On 12/18/2017 ROSE DIPLOMAT LLC filed a Property - Other Real Property lawsuit against MARY NELSON. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH ALLEN WHITE and LAURA A. SEIGLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ELIZABETH ALLEN WHITE
LAURA A. SEIGLE
ROSE DIPLOMAT LLC
DOES 1 THROUGH 50
HANOVER PAMELA M.
FRITZ JULIANNA PAINE
CRESTA PROPERTIES LLC
BANNING WILLIAM L.
BANNING THOMAS JR.
PARKER GARY W.
FORGUES NORAH GAIL
PARKER TERRY R.
MANATT PHELPS & PHILLIPS LLP
ROCHMAN HARVEY L.
SHAFRON SHELLY JAY ESQ.
LEIPZIG SCOTT J. ESQ.
5/13/2019: Notice of Ruling
11/13/2020: Reply - REPLY BRIEF IN SUPPORT OF PLAINTIFF ROSE DIPLOMAT, LLCS MOTION TO VACATE ARBITRATION AWARD
9/5/2019: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW FOR JOINT STATUS REPORT)
10/7/2019: Notice - NOTICE OF STATUS CONFERENCE
3/20/2020: Notice Re: Continuance of Hearing and Order
10/23/2020: Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) AMENDED
10/26/2020: Proof of Personal Service - PROOF OF PERSONAL SERVICE AMENDED
2/21/2018: ANSWER TO FIRST AMENDED COMPLAINT BY DEFENDANTS MARY NELSEN, ERRONEOUSLY SUED AS MARY NELSON, ETC
9/14/2018: OPPOSITION OF DEFENDANTS CHRISTINE E. NELSEN STRATTON AND DONALD STRATTON, INDIVIDUALLY AND AS TRUSTEES FOR THE STRATTON FAMILY REVOCABLE TRUST; MARY NELSEN, AN INDIVIDUAL ERRONEOUSLY SUED AS MARY NEL
9/19/2018: NOTICE OF RULING
11/26/2018: Declaration - Declaration of Defendant Emily Paine in Support of Defendants' Opposition to Plaintiff's Motion for a Preliminary Injunction
2/13/2019: Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order Overruling Objections by Defendants Christine E. ...) of 02/13/2019
4/8/2019: Opposition - OPPOSITION PLAINTIFF ROSE DIPLOMAT LLC OPPOSITION TO LANDLORD DEFENDANTS EX PARTE APPLICATION; DECLARATION OF HARVEY L ROCHMAN
4/16/2019: Notice - NOTICE OF FILING OF THE SIGNED DECLARATION OF AVY AZEROUAL IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
4/29/2019: Notice of Ruling
5/9/2019: Motion to Compel Arbitration
5/13/2019: Minute Order - MINUTE ORDER (HEARING ON PLAINTIFF ROSE DIPLOMAT, LLC'S EX PARTE APPLICATIO...)
5/22/2019: Opposition - OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY LITIGATION
Hearing01/20/2021 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
Hearing01/12/2021 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Attorney FeesRead MoreRead Less
DocketNotice (of Incorporation of Declaration of David Gribin in Support of Opposition to Motion for Attorneys Fees, Costs and Sanctions); Filed by Mary Nelsen Erroneously Sued As Mary Nelson (Defendant)Read MoreRead Less
DocketDeclaration (Declaration of Shelly Jay Shafron in Support of Opposition to Motion for Attorneys Fees, Costs and Sanctions); Filed by Mary Nelsen Erroneously Sued As Mary Nelson (Defendant)Read MoreRead Less
DocketDeclaration (Declaration of Pamela M. Hanover in Support of Opposition to Motion for Attorneys Fees, Costs and Sanctions); Filed by Mary Nelsen Erroneously Sued As Mary Nelson (Defendant)Read MoreRead Less
DocketOpposition (OPPOSITION OF DEFENDANTS TO PLAINTIFF ROSE DIPLOMAT?S MOTION FOR ATTORNEYS FEES FOR VACATING THE INTERIM AWARD, DECLARATIONS OF PAMELA HANOVER, SHELLY JAY SHAFRON, DAVID GRIBIN AND OBJECTIONS TO DECLARATION OF HARVEY L. ROCHMAN IN); Filed by Mary Nelsen Erroneously Sued As Mary Nelson (Defendant)Read MoreRead Less
DocketObjection (Objections to Declaration of Harvey L. Rochman); Filed by Mary Nelsen Erroneously Sued As Mary Nelson (Defendant)Read MoreRead Less
DocketMotion for Attorney Fees; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
DocketNotice of Ruling; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
Docketat 09:30 AM in Department 48, Laura A. Seigle, Presiding; Status Conference (ReArbitration) - Held - ContinuedRead MoreRead Less
DocketSummons; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
DocketFirst Amended Complaint; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF PENDENCY OF ACTION (LIS PENDENS)Read MoreRead Less
DocketNotice; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Rose Diplomat, LLC (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DECLARATORY RELIEFRead MoreRead Less
Case Number: BC687057 Hearing Date: November 23, 2020 Dept: 48
[TENTATIVE] ORDER RE: MOTION TO VACATE ARBITRATION AWARD
On December 18, 2017, Plaintiff Rose Diplomat, LLC (“Plaintiff”) filed this action against Defendants Mary Nelsen, Emily Paine, Franklin Paine, Julianna Paine Fritz, Donald Stratton, Christine Stratton, Raymond Weamer, Joan Weamer, Pamela Hanover, Thomas Banning, Jr., William L. Banning, Patricia Hanover, Margaret Parker, Norah Gail Forgues, Terry R. Parker, and Gary W. Parker (collectively, “Defendants”) regarding rent readjustment to be determined by three appraisers pursuant to the rules of the American Arbitration Association (“AAA”). The parties conducted the arbitration. Plaintiff then filed this motion to vacate the arbitration award based on alleged misconduct by one of the three arbitrators.
On January 22, 2018, a representative of AAA notified the parties that David Gribin was invited to serve as a neutral in the matter. (Rochman Decl., Ex. 2.) On January 25, 2018, the parties received a Notice of Appointment directed to Gribin and containing his disclosures and sworn oath. (Rochman Decl. ¶ 6, Ex. 3.) The Notice of Appointment stated he had a continuing obligation to disclose past or present relationships with the parties or counsel. Gribin accepted the appointment.
On March 9, 2018, the parties agreed to stay the arbitration until the Court decided the governing method of appraisal. (Rochman Decl. ¶ 7, Ex. 4.) On April 29, 2019, the Court granted Plaintiff’s motion for summary adjudication and concluded that Humphries Investments, Inc. v. Walsh (1988) 202 Cal.App.3d 766 controlled the appraisal. On June 5, 2019, the Court granted Plaintiff’s motion to compel arbitration, ordered Plaintiff and Defendants to resume arbitration, and stayed the action pending the completion of arbitration.
During this time, from January 12, 2018 through October 7, 2019, Shelly Jay Shafron, counsel for Defendants, communicated with Gribin via telephone and email regarding Gribin’s acceptance of the arbitration position and the selection of other arbitrators. (Shafron Decl. ¶ 5 and Ex. 10; Defendants’ Compendium of Exhibits, Ex. 2 at pp. 1-2.) Shafron sent lease papers to Gribin on February 22, 2018. (Defendants’ Compendium of Exhibits, Ex. 2 at p. 1.) Also, in October 2019, Shafron’s firm retained Gribin’s appraisal firm to determine the fair market value of a property on Fountain Avenue. (Gribin Decl. ¶ 9.) Shafron’s client paid Gribin’s firm $2,500.00, of which Gribin received $362.50. (Id. at ¶ 10.)
On January 7, 2020, AAA issued a Report of Preliminary Hearing and Scheduling Order that included the provision, “There will be no ex-parte communications with the arbitrator.” (Rochman Decl., Ex. 8.)
On January 21, 2020 and May 22, 2020, Shafron spoke with Gribin about the status of arbitration and a forthcoming decision about whether experts could testify and provide reports. (Shafron Decl. ¶ 6, Ex. 10; Defendants’ Compendium of Exhibits, Ex. 2 at p. 3.)
In April 2020, Shafron’s firm retained Gribin to be the sole arbitrator for a determination of fair market rental value of a dental space at 3000 Whittier Boulevard. (Gribin Decl. ¶¶ 6-7.) Shafron’s client paid Gribin’s firm $2,500.00, of which Gribin received $812.50. (Id. at ¶ 7.)
On July 14, 2020, Shafron sent an email to Gribin with a copy of Defendants’ arbitration brief. (Rochman Decl., Exs. 12 [Exhibit 6], 13.)
On July 17, 2020, Shafron sent an email to Gribin stating, “Pursuant to our conversation, attached please find a list of questions for the arbitration panel.” On July 20, 2020, Shafron sent another email to Gribin with a corrected list of questions. The attachments contained substantive questions for the arbitrators to ask about the issues in dispute. (Rochman Decl., Ex. 12 [Exhibits 7, 7A]; Defendants’ Compendium of Exhibits, Ex. 2 at p. 3.)
The arbitration hearing was conducted on July 27-29, 2020, and AAA served an interim award on September 9, 2020. (Rochman Decl. ¶¶ 13-14 & Ex. 9.) On September 21, 2020, the parties filed applications for attorney fees before the issuance of a final award. (Id. at ¶ 15.) Through Defendants’ application, Plaintiff learned of Shafron’s ex parte communications with Gribin. (Id. at ¶ 15.) Plaintiff informed AAA, and Defendants submitted a response and evidence to AAA. (Id. at ¶¶ 15-17.) On October 2, 2020, AAA gave the parties Gribin’s supplemental disclosures, which contained information about Gribin’s two appraisals for Shafron’s firm and a few of the ex parte communications. (Id. at ¶ 18 & Ex. 13.) Plaintiff objected, and on October 9, 2020, AAA informed that parties that it had removed Gribin as an arbitrator. (Id. at ¶¶ 19-20 & Exs. 14-15.) AAA stated that pursuant to Rule 20 regarding vacancies, the remaining arbitrators would proceed with the determination of attorney fees and costs. (Id., Ex. 15.) Plaintiff objected to this process. (Id., Ex. 16.)
On October 22, 2020, Plaintiff filed this motion to vacate the arbitration award. On October 28, 2020, the remaining panel stayed the arbitration matter pending this Court’s decision. (Defendants’ Compendium of Exhibits, Ex. 18.)
The Court shall vacate an arbitration award if an arbitrator making the award “failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware.” (Code Civ. Proc., § 1286.2, subd. (a)(6).) A proposed arbitrator must disclose “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial,” including “[a]ny matters required to be disclosed by the ethics standards for neutral arbitrators adopted by the Judicial Council pursuant to this chapter.” (Code Civ. Proc., § 1281.9, subd (a)(2).)
Under the Judicial Council’s Ethics Standards for Neutral Arbitrators in Contractual Arbitration, “[a] proposed arbitrator or arbitrator must disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial, including, but not limited to . . . [if the] arbitrator or a member of the arbitrator’s immediate family is or, within the preceding two years, was an employee of or an expert witness or a consultant for a party or for a lawyer in the arbitration . . . [a]ny other professional relationship not already disclosed under [prior sections] that the arbitrator or a member of the arbitrator’s immediate family has or has had with a party or lawyer for a party,” and any other matter that “[m]ight cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.” (California Rules of Court, Ethics Standards for Neutral Arbitrators, Standard 7(d)(8), (d)(9), (d)(15).) This duty to disclose is a continuing duty from service of the notice of the arbitrator’s proposed nomination or appointment until the conclusion of the arbitration proceeding. (California Rules of Court, Ethics Standards for Neutral Arbitrators, Standard 7(f).) An arbitrator must disclose any matters within 10 calendar days after he becomes aware of the matter. (Id., Standard 7(c)(2).) Additionally, “[f]rom the time of appointment until the conclusion of the arbitration, an arbitrator must not entertain or accept any offers of employment or new professional relationships as a lawyer, an expert witness, or a consultant from a party or a lawyer for a party in the pending arbitration.” (Id., Standard 12(a).)
Plaintiff contends that Gribin violated ethical standards: (1) by accepting employment with Shafron’s firm during the time the arbitration was pending; (2) not disclosing his financial relationship with Shafron’s firm; and (3) conducing ex parte communications with Shafron, including emails about questions for the hearing, and not disclosing the communications. (Motion at pp. 10-11.)
Defendants do not deny these events. Instead, Defendants first argue that the remaining arbitrators have the jurisdiction to decide if the interim award should be vacated and how to proceed, pursuant to AAA Rules 7(a) and 20. (Opposition at p. 8.) AAA Rules 7(a) and 20 do not address vacating arbitration awards and do not state that the remaining arbitrators rather than the court decides whether to vacate. Codes of Civil Procedure section 1286.2, subdivision (a) (6)expressly states that “the court shall vacate the award if the court determines” an arbitrator failed to make required disclosures. Defendants cite no law that Rules 7(a) and 20 supersede section 1286.2.
Next Defendants argue Gribin did not have actual awareness that he was required to disclose what Defendants describe as minor involvement in the unrelated projects with minimal indirect compensation. (Opposition at p. 10.) That is not the standard. “A proposed neutral arbitrator must timely disclose to the parties ‘all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial,’ including, without limitation, specified information.” (Mt. Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP (2013) 219 Cal.App.4th 1299, 1310.) The Notice of Appointment informed him of his continuing disclosure obligation and attached sections of the Ethics Standards for Neutral Arbitrators (including sections 7 and 12). (Rochman Decl., Ex. 3.) In his disclosures, Gribin circled “No” in response to the question, “While the instant arbitration is pending, will you entertain offers of employment or new professional relationships in any capacity other than as a lawyer, expert witness, or consultant from a party or a lawyer for a party, including offers to serve as a dispute resolution neutral in another case?” (Ibid.) Thereafter Gribin accept an offer from Shafron’s firm to serve as an arbitrator in another case, which he did not disclose.
Defendants argue that Gribin’s business relationships were not significant enough to disclose. (Opposition at p. 11.) Defendants’ cases do not support their position. In Casden Park La Brea Retail LLC v. Ross Dress for Less, Inc. (2008) 162 Cal.App.4th 468, an arbitrator’s $500.00 donation to the 2001 political campaign of the defendant’s party arbitrator did not require disclosure during a 2005 arbitration proceeding. (Id. at pp. 474, 477.) The arbitrator also had no duty to disclose his employer’s dealings with the other arbitrator because he had “no pecuniary interest in profits generated by his employer’s business relationship with a party or a party’s representative.” (Id. at p. 478.) In Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 Cal.App.4th 925, the appraiser did not know that the defendant was the source of funds for his services in another matter. (Id. at pp. 941.) In Howev Guseinov v. Burns (2006) 145 Cal.App.4th 944, the arbitrator was not required to disclose that he previously served as a volunteer mediator in another unrelated matter in which the plaintiff’s counsel represented someone else. (Id. at p. 958.) In Ray Wilson Co. v. Anaheim Memorial Hospital Assn. (1985) 166 Cal.App.3d 1081, the defendant objected to the arbitrator due to the arbitrator’s disclosed relationship with the plaintiff’s subcontractor. (Id. at pp. 1086-1087.) The arbitrator remained on the panel, but the court later granted the defendant’s motion to vacate the award. (Id. at pp. 10-84-1085.) The appellate court reversed and found that an acquaintance relationship between an arbitrator and a party did not require vacating the award and membership in the same professional organization was not a credible basis for inferring bias. (Id. at pp. 1087-1088; see San Luis Obispo Bay Properties, Inc. v. Pacific Gas & Elec. Co. (1972) 28 Cal.App.3d 556, 567.) In Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, the court addressed whether the award should be vacated as secured through corruption, fraud, or other undue means pursuant to section 1286.2, subdivision (a)(1), not due to failure to disclose pursuant to section 1286.2, subdivision (a)(6). (Id. at p 824-825.)
Defendants then argue that the communications with Gribin before the January 7, 2020 Preliminary Hearing Order were harmless and permitted, and later communications were courtesy and administrative matters that did not prejudice Plaintiff. (Opposition at p. 14.) Although some ex parte communications about “administrative matters, such as setting the time and place of hearings or making other arrangements for the conduct of the proceedings” are permitted, the arbitrator must promptly inform the other parties and give them an opportunity to respond. (California Rules of Court, Ethics Standards for Neutral Arbitrators, Standard 14(b).) Even if some of the ex parte communications were purely administrative, Gribin’s failure to disclose them was a violation. Shafron’s list of substantive questions to ask during the arbitration hearing was not purely administrative and is certainly the type of matter that could cause a person to reasonably doubt that the arbitrator would be able to be impartial. (See Code Civ. Proc., § 1281.9, subd (a)(2).)
Because Gribin did not timely disclose grounds for disqualification and matters required to be disclosed by ethics standards, the interim arbitration award must be vacated. (Code Civ. Proc., §§ 1281.9, subd (a)(2), § 1286.2, subd. (a)(6).)
Finally, Defendants contend that if the Court vacates the award, the other two arbitrators on the panel should not be prevented from participating in future proceedings because AAA Rule 20 provides for their continued involvement. (Opposition at pp. 5-6, 15.) Upon vacating an award, a court may order rehearing before a new panel. (Code Civ. Proc., § 1287.) Because the Court cannot determine that Gribin’s potential bias and ex parte communications did not unfairly impact the arbitration proceedings, deliberations with the other arbitrators, and interim award, rehearing before a new panel is appropriate. (Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 372.)
Accordingly, the motion to vacate arbitration award is GRANTED. The interim arbitration award issued on September 9, 2020 is VACATED. Plaintiff and Defendants are ordered to arbitrate this matter before a new panel. The Court sets a status conference re arbitration for January 20, 2021 at 8:30 a.m.
Plaintiff is awarded its costs and contractual attorney fees incurred in connection with this motion, subject to the filing of a noticed fee motion. (Code Civ. Proc., § 1293.2.)
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.