Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC374795, Elizabeth A. White, Judge.
Daniel Raskov, in pro. per., for Plaintiff and Appellant.
Michelman & Robinson, Ronald R. Camhi and Mark R. Stapke for Defendant and Respondent.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Daniel Raskov, appeals from an April 6, 2009 judgment confirming an arbitration award. We affirm the judgment.
II. BACKGROUND
Defendant, a law firm, represented plaintiff in a malicious prosecution action against his former lessor. Defendant subsequently withdrew from representation, plaintiff acquired new counsel and the malicious prosecution action settled. The settlement was subject to defendant’s lien for attorney fees and costs. Defendant sought to recover attorney fees and costs from plaintiff through arbitration. On June 18, 2007, Claim Administrator R. Timothy Stone of ADR Services, Inc. wrote to the parties to acknowledge that Retired Associate Justice John Zebrowski had been engaged to serve as the neutral arbitrator. Mr. Stone also provided the parties with the arbitrator’s June 18, 2007 disclosure statement.
On July 24, 2007, plaintiff filed a declaratory relief complaint against defendant. Plaintiff sought declarations to the effect that defendant was not entitled to any recovery arising out of its representation and its lien was unenforceable. Plaintiff later added a process abuse claim.
On October 1, 2007, defendant filed a motion to compel arbitration of plaintiff’s complaint. Defendant relied on the arbitration clause of its written contingency fee agreement with plaintiff which states in part: “Any controversy, claim or dispute arising out of or relating to this agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, or any other aspect of our attorney-client relationship, including without limitation, any claims by me for fees or costs and any claims by you for malpractice, professional negligence, and/or breach of ethical or fiduciary duties, shall be determined by arbitration in Los Angeles County, California, before a sole arbitrator, in accordance with the laws of the State of California for agreements made in and to be performed in California.... Judgment on the award may be entered in any court having jurisdiction....”
The contingency fee agreement—which plaintiff executed on January 26, 2005—also provided: “This matter was referred to us [(defendant)] by Daniel Ben-Zvi, and we may enter an agreement with him to share in any recovery our firm receives from this matter. If you would like further details concerning this arrangement please ask us for this.” Defendant entered into a January 2005 agreement with Mr. Ben-Zvi to share equally both the work load and the contingency fee. Mr. Ben-Zvi continued to represent plaintiff together with the law firm of Hadsell & Stormer after defendant withdrew.
On October 23, 2007, the parties stipulated to stay plaintiff’s present declaratory relief action and proceed with binding arbitration. The stipulation provided: “1. The Parties agree to submit this Action and all other claims, potential claims or disputes that Plaintiff and Defendants [(Stapke & Harris and Mark R. Stapke)] have against each other that are limited to Defendants’ representation of Plaintiff in the Underlying Action to arbitration. [¶] 2. The Parties agree that the Honorable John Zebrowski shall serve as the arbitrator, and that the arbitration shall take place on January 11 and 14, 2008 at the offices of ADR Services, Inc. in Century City, California. The Parties further agree that, absent a showing of extraordinary circumstances, there shall be no changes or continuances to these dates. [¶] 3. Plaintiff and Defendants will each pay one half of all costs of the arbitration, subject to the discretion of the arbitrator and subject to the arbitrator’s reallocation of these costs in his final award of costs and attorneys’ fees after the arbitrator makes his final award in this dispute. [¶] 4. The Parties reserve all rights, claims and defenses regarding the issue of whether Mark R. Stapke is a proper party to the Action and/or the binding arbitration agreed upon herein, and none of the Parties are waiving any such rights, claims or defenses by this Agreement.” The trial court so ordered.
On January 11, 2008, the parties stipulated to submit the decision to the arbitrator on briefs, exhibits and declarations by January 30, 2008: “1. The Parties shall file their arbitration briefs and all supporting exhibits and/or documentary evidence, and serve these materials... no later than 12:00 p.m. on Monday, January 14, 2008.... [¶] 2. The Parties shall file any supporting declarations, and serve them... no later than 5:00 p.m. on Wednesday, January 16, 2008. [¶] 3. The Parties shall file any rebuttal briefs and/or rebuttal evidence, and serve them... no later than 5:00 p.m. on Wednesday, January 30, 2008. [¶] 4. The arbitrator shall make his determination and issue an award based on the above briefing, unless the arbitrator requires further briefing on any of the issues raised by the Parties. Defendants are specifically reserving their rights to submit additional evidence regarding the reasonable value of their services in the event the arbitrator rules that Defendants are entitled to a recovery on their lien or in quantum meruit and the arbitrator requires additional evidence from the Parties on this issue. [¶] 5. Absent a showing of extraordinary circumstances, there shall be no changes or continuances to these dates.”
On February 7, 2008, the arbitrator issued a preliminary arbitration award. The arbitrator dismissed Mark R. Stapke, individually, as a party. The arbitrator found: plaintiff had failed to establish process abuse occurred; defendant had justifiably withdrawn from representation of plaintiff in the malicious prosecution action; and defendant was entitled to a quantum meruit recovery. The preliminary arbitration award left open the amount of defendant’s quantum meruit recovery pending, within 10 days, evidence, if any, of the amount plaintiff had recovered in the confidential settlement of the underlying malicious prosecution action. The arbitrator explained: “This Award is preliminary only because it does not fully dispose of each issue raised, but instead rules on most of the issues raised and offers an (optional) opportunity to supply further information on certain matters not decided herein. It is not the intention of this Preliminary Award to invite further argument or submissions as to those issues which are herein decided, but instead only to allow for possible further submissions on matter not herein decided.” The arbitrator further ordered: “Since ten days is being allowed to provide further evidence regarding the amount of the underlying award, any party may within the same period supply further evidence on costs owing to [defendant]. [¶]... Issues regarding interest, attorneys’ fees in this proceeding, and any other remaining issue will be resolved in conjunction with the setting of the quantum meruit recovery and cost award to [defendant] and the issuance of the Final Arbitration Award.”
Following the preliminary arbitration award, plaintiff retained new counsel and raised additional issues. Plaintiff argued for the first time that the arbitrator had an undisclosed conflict relating to Mr. Ben-Zvi. Plaintiff reasoned as follows: Mr. Ben-Zvi had supplied declarations in the arbitration in support of defendant’s attorney fee request; Mr. Ben-Zvi had been associated with defendant in representing plaintiff; Mr. Ben-Zvi had a financial interest in the outcome of the arbitration; and both the arbitrator and Mr. Ben-Zvi were members of ADR Services, Inc.’s panel of arbitrators.
On May 13, 2008, the arbitrator issued a provisional final arbitration award. The arbitrator found the malicious prosecution action had settled for $224,534.74. The arbitrator awarded defendant $35,000 in attorney fees plus $10,323.76 in costs. The arbitrator directed that the parties to consider the provisional final award as concluding the matter unless within 10 days defendant chose to submit certain further evidence relating to the amount of its recovery.
After the provisional final arbitration award was issued, the arbitrator learned the underlying action did not settle for $224,534.74 as he had believed. Instead, $224,534.74 was the amount of the defendant’s asserted lien, a figure plaintiff disputed. On June 19, 2008, the arbitrator ordered plaintiff to file a declaration stating the full amount of the underlying recovery. Plaintiff filed his declaration on June 23, 2008. Defendant filed a rebuttal brief on July 9, 2008. Plaintiff filed a response on July 17, 2008. On or about August 11, 2008, plaintiff filed an objection stating, “Pursuant to [section] 1283.8, [plaintiff] hereby objects to any Arbitration Award on the grounds that it is untimely and not made within the applicable time required for the issuance of an Arbitration Award.”
On September 12, 2008, defendant filed in the trial court an application for an order requiring plaintiff to pay ADR Services, Inc. so the arbitration could conclude. Defendant presented evidence: it had not received the arbitrator’s award for over two months after the evidence in arbitration was concluded; the executive director of ADR Services, Inc., Lucie Barron, told defendant nothing had been done on the case because plaintiff had not paid $3,200 in arbitration fees owed to ADR Services, Inc.; plaintiff had repeatedly been billed for the fees; ADR Services, Inc. was unwilling to advance the arbitrator’s fees; and this was because plaintiff’s attorney had failed to pay ADR Services, Inc. in past matters. Defendant asked the trial court to order plaintiff to pay the overdue fees. In the alternative, defendant requested plaintiff’s counsel be ordered to pay the past due fee. Plaintiff opposed the application. Plaintiff argued in part that the trial court lacked jurisdiction to order him to pay the fees. Plaintiff also argued defendant had no standing because it was not properly registered with the Secretary of State. On September 25, 2008, the trial court denied defendant’s application. The trial court concluded it lacked jurisdiction to order plaintiff to pay ADR Services, Inc.
Following the September 25, 2008 hearing in the trial court, the arbitrator directed that any further submissions in arbitration deemed necessary by the parties were to be filed by October 31, 2008. On November 14, 2008, the arbitrator issued a final arbitration award which stated: “Finalization of this matter has been delayed by the arbitrator’s receipt of inaccurate information, followed by unnecessary proceedings in court. Following the conclusion of whatever court proceedings took place, the matter has been returned to me for Final Award based on corrected information which has now been supplied. [¶] Based on the clarified and corrected information now supplied by the parties, the following finding and award are now made: [¶] 1. The accurate settlement amount was $ [redacted]. [¶] 2. Stapke & Harris shall recover from Daniel Raskov the sum of $114,754.09 in attorney’s fees and $10,323.76 in costs, for a total award of $125,077.85.”
On January 16, 2009, plaintiff filed a motion to correct, modify or vacate the arbitration award, which defendant opposed and the trial court, on February 10, 2009, denied. At plaintiff’s request, the trial court issued a statement of decision. The trial court found: the final arbitration award was timely; plaintiff had not shown defendant lacked standing; plaintiff’s failure to disclose argument was without merit; and, as to lack of jurisdiction, the provisional arbitration award stated the proper quantum meruit recovery depended on the amount of the underlying settlement (which turned out to be higher than the figure the arbitrator relied on in making the provisional award). On March 6, 2009, defendant filed a motion to confirm the arbitration award, which plaintiff opposed. On April 6, 2009, the trial court entered a judgment in favor of defendant and Mr. Stapke, individually. On April 9, 2009, plaintiff filed his notice of appeal. And on April 24, 2009, on defendant’s ex parte application, the trial court entered an amended judgment in favor of defendant and Mr. Stapke on the declaratory relief complaint and in favor of defendant on the arbitration award.
III. DISCUSSION
A. Jurisdiction To Issue The Final Arbitration Award
The arbitrator issued: a February 7, 2008 preliminary arbitration award; a May 13, 2008 provisional final arbitration award; and a November 14, 2008 final arbitration award. Plaintiff argues the arbitrator lost jurisdiction to correct the May 13, 2008 provisional final arbitration award 30 days after it was issued. Plaintiff relies on Code of Civil Procedure section 1284 which states in part, “The arbitrators, upon written application of a party to the arbitration, may correct the award upon any of the grounds set forth in subdivisions (a) and (c) of Section 1286.6 not later than 30 days after service of a signed copy of the award on the applicant.” Section 1284 by its plain and clear terms limits the time during which a party may apply to correct a final arbitration award. It does not address an arbitrator’s jurisdiction to issue a preliminary decision followed by a final award. A final arbitration award leaves nothing to be done but carry out its terms. (Rusnak v. General Controls Co. (1960) 183 Cal.App.2d 583, 584; Ulene v. Murray Millman of California (1959) 175 Cal.App.2d 655, 663.) The May 13, 2008 award was provisional. We agree as the trial court found that the May 13, 2008 award was not final. Further, as the Court of Appeal held in Hightower v. Superior Court (2001) 86 Cal.App.4th 1415, 1419-1420, where the arbitrator issued a partial final award followed by a final award: “[S]uch [an] incremental award process is within the ‘broad scope’ of an arbitrator’s authority to fashion an appropriate remedy. It is not precluded by [or] offensive to the California Arbitration Act....” (Fn. omitted; accord, Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 351 [incremental or multistep awards are within the arbitrator’s power]; see Board of Trustees of California State University v. Public Employment Relations Bd. (2007) 155 Cal.App.4th 866, 881.)
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
B. Timeliness Of The Final Arbitration Award
Plaintiff argues the arbitrator lost the authority to act because the parties’ January 11, 2008 stipulation called for final arbitration submissions to be made by January 30, 2008. Plaintiff notes that on August 11, 2008, after the arbitrator issued the May 13, 2008 provisional final arbitration award, he objected to the timeliness of any further award. Plaintiff’s August 11, 2008 written objection states, “Pursuant to [section] 1283.8, [plaintiff] hereby objects to any Arbitration Award on the grounds that it is untimely and not made within the applicable time required for the issuance of an Arbitration Award.” Section 1283.8 states: “The [arbitration] award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on petition of a party to the arbitration. The parties to the arbitration may extend the time either before or after the expiration thereof. A party to the arbitration waives the objection that an award was not made within the time required unless he gives the arbitrators written notice of his objection prior to the service of a signed copy of the award on him.”
Plaintiff’s contention is without merit. The parties’ January 11, 2008 stipulation set forth the dates by which submissions in arbitration had to be completed; but it did not fix a time by which the arbitration award had to be issued. After setting forth specific dates by which the parties’ submissions were due, the agreement stated, “The arbitrator shall make his determination and issue an award based on the above briefing, unless the arbitrator requires further briefing on any of the issues raised by the Parties.”
C. Untimely Opposition
Plaintiff asserts defendant’s opposition to his motion to correct, modify or vacate the arbitration award was untimely. That issue was not raised in the trial court. As a result, it has been forfeited. (People v. Anderson (2001) 25 Cal.4th 543, 592, fn. 1; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 865, fn. 4; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1065-1066.)
D. Arbitrator Disclosure Obligations
Plaintiff contends the arbitrator failed to timely comply with the section 1281.9, subdivision (a) disclosure obligations. Pursuant to section 1286.2, subdivision (a)(6), an arbitration award must be vacated if an arbitrator fails to timely disclose a ground for disqualification of which he or she is aware. Section 1286.2, subdivision (a)(6) leaves no room for discretion—failure to timely comply with the section 1281.9, subdivision (a) disclosure requirements requires that the arbitration award be vacated. (Guseinov v. Burns, supra, 145 Cal.App.4that pp. 956-957; Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 845; International Alliance of Theatrical Stage Employees etc. v. Laughon (2004) 118 Cal.App.4th 1380, 1386.) The threshold question is whether there was a disqualification ground the arbitrator failed to timely disclose. If there was no disqualification ground, then no disclosure was required and there is no basis for vacating the arbitration award. (Guseinov v. Burns, supra, 145 Cal.App.4th at p. 957; Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 930, 943.) We review the question whether the arbitrator had a duty to disclose for substantial evidence. (Luce, Forward, Hamilton & Scripps, LLP v. Koch (2008) 162 Cal.App.4th 720, 730; Guseinov v. Burns, supra, 145 Cal.App.4th at p. 957.)
Preliminarily, plaintiff contends the arbitrator failed to timely comply with the disclosure obligations under Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Standards) 7 and 8 because, “The arbitrator did not issue a comprehensive Conflict Disclosure Check[list] Statement... until October 17, 2008....” Standard 7 provides that written disclosure must be made by the arbitrator to the parties within 10 calendar days of notice of his or her assignment. Here, contrary to plaintiff’s assertion, there is substantial evidence the arbitrator issued a disclosure statement and checklist to the parties on June 18, 2007. The arbitrator issued the disclosure at the time notice of his engagement to serve in that capacity was given.
Plaintiff argues the arbitrator was required to disclose a conflict within 10 days of the date on which Mr. Ben-Zvi submitted declarations in support of defendant’s fee request. This was because Mr. Ben-Zvi was a mediator with ADR Services, Inc. Plaintiff argues Mr. Ben-Zvi had a financial interest that could be substantially affected by the arbitrator’s determination. Plaintiff relies on Standard 8(b)(1), which requires an arbitrator in a consumer arbitration administered by a dispute resolution provider to disclose as follows: “In addition to the disclosures required under standard 7, in a consumer arbitration as defined in standard 2 in which a dispute resolution provider organization is coordinating, administering, or providing the arbitration services, a person who is nominated or appointed as an arbitrator on or after January 1, 2003 must disclose the following within the time and in the same manner as the disclosures required under standard 7(c): [¶] (1) Relationships between the provider organization and party or lawyer in arbitration.” Standard 8(b)(1)(A) requires in a consumer arbitration in which a dispute resolution provider organization is providing, coordinating or administering arbitration services, the appointed arbitrator must disclose that an attorney for a party is a member of the dispute resolution provider organization.
“Consumer arbitration” is defined as follows: “[A]n arbitration conducted under a predispute arbitration provision contained in a contract that meets the criteria listed in paragraphs (1) through (3) below. ‘Consumer arbitration’ excludes arbitration proceedings conducted under or arising out of public or private sector labor-relations laws, regulations, charter provisions, ordinances, statutes, or agreements. [¶] (1) The contract is with a consumer party, as defined in these standards; [¶] (2) The contract was drafted by or on behalf of the nonconsumer party; and [¶] (3) The consumer party was required to accept the arbitration provision in the contract.” (Standard 2(d).) A “consumer party” is “a party to an arbitration agreement who, in the context of that arbitration agreement, is any of the following: [¶] (1) An individual who seeks or acquires, including by lease, any goods or services primarily for personal, family, or household purposes including, but not limited to, financial services, insurance, and other goods and services as defined in section 1762 of the Civil Code” (Standard 2(e).)
The facts pertinent to plaintiff’s disclosure argument are as follows. Mr. Ben-Zvi is an attorney and, like the arbitrator, is a member of ADR Services, Inc.’s panel of mediators. Mr. Ben-Zvi referred plaintiff’s underlying malicious prosecution matter to defendant. Further, defendant reserved the right to enter into a work and fee sharing agreement with Mr. Ben-Zvi. The foregoing facts were expressly set forth in the written fee agreement between plaintiff and defendant, which plaintiff executed on January 26, 2005. Defendant did in fact enter into a work and fee sharing agreement with Mr. Ben-Zvi. Moreover, Mr. Ben-Zvi continued to represent plaintiff in this action together with the law firm of Hadsell & Stormer after defendant withdrew. There was uncontradicted evidence Mr. Ben-Zvi had explained his position at ADR Services, Inc. Mr. Ben-Zvi’s declaration states, “I had discussed with [plaintiff] my position as panel mediator at ADR Services, both prior to the commencement of the instant arbitration and prior to mediation in 2005.”
Defendant’s submissions in arbitration included two declarations by Mr. Ben-Zvi in support of its attorney fee claim. On January 16, 2008, Mr. Ben-Zvi declared in part, “It is my opinion that the work performed by [defendant] in the [malicious prosecution case] was competent, effective and contributed to achievement of the final settlement ultimately obtained by Hadsell & Stormer for [plaintiff].” In an April 15, 2008 declaration, Mr. Ben-Zvi described the work defendant had done on the malicious prosecution case as plaintiff’s counsel and said he believed that defendant’s requested legal fees were reasonable, appropriate and necessary. Mr. Ben-Zvi also disclosed he had waived his share of the lien for work done while associated with defendant; Mr. Ben-Zvi accepted an agreed to fee. The fee had been agreed to by plaintiff, the Hadsell & Stormer firm, and Mr. Ben-Zvi. Plaintiff first raised a question as to Mr. Ben-Zvi’s involvement in this matter after the arbitrator issued the preliminary arbitration award.
In his May 13, 2008 provisional arbitration award, the arbitrator stated: “(a) The issue regarding Mr. Ben-Zvi appears to be based on the misconception that both Mr. Ben-Zvi and I work for ADR Services. I do not work for ADR Services. It is true, however, that ADR Services works for me. I retain ADR Services to carry out administrative functions necessary to my ADR practice. I would be surprised to learn that Mr. Ben-Zvi works for ADR Services; it is my understanding that he may occasionally similarly use the services of ADR Services in his ADR activities. [¶] (b) I do recall meeting Mr. Ben-Zvi once, perhaps twice. Where, I cannot remember. Possibly at a bar function. I am not well acquainted with Mr. Ben-Zvi. [¶] (c) I have no financial interests in common with Mr. Ben-Zvi. [¶] (d) At the time of intake of this case, I do not recall any knowledge that Mr. Ben-Zvi was involved in this case, and it would have been insignificant to me had I had such knowledge at that time. It is still unclear to me precisely what interest Mr. Ben-Zvi now has in this matter, and how Mr. Ben-Zvi’s interests might be implicated by this award. Mr. Ben-Zvi’s declaration states that he has some agreement regarding payment in this matter, but does not reveal how that agreement might be affected by this award.” The arbitrator noted there was evidence plaintiff had been advised prior to arbitration of Mr. Ben-Zvi’s position with ADR Services, Inc. In addition, the arbitrator ruled that plaintiff had argued the merits of the dispute. Thus, according to the arbitrator, plaintiff had waived any objection based on Mr. Ben-Zvi’s involvement.
We conclude plaintiff was not “sandbagged” nor deprived of an opportunity to object to Mr. Ben-Zvi’s participation. There was uncontradicted evidence that even before the arbitration began, plaintiff knew Mr. Ben-Zvi was a member of ADR Services, Inc.’s panel of mediators. Plaintiff did not initially object to the arbitrator’s failure to disclose. Plaintiff proceeded with the arbitration with knowledge Mr. Ben-Zvi was a member of ADR Services, Inc.’s panel of mediators, and plaintiff raised the disqualification issue only after the arbitrator issued an adverse ruling. Additionally, there was uncontradicted evidence Mr. Ben-Zvi had no financial interest that might be affected by the arbitrator’s ruling. Mr. Ben-Zvi had waived his lien claim. Under these circumstances, the trial court could properly rule plaintiff forfeited the present assertion and cannot now challenge the arbitration award on grounds the arbitrator failed to disclose Mr. Ben-Zvi’s affiliation with ADR Services, Inc. (Dornbirer v. Kaiser Foundation Health Plan, Inc. (2008) 166 Cal.App.4th 831, 846; Fininen v. Barlow (2006) 142 Cal.App.4th 185, 190-191; see Guseinov v. Burns, supra, 145 Cal.App.4th at p. 961.)
E. Defendant’s Standing
Plaintiff contends defendant had no standing to defend itself in his declaratory relief action. Plaintiff reasons the State Bar of California terminated defendant’s certificate of registration under Rule 8.0 of the Limited Liability Partnership Rules and Regulations. Plaintiff has not cited and we have not found any legal authority in support of that proposition. Plaintiff’s attempt to analogize to a suspended corporation fails because the rule in that circumstance is a statutory one limited to corporations. (See Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, 512 [“The primary purpose of statutes depriving suspended corporations of privileges enjoyed by a going concern, including the capacity to sue or defend litigation, is to motivate delinquent corporations to pay back taxes or file missing statements”]; see Corporations Code, § 2205, subd. (c); Rev. & Tax Code, § 23301.)
IV. DISPOSITION
The judgment is affirmed. Defendant, Stapke & Harris, is to recover its costs on appeal from plaintiff, Daniel Raskov.
We concur: ARMSTRONG, J., MOSK, J.