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1 JAMES A. KAESTNER, SBN
LAW OFFICES OF JAMES
143179
A. KAESTNER
VIIX.EV
SANI MATEO QQUg-tI~
2 421 Grand Avenue, Suite A
South San Francisco, CA 94080 Mhh 35 [IIII
3 p: 650.952.6002
f: 650.952.6008 fQ'>e8
4
Attorney for Plaintiffs, %686vf
5 ERIKA CHRISTMANN & GARY CURTAZ
SUPERIOR COURT OF CALIFORNIA
7
COUNTY OF SAN MATEO - UNLIMITEDJURISDICTION
8
9 ERIKA CHRISTMANN, CASE NUMBER: CIV 522015
)
GARY CURTAZ, )
10 ) MEMORANDUMOF POINTS AND
Plaintiffs, AUTHORITIES IN OPPOSITION TO
11
)DEFENDANTS'OTION (PETITION) TO
)
)
VACATE BINDING ARBITRATION
) AWARD, AND IN SUPPORT OF
13 ) PLAINTIFFS'OUNTER - PETITION TO
vs. CONFIRM AWARD
14 )
)
15 Date: April 18, 2016
) Time: 9:00am
16 ALLEN L. PRICE, ) Dept.: Law and Motion
CAROL PRICE and )
17 DOES 1 - 25
Binding Arbitrator: Charles Dyer
)
18 Defendants. Date of Arbitration: December 10 8'c 11, 2015
19 I. INTRODUCTION
20 Erika Christmann and Gary Cmtaz, plaintiffs in the underlying action, are referred to as
21 Claimants in the Award of Arbitrator. They are Respondents to the Defendants'otion (Petition)
22 to Vacate Binding Arbitration Award, filed by Allen L. Price and Carol Price. For clarity, Erika
23 Christmann and Gary Curtaz willbe referred to byname or as plaintiffs, and Allen L. Price and Carol
24 Price will be referred to by name or as defendants.
25 Plaintiff Gary Curtaz stipulated with defendants to dismiss his only cause of action, loss of
26 consortium, in exchange for waiver of costs.
27 PlaintiffErika Christmann requests dismissal ofthe Defendants'otion (Petition) to Vacate
28
Memorandum ofPoints and Authorities in Opposition
to Defendants'otion (Petition) toVacateBinding Arbitration Award,
and in Support of Plaintiffs 'ounter
— Petition to Confirm Award
Erika Christmann, Gary Curtaz vs. Allen L Price,
Carol Price,and DOES l-25
Superior Court of California, County ofSan
Mateo, Unlimited Jurisdiction,
Case Number: CIV 5220l5
1 and brings a Counter - Petition requesting confirmation of the arbitration award pursuant toCCP
2 Section 1285.2, which states as follows: A response to a petition under this chapter may request the
3 court to dismiss the petition or to confirm, correct or vacate the award.
4 This is a personal injury case in which the defendants, who own an ocean view rental
5 property in Moss Beach, rented the house to Erika Christmann and Gary Curtaz for the purpose of
6 having their wedding ceremony at the location and staying there a few days before and after the
7 wedding. Erika Christmann fell on the stairs and broke her wrist, requiring three surgeries, and
8 injured her knee, requiring stitches. Plaintiffs alleged that the property owners were negligent in the
9 construction of the stairs on their premises.
10 Allparties stipulated in open court to have the case heard in binding arbitration. The parties
11 also stipulated in writing to the arbitration. A copy of the stipulation is attached to Plaintiffs'2
Response to Petition to Vacate. Attachment 1 to Response. The arbitrator, Charles Dyer, was
13 chosen from a list provided by the San Mateo Court's ADR Department. The Arbitrator issued a
14 written Disclosure, and circulated a set of rules regarding the arbitration, which was signed by all
15 parties, and are attached to Plaintiffs'esponse to Defendants'otion (Petition) to Vacate.
16 Attachment 3 to Response. In addition, a pre-arbitration conference including Mr. Dyer and all
17 parties took place on 11/3/2015 to discuss the rules and ask questions about the proceedings.
18 OBJECTIONS TO THE DEFENDANTS ALLEN L. PRICE AND CAROL PRICE IN
19 SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD
20 Defendants Allen L. Price and Carol Price were admonished about representing themselves
21 in propria persona and that they were responsible for adhering to the court rules and state law. (See
22 Award of Arbitrator, pg. 4-5, attached as Exhibit 1 to Declaration of James A. Kaestner.
23 Despite this, defendants continue tiy to prejudice the case by stating facts in the Declaration
24 of Allen L. Price that are vague, argumentative, irrelevant, hearsay, improper evidence of liability
25 insurance and personal wealth, and speculation (as to what the arbitrator ruled and why). Plaintiff
26 objects to the following paragraphs of the Declaration of Allen L. Price:
27 Paragraph 4: defendants'ealth, liability insurance
28
kfemorandum ofPoints and Authorities in Opposition 'otion (Petition) to Vacate
to Defendants Binding Arbitration Award,
and in SupportofPlaintiffs 'ounter- Petition to Co>infirm Award
Erika Christmann, Gary Curta= vs. Allen L. Price,
Carol Price,and DOES 1-25
Superior Court of California,
County ofSan Mateo, Unlimited Jurisdiction,
Case Number: CIV 522015
Paragraph 5: did not have enough money to pay a full-time attorney
Paragraph 18: key evidence
3 Paragraph 19: non-qualified testimony as to applicable Building Code sections
4 Paragraph 20: non-qualified testimony as to applicable Building Code sections
5 Paragraph 21: non-qualified testimony as to applicable Building Code sections
6 Paragraph 23: there was no transcript of the arbitration hearing Allen L. Price is here mis-
stating what plaintiffs'xert testified to
8 Paragraph 24: there was no transcript of the arbitration hearing Allen L. Price is here mis-
stating what plaintiffs'xert testified to
10 Paragraph 25: a conclusion regarding affect of inadmissability of evidence
11 LEGAL ISSUE
12 The defendants'etition to Vacate presents only one issue. Defendants'llege they were
13 substantially prejudiced by the refusal of the arbitrator to admit into evidence four (4) pages of what
14 is purported to be the 2007 Residential Building Code. Defendants stated in their brief that these
15 four (4) pages "were drawn from voluminous online searches of "stairway codes", both interior and
16 exterior. The defendants offered no expert testimony to support any opinion they might have about
1
,17 building codes, although "being allowed the opportunity to present additional evidence and law
18 concerning the issue..." (Award of Arbitrator, pg 9, Exhibit 1 to Declaration of James A. Kaestner).
19 However, defendants now assert that these four (4) pages, obtained from thousands ofpages of code
20 apply and are controlling in this case, apparently based solely on his searching Building codes
21 "online".
22 Allen L. Price states that he "reviewed every single word with him [the Arbitrator] in the few
23 sentences that applied..." [sic] Page 3, paragraph 20 of the Declaration of Allen L. Price. These
24 statements from Mr. Price in fact demonstrate that, the Arbitrator listened and reviewed "every
25 single word" of Mr. Price's testimony before deciding whether to admit these four (4) pages of code
26 into evidence.
27 Mr. Dyer also listened to Erika Christmann's expert witness John Rohotsky, whose CV is
28
Memorandum ofPoints and Authorities in Opposition
to Defendants'otion (Petition) to Vacate
Binding Arbitration Award,
and in Support ofPlaintiffs 'ounter
- Petition to Confirm Award
Erika Christmann, Carol Price,
Gary Curtaz vs. Allen L. Price, and DOES I-25
Superior Court of California, County ofSan
Mateo, Unlimited Jurisdiction,
Case Number: CIV5220I5
1 attached to the Declaration of James A. Kaestner as Exhibit 2. Mr. Rohotsky is both a licensed
2 architect and a licensed builder who has designed and built stairs. He testified to which code
3 sections that he believed applied, which were different than those selected by Allen L. Price. Mr.
4 Rohotsky was cross-examined by Mr. and Mrs. Price. He gave an opinion why defendants'our (4)
5 pages did not apply, or were vague and incomplete, or misapplied. He gave his opinion as to the
6 interpretation of the code, code violations, and in addition testified about violations of common
7 architecture safety standards in the building of the stairs. Award of Arbitrator, pg 8-10, Exhibit 1
8 to Declaration of James A. Kaestner.
9 Mr. Price chose not to retain an expert, believing the four (4) pages of the code that he
10 selected and printed from the Internet held the key to liability. Mr. Dyer was generous in allowing
11 Mr. Price to present his opinion, but Mr. Price did not bring forth any expert opinion testimony that
12 would in any way credibly contradict the expert architect/builder's testimony.
13 Mr. Dyer did not just dismiss Mr. Price's claims without examination and oppoitunity for
14 Mr. Price to prove their relevance and applicability. By Mr. Price believes that the Arbitrator had
15 to accept his non-expert testimony, interpreting only a few sentences of the code, without context
16 and without supporting evidence of his peculiar interpretation, into evidence. This is not required.
17 LEGAL ARGUMENT
18 Mr. Price relies on CCP Section 1286.2(5) which states:
19 (a) Subject to Section 1286.4, the court shall vacate the award ifthe court determines
20 any of the following:
21 (5) The rights of the party were substantially prejudiced by the refusal of the
22 arbitrator to postpone the hearing upon sufficient cause being shown
23 therefore or by refusal of the arbitrators to hear evidence material to the
24 controversy or by other conduct of the arbitrator contrary to the provisions of
25 this title.
26 In his brief Mr. Price states that the part of this code section he relies on is "the refusal of the
27 arbitrators to hear evidence material to the controversy..."
Meinorandum ofPoints 'otion (Petition) to Vacate
and Authorities in Opposition to Defendants Binding Arbitration Award,
and in SupportofPlaintiffs 'ounter— Petition to Confirm Award
Erika Christmann, Gary Curta= vs. Allen L. Price,
Carol Price,and DOES l-25
Superior Court ofCalifornia,County ofSan Mateo, Unlimited Jurisdiction,
Case CIV 5220l5
ivuinber:
1 Did Mr. Dyer refuse to hear evidence material to this controversy?
2 Mr. Dyer detailed his finding in page 8-10 of the arbitration award. He first provides the
3 bases for the expert opinion of Mr. Rohotsky, the license architect and builder as to unsafe condition
4 of the stairs, both violation of the Building Code, in the sections of the code dealing with new
5 construction on a property, under the sections on retaining walls and under sections on stairways,
6 and in addition testified based on his experience as an AIA, Architect and Licensed California
7 Contractor, that the stairway "was at the time ofthe subject incident unsafe as it did not comply with
8 the provisions of the applicable Building code nor did it meet the usual safety standards in regard
9 to stairways as there was no handrail, tread depth and riser height varied and there was no nosing."
10 The cost complying with the codes and standard safety features was minimal.
11 Mr. Price merely contended the stairway did not have to comply with Code. Mr. Dyer states
12 at page 9: "However, after a lengthy discussion and being allowed an opportunity to present
13 additional evidence and law concerning the issue, the Respondents failed to present any admissible
14 evidence or applicable law to support that contention.
15 Defendants in their brief cite Burlage vs. Superior Court (2009) 178 Cal; App 4'", 524. That
16 case reiterates the general rules regarding judicial review of an arbitration award. Judicial review
17 of a contract arbitration is extremely limited. (Citing Moncharsh vs. Heilv k Base, (1992) 3 Cal,
18 4'" 1, pp. 10-11). The court may not review the merits of the underlying controversy or the
19 arbitrator's reasoning, even when an error of law is apparent on the face of the Award and causes
20 substantial injustice. (Citing Moncharsh vs. Heilv A Base at pp. 11, 28).
21 The court in Burlage interprets CCP Section 1286.2, subdivision (a)(5) as a safety value in
22 private arbitration that permits a court to intercede when an arbitrator has prevented a party from
23 fairly presenting its case. This is a narrow decision.
24 In Schlessinger vs. Rosenfeld. Mever and Susman (1995) 40 Cal App 4"'096 the Court
25 stated:
26 As more fully explained by one Court of Appeal: "In the typical arbitration, an
27 arbitrator must make numerous decisions about admission of evidence and in doing
28
Memorandum ofPoints 'otion (Petition) to
and Authorities in Opposition to Defendants VacateBinding Arbitration Award,
and in Support ofPlaintiffs 'ounter— l'etition to Confirm Award
Erika Christma>zn,Gary Curtas Carol Price,
vs. Allen I.. Price, and DOES l-25
Superior Court of California,
Cou>zty ofSan Unlimited Jzrrisdiction,
>lfateo, Case Number: ClV 522015 5
so may exclude material evidence. No doubt there will often be aggrieved parties
who believe they have been "substantially prejudiced." decisions about materiality
cannot be made without familiarity with the issues and evidence in the arbitration.
Ifthe superior court must, with or without a transcript of the arbitration, routinely
review the arbitrator's decision on materiality before reaching the question of
substantial prejudice, the legislative goal of arbitral finality will be unattainable.
Instead of saving time and money, the arbitration will be supplemented by lengthy
and costly judicial second-guessing of the arbitrator. $ ...f[We do not accept the
suggestion ... that section 1286.2, subdivision (e), provides a back door to Moncharsh
10 through which parties may routinely test the validity of legal theories of arbitrators.
Instead, we interpret section 1286.2, subdivision (e), as a safety valve in private
12 arbitration that permits a court to intercede when an arbitrator has prevented a party
13 from fairly presenting its case...Where, as here a party complains of excluded
14 material evidence, the reviewing court should generally focus first on prejudice, not
15 materiality. To find substantial prejudice the court must accept, for purposes of
16 analysis, the arbitrator's legal theory and conclude that the arbitrator might well have
17 made a different award had the evidence been allowed."
18 In this case the defendants cannot, establish that they were substantially prejudiced by the
19 failure to admit the evidence consisting of defendants four pages ofbuilding code found (or one page
20 summary of that, which plaintiffs believe is the actual Exhibit F presented in the arbitration. See
21 Exhibit 3 to Declaration of James A. Kaestner) on the Internet and defendants non-expert opinion
22 about the application of these pages to the case, much less being dispositive on the issue of liability.
23 1. Defendants had no experience with architecture, construction, building or the building code
24 and consulted no one before building the subject stairs.
25 2. It is necessary to view the defendants'xhibit "B" to the Declaration of Allen L. Price, the
26 four (4) page exhibit, (and the one page Exhibit "F", which is Exhibit 3 to the Declaration
27 of James A. Kaestner). Both essentially are definitions. Section 1001.1 only states that other
28
Afemorandum ofPoints to Defendants'otion
and Authorities in Opposition Binding Arbitration Award,
(Petition) to Vacate
and in Siipport ofPlaintiffs 'ounter
- Petition to Confirm Award
Erika Christmantt,Gary Curta= vs. Allen 1..
Price,Carol Price,and DOES l-25
Superior Court of California,
County ofSan Mateo, Unliiuited Jurisdiction,
Case Ntttnberi CIV5220I5
1 sections of this chapter control design, construction and arrangement of means of egress
2 components. Defendants did not submit the other sections that do control egress. On its
3 face, section 1001.1, ifadmitted, does nothing to address the issue of the applicability of the
4 code to the case at hand. With no proper foundation laid for admissibility, it is immaterial.
5 3. Section 1001.2 states one cannot reduce the number of exits provided by the fire code, and
6 1001.3 that means of egress shall be maintained in accordance with the California Code
7 (which was not provided as an exhibit).
8 4. Therefore, Section 1001.1, 1001.2 and 1001.3 are not relevant, answer no issues in the case,
9 are on their face apparently part of the fire safety code, meaningless to an allegations in the
10 plaintiffs'ase. Therefore, they are not material to the case and no substantial prejudice could
11 be found if, excluded. They cannot form the basis for any opinion regarding applicability of
12 the code. The Award of Arbitrator pg 9, shows the Arbitrator practically beseeches the
13 defendants to bring in some evidence or testimony that can in any way connect the seemingly
14 randomly chosen paragraphs chosen from the Internet to the case.
15 5. Also presented by defendants are Section 1009.1, which says the width of the stairways are
16 determined by a other sections of the code. At no time did plaintiffs ever present evidence
17 or claims regarding the width of the stairway. This section of the code was, perhaps
18 randomly chosen by defendants because it statesthe word "egress". It is not comprehensible
19 how this applies to the case.
20 6. Plaintiffs'xpert, per the Award of the Arbitrator, testified as to two aspects of liability, the
21 code violations under the new structures of retaining wall portions of the code, as well as
22 general safety principles in architecture and construction, regardless of code violation. The
23 Arbitrator could have found the defendants negligence on the latter grounds even ifno code
24 violation had been found, so the ruling on admissibility ofthe four (4) pages would not affect
25 the case.
26 In summary, no substantial prejudice can be found in the Arbitrator exercising his discretion
27 in the admission of evidence when that evidence is irrelevant, incomplete, vague, confusing, not
28
Memorandum ofPoints and Authorities in Opposition
to Defendants'otion (Petition) to Vacate
Binding Arbitration Award,
and in Support ofPlaintiffs 'ounter
- Petition to Confirm Award
Erika Christmann, Gary Curtaz vs. Allen L. Price,
Carol Price,and DOES l-25
Superior Court ofCalifornia,County ofSan Mateo, Unlimited Jurisdiction,
Case Number: CIV5220I5
1 apparently connected to the legal issues in the case, when no proper foundation has been made, the
2 pages were not authenticated and even ifadmitted, the so-called evidence, four (4) pages of Internet
3 research, was not shown to be related to the legal issues in the case.
4 Wherefore, plaintiffs respectfully request that the Defendants'etition of Vacate be denied
5 and that the plaintiffs'etition to Confirm be granted, order granted, and judgment issued.
6
7 Dated: ~' +~ ) I6 spectfully submitted by:
AMES A. KAESTNER, Attorney for Plaintiffs
RIKACHRISTMANNand GARY CURTAZ
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Memorandum ofPoints 'otion (Petitioti) to
and Authorities in Opposition to Defendants VacateBinding Arbitration Award,
and in Support ofPlaintiffs'ounter - Petition to Confirnr Award
Erika Christmann, Gary Curtaz vs. Allen L Price,
Carol Price,and DOES l-25
Superior Court of California,
County ofSan Mateo, Unlimited Jurisdiction,
Case Number: CIV 5220/5
1 Erika Christmann. Garv Curtaz vs. Allen L. Price. Carol Price. and DOES 1-25
Superior Court of California, County of San Mateo, Unlimited Jurisdiction, CIV 522015
2
PROOF OF SERVICE
3
I, JILL OROZCO, declare:
I am employed in the County o f San Mateo, State o fCalifornia; I am over the age o f18 years,
5 and not a party to the within action; my business address is LAW OFFICE OF JAMES A.
KAESTNER, 421 Grand Avenue, Suite A, South San Francisco, CA 94080.
6
On March 25, 2016, I caused the following document(s) to be served on the interested
7 parties in said cause:
8 MEMORANDUMOF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS'OTION (PETITION) TO VACATE BINDING ARBITRATION
9 AWARD, AND IN SUPPORT OF PLAINTIFFS'OUNTER - PETITION TO CONFIRM
AWARD
10
11 XX BY MAIL:Byplacing the document(s) listed above in a sealed envelope
with postage thereon fully prepaid, in the United States mail at South San
12 Francisco, California addressed as set forth below.
13 BY FACSIMILE: By transmitting via facsimile, with written confirmatior.
thereof by Defendant's counsel, and
14 by agreement the above listed document(s) to the fax number(s) set forth
below on this date before 5:00 pm.
15
BY FEDERAL EXPRESS: By causing the above listed document(s) to be
16 delivered to Federal Express for overnight service to the address(es) set forth
below.
17
BY HAND DELIVERY: By causing the above listed document(s) to be
18 delivered by hand to the address(es) set forth below.
19 BY E-MAIL:Bycausing the above listed document(s) to be delivered by
e-mail to the address set forth below on
20
21
Allen L. Price
Carol Price
22
2000 Vallemar Street
Moss Beach, CA 94038
23
e: alpricegothotel.corn
24
I declare under penalty ofperjury under the laws ofthe State of California, that the foregoing
is true and correct and that this declaration was executed on March 25, 2016, at South San
Francisco, California.
26
JILL OROZCO
(k~m+0
27
Preview
1 JAMES A. KAESTNER, SBN LAW OFFICES OF JAMES 143179 A. KAESTNER VIIX.EV SANI MATEO QQUg-tI~ 2 421 Grand Avenue, Suite A South San Francisco, CA 94080 Mhh 35 [IIII 3 p: 650.952.6002 f: 650.952.6008 fQ'>e8 4 Attorney for Plaintiffs, %686vf 5 ERIKA CHRISTMANN & GARY CURTAZ SUPERIOR COURT OF CALIFORNIA 7 COUNTY OF SAN MATEO - UNLIMITEDJURISDICTION 8 9 ERIKA CHRISTMANN, CASE NUMBER: CIV 522015 ) GARY CURTAZ, ) 10 ) MEMORANDUMOF POINTS AND Plaintiffs, AUTHORITIES IN OPPOSITION TO 11 )DEFENDANTS'OTION (PETITION) TO ) ) VACATE BINDING ARBITRATION ) AWARD, AND IN SUPPORT OF 13 ) PLAINTIFFS'OUNTER - PETITION TO vs. CONFIRM AWARD 14 ) ) 15 Date: April 18, 2016 ) Time: 9:00am 16 ALLEN L. PRICE, ) Dept.: Law and Motion CAROL PRICE and ) 17 DOES 1 - 25 Binding Arbitrator: Charles Dyer ) 18 Defendants. Date of Arbitration: December 10 8'c 11, 2015 19 I. INTRODUCTION 20 Erika Christmann and Gary Cmtaz, plaintiffs in the underlying action, are referred to as 21 Claimants in the Award of Arbitrator. They are Respondents to the Defendants'otion (Petition) 22 to Vacate Binding Arbitration Award, filed by Allen L. Price and Carol Price. For clarity, Erika 23 Christmann and Gary Curtaz willbe referred to byname or as plaintiffs, and Allen L. Price and Carol 24 Price will be referred to by name or as defendants. 25 Plaintiff Gary Curtaz stipulated with defendants to dismiss his only cause of action, loss of 26 consortium, in exchange for waiver of costs. 27 PlaintiffErika Christmann requests dismissal ofthe Defendants'otion (Petition) to Vacate 28 Memorandum ofPoints and Authorities in Opposition to Defendants'otion (Petition) toVacateBinding Arbitration Award, and in Support of Plaintiffs 'ounter — Petition to Confirm Award Erika Christmann, Gary Curtaz vs. Allen L Price, Carol Price,and DOES l-25 Superior Court of California, County ofSan Mateo, Unlimited Jurisdiction, Case Number: CIV 5220l5 1 and brings a Counter - Petition requesting confirmation of the arbitration award pursuant toCCP 2 Section 1285.2, which states as follows: A response to a petition under this chapter may request the 3 court to dismiss the petition or to confirm, correct or vacate the award. 4 This is a personal injury case in which the defendants, who own an ocean view rental 5 property in Moss Beach, rented the house to Erika Christmann and Gary Curtaz for the purpose of 6 having their wedding ceremony at the location and staying there a few days before and after the 7 wedding. Erika Christmann fell on the stairs and broke her wrist, requiring three surgeries, and 8 injured her knee, requiring stitches. Plaintiffs alleged that the property owners were negligent in the 9 construction of the stairs on their premises. 10 Allparties stipulated in open court to have the case heard in binding arbitration. The parties 11 also stipulated in writing to the arbitration. A copy of the stipulation is attached to Plaintiffs'2 Response to Petition to Vacate. Attachment 1 to Response. The arbitrator, Charles Dyer, was 13 chosen from a list provided by the San Mateo Court's ADR Department. The Arbitrator issued a 14 written Disclosure, and circulated a set of rules regarding the arbitration, which was signed by all 15 parties, and are attached to Plaintiffs'esponse to Defendants'otion (Petition) to Vacate. 16 Attachment 3 to Response. In addition, a pre-arbitration conference including Mr. Dyer and all 17 parties took place on 11/3/2015 to discuss the rules and ask questions about the proceedings. 18 OBJECTIONS TO THE DEFENDANTS ALLEN L. PRICE AND CAROL PRICE IN 19 SUPPORT OF PETITION TO VACATE BINDING ARBITRATIONAWARD 20 Defendants Allen L. Price and Carol Price were admonished about representing themselves 21 in propria persona and that they were responsible for adhering to the court rules and state law. (See 22 Award of Arbitrator, pg. 4-5, attached as Exhibit 1 to Declaration of James A. Kaestner. 23 Despite this, defendants continue tiy to prejudice the case by stating facts in the Declaration 24 of Allen L. Price that are vague, argumentative, irrelevant, hearsay, improper evidence of liability 25 insurance and personal wealth, and speculation (as to what the arbitrator ruled and why). Plaintiff 26 objects to the following paragraphs of the Declaration of Allen L. Price: 27 Paragraph 4: defendants'ealth, liability insurance 28 kfemorandum ofPoints and Authorities in Opposition 'otion (Petition) to Vacate to Defendants Binding Arbitration Award, and in SupportofPlaintiffs 'ounter- Petition to Co>infirm Award Erika Christmann, Gary Curta= vs. Allen L. Price, Carol Price,and DOES 1-25 Superior Court of California, County ofSan Mateo, Unlimited Jurisdiction, Case Number: CIV 522015 Paragraph 5: did not have enough money to pay a full-time attorney Paragraph 18: key evidence 3 Paragraph 19: non-qualified testimony as to applicable Building Code sections 4 Paragraph 20: non-qualified testimony as to applicable Building Code sections 5 Paragraph 21: non-qualified testimony as to applicable Building Code sections 6 Paragraph 23: there was no transcript of the arbitration hearing Allen L. Price is here mis- stating what plaintiffs'xert testified to 8 Paragraph 24: there was no transcript of the arbitration hearing Allen L. Price is here mis- stating what plaintiffs'xert testified to 10 Paragraph 25: a conclusion regarding affect of inadmissability of evidence 11 LEGAL ISSUE 12 The defendants'etition to Vacate presents only one issue. Defendants'llege they were 13 substantially prejudiced by the refusal of the arbitrator to admit into evidence four (4) pages of what 14 is purported to be the 2007 Residential Building Code. Defendants stated in their brief that these 15 four (4) pages "were drawn from voluminous online searches of "stairway codes", both interior and 16 exterior. The defendants offered no expert testimony to support any opinion they might have about 1 ,17 building codes, although "being allowed the opportunity to present additional evidence and law 18 concerning the issue..." (Award of Arbitrator, pg 9, Exhibit 1 to Declaration of James A. Kaestner). 19 However, defendants now assert that these four (4) pages, obtained from thousands ofpages of code 20 apply and are controlling in this case, apparently based solely on his searching Building codes 21 "online". 22 Allen L. Price states that he "reviewed every single word with him [the Arbitrator] in the few 23 sentences that applied..." [sic] Page 3, paragraph 20 of the Declaration of Allen L. Price. These 24 statements from Mr. Price in fact demonstrate that, the Arbitrator listened and reviewed "every 25 single word" of Mr. Price's testimony before deciding whether to admit these four (4) pages of code 26 into evidence. 27 Mr. Dyer also listened to Erika Christmann's expert witness John Rohotsky, whose CV is 28 Memorandum ofPoints and Authorities in Opposition to Defendants'otion (Petition) to Vacate Binding Arbitration Award, and in Support ofPlaintiffs 'ounter - Petition to Confirm Award Erika Christmann, Carol Price, Gary Curtaz vs. Allen L. Price, and DOES I-25 Superior Court of California, County ofSan Mateo, Unlimited Jurisdiction, Case Number: CIV5220I5 1 attached to the Declaration of James A. Kaestner as Exhibit 2. Mr. Rohotsky is both a licensed 2 architect and a licensed builder who has designed and built stairs. He testified to which code 3 sections that he believed applied, which were different than those selected by Allen L. Price. Mr. 4 Rohotsky was cross-examined by Mr. and Mrs. Price. He gave an opinion why defendants'our (4) 5 pages did not apply, or were vague and incomplete, or misapplied. He gave his opinion as to the 6 interpretation of the code, code violations, and in addition testified about violations of common 7 architecture safety standards in the building of the stairs. Award of Arbitrator, pg 8-10, Exhibit 1 8 to Declaration of James A. Kaestner. 9 Mr. Price chose not to retain an expert, believing the four (4) pages of the code that he 10 selected and printed from the Internet held the key to liability. Mr. Dyer was generous in allowing 11 Mr. Price to present his opinion, but Mr. Price did not bring forth any expert opinion testimony that 12 would in any way credibly contradict the expert architect/builder's testimony. 13 Mr. Dyer did not just dismiss Mr. Price's claims without examination and oppoitunity for 14 Mr. Price to prove their relevance and applicability. By Mr. Price believes that the Arbitrator had 15 to accept his non-expert testimony, interpreting only a few sentences of the code, without context 16 and without supporting evidence of his peculiar interpretation, into evidence. This is not required. 17 LEGAL ARGUMENT 18 Mr. Price relies on CCP Section 1286.2(5) which states: 19 (a) Subject to Section 1286.4, the court shall vacate the award ifthe court determines 20 any of the following: 21 (5) The rights of the party were substantially prejudiced by the refusal of the 22 arbitrator to postpone the hearing upon sufficient cause being shown 23 therefore or by refusal of the arbitrators to hear evidence material to the 24 controversy or by other conduct of the arbitrator contrary to the provisions of 25 this title. 26 In his brief Mr. Price states that the part of this code section he relies on is "the refusal of the 27 arbitrators to hear evidence material to the controversy..." Meinorandum ofPoints 'otion (Petition) to Vacate and Authorities in Opposition to Defendants Binding Arbitration Award, and in SupportofPlaintiffs 'ounter— Petition to Confirm Award Erika Christmann, Gary Curta= vs. Allen L. Price, Carol Price,and DOES l-25 Superior Court ofCalifornia,County ofSan Mateo, Unlimited Jurisdiction, Case CIV 5220l5 ivuinber: 1 Did Mr. Dyer refuse to hear evidence material to this controversy? 2 Mr. Dyer detailed his finding in page 8-10 of the arbitration award. He first provides the 3 bases for the expert opinion of Mr. Rohotsky, the license architect and builder as to unsafe condition 4 of the stairs, both violation of the Building Code, in the sections of the code dealing with new 5 construction on a property, under the sections on retaining walls and under sections on stairways, 6 and in addition testified based on his experience as an AIA, Architect and Licensed California 7 Contractor, that the stairway "was at the time ofthe subject incident unsafe as it did not comply with 8 the provisions of the applicable Building code nor did it meet the usual safety standards in regard 9 to stairways as there was no handrail, tread depth and riser height varied and there was no nosing." 10 The cost complying with the codes and standard safety features was minimal. 11 Mr. Price merely contended the stairway did not have to comply with Code. Mr. Dyer states 12 at page 9: "However, after a lengthy discussion and being allowed an opportunity to present 13 additional evidence and law concerning the issue, the Respondents failed to present any admissible 14 evidence or applicable law to support that contention. 15 Defendants in their brief cite Burlage vs. Superior Court (2009) 178 Cal; App 4'", 524. That 16 case reiterates the general rules regarding judicial review of an arbitration award. Judicial review 17 of a contract arbitration is extremely limited. (Citing Moncharsh vs. Heilv k Base, (1992) 3 Cal, 18 4'" 1, pp. 10-11). The court may not review the merits of the underlying controversy or the 19 arbitrator's reasoning, even when an error of law is apparent on the face of the Award and causes 20 substantial injustice. (Citing Moncharsh vs. Heilv A Base at pp. 11, 28). 21 The court in Burlage interprets CCP Section 1286.2, subdivision (a)(5) as a safety value in 22 private arbitration that permits a court to intercede when an arbitrator has prevented a party from 23 fairly presenting its case. This is a narrow decision. 24 In Schlessinger vs. Rosenfeld. Mever and Susman (1995) 40 Cal App 4"'096 the Court 25 stated: 26 As more fully explained by one Court of Appeal: "In the typical arbitration, an 27 arbitrator must make numerous decisions about admission of evidence and in doing 28 Memorandum ofPoints 'otion (Petition) to and Authorities in Opposition to Defendants VacateBinding Arbitration Award, and in Support ofPlaintiffs 'ounter— l'etition to Confirm Award Erika Christma>zn,Gary Curtas Carol Price, vs. Allen I.. Price, and DOES l-25 Superior Court of California, Cou>zty ofSan Unlimited Jzrrisdiction, >lfateo, Case Number: ClV 522015 5 so may exclude material evidence. No doubt there will often be aggrieved parties who believe they have been "substantially prejudiced." decisions about materiality cannot be made without familiarity with the issues and evidence in the arbitration. Ifthe superior court must, with or without a transcript of the arbitration, routinely review the arbitrator's decision on materiality before reaching the question of substantial prejudice, the legislative goal of arbitral finality will be unattainable. Instead of saving time and money, the arbitration will be supplemented by lengthy and costly judicial second-guessing of the arbitrator. $ ...f[We do not accept the suggestion ... that section 1286.2, subdivision (e), provides a back door to Moncharsh 10 through which parties may routinely test the validity of legal theories of arbitrators. Instead, we interpret section 1286.2, subdivision (e), as a safety valve in private 12 arbitration that permits a court to intercede when an arbitrator has prevented a party 13 from fairly presenting its case...Where, as here a party complains of excluded 14 material evidence, the reviewing court should generally focus first on prejudice, not 15 materiality. To find substantial prejudice the court must accept, for purposes of 16 analysis, the arbitrator's legal theory and conclude that the arbitrator might well have 17 made a different award had the evidence been allowed." 18 In this case the defendants cannot, establish that they were substantially prejudiced by the 19 failure to admit the evidence consisting of defendants four pages ofbuilding code found (or one page 20 summary of that, which plaintiffs believe is the actual Exhibit F presented in the arbitration. See 21 Exhibit 3 to Declaration of James A. Kaestner) on the Internet and defendants non-expert opinion 22 about the application of these pages to the case, much less being dispositive on the issue of liability. 23 1. Defendants had no experience with architecture, construction, building or the building code 24 and consulted no one before building the subject stairs. 25 2. It is necessary to view the defendants'xhibit "B" to the Declaration of Allen L. Price, the 26 four (4) page exhibit, (and the one page Exhibit "F", which is Exhibit 3 to the Declaration 27 of James A. Kaestner). Both essentially are definitions. Section 1001.1 only states that other 28 Afemorandum ofPoints to Defendants'otion and Authorities in Opposition Binding Arbitration Award, (Petition) to Vacate and in Siipport ofPlaintiffs 'ounter - Petition to Confirm Award Erika Christmantt,Gary Curta= vs. Allen 1.. Price,Carol Price,and DOES l-25 Superior Court of California, County ofSan Mateo, Unliiuited Jurisdiction, Case Ntttnberi CIV5220I5 1 sections of this chapter control design, construction and arrangement of means of egress 2 components. Defendants did not submit the other sections that do control egress. On its 3 face, section 1001.1, ifadmitted, does nothing to address the issue of the applicability of the 4 code to the case at hand. With no proper foundation laid for admissibility, it is immaterial. 5 3. Section 1001.2 states one cannot reduce the number of exits provided by the fire code, and 6 1001.3 that means of egress shall be maintained in accordance with the California Code 7 (which was not provided as an exhibit). 8 4. Therefore, Section 1001.1, 1001.2 and 1001.3 are not relevant, answer no issues in the case, 9 are on their face apparently part of the fire safety code, meaningless to an allegations in the 10 plaintiffs'ase. Therefore, they are not material to the case and no substantial prejudice could 11 be found if, excluded. They cannot form the basis for any opinion regarding applicability of 12 the code. The Award of Arbitrator pg 9, shows the Arbitrator practically beseeches the 13 defendants to bring in some evidence or testimony that can in any way connect the seemingly 14 randomly chosen paragraphs chosen from the Internet to the case. 15 5. Also presented by defendants are Section 1009.1, which says the width of the stairways are 16 determined by a other sections of the code. At no time did plaintiffs ever present evidence 17 or claims regarding the width of the stairway. This section of the code was, perhaps 18 randomly chosen by defendants because it statesthe word "egress". It is not comprehensible 19 how this applies to the case. 20 6. Plaintiffs'xpert, per the Award of the Arbitrator, testified as to two aspects of liability, the 21 code violations under the new structures of retaining wall portions of the code, as well as 22 general safety principles in architecture and construction, regardless of code violation. The 23 Arbitrator could have found the defendants negligence on the latter grounds even ifno code 24 violation had been found, so the ruling on admissibility ofthe four (4) pages would not affect 25 the case. 26 In summary, no substantial prejudice can be found in the Arbitrator exercising his discretion 27 in the admission of evidence when that evidence is irrelevant, incomplete, vague, confusing, not 28 Memorandum ofPoints and Authorities in Opposition to Defendants'otion (Petition) to Vacate Binding Arbitration Award, and in Support ofPlaintiffs 'ounter - Petition to Confirm Award Erika Christmann, Gary Curtaz vs. Allen L. Price, Carol Price,and DOES l-25 Superior Court ofCalifornia,County ofSan Mateo, Unlimited Jurisdiction, Case Number: CIV5220I5 1 apparently connected to the legal issues in the case, when no proper foundation has been made, the 2 pages were not authenticated and even ifadmitted, the so-called evidence, four (4) pages of Internet 3 research, was not shown to be related to the legal issues in the case. 4 Wherefore, plaintiffs respectfully request that the Defendants'etition of Vacate be denied 5 and that the plaintiffs'etition to Confirm be granted, order granted, and judgment issued. 6 7 Dated: ~' +~ ) I6 spectfully submitted by: AMES A. KAESTNER, Attorney for Plaintiffs RIKACHRISTMANNand GARY CURTAZ 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Memorandum ofPoints 'otion (Petitioti) to and Authorities in Opposition to Defendants VacateBinding Arbitration Award, and in Support ofPlaintiffs'ounter - Petition to Confirnr Award Erika Christmann, Gary Curtaz vs. Allen L Price, Carol Price,and DOES l-25 Superior Court of California, County ofSan Mateo, Unlimited Jurisdiction, Case Number: CIV 5220/5 1 Erika Christmann. Garv Curtaz vs. Allen L. Price. Carol Price. and DOES 1-25 Superior Court of California, County of San Mateo, Unlimited Jurisdiction, CIV 522015 2 PROOF OF SERVICE 3 I, JILL OROZCO, declare: I am employed in the County o f San Mateo, State o fCalifornia; I am over the age o f18 years, 5 and not a party to the within action; my business address is LAW OFFICE OF JAMES A. KAESTNER, 421 Grand Avenue, Suite A, South San Francisco, CA 94080. 6 On March 25, 2016, I caused the following document(s) to be served on the interested 7 parties in said cause: 8 MEMORANDUMOF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS'OTION (PETITION) TO VACATE BINDING ARBITRATION 9 AWARD, AND IN SUPPORT OF PLAINTIFFS'OUNTER - PETITION TO CONFIRM AWARD 10 11 XX BY MAIL:Byplacing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at South San 12 Francisco, California addressed as set forth below. 13 BY FACSIMILE: By transmitting via facsimile, with written confirmatior. thereof by Defendant's counsel, and 14 by agreement the above listed document(s) to the fax number(s) set forth below on this date before 5:00 pm. 15 BY FEDERAL EXPRESS: By causing the above listed document(s) to be 16 delivered to Federal Express for overnight service to the address(es) set forth below. 17 BY HAND DELIVERY: By causing the above listed document(s) to be 18 delivered by hand to the address(es) set forth below. 19 BY E-MAIL:Bycausing the above listed document(s) to be delivered by e-mail to the address set forth below on 20 21 Allen L. Price Carol Price 22 2000 Vallemar Street Moss Beach, CA 94038 23 e: alpricegothotel.corn 24 I declare under penalty ofperjury under the laws ofthe State of California, that the foregoing is true and correct and that this declaration was executed on March 25, 2016, at South San Francisco, California. 26 JILL OROZCO (k~m+0 27