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Horath v. Hess

California Court of Appeals, Fourth District, First Division

April 10, 2014

ELSIE HORATH, Plaintiff and Respondent,
v.
JOHN HESS, Defendant and Appellant.

CONSOLIDATED APPEALS from a judgment and postjudgment order of the Superior Court of San Diego County, No. 37-2010-00104019-CU-PA-CTL Ronald Prager, Judge.

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COUNSEL

Law Offices of Kim L. Bensen, Todd G. Glanz; Pollak, Vida & Fisher and Daniel P. Barer for Defendant and Appellant.

The McCabe Law Firm, James M. McCabe; Law Office of Robert Hamparyan, Robert Hamparyan; Boudreau Williams and Jon R. Williams for Plaintiff and Respondent.

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OPINION

McDONALD, J.

In his first appeal (Case No. D063124), defendant John Hess appeals a judgment entered confirming an arbitration award in favor of plaintiff Elsie Horath in the amount of $366, 527.22. On appeal, he argues the trial court erred by entering the judgment because: (1) Horath had stipulated in writing before the arbitration proceeding that she would accept the arbitrator's award or $100, 000, whichever amount was less, plus allowable costs; and (2) he was not required to timely move to correct or vacate the arbitrator's award and instead could tender $100, 000, plus costs, after the judgment was entered on that award and thereby fully satisfy the judgment pursuant to Code of Civil Procedure sections 724.010 and 724.050.[1]

In his second appeal (Case No. D063709), Hess appeals a postjudgment order denying his section 724.050 motion for acknowledgement of satisfaction of judgment. He argues the court erred because the undisputed facts show he satisfied the judgment by tendering $100, 000, plus costs, to Horath. He also argues the court erred by awarding Horath $5, 000 in attorney fees as the prevailing party pursuant to section 724.080. We consolidated the appeals and conclude the trial court erred by denying Hess's section 724.050 motion for acknowledgement of satisfaction of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Case No. D063124. Horath apparently was injured when Hess's car struck the rear of her vehicle, and filed a personal injury action against Hess. On November 18, 2011, the parties' attorneys entered into a written stipulation (Stipulation) to submit the dispute to an arbitrator for private binding arbitration. The Stipulation states:

"IT IS HEREBY STIPULATED AND AGREED... that this matter be submitted to private BINDING ARBITRATION.

"The award shall be in writing and signed by the Arbitrator. It shall include a determination of all questions submitted to the Arbitrator the decision of which is necessary in order to determine the controversy. Any party to the arbitration shall be entitled to have the award of the Arbitrator entered as a judgment in any court of competent jurisdiction in accordance with California Code of Civil Procedure § 1285 et seq.

"THE PARTIES further agree that Defendant [i.e., Hess] will pay the award of the Arbitrator or $44, 000[, ] whichever is greater, and Plaintiff [i.e.,

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Horath] will accept the award of the Arbitrator or $100, 000, whichever is less but in no event less than $44, 000. The forgoing amounts are not inclusive of allowable costs including costs of proof, if applicable, which may be awarded by the Arbitrator and are in addition to the amounts stated above. Parties to share cost of Arbitration equally.

"The terms of this agreement, or the limits of any liability insurance policy which may afford coverage to [Hess, ] may not be disclosed to the Arbitrator." (Italics added.)

On February 3, 2012, the arbitrator, Thomas E. Gniatkowski, issued a decision finding Hess liable and awarding Horath $329, 644.61 in damages. Thereafter, per Horath's request, the arbitrator awarded her costs in the amount of $36, 882.61. Therefore, the total amount of the arbitration award (Award) was $366, 527.22.

On May 21, 2012, Horath filed a petition to confirm the Award in the total amount of $366, 527.22. On June 27, more than 100 days after the date of the Award, Hess filed a motion to limit the judgment to the amount of $100, 000, citing the Stipulation's limitations on the amounts to which the parties agreed. Horath opposed the motion, arguing it was, in effect, a motion to "correct" the Award and, as such, was not timely filed within the 100-day limit under sections 1288 and 1288.2. On July 20, the trial court issued an order granting Horath's petition to confirm the Award and denying Hess's motion. The court stated Hess's motion to vacate or correct the Award was not filed within the 100-day limit under section 1288.

Hess filed a section 473 motion for reconsideration, arguing again that the Stipulation limited the amount Horath could recover to $100, 000. The court denied that motion, finding Hess had not shown grounds for relief under section 473. On September 27, 2012, the court entered judgment for Horath in the amount of $366, ...


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