This case was last updated from Los Angeles County Superior Courts on 11/13/2020 at 11:52:24 (UTC).

POLARIS CENTRAL PARK, INC. VS BEL AIR INTERNET, LLC

Case Summary

On 05/29/2020 POLARIS CENTRAL PARK, INC filed an Other - Arbitration lawsuit against BEL AIR INTERNET, 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 MONICA BACHNER. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1783

  • Filing Date:

    05/29/2020

  • Case Status:

    Other

  • Case Type:

    Other - Arbitration

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Petitioner

POLARIS CENTRAL PARK INC.

Respondent

BEL AIR INTERNET LLC

Attorney/Law Firm Details

Petitioner Attorney

MEYERS WILLIAM A.

Respondent Attorneys

DODELL HERBERT L

DODELL HERBERT L.

MOSS JONATHAN DAVID

 

Court Documents

Judgment - JUDGMENT JUDGMENT [PROPOSED]

11/10/2020: Judgment - JUDGMENT JUDGMENT [PROPOSED]

Association of Attorney

11/10/2020: Association of Attorney

Minute Order - MINUTE ORDER (HEARING REGARDING OBJECTION TO PROPOSED JUDGMENT)

11/10/2020: Minute Order - MINUTE ORDER (HEARING REGARDING OBJECTION TO PROPOSED JUDGMENT)

Minute Order - MINUTE ORDER (COURT ORDER)

10/27/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/27/2020

10/27/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/27/2020

Response - RESPONSE TO OBJECTION OF RESPONDENT BEL AIR INTERNET, LLC TO [PROPOSED] JUDGMENT

10/19/2020: Response - RESPONSE TO OBJECTION OF RESPONDENT BEL AIR INTERNET, LLC TO [PROPOSED] JUDGMENT

Minute Order - MINUTE ORDER (COURT ORDER)

10/20/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/20/2020

10/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/20/2020

Objection - OBJECTION TO PETITIONER'S JUDGMENT [PROPOSED]

10/9/2020: Objection - OBJECTION TO PETITIONER'S JUDGMENT [PROPOSED]

Memorandum of Costs (Summary)

10/8/2020: Memorandum of Costs (Summary)

Declaration - DECLARATION OF WILLIAM A. MEYERS RE CALCULATION OF PREJUDGMENT INTEREST

10/1/2020: Declaration - DECLARATION OF WILLIAM A. MEYERS RE CALCULATION OF PREJUDGMENT INTEREST

Motion for Attorney Fees

10/1/2020: Motion for Attorney Fees

Declaration - DECLARATION OF WILLIAM A. MEYERS ISO MOTION FOR ATTORNEYS' FEES

10/1/2020: Declaration - DECLARATION OF WILLIAM A. MEYERS ISO MOTION FOR ATTORNEYS' FEES

Notice of Ruling

9/22/2020: Notice of Ruling

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

9/21/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Order - RULING

9/21/2020: Order - RULING

Minute Order - MINUTE ORDER (PETITION OF PETITIONER, POLARIS CENTRAL PARK, INC., TO CONFIR...)

9/21/2020: Minute Order - MINUTE ORDER (PETITION OF PETITIONER, POLARIS CENTRAL PARK, INC., TO CONFIR...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/21/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

26 More Documents Available

 

Docket Entries

  • 01/15/2021
  • Hearing01/15/2021 at 09:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Attorney Fees

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  • 11/10/2020
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Hearing - Other (Regarding Objection to Proposed Judgment) - Held

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  • 11/10/2020
  • DocketAssociation of Attorney; Filed by Bel Air Internet, LLC (Respondent)

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  • 11/10/2020
  • DocketJudgment; Filed by Polaris Central Park, Inc. (Petitioner)

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  • 11/10/2020
  • DocketMinute Order ( (Hearing Regarding Objection to Proposed Judgment)); Filed by Clerk

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  • 10/27/2020
  • Docketat 11:40 AM in Department 71, Monica Bachner, Presiding; Court Order

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  • 10/27/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 10/27/2020
  • DocketCertificate of Mailing for ((Court Order) of 10/27/2020); Filed by Clerk

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  • 10/22/2020
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Case Management Conference - Not Held - Advanced and Vacated

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  • 10/20/2020
  • Docketat 1:41 PM in Department 71, Monica Bachner, Presiding; Court Order

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26 More Docket Entries
  • 06/12/2020
  • DocketResponse to Petition; Filed by Bel Air Internet, LLC (Respondent)

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  • 06/12/2020
  • DocketDeclaration (of Herbert Dodell in Support of Response to Petition to Confirm Contractual Arb Award); Filed by Bel Air Internet, LLC (Respondent)

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  • 06/08/2020
  • DocketCertificate of Mailing for ([Notice of Case Management Conference]); Filed by Clerk

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  • 06/02/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 05/29/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 05/29/2020
  • DocketDeclaration (Meyers Decl iso Petition to Confirm Arb Award); Filed by Polaris Central Park, Inc. (Petitioner)

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  • 05/29/2020
  • DocketSummons (on Petition); Filed by Polaris Central Park, Inc. (Petitioner)

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  • 05/29/2020
  • DocketMemorandum (Memo of P's and A's iso Petition to Confirm Arb Award); Filed by Polaris Central Park, Inc. (Petitioner)

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  • 05/29/2020
  • DocketCivil Case Cover Sheet; Filed by Polaris Central Park, Inc. (Petitioner)

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  • 05/29/2020
  • DocketPetition to Confirm Arbitration Award; Filed by Polaris Central Park, Inc. (Petitioner)

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Tentative Rulings

Case Number: *******1783    Hearing Date: September 21, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

POLARIS CENTRAL PARK, INC.,

vs.

BEL AIR INTERNET, LLC

Case No.: *******1783

Hearing Date: September 21, 2020

Petitioner Polaris Central Park, Inc.’s petition to confirm the arbitration award is granted.

Respondent Bel Air Internet LLC’s request the arbitration award be vacated is denied.

Petitioner Polaris Central Park, Inc. (“Petitioner”) petitions the Court to confirm the final arbitration award (the “Final Award”) rendered by the Arbitrator, the Honorable Gail A. Andler (Ret.), (“Arbitrator”) against Respondent Bel Air Internet, LLC (“Respondent”) and to enter judgment in accordance therewith, in favor of Petitioner and against Respondent. (Petition; Memorandum of Points and Authorities (“Motion”), pgs. 1-3.) Petitioner also requests an award of attorneys’ fees in connection with filing the petition to confirm the arbitration award and with bringing the instant motion as well as prejudgment interest under Civil Code ;3287(a) from the date of the Award in an amount according to proof. (Motion, pgs. 2, 9; Petition, Items 10(d), (e), (f).)

Background

The arbitration hearing was conducted on December 6, 9, and 10, 2019 at the Los Angeles Office of JAMS. (Decl. of Meyers ¶5.) On February 12, 2020, the Arbitrator issued an Interim Award in which the Arbitrator found Petitioner had established its cause of action for breach of the promissory note and was entitled to $67391.07 ($361,391.07 owed offset by $294,000 in fraud damages) and Respondent had established its cause of action for intentional misrepresentation and concealment in its counterclaim and was entitled to no net recovery in light of the offset. (Decl. of Meyers ¶7, Exh. B (“Interim Award”), pgs. 23-24.) In support of the $294,000 offset for fraud damages to Respondent, the Arbitrator calculated the damages based on $150,000 in contract losses ($50,000 per year for three years) plus $144,000 in DISH revenue losses ($48,000 per year for three years) based on testimony of Terry Koosed (“Koosed”), Respondent’s CEO. (Interim Award, pgs. 4, 23.) The Interim Award set a briefing schedule to determine the award of prejudgment interest and attorney fees and costs and instructed the parties to include a calculation of prejudgment interest. (Interim Award, pg. 24.) The final paragraph of the Interim Award provides as follows: “The determinations to be made at any future hearing or pursuant to written submissions shall be embodied in a Final Award which shall also incorporate the contents of the Interim Awards. It is not intended that this Interim Award be subject to review either pursuant to 9 U.S.C. ;; 9, 10 or [C.C.P. ;;1284, 1285].”

On February 19, 2020, Petitioner filed a Motion to Correct and Reconsider Calculation of Fraud Damages in the Interim Award (“Motion to Correct”), to which Respondent responded on March 4, 2020, to which Petitioner replied on March 6, 2020, and which the Arbitrator denied on the grounds it was not a motion to correct a computational error in the damages. (Decl. of Meyers ¶6, Exh. A, pg. 4.) On March 20, 2020, the parties filed their respective briefs for an award of attorneys’ fees, costs, and prejudgment interest, on March 27, 2020, they filed their respective oppositions, and on April 3, 2020, they filed their respective replies. (Decl. of Meyers ¶6, Exh. A, pg. 4.)

On May 1, 2020, the Arbitrator issued the Final Award, which was served on all parties on May 1, 2020. (Decl. of Meyers ¶6, Exh. A (“Final Award”).) The Final Award noted the Interim Award was not a Partial Final Award or Final Award and the Interim Award did not include a determination of all questions submitted to determine the controversy submitted by the parties and expressly reserved the Arbitrator’s jurisdiction. (Final Award, pg. 4.) Contrary to the Arbitrator’s conclusion in the Interim Award, in the Final Award the Arbitrator found Respondent failed to establish its intentional misrepresentation and concealment causes of action in its counterclaim for failure to prove damages. (Final Award, pgs. 20, 23-27.) Specifically, the Final Award concluded Respondent did not present competent evidence at the arbitration hearing of the fair market value of what it received and Respondent’s testimonial and documentary evidence on “lost revenue for three years” is not recoverable damages as a matter of law as such evidence did not take into account Respondent’s avoided expenses. (Final Award, pg. 26; citing Kuffel v. Seaside Oil Co. (1970) 11 Cal.App.3d 354, 366.) The Final Award acknowledged it differed from the Interim Award on the determination of fraud damages, which was based upon the Arbitrator’s further reflection on the applicable law for fraud damages pursuant to the Asset Purchase Agreement ;11.12, the Promissory Note, JAMS Rules 24(c) and 4, and California law. (Final Award, pg. 27.)

On May 8, 2020, Respondent filed an application to correct the Final Award under C.C.P. ;1284 and a request to correct the Award under JAMS Rule 24(j). (Decl. of Meyers ¶14, Exh. H.) Petitioner filed an objection to Respondent’s application and request on May 15, 2020. (Decl. of Meyers ¶15, Exh. I.) On May 19, 2020, the Arbitrator denied Respondent’s application and request to correct the Final Award. (Decl. of Meyers ¶16, Exh. J.)

On May 29, 2020, Petitioner filed its petition to confirm arbitration award, the supporting Motion, and supporting Declaration of William A. Meyers (“Meyers”) with attached exhibits. On June 12, 2020, Respondent filed a Response to Petition to Confirm Contractual Arbitration Award Requesting Award Be Vacated (“Response”) and a supporting declaration of Herbert Dodell (“Dodell”). On June 24, 2020, Petitioner filed a Response and Opposition to Respondent’s Request to Vacate (“Response/Reply”) and a supporting Supplemental Declaration of Meyers. On July 6, 2020, Respondent filed an Objection to Petitioner’s Response/Reply. On July 10, 2020, Petitioner filed a Response to Respondent’s Objection (“Sur-Reply”) with an additional Declaration of Meyers.

Petition to Confirm Arbitration Award

C.C.P. ;1285.4 provides, as follows:

A petition under this chapter shall:

(a)

(b)

(c)

Petitioner complied with C.C.P. ;1285.4. Petitioner set forth the substance of the agreement to arbitrate and attached copies of the Asset Purchase Agreement, which includes an agreement to arbitrate set forth in Section 11.12, executed by Petitioner and Respondent. (Motion, pg. 5; Petition, Attachment 4b, Section 11.12; Decl. of Meyers ¶3.) Petitioner also identified the arbitrator as the Honorable Gail A. Andler (Ret.). (Petition, Item 6; Motion, pg. 5; Decl. of Meyers ¶4.) Additionally, Petitioner attached copies of the Award to the petition and motion. (Petition, Attachment 8(c); Final Award.) The Arbitrator found in favor of Petitioner and against Respondent, as follows: (1) Petitioner established its cause of action for breach of the Promissory Note and is entitled to an award of $603,792.46, consisting of $361,391.07 in damages on the Note, plus $195,815 in attorneys’ fees, plus $35,986 in costs, plus $10,599.55 in prejudgment interest, to be paid by Respondent; and (2) Respondent failed to establish its Amended Counterclaim causes of action for breach of contract and intentional misrepresentation and concealment, and shall take nothing. (Final Award, pgs. 29-30.) Accordingly, the total amount awarded in the Award is $603,792.46.

Petitioner is also entitled to an award of statutory prejudgment interest on the amount issued by the Arbitrator. (See Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1106-1107.) However, Petitioner has not submitted a calculation of the prejudgment interest it seeks. As such, Petitioner’s request is unsupported. As the prevailing party, Petitioner is also entitled to reasonable attorneys’ fees and costs incurred in connection with filing the instant motion to confirm the arbitration award as well as those awarded by the Arbitrator. (C.C.P. ;1293.2; Civil Code ;1717; See Corona v. Amherst Partners (2003) 107 Cal.App.4th 701, 707.) However, Petitioner submits no support for attorneys’ fees and costs incurred from May 1, 2020, and the Petition only requests the Court award fees and costs “according to proof.” (Petition, pg. 3.)

Request to Vacate Arbitration Award

C.C.P. ;1285.2 provides that a response to a petition to confirm an arbitration award may do any of the following: (1) request the Court dismiss the petition; (2) request the Court confirm the award; (3) request the Court correct the award; or (4) request the Court vacate the award.

In response, Respondent requests the Court vacate the Award because the Arbitrator exceeded her powers in contravention of the rules and the scheduling order and the Award cannot be corrected without affecting the merits upon the controversy submitted, or alternatively, because Respondent’s rights were substantially prejudiced by the Arbitrator’s conduct contrary to the provisions of Title 9 of the Code of Civil Procedure. (Notice of Response, pg. i; Response, pgs. 10-15.)

C.C.P. ;1286.2(a) provides as follows:

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

. . .

(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 … conduct of the

arbitrators contrary to the provisions of this title….

C.C.P. ;1282.2(g) states: “If a neutral arbitrator intends to base an award upon information not obtained at the hearing, he shall disclose the information to all parties to the arbitration and give the parties an opportunity to meet it.”

The date the Arbitrator denied Respondent’s Motion to Correct the Award is the date of service of the Award pursuant to C.C.P. ;1284, and as such Respondent’s request to vacate the award is timely under C.C.P. ;;1286.4, 1288.8.

Respondent is not entitled to an order vacating the Award. Respondent argues that once the Arbitrator issued the Interim Award, which actually constituted a Partial Final Award, she was not authorized to amend the Interim Award’s determination of the issues submitted for decision in the first phase of the arbitration proceedings. (Response, pgs. 12-13.) Respondent’s assertion that the Interim Award actually constituted a Partial Final Award is without merit; the Arbitrator explicitly set forth that the Interim Award was an Interim Award not subject to the Court’s review pursuant to C.C.P. ;;1284 or 1285. (Interim Award, pg. 24; See Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 550 [“Any doubts as to the meaning or extent of an arbitration award are for the arbitrators and not the court to resolve.”].) In addition, Respondent does not cite to sufficient authority supporting its position that in amending an Interim Award, the Arbitrator exceeded her powers in contravention of the JAMS Rules or the authority granted her by the parties. First, Respondent’s assertion the JAMS rules necessarily incorporate the Scheduling Order is unsupported. Rather, the Scheduling Order only states that the JAMS rules shall apply and the applicable substantive law is the law of the State of California. (Decl. of Dodell, Exh. 1 (“Scheduling Order”), pg. 3, ;5.)

Respondent’s argument the Arbitrator’s Scheduling Order limited her own ability to amend the Interim Award following the first stage of the proceedings is not supported in the Scheduling Order itself, which only sets forth the scheduling of the bifurcation of issues and notes the matter will be submitted upon receipt of the last filing; moreover, the Scheduling Order permits the Arbitrator to Amend its terms. (Response, pg. 12; Scheduling Order, pgs. 4, 5, ;;9(b), 11(b).) Respondent appears to assert the Arbitrator’s changes to the Interim Award’s findings as to Respondent in the Final Award exceeded authority granted to her by the parties because the Arbitrator was only permitted to address the remaining issue in the second phase of arbitration, namely, the award of attorneys’ fees, costs, and prejudgment interest. (Response, pg. 2.) However, this argument fails to address how in so doing, the Arbitrator exceeded the authority granted her by the parties. The Interim Award was not a final or partial final award; the JAMS Rules distinguish an “interim” Award from a Partial and Final Award. (Decl. of Dodell ¶3, Exh. 2 (“JAMS Rules”), pgs. 26-27, Rule 24(d) [“In addition to a Final Award or Partial Final Award, the Arbitrator may make other decisions, including interim or partial rulings, orders and Awards.]; Rule 24(e) [Permits an Arbitrator to “grant whatever interim measures are deemed necessary”].) Moreover, the Interim Award by its terms was not a final determination of all issues decided therein and in the Final Award, the Arbitrator specifically noted it was made pursuant to the Arbitrator’s jurisdictional authority. (See Interim Award; Final Award, pg. 27.)

Respondent cites to Century City Medical Plaza v. Sperling, Isaacs & Eisenberg (2001) 86 Cal.App.4th 865, 877 (“Century City”) for the position that “the power of an arbitrator to correct an award after it has been issued to the parties is limited to evident miscalculations of figures or descriptions of persons, things or property that do not affect the merits of the controversy…” (Response, pg. 13.) However, the underlying award at issue Century City was not an “interim award;” rather, the award titled the “Award of Arbitrator,” which the arbitrator sought to correct due to the award inadvertently omitting a ruling on a submitted issue. (Century City Medical Plaza v. Sperling, Isaacs & Eisenberg, supra, 86 Cal.App.4th at 870, 877-878.) The holding of Century City applies to an arbitrator’s correction of a final award and is inapplicable to the instant matter that explicitly involved an interim award. The Court finds the Arbitrator did not exceed authority granted to her by the parties in issuing the Final Award.

Respondent also argues the Final Award should be vacated pursuant to C.C.P. ;1286.2(a)(5) based on Respondent’s rights being prejudiced by the Arbitrator basing her award upon information not obtained at the meeting which Respondent did not have the opportunity to meet. (Response, pgs. 14-15.) This argument is based on Respondent’s speculative assertion that Petitioner’s Motion to Correct and unsanctioned reply in support thereof “is closely tracked” in the Arbitrator’s Final Award which “evidences the [A]rbitrator based her decision on this information rather than on the evidence and arguments presented during the arbitration hearing…” (Response, pg. 15.) However, in the Final Award the Arbitrator cites to the evidence presented at the hearing itself that was previously referenced in the Interim Award and that the Arbitrator subsequently determined to be insufficient to establish damages. Moreover, the Final Award’s discussion of Petitioner’s Motion to Correct and Respondent’s opposition thereto does not suggest new facts or evidence were considered in reviewing these filings; rather, the Court considered Petitioner’s legal authority that Respondent’s evidence of its lost revenue was insufficient to establish damages as a matter of law for its failure to take into account Respondent’s avoided expenses. (Final Award, pg. 27.)

Conclusion

Based on the foregoing, Petitioner’s motion to confirm the arbitration award is granted. Respondent’s request to vacate the arbitration award is denied. Petitioner is to submit a proposed judgment within ten days.

Petitioner is also entitled to statutory costs, pursuant to a Cost Memorandum to be filed and attorney's fees, pursuant to Civil Code ; 1717, to be determined by motion. The clerk to insert the amount of costs and attorney's fees onto the judgment after they are determined by the Court.

Dated: September _____, 2020

Hon. Monica Bachner

Judge of the Superior Court


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