R MARIA ARCURI VS CBRE INC

Tentative Rulings

Case Number: BC677400    Hearing Date: December 09, 2019    Dept: 34

SUBJECT: (1) Motion to Vacate Arbitration Award

Moving Party: Plaintiff R Maria Arcuri

Resp. Party: Defendant CBRE, Inc.

(2) Request to Confirm Arbitration Award

Moving Party: Defendant CBRE, Inc.

Resp. Party: Plaintiff R Maria Arcuri

Plaintiff’s motion to vacate the arbitration award is DENIED.

Defendant’s request to confirm the arbitration award is GRANTED.

BACKGROUND:

Plaintiff R Maria Arcuri, an African American woman who was suffering from mental and physical disabilities, was first hired to work for Defendant CBRE, Inc. in August 2006, and worked for Defendant in various locations within California. (Complaint, ¶¶1, 2, 10, 16.) Plaintiff’s employment was terminated on September 30, 2015, after Plaintiff’s’ job titled changed from Client Services Coordinator, Senior Administrative Assistant, Department Administrator to Administrator, Business Services; after Plaintiff made complaints to Defendant about how she was being treated in her work environment; and after Plaintiff returned from a medical leave of absence. (Id. at ¶¶10-18.)

On September 27, 2017, Plaintiff R Maria Arcuri commenced this action against Defendant CBRE, Inc. for (1) employment discrimination in violation of FEHA; (2) failure to accommodate in violation of FEHA; (3) failure to engage in a timely and good faith interactive process in violation of FEHA; (4) harassment in violation of FEHA; (6) failure to prevent/remedy discrimination, harassment, and violation of FEHA; (7) wrongful discharge in violation of public policy; and (8) intentional infliction of emotional distress.

On March 9, 2018, the Court ordered that (1) Plaintiff and Defendant shall proceed to arbitration pursuant to their written agreement and Stipulation to Proceed with Arbitration and Stay Action; and (2) the action between Plaintiff and Defendant is stayed pending the completion of the arbitration between the parties. (03/09/18 Order.)

On July 17, 2019, the Arbitrator served the Ruling and Order on Respondent’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication. (Javanmardi Decl., ¶ 6.)

On October 25, 2019, Plaintiff filed a motion to vacate the arbitrator’s final award and on November 15, 2019, Defendant filed an opposition to Plaintiff’s motion and a request to confirm arbitration award.

ANALYSIS:

A. Relevant Law

Any party to an arbitration in which an award has been made may petition the court to confirm, correct, or vacate the award. (Cal. Code of Civ. Proc. §1285.) When a petition to confirm or vacate 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.) A petition to confirm an arbitrator's award must include: (a) a copy of the agreement to arbitrate; (b) the names of the arbitrators; and (c) a copy of the award and the written opinion of the arbitrators, if any. (See Code Civ. Proc., § 1285.4.)

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 grounds upon which a court may vacate an arbitration award are limited by Code of Civil Procedure section 1286.2. An arbitration award may only be vacated if (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, (5) the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing, hear evidence material to the controversy, or by other conduct of the arbitrators contrary to the provisions of this title, or (6) the arbitrator making the award failed to disclose a ground for disqualification or failed to disqualify himself or herself as required upon receipt of timely demand. (Code of Civ. Proc., §1286.2.)

Specifically, a petition to vacate may be based upon a determination that the “arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(4).) While Code of Civil Procedure section 1286.2 sets forth grounds for vacating an arbitration award, “ ‘[a]n error of law is not one of [those] grounds.’ [Citation.]” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 14.) Other than the grounds provided for vacating an arbitration award provided in Code of Civil Procedure section 1286.2, “an 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.” (Id. at p. 6.) Further, “[i]t is well settled that arbitrators do not exceed their powers merely because they assign an erroneous reason for their decision.” (Id. at p. 28.)

B. Discussion

Plaintiff moves to vacate the final arbitration award “because the Arbitrator [Michael A. Latin (Ret.), in] making the award[,] exceeded his powers pursuant to the parties’ agreement to arbitrate.” (Motion, p. ii:2-9.) Specifically, Plaintiff seeks to vacate the arbitration award on the grounds that “(1) the arbitrator incorrectly ruled that FEHA did not apply to Plaintiff, who was induced to move to Georgia under the guise of a reasonable accommodation, but was terminated from her job in California; (2) the arbitrator incorrectly ruled, as a matter of law, that the Continuing Violations Doctrine did not apply to the adverse employment actions that occurred in 2014 and continued through Plaintiff’s termination; and (3) the arbitrator, after incorrectly deciding FEHA did not apply to Plaintiff, found no triable issues on Plaintiff’s FEHA claims, despite numerous disputed and undisputed facts that raised triable issues of material fact, namely the undisputed evidence that Plaintiff was terminated for no legitimate reason while she was on a medical leave of absence and attempting to return to work for CBRE.” (Id. at p. ii:10-21.)

In opposition, Defendant argues that Plaintiff’s motion “fails to establish that the Award should be vacated on the ground that the Arbitrator exceeded his authority by committing a clear legal error that deprived Plaintiff of her right to a hearing on the merits of her FEHA claims.” (Opp., p. 4:17-19 [citing Code Civ. Proc., § 1286.2, subd. (a)(4)].) Defendant maintains that the motion “fails to demonstrate that the Arbitrator committed any error of law, let alone a ‘clear error of law.’” (Id. at p. 4:19-20.) Defendant asserts that “the gist of the [motion] is a mere restatement of the same arguments that the Arbitrator rejected” and although “Plaintiff may disagree with the Arbitrator’s rulings, there is no valid basis provided for vacating the Award.” (Id. at p. 4:20-23.) Defendant also argues that the motion “fails to establish that the Award should be vacated on the ground that Plaintiff was substantially prejudiced by the Arbitrator’s refusal to hear evidence or by other conduct of the Arbitrator” because the motion does not “demonstrate any refusal by the Arbitrator to consider material evidence or that Plaintiff suffered any prejudice from the Arbitrator’s rulings or other conduct.” (Id. at pp. 4:24-5:2 [citing Code Civ. Proc. § 1286.2(a)(5)].) Defendant requests that the Court deny Plaintiff’s motion to vacate the arbitration and confirm the final arbitration award instead. (Id. at p. 5:3-8.)

Plaintiff cites to Pearson Dental Supplies Inc., v. Superior Court (2010) 48 Cal.4th 665 for the proposition that

“a trial court can properly vacate an arbitrator’s award where ‘a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim.’” (Motion, p. 6:9-12, citing Pearson Dental Supplies Inc., v. Superior Court at pp. 669-670.)

While the quotation is correct, Plaintiff misreads the import of Pearson. In Pearson, the

“arbitrator decided in favor of an employer against the employee on the grounds that the claim was time-barred under the one-year contractual deadline for requesting arbitration. The trial court vacated the award, concluding, as explained below, that the arbitrator had plainly misapplied the relevant tolling statute, Code of Civil Procedure section 1281.12. The Court of Appeal, while agreeing with the trial court that the arbitrator had erred, held nonetheless that such error was not a valid basis for vacating an arbitration award and reversed the trial court.” (Id. at p. 669.)

The Supreme Court continued:

“We conclude that the trial court and Court of Appeal are indeed correct that the arbitrator clearly erred in ruling that the employee's claim was time-barred. We further conclude that under the particular circumstances of this case, in which a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim, the trial court did not err in vacating the award. We therefore reverse the judgment of the Court of Appeal.” (Id. at pp. 669-670.)

The Court found that

“[h]ere, as a result of the arbitrator's clear legal error, plaintiff's claim was incorrectly determined to be time-barred. Indeed, the legal error misconstrued the procedural framework under which the parties agreed the arbitration was to be conducted, rather than misinterpreting the law governing the claim itself. . . .

“We therefore hold that when, as here, an employee subject to a mandatory employment-arbitration agreement is unable to obtain a hearing on the merits of his FEHA claims, or claims based on other unwaivable statutory rights, because of an arbitration award based on legal error, the trial court does not err in vacating the award. Stated in other terms, construing the CAA in light of the Legislature's intent that employees be able to enforce their right to be free of unlawful discrimination under FEHA, an arbitrator whose legal error has barred an employee subject to a mandatory arbitration agreement from obtaining a hearing on the merits of a claim based on such right has exceeded his or her powers within the meaning of Code of Civil Procedure section 1286.2, subdivision (a)(4), and the arbitrator's award may properly be vacated. (Id. at pp. 679–680.)

Unfortunately for Plaintiff, Pearson is not applicable. Here, the arbitrator did not decide against Plaintiff on a procedural issue; rather he reached the merits of Plaintiff’s FEHA claim and found that FEHA did not apply and, alternatively, even if FEHA did apply, Plaintiff was unable to show any triable issues of material fact to show FEHA violations. (See Arbitrator’s Ruling and Order, Exh. E to Sanders Declaration.)

The arbitrator did not exceed his authority by committing clear legal error that deprived Plaintiff of her right to a hearing on the merits of her FEHA claims. Plaintiff has also not established that the arbitrator refused to consider any material evidence in support of her opposition to the motion for summary judgment. Instead, Plaintiff wants this Court to review the merits of Plaintiff’s FEHA claims. This Court takes no position on whether it would have granted or denied defendant’s Motion for Summary Judgment, or, if this Court were sitting as an appellate tribunal, it would affirm or deny the arbitrator’s granting of defendant’s Motion for Summary Judgment. It is not the role of this Court to make such decisions in a motion to vacate an arbitration award. (See Cinel v. Christopher (2012) 203 Cal.App.4th 759, fn 5.)

The Court DENIES Plaintiff’s motion to vacate arbitration award.

The Court finds that Defendant properly requests that the Court confirm the arbitration award. (Code Civ. Proc., § 1285.2 (“[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., § 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.”).) Defendant provides a copy of the agreement to arbitrate; the name of the arbitrator; and a copy of the award and the written opinion of the arbitrator. (See Sanders Decl., Exs. A-C, E.)

As indicated above, there are no grounds to vacate the arbitration award.

The Court GRANTS Defendant’s request to confirm arbitration award.

Case Number: BC677400    Hearing Date: December 06, 2019    Dept: 34

Moving Party: Plaintiff R Maria Arcuri

Resp. Party: Defendant CBRE, Inc.

(2) Request to Confirm Arbitration Award

Moving Party: Defendant CBRE, Inc.

Resp. Party: Plaintiff R Maria Arcuri

Plaintiff’s motion to vacate the arbitration award is DENIED.

Defendant’s request to confirm the arbitration award is GRANTED.

BACKGROUND:

Plaintiff R Maria Arcuri, an African American woman who was suffering from mental and physical disabilities, was first hired to work for Defendant CBRE, Inc. in August 2006, and worked for Defendant in various locations within California. (Complaint, ¶¶1, 2, 10, 16.) Plaintiff’s employment was terminated on September 30, 2015, after Plaintiff’s’ job titled changed from Client Services Coordinator, Senior Administrative Assistant, Department Administrator to Administrator, Business Services; after Plaintiff made complaints to Defendant about how she was being treated in her work environment; and after Plaintiff returned from a medical leave of absence. (Id. at ¶¶10-18.)

On September 27, 2017, Plaintiff R Maria Arcuri commenced this action against Defendant CBRE, Inc. for (1) employment discrimination in violation of FEHA; (2) failure to accommodate in violation of FEHA; (3) failure to engage in a timely and good faith interactive process in violation of FEHA; (4) harassment in violation of FEHA; (6) failure to prevent/remedy discrimination, harassment, and violation of FEHA; (7) wrongful discharge in violation of public policy; and (8) intentional infliction of emotional distress.

On March 9, 2018, the Court ordered that (1) Plaintiff and Defendant shall proceed to arbitration pursuant to their written agreement and Stipulation to Proceed with Arbitration and Stay Action; and (2) the action between Plaintiff and Defendant is stayed pending the completion of the arbitration between the parties. (03/09/18 Order.)

On July 17, 2019, the Arbitrator served the Ruling and Order on Respondent’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication. (Javanmardi Decl., ¶ 6.)

On October 25, 2019, Plaintiff filed a motion to vacate the arbitrator’s final award and on November 15, 2019, Defendant filed an opposition to Plaintiff’s motion and a request to confirm arbitration award.

ANALYSIS:

A. Relevant Law

Any party to an arbitration in which an award has been made may petition the court to confirm, correct, or vacate the award. (Cal. Code of Civ. Proc. §1285.) When a petition to confirm or vacate 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.) A petition to confirm an arbitrator's award must include: (a) a copy of the agreement to arbitrate; (b) the names of the arbitrators; and (c) a copy of the award and the written opinion of the arbitrators, if any. (See Code Civ. Proc., § 1285.4.)

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 grounds upon which a court may vacate an arbitration award are limited by Code of Civil Procedure section 1286.2. An arbitration award may only be vacated if (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, (5) the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing, hear evidence material to the controversy, or by other conduct of the arbitrators contrary to the provisions of this title, or (6) the arbitrator making the award failed to disclose a ground for disqualification or failed to disqualify himself or herself as required upon receipt of timely demand. (Code of Civ. Proc., §1286.2.)

Specifically, a petition to vacate may be based upon a determination that the “arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(4).) While Code of Civil Procedure section 1286.2 sets forth grounds for vacating an arbitration award, “ ‘[a]n error of law is not one of [those] grounds.’ [Citation.]” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 14.) Other than the grounds provided for vacating an arbitration award provided in Code of Civil Procedure section 1286.2, “an 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.” (Id. at p. 6.) Further, “[i]t is well settled that arbitrators do not exceed their powers merely because they assign an erroneous reason for their decision.” (Id. at p. 28.)

B. Discussion

Plaintiff moves to vacate the final arbitration award “because the Arbitrator [Michael A. Latin (Ret.), in] making the award[,] exceeded his powers pursuant to the parties’ agreement to arbitrate.” (Motion, p. ii:2-9.) Specifically, Plaintiff seeks to vacate the arbitration award on the grounds that “(1) the arbitrator incorrectly ruled that FEHA did not apply to Plaintiff, who was induced to move to Georgia under the guise of a reasonable accommodation, but was terminated from her job in California; (2) the arbitrator incorrectly ruled, as a matter of law, that the Continuing Violations Doctrine did not apply to the adverse employment actions that occurred in 2014 and continued through Plaintiff’s termination; and (3) the arbitrator, after incorrectly deciding FEHA did not apply to Plaintiff, found no triable issues on Plaintiff’s FEHA claims, despite numerous disputed and undisputed facts that raised triable issues of material fact, namely the undisputed evidence that Plaintiff was terminated for no legitimate reason while she was on a medical leave of absence and attempting to return to work for CBRE.” (Id. at p. ii:10-21.)

In opposition, Defendant argues that Plaintiff’s motion “fails to establish that the Award should be vacated on the ground that the Arbitrator exceeded his authority by committing a clear legal error that deprived Plaintiff of her right to a hearing on the merits of her FEHA claims.” (Opp., p. 4:17-19 [citing Code Civ. Proc., § 1286.2, subd. (a)(4)].) Defendant maintains that the motion “fails to demonstrate that the Arbitrator committed any error of law, let alone a ‘clear error of law.’” (Id. at p. 4:19-20.) Defendant asserts that “the gist of the [motion] is a mere restatement of the same arguments that the Arbitrator rejected” and although “Plaintiff may disagree with the Arbitrator’s rulings, there is no valid basis provided for vacating the Award.” (Id. at p. 4:20-23.) Defendant also argues that the motion “fails to establish that the Award should be vacated on the ground that Plaintiff was substantially prejudiced by the Arbitrator’s refusal to hear evidence or by other conduct of the Arbitrator” because the motion does not “demonstrate any refusal by the Arbitrator to consider material evidence or that Plaintiff suffered any prejudice from the Arbitrator’s rulings or other conduct.” (Id. at pp. 4:24-5:2 [citing Code Civ. Proc. § 1286.2(a)(5)].) Defendant requests that the Court deny Plaintiff’s motion to vacate the arbitration and confirm the final arbitration award instead. (Id. at p. 5:3-8.)

Plaintiff cites to Pearson Dental Supplies Inc., v. Superior Court (2010) 48 Cal.4th 665 for the proposition that

“a trial court can properly vacate an arbitrator’s award where ‘a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim.’” (Motion, p. 6:9-12, citing Pearson Dental Supplies Inc., v. Superior Court at pp. 669-670.)

While the quotation is correct, Plaintiff misreads the import of Pearson. Like this case, Pearson was also an employment discrimination case. In Pearson, the

“arbitrator decided in favor of an employer against the employee on the grounds that the claim was time-barred under the one-year contractual deadline for requesting arbitration. The trial court vacated the award, concluding, as explained below, that the arbitrator had plainly misapplied the relevant tolling statute, Code of Civil Procedure section 1281.12. The Court of Appeal, while agreeing with the trial court that the arbitrator had erred, held nonetheless that such error was not a valid basis for vacating an arbitration award and reversed the trial court.” (Id. at p. 669.)

The Supreme Court continued:

“We conclude that the trial court and Court of Appeal are indeed correct that the arbitrator clearly erred in ruling that the employee's claim was time-barred. We further conclude that under the particular circumstances of this case, in which a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim, the trial court did not err in vacating the award. We therefore reverse the judgment of the Court of Appeal.” (Id. at pp. 669-670.)

The Court found that

“[h]ere, as a result of the arbitrator's clear legal error, plaintiff's claim was incorrectly determined to be time-barred. Indeed, the legal error misconstrued the procedural framework under which the parties agreed the arbitration was to be conducted, rather than misinterpreting the law governing the claim itself. . . .

“We therefore hold that when, as here, an employee subject to a mandatory employment-arbitration agreement is unable to obtain a hearing on the merits of his FEHA claims, or claims based on other unwaivable statutory rights, because of an arbitration award based on legal error, the trial court does not err in vacating the award. Stated in other terms, construing the CAA in light of the Legislature's intent that employees be able to enforce their right to be free of unlawful discrimination under FEHA, an arbitrator whose legal error has barred an employee subject to a mandatory arbitration agreement from obtaining a hearing on the merits of a claim based on such right has exceeded his or her powers within the meaning of Code of Civil Procedure section 1286.2, subdivision (a)(4), and the arbitrator's award may properly be vacated. (Id. at pp. 679–680.)

Unfortunately for Plaintiff, Pearson is not applicable. Here, the arbitrator did not decide against Plaintiff on a procedural issue; rather he reached the merits of Plaintiff’s FEHA claim and found that FEHA did not apply and, alternatively, even if FEHA did apply, Plaintiff was unable to show any triable issues of material fact to show FEHA violations. (See Arbitrator’s Ruling and Order, Exh. E to Sanders Declaration.)

The arbitrator did not exceed his authority by committing clear legal error that deprived Plaintiff of her right to a hearing on the merits of her FEHA claims. Plaintiff has also not established that the arbitrator refused to consider any material evidence in support of her opposition to the motion for summary judgment. Instead, Plaintiff wants this Court to review the merits of Plaintiff’s FEHA claims. This Court takes no position on whether it would have granted or denied defendant’s Motion for Summary Judgment, or, if this Court were sitting as an appellate tribunal, it would affirm or deny the arbitrator’s granting of defendant’s Motion for Summary Judgment. It is not the role of this Court to make such decisions in a motion to vacate an arbitration award. (See Cinel v. Christopher (2012) 203 Cal.App.4th 759, fn 5.)

The Court DENIES Plaintiff’s motion to vacate arbitration award.

The Court finds that Defendant properly requests that the Court confirm the arbitration award. (Code Civ. Proc., § 1285.2 (“[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., § 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.”).) Defendant provides a copy of the agreement to arbitrate; the name of the arbitrator; and a copy of the award and the written opinion of the arbitrator. (See Sanders Decl., Exs. A-C, E.)

As indicated above, there are no grounds to vacate the arbitration award.

The Court GRANTS Defendant’s request to confirm arbitration award.