Baker Marquart v. Kantor, No. B280861 (D2d2 Apr. 25, 2108)
In an arbitration over attorneys’ fees, Client submitted an ex parte (real ex parte, not California ex parte*) brief to the panel, which accepted it. The Panel ruled for Client, relying in part on claims raised in the secret brief. Attorneys never saw the brief until Client submitted it in connection with his motion to confirm the award. The superior court confirmed the award and denied a motion to vacate.
That was error. Although arbitration awards are not subject to appeal on the merits, Code of Civil Procedure § 1286.2(a)(1) requires a court to vacate an award that has been “procured by corruption, fraud, or other undue means.” Among the variety of “undue means,” is improper ex parte contact with the arbitrator, which is a form of extrinsic fraud that deprives a party of an opportunity to fairly present its case. The fact that the brief contained only ex parte arguments—all of Client’s evidence had been served on attorneys—didn’t make it any less so.
Reversed.
*For reasons that have been lost to history, practice California state courts (as well as in several of the federal district courts in California) permit a filing called an “ex parte application.” It is generally the manner in which parties can request that a court address a motion outside of the ordinary statutory briefing schedule. See Cal. R. Ct. 3.1200–3.1207; C.D. Cal. L.R. 7-19. But contrary to the name, these filings require service on all opposing parties, except under extraordinary circumstances. See Cal. R. Ct. 3.1203, 3.1206; C.D. Cal. L.R. 7-19.1.
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