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Court of Appeal:
Arbitrator’s Comment in Email Was Sufficient to Amend Award
By a MetNews Staff Writer
A judge erred in confirming an arbitration award without including in the judgment a clarification the arbitrator had emailed to the parties, the Court of Appeal for this district held yesterday.
Presiding Justice Arthur Gilbert of Div. Six authored the unpublished opinion holding that cognizance must be taken of the email, notwithstanding that it was not signed.
The appellant, Michael Little, was fired as a police officer for the University of California at Santa Barbara for jokingly simulating a “quick draw” at other officers. Department rules proscribe quick draws except on the firing range, under supervision.
Little was also accused of evincing dishonest during the course of an investigation of the incident.
He contested his dismissal, and an eight-day arbitration took place before attorney Fred D. Butler of ADR Services, Inc.
An arbitration agreement between Little’s union and The Regents of the University of California specified that where an officer brings a grievance and a violation on the part of that employee is sustained, “the arbitrator shall specify the remedy.”
Arbitrator’s Decision
Butler found on Feb. 25, 2022:
“With regard to the charge of ‘quick draw’, the grievant is denied and University charges are sustained. The University has just cause to discipline the Grievant.
“With regard to charges of Dishonesty, the Grievance is sustained and the University does not possess just cause for discipline.”
But Butler did not prescribe a remedy. Queried by Little, Butler said in an Aug. 23, 2022 email that “any discipline short of termination would be appropriate.”
Little was not reinstated.
The Regents of the University of California argued that the award should be confirmed without incorporating the clarification. Santa Barbara Superior Court Judge Donna D. Geck agreed, saying she had “no authority to alter the terms of an arbitration award absent a petition to correct.”
Gilbert’s Opinion
Gilbert said that Geck “erred in confirming the award without the arbitrator’s modification specifying a remedy.”
He wrote:
“[T]he better rule is that modification may be made at any time before judicial confirmation of the arbitrator award. Here Little requested modification and the arbitrator responded prior to judicial confirmation of the award. Thus the modification was timely. The modification was consistent with the findings of the arbitrator, and did not prejudice the legitimate interests of the Regents. The Regents agreed that the arbitrator shall specify a remedy. They have no legitimate interest in an award without a specification of a remedy.”
Regents’ Contention
The Regents, in its appellate brief, pointed to Code of Civil Procedure §1283,4 which says:
“The award shall be in writing and signed by the arbitrators concurring therein.”
It insisted that the Aug. 23 email dies not “bear any resemblance to an award,” noting that it was not signed. Gilbert responded:
“Of course, the email modifying the award was not signed by the arbitrator. But the Regents do not dispute that the email was sent by the arbitrator with the intention of modifying the award by specifying the remedy. Under the circumstances, we treat the email as being in substantial compliance.”
The case is Little v. The Regents of the University of California, B334021.
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