Preview
1 ALLEN L. PRICE
CAROL PRICE
>~LKe
SAN MAVEOgOUg~
2
2000 Vallemar Street
Moss Beach, CA 94038
Cake t -
r
4 Defendants In Pro Per S,y
CL
SUPERIOR COURT OF CALIFORNIA:UNLIMITED
COUNTY OF SAN MATEO
ERIKA CHRISTMANN, ) No. CIV 522015
GARY CURTAZ,
10 )
)
Plaintiffs, ) DEFENDANTS'EMORANDUMOF
) POINTS AND AUTHORITIES IN
12- V. SUPPORT OF PETITION TO VACATE
)
) BINDING ARBITRATIONAWARD
ALLENL. PRICE )
CAROL PRICE )
and DOES 1 through 25, inclusive,
) Date: April 18,2016
15 ) Time: 9:00 a.m.
Defendants. ) Dept.: Law and Motion
16
)
17 ) Binding Arbitrator: Charles Dyer
Date of Arbitration: December 10/11, 2015
18
19 I. INTRODUCTION
.::.'- =20 —
This is a motion to vacate a binding arbitration award of $ 429,647.14, issued by arbitrator Charles
Dyer, with a 40% comparative fault finding of plaintiff.
22
The arbitrator failed to admit key evidence critical to defendants'efense.
Petitioners recognize that there are limited grounds for overturning a binding arbitration award
24
However...."tolerance for fallibilityhas itslimits. Section 1286.2, subdivision (a)(5) provides that a
25
court "shall" vacate an award when a party's rights "were substantially prejudiced... by the refusal of
--:27
:=:.:='--=:- --
the arbitrator[] to hear evidence material to the controversy...." This section has been interpreted as
DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
"a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a
2
party from fairly presenting its case." (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439.)"
3
Burlage v. Superior Court (Spencer) (2009) 178 Cal.App.4th 524, 529.
4
The parties to an arbitration bargain for a final and binding decision. (Moncharsh v. Heilv k, Blase
5
(1992) 3 Cal.4th 1, 10.) But without.the opportunity to present material evidence, a party does not
-
7 receive the benefit of that bargain. Burlage v. Superior Court (Spencer) (2009) 178 Cal.App.4th 524,
8 531.
-That is what happened here. At arbitration, Carol and Allen Price were not allowed to have
10
admitted into evidence the following, which prejudiced their rights:
11
..:1.. --The arbitrator did not allow the Prices to assert certain affirmative defenses: "However,
12
.in making. decisions concerning this award, the arbitrator necessarilv disregarded some of
13
" '1'4 the Respondents'mplied defenses which were perfunctorily asserted without
development..." Award of Arbitrator, 5:8-12; Allen Price Declaration, Exh. A.
. 16 "--=: "2:- The arbitrator did not allow the Prices to introduce critical evidence that the subject site
17
=-:-was not an egress location; it was a landscape location, and thus did not require a handrail:
18
"The Respondents contended that the subject stairway did not have to comply with the
19
:—. -- - "--- -
Building Code provisions as it was an outdoor landscaping structure. However, after a
20
-2i''- - 'lengthy discussion and being allowed an opportunity to present additional evidence and law
2 2- -.:--
=:--.==-::--=.-- the issue, the Respondents failed to present anv admissible evidence or
.conceding
-.-23 applicable law to support that contention". Award of Arbitrator, 9:7-13; Allen Price
24
Declaration, Exh. A.
25
Actually, the arbitrator refused to admit into evidence ap plicable Building Codes governing
26
stairways and railings. See Allen Price Declaration, Exh. B.
27
28 Due to his refusal to hear the Prices'ey evidence, the arbitrator ruled: "The arbitrator finds that
" DEFENDANTS'MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
the failure to not have a handrail along with the improper tread depth, riser height and nosing were a
substantial factor in causing harm to the claimant". Award of Arbitrator, 11:6-7; Allen Price
3
Declaration, Exh. A.
4
II. STATEMENT OF FACTS
Defendants and moving parties are husband and wife Allen and Carol Price. (moving parties and
7 petitioners here).
"At-a binding arbitration held on December 10 and 11, 2015, binding arbitrator Charles Dyer
...awarded plaintiff -$ 429,647.14 in a trip and fall case. The arbitrator found the Prices 60% liable.
10
Plaintiff sustained a trip and fall injury on September 24, 2012. Plaintiff sued Allen and Carol as
11
.
landowners
—..:: .—. of the subject property on which plaintifffell. Since the Prices could not afford an
12
—
..:attorney, and-since the Prices did not have any applicable insurance, the Prices largely represented
themselves.
15 ::: --.-;. —;-OnJune5; 2013 plaintifffiled suit in the Superior Court of San Mateo County. On July 26,
16 -:-2013 the Prices filed their answer to the complaint. The Prices hired an attorney on a
17
.::limited-basis because the Prices did not have enough money to pay a full-time attorney. In March, 2014
— the parties attended a mediation. The Prices represented themselves in pro per. The case did not settle
19
at the mediation.
20
-=2 1=-::=-'- '"." From=May 2014 on, the Prices represented themselves exclusively in Pro
..-
19, per. On August 3,
22-.. 2015 the:court:ordered that this case be resolved through binding arbitration. The parties agreed on
arbitrator Charles Dyer as a binding arbitrator.
24
In December, 2015 the parties attended a binding arbitration and tried their case in front of
25
.-
arbitrator=Charles Dyer. On or about December 16, 2015 Mr. Dyer issued his Award of arbitrator. A -- ---
26
true and correct copy of the award is attached to Mr. Price's declaration as Exhibit A.
27
The. Prices.did not obtain a fair arbitration proceeding because at t'e arbitration; .
DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
Mr. Dver refused to allow them to introduce critical evidence. In particular, Che arbitrator refused
2
.to admitinto evidence applicable Building Codes zoverninp stairwavs and railings. The Prices
3
.offered into evidence California Building Code sections relating to stairways and railings. Attached to
4
the Declaration of Allen Price as Exhibit B is a copy of the 2007 California Building code
5
relating to egress stairways and railings.
The Prices-were not allowed to introduce these codes into evidence by the arbitrator. The Prices
have always contended that the site at which plaintifffell was not an egress location since it had
nothing to do with exiting or entering the subject house. Rather, their position was that the subject
10
stairs were. landscape stairs and therefore no hand railings were necessary, nor specific step dimensions
-
for-riser and tread. The arbitrator did not consider key evidence of the landscape stair issue.
12
13
-On the first day of arbitration, December 10, 2015, Mr. Price requested that the arbitrator,
::-Charles-Dyer, enter into evidence the exact section of the applicable building code sections that Price
--—15 had printed out. They comprised a total of 4 pages and were copied from the 2007 Residential
16 Building Code:-They
:.
were drawn from voluminous online searches of "stairway codes", both interior
17
--and exterior. The 2007 version applies since steps were built during that year. The section on stairs
actually hasn't changed for years.
19
Mr. Dyer refused to admit the pages as evidence and mentioned that a building code
20
--2-1--—.expert was not to
scheduled support it. Mr. Price reviewed every single word with him in the few
22-
-.-'- sentences-that applied,- pointing out the use of the word "egress" was the key word that did not require
us to have hand railings nor specific dimensions of riser and tread.
24
Mr. Price had already entered into evidence a photo that showed the stairs were not connected
25
--to the. house nor part of any required egress path. Mr. Price made it very clear to the arbitrator that
26
—
these code pages. were the very "Bible" that all builders refer to. Mr. Dyer said he wouldn't rule on
27
accepting- this evidence right then, but would take it under submission in his review of all the evidence.
DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES-IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
On the second day of arbitration, December 11, 2015, Claimant lawyer, James Kaestner,
2
. presented an expert. witness, Michael Rohotsky, who testified about building codes applicable to the
3
Prices'atio steps. He stated building codes required steps to have a certain riser height and tread
4
depth. He also stated that a handrail was required. Mr. Price's evidence contradicted this.
5
During-his cross examination of Mr. Rohotsky, Mr. Price asked ifthe expert was aware that
7 building codes for stairs applied only to egress stairs. He stated that he was not aware of such a fact.
-
Mr;- Price, also asked ifhe was aware that San Mateo County Building Inspectors did not inspect
landscape stairs. He said he was not aware of that fact either.
10
-Upon. finishing the cross examination, a discussion arose with Mr. Dyer about the expert
witness and the building codes. Mr. Price reiterated the importance of the literal text in the code that
12
... " - ": demonstrated the expert witness was simply uninformed and incorrect. Mr. Dyer gave no indication
whether he would accept the Building Code pages as evidence.
15 In the Arbitrator's Award received on January 6, 2016, Mr. Dyer stated that the Prices had
:-
submitted building code information, but he deemed it inadmissible evidence. Because Mr. Dyer
17
refused to admit-or-consider key Building Code sections, a finding of negligence was virtually a
18
certainty and the Prices'ey defense was not considered.
19
"-Defendants-would ask the court to grant this petition to vacate the binding arbitration award under
20
Code of Civil:Procedure section 1288 and send this case out to binding arbitration with a different and
22 new arbitrator.
23 III. LEGAL ARGUMENT .
24
A. THE BINDING ARBITRATOR, IN AWARDING$ 429,647.14 AGAINST
25
- --.--.= —
---------
—.=
DEFENDANTS, ERRED BY NOT ALLOWINGOR CONSIDERING CERTAIN OF
26
DEFENDANTS'VIDENCE, IN VIOLATIONOF CODE OF CIVILPROCEDURE
27
SECTION 1286.2
DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
1.. The Law Governing Petitions to Vacate Binding Arbitration Awards
Code of Civil Procedure Section 1285 provides: "Any party to an arbitration in which an
3
award has been made may petition the court.to confirm, correct or vacate the award. The petition shall
name as respondents all parties to the arbitration and may name as respondents any other persons
5
bound by the arbitration award"'.
6
7
Code of Civil Procedure section 1286.2 provides, in pertinent part:
-8 . (a)
-
Subject to-Section 1286.4, the court shall vacate the award ifthe court determines any of the
following: The
..-. (5) rights of the party were substantially prejudiced by the refusal of the arbitrators
10
to postpone the hearing:upon sufficient cause being shown therefor or bv the refusal of the arbitrators
to:-hear evidence material to the controversv or by other conduct of the arbitrators contrary to the
12
provisions of this title.See Moncharsh v. Heilv k Blase (1992) 3 Cal.4th 1-;-12-13.
13
- -:=:--:--:-- --: This
section has,been interpreted as "a safetv valvein private arbitration that permits a
-.-court to:intercede.ivhen
:--:-:-1=5- an-arbitrator has prevented a partv from fairlv presentinp its case." (Hall v.
6= =-==-Superior Court (1993) 18 Cal.App.4th 427, 439.) Burlaee v. Superior Court (Spencer) (2009) 178
17 —
.. Cal.App.4th 524,029. In Burlage, the Superior Court set aside a binding arbitration-award, finding that
18
--.-the-arbitrator failed to allow a party to present material evidence ("But without the opportunity to
19
—.present material evidence (of a lot line adjustment), Spencer did not receive the benefit of that
20
21'—.bargain"). Burlage at 531. The appellate court affirmed, throwing out the binding arbitration award,
.. ---- 22.
.—.
---saying: "It is not often that a trial court vacates an arbitration award and an court affirms the
appellate
order".
1
[I]fone wishes to have an award vacated or corrected he must act within one-hundred days of service
of-the award or be precluded from attacking the award.'" Eternitv Investments, Inc. v. Brown (2007)
26 151 Cal.App.4th 739, 745 citing:(Coordinated Construction, Inc. v. Canona Big "A," Inc. (1965) 238
-"-:-.=------:-:=-"-:--- ---Cal.App-.2d
313, 318.) "If [the party who lost in the arbitration does] not serve and file a petition to
27 vacate or a response to [a] petition to confirm within the 100-day period from the date of service of the
.. award..., the award must be treated as final." (Klubnikin v. California Fair Plan Assn. (1978 j 84
'
DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
With respect to arbitrations involving unwaivable statutory rights, they are subject to judicial
2 " 'sufficient
review to ensure that arbitrators comply with the requirements of the statute't issue."
3
(Armendariz v. Foundation Health Psvchcare Services, Inc. (2000) 24 Cal.4th 83, 106.
B. THE BINDINGARBITRATOR REFUSED TO ADMITKEY EVIDENCE
RELATING TO APPLICABLE BUILDINGCODES GOVERNING STAIRWAYS
AND RAILINGS
8
As set forth above, the arbitrator refused to admit or consider:
9
10 1. certain affirmative defenses
2. critical evidence that the subject site was not an egress location; it was a landscape location, and
12 thus did not require a handrail nor certain riser height and tread depth;
13
3. applicable Building Codes governing stairways and railings.
14
Without this key evidence, the Prices were denied a fair hearing. They now ask for the award of
15
$ 429,647.14 be vacated.
16
17
IV. CONCLUSION
-"18 For the foregoing reasons, the binding arbitration award issued by arbitrator Charles Dyer should be
vacated, and the arbitration should be reset with a new and different arbitrator.
20
21
DATED: March 11, 2016 By:
22 Allen Price
Defendant
23
24
25
26
27
Cal.App.3d 393, 398.)
— -- DEFENDANTS'EMORANBUMOF-POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
PROOF OF SERVICE
I am a citizen of the United States, over the age of 18 years, and not a party to the within entitled
action.. I am employed in the County of San Mateo. On this date, I served the following document(s):
-DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION
TO VACATE BINDINGARBITRATIONAWARD
-
X -
-..By placing for collection and mailing, following ordinary business practices at my place
.....-
8 . of business, a true and correct copy thereof, in a sealed envelope with postage thereon fully prepaid, and
addressed-as set forth below. I am familiar with the business practice for collection and processing of
documents -for mailing with the United States Postal Service, said practice being that in the ordinary
course of business, documents are deposited with the United States Postal Service on the same day as
they are placed for collection.
By-personal service on the parties to this action by causing a true and correct copy thereof to be
.12 hand delivered to the offices or addresses of the person(s) setforth below.
13
James A. Kaestner
Law Offices of James A. Kaestner
421 Grand Ave., Ste. A
15 South San Francisco, CA 94080
16
17
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 11,
2016 at Burlingame, California.
18
19
20
21
22
23
24
25
26
27
28 "
.
..DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE
BINDING ARBITRATIONAWARD
Preview
1 ALLEN L. PRICE CAROL PRICE >~LKe SAN MAVEOgOUg~ 2 2000 Vallemar Street Moss Beach, CA 94038 Cake t - r 4 Defendants In Pro Per S,y CL SUPERIOR COURT OF CALIFORNIA:UNLIMITED COUNTY OF SAN MATEO ERIKA CHRISTMANN, ) No. CIV 522015 GARY CURTAZ, 10 ) ) Plaintiffs, ) DEFENDANTS'EMORANDUMOF ) POINTS AND AUTHORITIES IN 12- V. SUPPORT OF PETITION TO VACATE ) ) BINDING ARBITRATIONAWARD ALLENL. PRICE ) CAROL PRICE ) and DOES 1 through 25, inclusive, ) Date: April 18,2016 15 ) Time: 9:00 a.m. Defendants. ) Dept.: Law and Motion 16 ) 17 ) Binding Arbitrator: Charles Dyer Date of Arbitration: December 10/11, 2015 18 19 I. INTRODUCTION .::.'- =20 — This is a motion to vacate a binding arbitration award of $ 429,647.14, issued by arbitrator Charles Dyer, with a 40% comparative fault finding of plaintiff. 22 The arbitrator failed to admit key evidence critical to defendants'efense. Petitioners recognize that there are limited grounds for overturning a binding arbitration award 24 However...."tolerance for fallibilityhas itslimits. Section 1286.2, subdivision (a)(5) provides that a 25 court "shall" vacate an award when a party's rights "were substantially prejudiced... by the refusal of --:27 :=:.:='--=:- -- the arbitrator[] to hear evidence material to the controversy...." This section has been interpreted as DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD "a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a 2 party from fairly presenting its case." (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439.)" 3 Burlage v. Superior Court (Spencer) (2009) 178 Cal.App.4th 524, 529. 4 The parties to an arbitration bargain for a final and binding decision. (Moncharsh v. Heilv k, Blase 5 (1992) 3 Cal.4th 1, 10.) But without.the opportunity to present material evidence, a party does not - 7 receive the benefit of that bargain. Burlage v. Superior Court (Spencer) (2009) 178 Cal.App.4th 524, 8 531. -That is what happened here. At arbitration, Carol and Allen Price were not allowed to have 10 admitted into evidence the following, which prejudiced their rights: 11 ..:1.. --The arbitrator did not allow the Prices to assert certain affirmative defenses: "However, 12 .in making. decisions concerning this award, the arbitrator necessarilv disregarded some of 13 " '1'4 the Respondents'mplied defenses which were perfunctorily asserted without development..." Award of Arbitrator, 5:8-12; Allen Price Declaration, Exh. A. . 16 "--=: "2:- The arbitrator did not allow the Prices to introduce critical evidence that the subject site 17 =-:-was not an egress location; it was a landscape location, and thus did not require a handrail: 18 "The Respondents contended that the subject stairway did not have to comply with the 19 :—. -- - "--- - Building Code provisions as it was an outdoor landscaping structure. However, after a 20 -2i''- - 'lengthy discussion and being allowed an opportunity to present additional evidence and law 2 2- -.:-- =:--.==-::--=.-- the issue, the Respondents failed to present anv admissible evidence or .conceding -.-23 applicable law to support that contention". Award of Arbitrator, 9:7-13; Allen Price 24 Declaration, Exh. A. 25 Actually, the arbitrator refused to admit into evidence ap plicable Building Codes governing 26 stairways and railings. See Allen Price Declaration, Exh. B. 27 28 Due to his refusal to hear the Prices'ey evidence, the arbitrator ruled: "The arbitrator finds that " DEFENDANTS'MEMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD the failure to not have a handrail along with the improper tread depth, riser height and nosing were a substantial factor in causing harm to the claimant". Award of Arbitrator, 11:6-7; Allen Price 3 Declaration, Exh. A. 4 II. STATEMENT OF FACTS Defendants and moving parties are husband and wife Allen and Carol Price. (moving parties and 7 petitioners here). "At-a binding arbitration held on December 10 and 11, 2015, binding arbitrator Charles Dyer ...awarded plaintiff -$ 429,647.14 in a trip and fall case. The arbitrator found the Prices 60% liable. 10 Plaintiff sustained a trip and fall injury on September 24, 2012. Plaintiff sued Allen and Carol as 11 . landowners —..:: .—. of the subject property on which plaintifffell. Since the Prices could not afford an 12 — ..:attorney, and-since the Prices did not have any applicable insurance, the Prices largely represented themselves. 15 ::: --.-;. —;-OnJune5; 2013 plaintifffiled suit in the Superior Court of San Mateo County. On July 26, 16 -:-2013 the Prices filed their answer to the complaint. The Prices hired an attorney on a 17 .::limited-basis because the Prices did not have enough money to pay a full-time attorney. In March, 2014 — the parties attended a mediation. The Prices represented themselves in pro per. The case did not settle 19 at the mediation. 20 -=2 1=-::=-'- '"." From=May 2014 on, the Prices represented themselves exclusively in Pro ..- 19, per. On August 3, 22-.. 2015 the:court:ordered that this case be resolved through binding arbitration. The parties agreed on arbitrator Charles Dyer as a binding arbitrator. 24 In December, 2015 the parties attended a binding arbitration and tried their case in front of 25 .- arbitrator=Charles Dyer. On or about December 16, 2015 Mr. Dyer issued his Award of arbitrator. A -- --- 26 true and correct copy of the award is attached to Mr. Price's declaration as Exhibit A. 27 The. Prices.did not obtain a fair arbitration proceeding because at t'e arbitration; . DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD Mr. Dver refused to allow them to introduce critical evidence. In particular, Che arbitrator refused 2 .to admitinto evidence applicable Building Codes zoverninp stairwavs and railings. The Prices 3 .offered into evidence California Building Code sections relating to stairways and railings. Attached to 4 the Declaration of Allen Price as Exhibit B is a copy of the 2007 California Building code 5 relating to egress stairways and railings. The Prices-were not allowed to introduce these codes into evidence by the arbitrator. The Prices have always contended that the site at which plaintifffell was not an egress location since it had nothing to do with exiting or entering the subject house. Rather, their position was that the subject 10 stairs were. landscape stairs and therefore no hand railings were necessary, nor specific step dimensions - for-riser and tread. The arbitrator did not consider key evidence of the landscape stair issue. 12 13 -On the first day of arbitration, December 10, 2015, Mr. Price requested that the arbitrator, ::-Charles-Dyer, enter into evidence the exact section of the applicable building code sections that Price --—15 had printed out. They comprised a total of 4 pages and were copied from the 2007 Residential 16 Building Code:-They :. were drawn from voluminous online searches of "stairway codes", both interior 17 --and exterior. The 2007 version applies since steps were built during that year. The section on stairs actually hasn't changed for years. 19 Mr. Dyer refused to admit the pages as evidence and mentioned that a building code 20 --2-1--—.expert was not to scheduled support it. Mr. Price reviewed every single word with him in the few 22- -.-'- sentences-that applied,- pointing out the use of the word "egress" was the key word that did not require us to have hand railings nor specific dimensions of riser and tread. 24 Mr. Price had already entered into evidence a photo that showed the stairs were not connected 25 --to the. house nor part of any required egress path. Mr. Price made it very clear to the arbitrator that 26 — these code pages. were the very "Bible" that all builders refer to. Mr. Dyer said he wouldn't rule on 27 accepting- this evidence right then, but would take it under submission in his review of all the evidence. DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES-IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD On the second day of arbitration, December 11, 2015, Claimant lawyer, James Kaestner, 2 . presented an expert. witness, Michael Rohotsky, who testified about building codes applicable to the 3 Prices'atio steps. He stated building codes required steps to have a certain riser height and tread 4 depth. He also stated that a handrail was required. Mr. Price's evidence contradicted this. 5 During-his cross examination of Mr. Rohotsky, Mr. Price asked ifthe expert was aware that 7 building codes for stairs applied only to egress stairs. He stated that he was not aware of such a fact. - Mr;- Price, also asked ifhe was aware that San Mateo County Building Inspectors did not inspect landscape stairs. He said he was not aware of that fact either. 10 -Upon. finishing the cross examination, a discussion arose with Mr. Dyer about the expert witness and the building codes. Mr. Price reiterated the importance of the literal text in the code that 12 ... " - ": demonstrated the expert witness was simply uninformed and incorrect. Mr. Dyer gave no indication whether he would accept the Building Code pages as evidence. 15 In the Arbitrator's Award received on January 6, 2016, Mr. Dyer stated that the Prices had :- submitted building code information, but he deemed it inadmissible evidence. Because Mr. Dyer 17 refused to admit-or-consider key Building Code sections, a finding of negligence was virtually a 18 certainty and the Prices'ey defense was not considered. 19 "-Defendants-would ask the court to grant this petition to vacate the binding arbitration award under 20 Code of Civil:Procedure section 1288 and send this case out to binding arbitration with a different and 22 new arbitrator. 23 III. LEGAL ARGUMENT . 24 A. THE BINDING ARBITRATOR, IN AWARDING$ 429,647.14 AGAINST 25 - --.--.= — --------- —.= DEFENDANTS, ERRED BY NOT ALLOWINGOR CONSIDERING CERTAIN OF 26 DEFENDANTS'VIDENCE, IN VIOLATIONOF CODE OF CIVILPROCEDURE 27 SECTION 1286.2 DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD 1.. The Law Governing Petitions to Vacate Binding Arbitration Awards Code of Civil Procedure Section 1285 provides: "Any party to an arbitration in which an 3 award has been made may petition the court.to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons 5 bound by the arbitration award"'. 6 7 Code of Civil Procedure section 1286.2 provides, in pertinent part: -8 . (a) - Subject to-Section 1286.4, the court shall vacate the award ifthe court determines any of the following: The ..-. (5) rights of the party were substantially prejudiced by the refusal of the arbitrators 10 to postpone the hearing:upon sufficient cause being shown therefor or bv the refusal of the arbitrators to:-hear evidence material to the controversv or by other conduct of the arbitrators contrary to the 12 provisions of this title.See Moncharsh v. Heilv k Blase (1992) 3 Cal.4th 1-;-12-13. 13 - -:=:--:--:-- --: This section has,been interpreted as "a safetv valvein private arbitration that permits a -.-court to:intercede.ivhen :--:-:-1=5- an-arbitrator has prevented a partv from fairlv presentinp its case." (Hall v. 6= =-==-Superior Court (1993) 18 Cal.App.4th 427, 439.) Burlaee v. Superior Court (Spencer) (2009) 178 17 — .. Cal.App.4th 524,029. In Burlage, the Superior Court set aside a binding arbitration-award, finding that 18 --.-the-arbitrator failed to allow a party to present material evidence ("But without the opportunity to 19 —.present material evidence (of a lot line adjustment), Spencer did not receive the benefit of that 20 21'—.bargain"). Burlage at 531. The appellate court affirmed, throwing out the binding arbitration award, .. ---- 22. .—. ---saying: "It is not often that a trial court vacates an arbitration award and an court affirms the appellate order". 1 [I]fone wishes to have an award vacated or corrected he must act within one-hundred days of service of-the award or be precluded from attacking the award.'" Eternitv Investments, Inc. v. Brown (2007) 26 151 Cal.App.4th 739, 745 citing:(Coordinated Construction, Inc. v. Canona Big "A," Inc. (1965) 238 -"-:-.=------:-:=-"-:--- ---Cal.App-.2d 313, 318.) "If [the party who lost in the arbitration does] not serve and file a petition to 27 vacate or a response to [a] petition to confirm within the 100-day period from the date of service of the .. award..., the award must be treated as final." (Klubnikin v. California Fair Plan Assn. (1978 j 84 ' DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD With respect to arbitrations involving unwaivable statutory rights, they are subject to judicial 2 " 'sufficient review to ensure that arbitrators comply with the requirements of the statute't issue." 3 (Armendariz v. Foundation Health Psvchcare Services, Inc. (2000) 24 Cal.4th 83, 106. B. THE BINDINGARBITRATOR REFUSED TO ADMITKEY EVIDENCE RELATING TO APPLICABLE BUILDINGCODES GOVERNING STAIRWAYS AND RAILINGS 8 As set forth above, the arbitrator refused to admit or consider: 9 10 1. certain affirmative defenses 2. critical evidence that the subject site was not an egress location; it was a landscape location, and 12 thus did not require a handrail nor certain riser height and tread depth; 13 3. applicable Building Codes governing stairways and railings. 14 Without this key evidence, the Prices were denied a fair hearing. They now ask for the award of 15 $ 429,647.14 be vacated. 16 17 IV. CONCLUSION -"18 For the foregoing reasons, the binding arbitration award issued by arbitrator Charles Dyer should be vacated, and the arbitration should be reset with a new and different arbitrator. 20 21 DATED: March 11, 2016 By: 22 Allen Price Defendant 23 24 25 26 27 Cal.App.3d 393, 398.) — -- DEFENDANTS'EMORANBUMOF-POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD PROOF OF SERVICE I am a citizen of the United States, over the age of 18 years, and not a party to the within entitled action.. I am employed in the County of San Mateo. On this date, I served the following document(s): -DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDINGARBITRATIONAWARD - X - -..By placing for collection and mailing, following ordinary business practices at my place .....- 8 . of business, a true and correct copy thereof, in a sealed envelope with postage thereon fully prepaid, and addressed-as set forth below. I am familiar with the business practice for collection and processing of documents -for mailing with the United States Postal Service, said practice being that in the ordinary course of business, documents are deposited with the United States Postal Service on the same day as they are placed for collection. By-personal service on the parties to this action by causing a true and correct copy thereof to be .12 hand delivered to the offices or addresses of the person(s) setforth below. 13 James A. Kaestner Law Offices of James A. Kaestner 421 Grand Ave., Ste. A 15 South San Francisco, CA 94080 16 17 I declare under penalty of perjury that the foregoing is true and correct. Executed on March 11, 2016 at Burlingame, California. 18 19 20 21 22 23 24 25 26 27 28 " . ..DEFENDANTS'EMORANDUMOF POINTS AND AUTHORITIES IN SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD