2012) 203 Cal.App.4th 759, fn 5.)

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 party 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 either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (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. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.” (Code Civ. Proc., § 1286.2(a).)

“If an award is confirmed, judgment shall be entered in conformity therewith. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action of the same jurisdictional classification; and it may be enforced like any other judgment of the court in which it is entered, in an action of the same jurisdictional classification.” (Code Civ. Proc., § 1287.4.)

Analysis

Defendants filed a petition to confirm the arbitration award on May 12, 2020. The “filing [of] a petition to confirm an arbitration award change[s] the timing of . . . [deadlines]. When one side files a petition to confirm the award, the other side must respond within 10 days.” (Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66.) The petition states that the final arbitration award was served on April 28, 2020 electronically. (See Pet. ¶¶ 25-26, Ex. 2.). The petition complies with Code of Civil Procedure section 1285.4. The petition contains a copy of the agreement to arbitrate. (Pet. ¶ 18.) The petition also sets for the name of the arbitrator, Justice John Zebrowski (Ret.) (Pet. 1:4-6.). The petition attached a copy of the award as Exhibit 2.

However, the petition itself does not comply with Code of Civil Procedure section 1285 because the petition fails to name as respondent Plaintiff Geller. Since the petition to confirm the arbitration award is defective, the ten-day deadline to respond to the petition is inapplicable. The petition to vacate the award was filed by Marshall Geller on August 6, 2020. The petition complies with both CCP 1285 and 1285.4.

In his petition, Geller argues that the arbitration award should be vacated for two reasons. First, Geller argues that the arbitrator was actually biased under CCP section 1286.2(a)(6). Second, Geller argues that the arbitrator refused to conform the pleadings to proof offered and such refusal substantially prejudiced Geller pursuant to Code of Civil Procedure section 1286.2(a)(3) and (a)(5).

  1. Whether the arbitrator was actually biased under CCP 1286.2(a)(6)

“Actual bias is not listed as a basis for vacating an arbitration award under Code of Civil Procedure section 1286.2, but subdivision (a)(6) does require a court to vacate an arbitration award if the arbitrator (A) failed to disclose a ground for disqualification or (B) was subject to disqualification. If an arbitrator is actually biased, he or she is subject to disqualification, and the failure to disqualify requires vacating an award under subdivision (a)(6)(B) of section 1286.2.” (Baxter v. Bock (2016) 247 Cal.App.4th 775, 789 fn. 7, as modified (May 24, 2016) [emphasis added].) The language in section 1286.2, subdivision (a)(6) provides that the court shall vacate the award if the court determines any of the following: “An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (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(a) [emphasis added].)

Code of Civil Procedure section 1281.9(c) provides, “The right of a party to disqualify a proposed neutral arbitrator pursuant to this section shall be waived if the party fails to serve the notice pursuant to the times set forth in this section, unless the proposed nominee or appointee makes a material omission or material misrepresentation in his or her disclosure. Except as provided in subdivision (d), in no event may a notice of disqualification be given after a hearing of any contested issue of fact relating to the merits of the claim or after any ruling by the arbitrator regarding any contested matter. Nothing in this subdivision shall limit the right of a party to vacate an award pursuant to Section 1286.2, or to disqualify an arbitrator pursuant to any other law or statute.” (Code Civ. Proc., § 1281.91(c).) The exception is subdivision (d) provides, “If any ground specified in Section 170.1 exists, a neutral arbitrator shall disqualify himself or herself upon the demand of any party made before the conclusion of the arbitration proceeding.” (Code Civ. Proc., § 1281.91(d) [emphasis added].)

Geller argues that the arbitrator was actually biased relying on People v. Burns (1952) 109 Cal.App.2d 524. As recognized by Geller in his petition, Burns occurred in the context of a criminal jury trial. Geller argues that the facts before this court are similar to Burns where the appellate court noted, “the trial judge created an atmosphere of hostility, if not towards the defendant, at least towards his counsel. The judge was highly critical of the latter's actions, most times without justification. Frequently where the district attorney had not objected to the testimony the court would interrupt defendant's examination or cross-examination of a witness and rule that the subject was not admissible. At no time did he so act when the district attorney was examining or cross-examining a witness. While it is true that from time to time the judge admonished the jury that they were the sole judges of the evidence and that they must draw no conclusions as to guilt or innocence from the court's remarks, it is difficult to understand how these admonitions could have overcome the evident attitude of the judge throughout the trial. While there was substantial evidence to support the jury's verdict, it was the type of case, particularly with reference to the degree, which made such attitude of the judge and the erroneous rulings hereafter mentioned prejudicial.” (Burns 109 Cal.App.2d at 542.) After analyzing all of the errors, the court concluded, “[t]aking the sum total of the errors (no one of which, standing alone, probably is sufficiently prejudicial to cause a reversal), coupled with the attitude of the court throughout the trial, an examination of the transcript shows that defendant was denied a fair trial. The hostility evidenced by the court, and its frequent criticism of defendant's counsel (only occasionally merited) in a case which at least on the degree of the crime was a close one, must have had its effect on the jury.” (Id. at 552.).

Burns is distinguishable and inapplicable to this matter. Burns occurred in the context of a criminal jury trial and not an arbitration. Unlike a criminal trial, the Court does not review arbitration rulings for errors. Geller further argues that Baxter does not require that a party was required to demand that the arbitrator disqualify his or herself mid hearing. (See Reply at 4, fn. 2.) However, the plain language of Code of Civil procedure section 1286.2(a)(6)(B) requires such a demand. Under section 1286.2(a)(6)(B), Geller was required to request Justice Zebrowski disqualify himself during the arbitration. Geller has failed to present evidence that he requested or filed a motion for disqualification during the arbitration pursuant to section 1286.2(a)(6)(B). On reply, Geller seemingly admits in a footnote that he did not file such a motion. Geller has failed to meet his burden in showing that vacation is required under section 1286.2(a)(6)(B).

B. Whether Geller has shown that CCP section 1286.2(a)(3) or (a)(5) applies

Code of Civil Procedure section 1286.2(a)(3) requires a court to vacate an award if “[t]he rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.” (Code Civ. Proc., § 1286.2(a)(3). A Court is also required to vacate an arbitration award if it determines “[t]he rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrator[] contrary to the provisions of this title.” (Code Civ. Proc., § 1286.2 (a)(5).)

Geller argues that the arbitrator engaged in misconduct that substantially prejudiced Geller when the arbitrator denied Gellers’ request to amend his claim during trial to add a new theory of lability. Misconduct means “A dereliction of duty; unlawful, dishonest, or improper behavior, esp. by someone in a position of authority or trust. See Misbehavior.” (Misconduct, Black's Law Dictionary (11th ed. 2019).) Misbehavior means “[o]ne or more bad acts that are unacceptable in the eyes of the law or of other people in general” (Misbehaior, Black's Law Dictionary (11th ed. 2019).)

Geller and Defendant disagree as to the applicability of SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181. In SWAB Financial, LLC, the trial court vacated an arbitration award because the court found that the arbitrators should have postponed a hearing to permit plaintiff to amend his claim. (Id. at 1194.) The Court of Appeal held that the “[t]he trial court also had no discretion to vacate the arbitration award based on the arbitrators' disallowance of an amendment.” (Id. at 1201.) “That the arbitrators refused to allow an amendment to introduce new claims into a pending arbitration is not one of the statutory grounds for a trial court's vacation of an arbitration award.” (Id. at 1201–1202.)

Defendants present the transcript where Plaintiff sought to amend his claims during the arbitration based upon an allegedly newly produced document. (See generally Vanderford Decl. ¶ 6, Ex. 3 at 869:14­ – 885:22; see also Ex. G to Frost Decl. [same testimony]) At the hearing, counsel, Mr. Frost, admitted that although the document was “produced” several months before, “[c]andidly, we didn't identify the issue until now . . ..” (See id. at 873:22-25.) Defendants, however, have provided evidence that they had shared this document on November 24, 2017, two years before the arbitration. (See Dyer Decl. ¶ 1, Ex. 1.) Furthermore, Plaintiff did not seek to put in more evidence as he now argues in his motion. (See Tr. 869:24-870:10.) Here, Geller seeks to vacate the arbitration award because he was not allowed to amend his claim to add a new theory. The arbitrator and Plaintiff disagreed as to whether this amendment would lead to new evidence. (See 877:1-878:16, 880:4-881:23 [explaining that the arbitrator cannot determine materiality of a term in a vacuum].) The Court of Appeal held in SWAB Financial LLC that an arbitrator’s disallowance of an amendment is not a reason to vacate an arbitration award. Here, Plaintiff has failed to show misconduct in denying the request to amend the claim. Furthermore, Geller has not shown that Geller’s rights “were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause”, or that the arbitrator “refused to hear evidence material to the controversy” or “other conduct of the arbitrator[] contrary to the provisions of this title.”

The motion to vacate arbitration is denied and the motion to confirm arbitration is granted.

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