Filed 9/16/21 Tarver v. Zapata CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

CHARLES WINSTON TARVER,

Plaintiff and Appellant,

v.

ROGER ZAPATA et al.,

Defendants and Respondents;

MARTHA ZAPATA et al.,

Defendants and Appellants.

B299630

Los Angeles County

Super. Ct. No. BC503844

APPEALS from a judgment of the Superior Court of Los

Angeles County, Malcolm H. Mackey, Judge. Affirmed as 

modified.

Law Offices of Robert K. Kent, Robert K. Kent; Law Offices 

of Steven Wolfson and Steven Wolfson for Plaintiff and

Appellant.

Ensberg Law Group and Nancy J. Skovholt for Defendants

and Appellants Martha Zapata and R&R Sales Enterprises, Inc.
2

Murchison & Cumming and Edmund G. Farrell for 

Defendants and Respondents So Cal Realty & Loans, Inc. and

Roger Zapata.

_______________________________________

INTRODUCTION

Plaintiff and appellant Charles Winston Tarver filed the 

present action against Roger Zapata, So Cal Realty & Loans, Inc.

(So Cal Realty), Martha Zapata, and R&R Sales Enterprises, Inc.

(R&R Sales) (collectively, defendants) alleging, among other 

things, breach of an agreement for the purchase of real estate. 

The parties stipulated that the matter should be resolved 

through binding arbitration, as required under the purchase 

agreement.

More than five years after the matter was sent to 

arbitration, defendants moved to dismiss Tarver’s case for lack of 

diligent prosecution under Code of Civil Procedure1 sections

583.310 and 583.360. The arbitrator dismissed the case. The trial 

court confirmed the award and entered judgment in favor of 

Roger Zapata and So Cal Realty. Tarver appeals, arguing 

exclusively that the arbitrator erred in granting defendants’ 

motion to dismiss. Martha Zapata and R&R Sales also appeal 

and ask us to correct the judgment to include them.

Arbitration awards are entitled to substantial deference by 

our courts and as a general matter, the courts of appeal do not 

vacate an arbitration award, even if plain errors of fact or law 

appear on the face of the award. All of Tarver’s arguments 

1 All undesignated statutory references are to the Code of Civil 

Procedure.
3

challenge the arbitrator’s legal and factual findings, which are 

not reviewable. We will, however, correct the court’s clerical error 

omitting Martha Zapata and R&R Sales Enterprises, Inc. from 

the judgment, and affirm the judgment as modified.

FACTS AND PROCEDURAL BACKGROUND

1. Arbitration Award

Tarver filed the present action in March 2013, generally 

alleging that defendants failed to disclose substantial defects in 

the residence he purchased from them. His complaint included a 

cause of action for breach of contract and the contract at issue 

contained an arbitration provision. In September 2013, the 

parties stipulated, and the court ordered, that the matter would 

proceed to binding arbitration. No arbitration proceedings took 

place, however.

In November 2018, defendants filed a motion to dismiss 

Tarver’s action under sections 583.310 and 583.3602 due to 

Tarver’s failure to proceed to arbitration with reasonable 

diligence. Tarver opposed the motion, arguing mainly that the 

five-year period set forth in section 583.310 was effectively tolled 

while the arbitration was pending. The arbitrator granted the 

motion and dismissed the action with prejudice as to all 

defendants.

2 Section 583.310 provides: “An action shall be brought to trial within 

five years after the action is commenced against the defendant.”

Section 583.360 provides: “(a) An action shall be dismissed by the court 

on its own motion or on motion of the defendant, after notice to the 

parties, if the action is not brought to trial within the time prescribed 

in this article. [¶] (b) The requirements of this article are mandatory 

and are not subject to extension, excuse, or exception except as 

expressly provided by statute.”
4

2. Confirmation of the Arbitration Award

In March 2019, Roger Zapata and So Cal Realty filed a 

petition to confirm the arbitration award under section 1285.

Tarver did not file a timely opposition to the petition. Instead, 

approximately two months after the petition was filed—and just 

a few days before the hearing on the petition was set to take 

place—Tarver filed an ex parte application asking the court to 

postpone the hearing, facilitate substitution of counsel, and allow 

new counsel to file an opposition to the petition to confirm the 

arbitration award. The application purported to set forth 

“relevant true facts that were not presented to the Arbitrator” 

regarding Tarver’s efforts to bring the matter to arbitration in a 

timely manner. The application was supported by declarations 

from Tarver and his proposed new counsel.

The court denied the ex parte application but allowed 

Tarver to file a formal opposition to the petition to confirm the 

arbitration award. Tarver subsequently filed an opposition that 

was essentially identical to his ex parte application and was 

similarly supported by declarations from Tarver and his proposed 

new counsel attesting to their diligence in prosecuting the 

arbitration.

During the May 31, 2019 hearing, defendants reiterated 

that the court should grant the petition and confirm the 

arbitration award in favor of all four defendants. The court found 

that no valid ground to correct or vacate the arbitration award 

existed and granted the petition to confirm the award. The court 

also confirmed that it was rendering judgment in favor of all four 

defendants.
5

3. Judgment and Appeals

Roger Zapata and So Cal Realty submitted a proposed 

judgment to the court that omitted Martha Zapata and R&R 

Sales as prevailing parties. Over the objection of Martha Zapata 

and R&R Sales, the court signed the proposed judgment.

The judgment was filed on July 3, 2019. Tarver timely 

appeals. Martha Zapata and R&R Sales filed a timely crossappeal.

DISCUSSION

1. The court properly confirmed the arbitration award.

Each of Tarver’s arguments on appeal is directed to the 

arbitrator’s ruling on defendants’ motion to dismiss. As we 

explain, however, the correctness of the arbitrator’s decision is 

not properly before us.3 Instead, we consider only whether the 

court properly confirmed the arbitration award. On that point, 

Tarver offers no argument and therefore fails to establish the 

court erred.

1.1. Standard of Review

We review the court’s decision on a petition to confirm or 

vacate an arbitration award de novo. (Advanced Micro Devices, 

Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.) If the court’s 

3 Tarver’s additional contention that the arbitrator that decided the 

motion to dismiss, Chris R. Conway, was not the arbitrator agreed 

upon by the parties is not sufficiently developed in his opening brief. 

Regardless, this contention is contradicted by Tarver in his opposition 

to the motion to dismiss: “On September 19, 2018 the parties agreed to 

utilizing Honorable Chris Conway as the arbitrator, with a[n]

upcoming date for said arbitration.”
6

ruling relies on a determination of disputed factual issues, we 

apply the substantial evidence test on those particular issues. 

(Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217.)

Tarver contends that “[a]ppellate review is limited to 

whether the trial court abused its discretion in ruling on the 

Motion to dismiss.” But as we explain post, the issue before us is 

whether the court properly granted defendants’ petition to 

confirm the arbitration award—not whether the arbitrator’s 

decision to dismiss Tarver’s action was correct.

1.2. Review of Arbitration Awards

“The [California Arbitration Act (§ 1280 et seq.) (CAA)] is ‘a 

comprehensive statutory scheme regulating private arbitration in 

this state.’ (Moncharsh [v. Heily & Blase (1992)] 3 Cal.4th [1,] 9.) 

‘Through this detailed statutory scheme, the Legislature has 

expressed a “strong public policy in favor of arbitration as a 

speedy and relatively inexpensive means of dispute resolution.” ’ 

(Ibid.)” (Sheppard, Mullin, Richter & Hampton, LLP v. J-M 

Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 72.)

“Pursuant to ... section 1285, any party to an arbitration in 

which an award has been made may petition the court to 

‘confirm, correct or vacate the award.’ Once a petition to confirm 

an award is filed, the superior court must select one of only four 

courses of action: It may confirm the award, correct and confirm 

it, vacate it, or dismiss the petition. [Citation.] ‘[I]t is the general 

rule that, with narrow exceptions, an arbitrator’s decision cannot 

be reviewed for errors of fact or law.’ (Moncharsh v. Heily & Blase

(1992) 3 Cal.4th 1, 11.) Under section 1286.2, the court may 

vacate the award only under ‘ “very limited circumstances.” ’ 

[Citation.] Neither the trial court, nor the appellate court, may 

‘review the merits of the dispute, the sufficiency of the evidence, 
7

or the arbitrator’s reasoning, nor may we correct or review an 

award because of an arbitrator’s legal or factual error, even if it 

appears on the award’s face. Instead, we restrict our review to 

whether the award should be vacated under the grounds listed in 

section 1286.2. [Citations.]’ ” (EHM Productions, Inc. v. Starline 

Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063–1064, 

final brackets in original, fn. omitted.) 

Section 1286.2, subdivision (a), provides: “Subject to 

Section 1286.4, the court shall vacate the award if the court 

determines any of the following:

“(1) The award was procured by corruption, fraud or other 

undue means.

“(2) There was corruption in any of the arbitrators.

“(3) The rights of the party were substantially prejudiced 

by misconduct of a neutral arbitrator.

“(4) The arbitrators exceeded their powers and the award 

cannot be corrected without affecting the merits of the decision 

upon the controversy submitted.

“(5) The rights of the party were substantially prejudiced 

by the refusal of the arbitrators to postpone the hearing upon 

sufficient cause being shown therefor or 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.

“(6) An arbitrator making the award either: (A) failed to 

disclose within the time required for disclosure a ground for 

disqualification of which the arbitrator was then aware; or 

(B) was subject to disqualification upon grounds specified in 

Section 1281.91 but failed upon receipt of timely demand to 

disqualify himself or herself as required by that provision. 
8

However, this subdivision does not apply to arbitration 

proceedings conducted under a collective bargaining agreement 

between employers and employees or between their respective 

representatives.”

1.3. Tarver’s arguments challenge the correctness of 

the arbitrator’s decision and are beyond the 

scope of review. 

Tarver summarizes the issues on appeal as follows:

“A. Was the litigation stayed by the Trial Court for the 

duration of the Arbitration?

“B. Did the new Arbitrator have the authority to dismiss 

the Arbitration based on the ‘five-year statute’ ([§ 583.310]) when 

the underlying litigation had been stayed by the Trial Court?

“C. Did Respondents misrepresent the true facts 

concerning readiness for Arbitration, the true facts being that 

Appellant was ready to proceed to Arbitration in mid-2014 and it 

was Respondents who would not agree to schedule a date for the 

Arbitration Hearing because of their ongoing discovery?

“D. Did Respondents deceive new Counsel for Appellant 

and the new ‘Arbitrator’ (the Hon. Chris R. Conway (Ret.)) by 

concealing that the Parties had agreed in 2013 that the Hon. 

Charles ‘Skip’ Rubin would serve as Arbitrator and there was no 

refusal or inability by Judge Rubin to serve as Arbitrator and no 

Court Order or agreement between the Parties to replace Judge 

Rubin as Arbitrator.

“E. Did the new Arbitrator, Judge Conway, abuse his 

authority and duty by failing to promptly set an Arbitration 

Hearing date?”

Each of these arguments is addressed to the correctness of 

the arbitrator’s decision to dismiss Tarver’s action which, as we 
9

have explained, is beyond the scope of our review. Throughout his 

opening brief, Tarver focuses exclusively on the arbitrator’s 

dismissal of his case. For example, in summarizing the relief he 

seeks from this court, Tarver asserts that “the facts and the 

applicable law clearly support a reversal of the Trial Court’s 

Order [sic] dismissing the litigation based on the five-year statute 

and restoring [sic] this matter to the Civil Active List and 

confirming [sic] that the matter is to proceed to Arbitration before 

Judge Rubin ... .” And under the heading “summary of the 

appellant’s argument,” Tarver begins by stating “[section] 

583.310 requires that an action be brought to trial within five (5) 

years of its filing. The statute is procedural rather than 

jurisdictional[,]” and he then explains that “[a]ppellate courts 

may independently determine the proper interpretation of a 

statute,” such as section 583.310.

Under well-settled authority, we decline Tarver’s invitation 

to review the correctness of the arbitrator’s award. (E.g., 

Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184 

[noting “[a]rbitrators do not ordinarily exceed their contractually 

created powers simply by reaching an erroneous conclusion on a 

contested issue of law or fact, and arbitral awards may not 

ordinarily be vacated because of such error”]; California Union 

Square L.P. v. Saks & Company LLC (2020) 50 Cal.App.5th 340, 

348.)

Tarver does mention section 1286.2 in the section headed 

“conclusion.” There, he asserts for the first time that, “[t]he 

underlying Motion to Dismiss that led to the Arbitration Award 

dismissing the litigation was predicated on false and misleading 

statements as set forth above. When an Arbitration Award has 

been procured by fraud, the award must be vacated. [Section] 
10

1286.2(a)(1)[.]” Tarver provides no further analysis, however, and 

this single reference to the statute is insufficient to establish 

error. (See, e.g., Kurinij v. Hanna & Morton (1997) 55 

Cal.App.4th 853, 867 [noting “an appellant must present 

argument and authorities on each point to which error is asserted 

or else the issue is waived”]; Keyes v. Bowen (2010) 189 

Cal.App.4th 647, 655–656 [observing matters not properly raised 

or that lack adequate legal discussion will be deemed forfeited].)

In sum, Tarver fails to demonstrate that the court erred by 

granting the petition to confirm the arbitration award.

2. The court’s judgment inadvertently omits two of the 

four defendants.

The judgment entered by the court states that the 

judgment was entered only as to Roger Zapata and So Cal Realty. 

In their cross-appeal, Martha Zapata and R&R Sales correctly 

assert that the court erred by omitting them from the judgment. 

We conclude the error is clerical and correct it.

“It is well settled that clerical errors in a judgment, where 

they are shown by the record, may be corrected at any time. 

(Dreyfuss v. Tompkins (1885) 67 Cal. 339, 340.) A court of general 

jurisdiction has power after judgment, pending an appeal and 

even after affirmance of the judgment on appeal, and regardless 

of lapse of time, to correct clerical errors whether made by the 

court, clerk or counsel so that its records will conform to and 

speak the truth. (See 7 Witkin, Cal. Procedure, supra, Judgment, 

§ 68, pp. 502–503.) And an appellate court may correct a 

judgment containing an obvious clerical error or other defect 

resulting from inadvertence by modifying the judgment. (See 

9 Witkin, supra, Appeal, §§ 615–616, pp. 600–601.)” (Hennefer v. 

Butcher (1986) 182 Cal.App.3d 492, 506–507 (Hennefer).) Of 
11

course, “[a]n amendment that substantially modifies the original 

judgment ... may not be made by the court under its authority to 

correct clerical error ... unless the record clearly demonstrates 

that the error was not the result of the exercise of judicial 

discretion.” (In re Candelario (1970) 3 Cal.3d 702, 705.) This 

criterion has been met.

It is apparent from the record that Martha Zapata and 

R&R Sales were inadvertently omitted from the judgment. First,

the arbitrator’s order dismissed Tarver’s action with prejudice as 

to all defendants. Second, as required under section 1285, the 

petition to confirm the arbitration award named Martha Zapata 

and R&R Sales as parties to the arbitration award and their 

counsel argued at the hearing on the petition. Third, under 

section 1286, given that the court did not correct or vacate the 

award, it was required to confirm the arbitration award as made. 

(§ 1286 [“If a petition or response under this chapter is duly 

served and filed, the court shall confirm the award as made, 

whether rendered in this state or another state, unless in 

accordance with this chapter it corrects the award and confirms it 

as corrected, vacates the award or dismisses the proceeding.”]) In 

other words, the court’s act of confirming the arbitration award in 

favor of all four defendants was not discretionary. And, finally,

the court clearly stated its intention to enter judgment in favor of 

all four defendants. At the end of the hearing on the petition to 

confirm the arbitration award, the court announced its ruling. To 

clarify, counsel for Roger Zapata and So Cal Realty asked the 

court, “As a result of you confirming – granting the petition to 

confirm the award, judgment is rendered in favor of all the 

defendants?” The court answered, “Correct.”
12

The court’s clarification notwithstanding, counsel for Roger 

Zapata and So Cal Realty submitted a proposed order and 

judgment stating that judgment was rendered in favor of So Cal 

Realty and Roger Zapata only. Martha Zapata and R&R Sales 

filed objections to the proposed order and judgment because they 

were not included. They asked the court to modify the order and 

judgment to include all defendants. The July 3, 2019 minute 

order overruled the objections without explanation, and the court 

signed the proposed judgment even though it did not properly 

reflect the arbitrator’s dismissal order or its own ruling 

announced from the bench.

“If a trial judge through inadvertence or mistake signs an 

order different from that which he intended because of the error 

of an attorney draftsman, it may readily be corrected. ([7 Witkin, 

Cal. Procedure,] §§ 70–71, pp. 505–506.) ‘In these times busy 

judges must of necessity rely heavily upon the attorneys to 

prepare orders and judgments accurately so that they express 

that which was done at the trial and that which the judge had 

called for.’ [Citation.]” (Hennefer, supra, 182 Cal.App.3d at 

p. 507.) Accordingly, we will modify the judgment to correct the 

clerical error so that judgment will be rendered in favor of all four 

defendants.
13

DISPOSITION

The second sentence of the judgment is modified to read,

“Accordingly, it is hereby ordered, decreed, and adjudged that

judgment be entered in favor of Roger Zapata, So Cal Realty & 

Loans, Inc., Martha Zapata and R&R Sales Enterprises, Inc. and 

against plaintiff Charles Winston Tarver.” As so modified, the 

judgment is affirmed. Respondents Roger Zapata, So Cal

Realty & Loans, Inc., Martha Zapata and R&R Sales Enterprises, 

Inc. shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

EGERTON, J.