Opinion
E038884
12-8-2006
TRISHA VINCENT et al., Plaintiffs and Respondents, v. BARRY BELT, Defendant and Appellant.
Lackie & Dammeier, Michael D. Lackie and Michael A. Morguess for Defendant and Appellant. Wasserman, Comden & Casselman, Mark S. Gottlieb and I. Donald Weissman for Plaintiffs and Respondents.
Defendant Barry Belt appeals the trial courts judgment confirming an arbitration award in favor of plaintiffs Trisha Vincent and Corysa Martinez, a minor. Relying on Code of Civil Procedure section 1286.2, defendant argues the arbitration award should be vacated because the arbitrator failed to hear evidence material to the controversy and because the arbitrators conduct was contrary to the purpose of arbitration proceedings. We affirm.
All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Vincent, a divorced single parent, shared a home with her minor daughter, plaintiff Martinez, and a friend, Manuel Martinez. Plaintiff Vincent was appointed guardian ad litem for plaintiff Martinez before this lawsuit was filed. Plaintiff Vincent had an affair with defendant Belt, a married man, and the affair ended in September 1994.
On October 16, 2000, plaintiffs filed a complaint against defendant Belt and the City of Upland for assault, battery, and stalking. The complaint also included a cause of action against the City of Upland for negligent hiring and retention. In the complaint, plaintiffs allege they were stalked by defendant Barry Belt, who was employed as a police officer by the City of Upland. At least some of the stalking allegedly occurred while defendant Belt was on duty and in violation of a restraining order. The complaint further alleges defendant Belt broke into plaintiffs home on October 15, 1999, overpowered and assaulted plaintiff Vincent, and made lewd and vulgar comments to her. As a result of defendants conduct, plaintiffs allege they lived in fear, and suffered extreme emotional and financial distress. For their alleged suffering, plaintiffs claim general, consequential, and punitive damages.
Plaintiffs and defendant Belt agreed to submit to binding arbitration to resolve all claims arising out of events occurring between September 1994 and October 16, 2000, the date plaintiffs complaint was filed. According to plaintiffs, they settled their claims against the City of Upland. The City of Upland was not a party to the arbitration and is not a party to this appeal.
Bernard Kaufman, a retired judge of the Los Angeles County Superior Court, was selected by the parties to arbitrate their dispute. Judge Kaufman conducted three days of hearing and heard testimony from plaintiff Vincent; plaintiff Vincents minor daughter, plaintiff Martinez; plaintiffs friend and roommate, Manuel Martinez; and defendant Belt. He also considered a number of exhibits submitted by the parties. Based on the evidence, the arbitrator concluded defendant Belt harassed and stalked plaintiffs after the conclusion of the extramarital affair between plaintiff Vincent and Belt in September 1994, and continued this pattern of conduct until October 14, 1999, despite plaintiff Vincents demands that he stop. As a result, plaintiffs reasonably feared for their safety and curtailed many of their activities outside of their home. Despite contradictory testimony, the arbitrator concluded defendant Belt forced his way into plaintiffs home on October 15, 1999, where he committed a sexual assault and battery on plaintiff Vincent.
The arbitrator also credited plaintiffs claims of emotional and financial stress caused by the conduct of defendant Belt. As a result, the arbitrator awarded plaintiff Vincent a total of $176,000 in economic and noneconomic damages. In addition, the arbitrator awarded minor plaintiff Martinez $30,000 in damages for emotional distress, anxiety, and mental suffering caused by defendant Belts conduct because he knew or should have known she was present during his stalking and harassing activities.
Following the arbitration, plaintiffs filed a petition in superior court to confirm the award. Defendant Belt filed a response to the petition, as well as a declaration by counsel, seeking to vacate the award. In his response, defendant raised the same arguments which are now at issue in this appeal—the award should be vacated because the arbitrator failed to hear evidence material to the controversy and engaged in conduct contrary to the purpose of arbitration proceedings in violation of section 1286.2, subdivision (a)(5). In a hearing held May 3, 2005, the superior court granted the petition to confirm the arbitration award. In reaching its decision, the court concluded defendant was not entitled to relief from the arbitrators award because he did not establish substantial prejudice as required by section 1286.2, subdivision (a)(5).
Plaintiffs argue the trial court should have deemed the allegations in the petition to confirm the award admitted pursuant to section 1290 and should not have considered the facts alleged in defendants response which now serve as the basis for defendants appeal. Plaintiffs filed their petition to confirm the arbitration award seeking the entry of judgment in plaintiffs favor on March 17, 2005. Defendants response thereto should have been filed "10 days after service of the petition" pursuant to section 1290.6, but was not filed until April 22, 2005. However, as defendant asserts in his reply, the trial court had discretion to accept and consider a late response. (Cal. Rules of Court, rule 317(d).) Plaintiffs have offered nothing to indicate that discretion was abused. We therefore conclude there is no reason to disturb the trial courts discretion on this matter.
DISCUSSION
For public policy reasons, "arbitration awards are subject to an extremely narrow judicial review. We cannot review the merits of the controversy, the validity of the arbitrators reasoning, or the sufficiency of the evidence supporting an arbitrators award." (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1344, citing Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) "The exclusive grounds for vacating an arbitration award are those listed in section 1286.2." (Luster, supra, at p. 1345.) In this case, defendant argues the arbitration award should be vacated pursuant to section 1286.2, subdivision (a)(5). In pertinent part, section 1286.2, subdivision (a)(5) states as follows: "[T]he court shall vacate the award if the court determines [that]: [¶] . . . [¶] (5) The rights of the party were substantially prejudiced . . . by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title." "[T]he burden is on the party attacking the award to affirmatively establish the existence of error by a proper record." (Lopes v. Millsap (1992) 6 Cal.App.4th 1679, 1685.) "[E]very reasonable intendment must be indulged in favor of the award." (Lauria v. Soriano (1960) 180 Cal.App.2d 163, 168.) The court of appeal conducts a de novo review, independent of the trial courts ruling, while giving deference to the arbitrators award. (Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 541.)
Alleged Failure to Consider Material Evidence
In May 2002, plaintiff Vincent was evaluated by Harriet B. Braiker, Ph.D., a psychologist, in connection with her claims against defendant, and the psychologist prepared a lengthy and detailed report of her analysis based on psychological testing and two clinical assessment interviews. Defendant argues the arbitrators award should be vacated because the arbitrator failed to consider Dr. Braikers report, which was material to the controversy. Defendant believes it was prejudicial for the arbitrator to exclude the report because plaintiff Vincent and defendant are the only witnesses to the events that serve as the basis for plaintiffs complaint, the report attacks plaintiff Vincents credibility as a witness, and defendant could have used the report for impeachment purposes.
In the first instance, a party who seeks to vacate an arbitration award based on section 1286.2, subdivision (a)(5), must show competent evidence was actually excluded. (Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 510.) Plaintiffs contend defendant cannot meet this burden because there is no transcript of the proceedings showing the mental health report was excluded. Alternatively, plaintiffs represent the report was excluded because defendant did not comply with expert designation and exchange requirements. In other words, it is undisputed the arbitrator excluded Dr. Braikers mental health report. (See, e.g., Hirsch v. Ensign (1981) 122 Cal.App.3d 521, 529 [facts relied on to support a motion to vacate an arbitration award may be established by stipulation or "some concurrence by counsel"].)
"`Where, as here, a party complains of excluded material evidence, the reviewing court should generally focus first on prejudice, not materiality. To find substantial prejudice the court must accept, for purposes of analysis, the arbitrators legal theory and conclude that the arbitrator might well have made a different award had the evidence been allowed. [Citation.]" (Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1111, quoting Hall v. Superior Court (1993) 18 Cal.App.4th 427, 438-439.)
As defendant asserts, the psychologists report does question plaintiff Vincents ability to tell the truth and to accurately recount events. For example, the report states plaintiff Vincent has a tendency "to deny, distort, minimize and magnify the data of her life experience . . . ." Although the psychologists report is clearly relevant to the dispute, we hold there is no reason to conclude the content of the report would have caused the arbitrator to reach a different resolution of the case. As the psychologist acknowledged in her report, "the trier of fact must ultimately make the determination of credibility." The psychologists conclusion about plaintiff Vincents tendency to deny, minimize, or exaggerate life experiences is merely the psychologists opinion about plaintiff Vincents credibility as a witness.
Particularly in cases involving sexual assault allegations, California courts generally look with disfavor on the use of psychiatric evidence to impeach the credibility of a witness, unless there is reason to believe the witness has a medical or mental condition affecting the ability to perceive, recall or describe the events in question. (See, e.g., People v. Gurule (2002) 28 Cal.4th 557, 592; People v. Alcala (1992) 4 Cal.4th 742, 781-782.) Here, the psychologists 79-page report is thorough and is based on psychological testing, as well as her own personal observations of plaintiff Vincent in two separate clinical assessment interviews. Despite extensive testing and analysis, the psychologist did not diagnose plaintiff Vincent with a mental condition or personality disorder, which would cause one to completely disbelieve her testimony about the events in question or the nature and extent of her emotional reactions to those events. Under these circumstances, we cannot conclude Dr. Braiker was in any better position than the arbitrator to evaluate plaintiff Vincents credibility. In addition, both plaintiff Vincent and defendant appeared before the arbitrator, so he had the benefit of testimony from both sides of the dispute, as well as other relevant evidence. We therefore conclude there is no reason to conclude that defendant was substantially prejudiced by the arbitrators decision to exclude Dr. Braikers mental health report.
Alleged Misconduct by the Arbitrator
Defendant argues the arbitrator committed misconduct by repeatedly making comments during the proceeding indicating plaintiffs were not meeting their burden of presenting competent evidence to support their claims against defendant. As a result, defendant claims he was prejudiced because the arbitrators comments were a "trap" and naturally affected his presentation of evidence. Defendant does not indicate what other evidence, if any, he would have presented in his defense if the arbitrator had expressed no opinion on the state of the evidence during the proceeding.
Defendants argument is unconvincing for several reasons. First, similar opinions expressed by an arbitrator have been found insufficient to show bias or prejudice justifying reversal of an arbitration award. (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724, quoting Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031 ["Neither strained relations between a judge and an attorney for a party nor `[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are . . . evidence of bias or prejudice"].) Second, as defendant readily admits, "[n]o court reporter was present and there are no transcripts of the proceeding." As a result, defendant is unable to meet his burden of establishing "the existence of error by a proper record." (Lopes v. Millsap, supra, 6 Cal.App.4th at p. 1685.) Third, defendants argument seems in essence to be an effort to attack the sufficiency of the evidence the arbitrator relied on in reaching his decision and/or to attack the reasoning and merits of the arbitrators decision. As outlined above, "[w]e cannot review the merits of the controversy, the validity of the arbitrators reasoning, or the sufficiency of the evidence supporting an arbitrators award." (Luster v. Collins, supra, 15 Cal.App.4th at p. 1344.) Accordingly, we conclude defendant did not meet his burden of establishing he was substantially prejudiced by the arbitrators conduct.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur:
McKINSTER, J.
RICHLI, J.