Filed 10/17/23 Neal Electric Corp. v. Clark Construction Group CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NEAL ELECTRIC CORPORATION,

Plaintiff and Appellant,

v.

CLARK CONSTRUCTION GROUP -

CA, L.P.,

Defendant and Respondent.

 D082217

 (Super. Ct. No. PSC1805941)

APPEAL from a judgment of the Superior Court of County of Riverside, 

Ronald L. Johnson (Retired judge of the San Diego Super. Ct. assigned by the 

Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Randolph 

Rogers, Judges. Affirmed.

Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall and Jeff S. Hood 

for Plaintiff and Appellant.

Pillsbury Winthrop Shaw Pittman, Elaine Y. Lee, John R. Heisse,

Daniel H. Bromberg, and Deborah B. Baum for Defendant and Respondent.

Neal Electric Corporation, a subcontractor, appeals from a judgment 

enforcing an arbitration award in its dispute with general contractor Clark 

Construction Group. Neal petitioned the court to vacate the award on the 
2

ground that it exceeded its authority by holding a virtual hearing, unfairly 

refused to postpone the hearing, and failed to issue a complete and final 

award. On appeal, Neal again argues that the arbitration panel exceeded its 

authority in holding a virtual hearing and in refusing to issue a complete and 

final award. We are unpersuaded by Neal’s claims of error and affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background Information

1. Neal and Clark’s Subcontract Agreement

This dispute arises out of the construction of the East County 

Detention Center (Project) located in Indio, California. Clark contracted with 

the Project owner, County of Riverside (County), to serve as the general 

contractor for the Project. In May 2015, Clark entered into a Subcontract 

Agreement (Subcontract) with Neal to perform electrical work on the Project. 

The Subcontract includes several provisions concerning the settlement 

of disputes, including an arbitration clause. For any disputes not settled 

pursuant to the Subcontract’s procedures, the Subcontract provides: 

To the extent not resolved under Article 11.b above, any dispute 

between Clark and Subcontractor shall, at Clark’s sole option, be 

decided by arbitration in accordance with the Construction

Industry Arbitration Rules of the American Arbitration

Association. If Clark elects to arbitrate, then the arbitration shall 

be in Riverside, CA.

From the start of the Project, Clark and its subcontractors encountered 

numerous problems with the plans provided by the Project’s architect, HOK

Group, Inc. (HOK). As a result, Clark and its subcontractors submitted 

thousands of inquiries, which severely delayed their work and increased their 

costs. 
3

2. Termination of Subcontract

In 2018, Clark demanded that Neal increase its workforce to complete 

the existing work. When Neal refused to do so, Clark terminated the 

Subcontract. Neal sued Clark for wrongful termination and Clark 

successfully petitioned the court to compel arbitration per the terms of the 

Subcontract. In November 2018, Clark filed an arbitration demand with the 

American Arbitration Association to recover the cost of completing and 

correcting Neal’s work. In response, Neal reasserted its breach of contract 

claim against Clark. 

B. Arbitration Proceeding

1. Scheduling Orders

In August 2019, the arbitration panel chair issued a scheduling order, 

which required the parties to file detailed statements of claims and defenses. 

The order further stated that, after service of these statements, “no party 

may further amend its claims or defenses (other than changes in monetary 

amounts allowed by Rule R-6) without leave of the Arbitrator.” It set the 

evidentiary hearing schedule “at a location to be determined” and further 

provided that “[t]estimony will be presented in person absent extraordinary 

circumstances.” 

In December 2019, the panel chair issued a second scheduling order 

noting that the parties had served their detailed statements of claims and 

defenses. The order stated that no amendments beyond those dealing with 

monetary amounts would be allowed without leave of the panel chair. It 

confirmed the evidentiary hearing dates and protocol and reiterated that

“[t]estimony will be presented in person absent extraordinary circumstances.” 

It also set an August 2020 deadline for counsel to meet and confer and notify 

the panel of the proposed location for the evidentiary hearing. 
4

2. Virtual Hearing

In light of the COVID-19 pandemic, which began in early 2020, the 

panel advised the parties that they would be required to follow a detailed 

protocol if the hearings were to proceed in person. During a telephonic status 

conference in August 2020, the panel advised the parties that “it was now 

likely to require that the hearings be conducted virtually—i.e., by 

videoconference—in light of the continuing risks posed by the pandemic.” 

Neal prepared a written objection to proceeding virtually and requested a sixmonth continuance. Neal’s objection stated: 

The Subcontract provides that the arbitration shall be conducted 

in Riverside, California and the parties have not agreed to 

change the location of the hearing. The Subcontract does not 

contemplate, nor does Neal agree to, an entirely virtual 

arbitration proceeding. 

Neal argued that an in-person hearing was “imperative” due to “the 

scope and complexity of the dispute and amount of evidence that will be 

presented.” Neal asserted that “[a] virtual proceeding introduces a host of 

issues that will substantially impact the proceeding and result in prejudice,” 

including “internet connectivity issues,” distractions, and difficulties 

presenting exhibits and examining witnesses. It also argued that a 

continuance was needed because “critical authorized discovery remains 

pending,” as two-thirds of the parties had not produced subpoenaed 

documents, and Neal was facing objections from third parties regarding three 

deposition subpoenas. 

Neal acknowledged that it was “not possible to secure a facility that can 

guarantee accommodations that would meet the needs of the hearing due to 

governmental restrictions currently being imposed as a result of the COVID-
5

19 pandemic.” Neal’s objection stated that it would consider a virtual hearing 

if a continuance was granted: 

If, after a reasonable continuance and after obtaining the 

necessary discovery at issue, it remains infeasible to proceed inperson, Neal will re-evaluate proceeding virtually. Neal simply 

wants a reasonable opportunity to proceed in person as 

contemplated by the parties. Neal proposes the scheduling of a 

new hearing date be deferred to January 2021 and, based upon 

the level of restriction at such time, and status of the discovery 

disputes, a reasonable hearing date can be scheduled. 

Clark opposed Neal’s request, arguing that the panel had authority to 

order a virtual hearing. Clark also argued that any prejudice caused by a 

virtual hearing would be borne equally by both parties. Clark also 

acknowledged that “no one expected that we would be in the middle of a 

pandemic, and that everyone would prefer an in-person hearing where 

witnesses could testify at a normal distance, without masks, and all 

attendees could come and go as they please.” 

The panel denied Neal’s request for a continuance. The panel reasoned

that “the risks created by an in-person hearing, especially one such as this 

matter involving three [p]anelists, a large number of counsel, witnesses and 

experts, as well as a court reporter and possible technical support staff to 

assist in the presentation of exhibits, outweigh any potential prejudice to the 

parties, which in any event is imposed equally on both sides.” (Fn. omitted.) 

The panel’s ruling on the request for a continuance stated the American 

Arbitrators Association and the National Academy of Arbitrators had 

concluded that, “in exceptional circumstances such as the current pandemic, 

arbitrators have the authority to order that a matter proceed by way of video 

hearing over the objection of a party to the arbitration.” The panel also ruled 

that any prejudice to Neal’s ability to complete its third-party discovery was 
6

outweighed by the prejudice to both parties of a lengthy continuance, 

particularly as Neal had failed to pursue third party discovery in a timely 

manner. The panel also agreed to make additional hearing days available if 

needed to evaluate third party documents obtained during the hearings. 

3. Hearing and Arbitration Award

The hearing commenced in late November 2020 and was conducted 

virtually using the Zoom platform. Twenty witnesses testified over 20 days 

and more than 680 exhibits were introduced into evidence. The panel chair 

commended the parties for “hav[ing] done a yoeman’s job in presenting what 

is a difficult and complex case.” 

Following the issuance of an interim award, the panel issued a 77-page 

award in August 2021 granting Clark a net recovery of approximately $9.67 

million. The panel determined that Clark was justified in terminating Neal. 

It concluded, “Neal defaulted when it refused Clark’s demands to increase its 

manpower when there was work available for it to perform, and in fact 

unreasonably reduced manpower.” It therefore held Clark properly 

terminated Neal and was entitled to damages. 

The panel considered Neal’s claims to damages arising from design 

deficiencies and discrepancies.1 The panel noted that Clark’s accounting 

included a credit to Neal of $1.07 million as its share of the money the 

County paid Clark in its settlement of these claims. The panel also noted

1 These claims to damages were initially addressed in $41 million worth 

of claims brought by Clark against the County, including $2.75 million for 

Neal’s losses. Clark and the County ultimately settled these claims for $20 

million. As part of that settlement, the County agreed to sue HOK using

Clark’s financial and substantive assistance. At the time of the hearing, the 

County’s lawsuit against HOK was pending and Clark was to receive 75% of 

any proceeds from that suit (after payment of attorneys’ fees). 
7

that Clark acknowledged that Neal was entitled to a share of any additional 

amounts recovered in the County’s suit against HOK. As a result, Neal was 

“entitled to a credit in an unknown amount against the amount awarded in 

this matter, or payment by Clark if the award has been satisfied, if Clark 

receives proceeds from the lawsuit against HOK arising out of damages 

suffered by Clark’s subcontractors, including Neal.” 

The panel, however, was unable to calculate Neal’s potential recovery 

from the County’s litigation against HOK because “the amount of any future 

recovery by Clark is unknown, and the specific claims asserted in the lawsuit 

against HOK were not explored during the hearing of this matter.” The 

panel declined “to hold this proceeding in abeyance or retain jurisdiction” in 

the event of any future dispute over distribution of the proceeds of the 

County’s lawsuit against HOK. It noted that the parties were free to file a 

new arbitration demand if such a dispute arises and could “reappoint the 

members of the [p]anel to hear that matter.”

C. Trial Court Proceeding

Neal petitioned the trial court to vacate the award on the grounds that 

the panel exceeded its authority by holding the hearing virtually and failing 

to fully resolve the dispute, and unfairly refusing to postpone the hearing. 

The court denied the petition. 

The court ruled that the panel did not exceed its authority by 

conducting a virtual evidentiary hearing. The court observed that, when the 

parties agreed to the arbitration provision in the Subcontract, “the impact of 

the pandemic on holding in-person proceedings was not on the horizon.” In 

addition, the Subcontract did not require in-person hearings simply because 

it states the arbitration “shall be in Riverside, CA.” 
8

The court also ruled that the panel did not fail to issue a final award by 

declining to issue Neal a credit for the pending litigation between Clark and 

HOK. To the contrary, the court observed, all the “issues framed by [Neal’s]

Complaint” were “fully resolved by the [p]anel in its final award.” The fact

that Neal may be entitled to funds ultimately received by Clark from the 

litigation between Clark and HOK “does not change the fact that all of the 

issues in this case have been resolved.”

The court also ruled that Neal was not substantially prejudiced by the 

panel’s refusal to postpone the evidentiary hearing. The court found the 

panel’s denial of the continuance was reasonable, that they would have 

needed a virtual hearing even if it had been continued to January 2021, and 

that both parties equally felt any prejudice from a virtual hearing. 

DISCUSSION

On appeal, as it did in the proceedings before the trial court, Neal 

contends that the arbitration panel’s award should be set aside because the 

panel exceeded its authority by (1) holding the hearing virtually and 

(2) failing to issue a complete and final award .2 We consider these 

contentions after setting forth general principles guiding our de novo review.

(Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9 

(Advanced Micro Devices).)

A. Relevant Legal Principles

Through the California Arbitration Act (§ 1280 et seq.), the Legislature 

has expressed a “ ‘strong public policy in favor of arbitration as a speedy and 

relatively inexpensive means of dispute resolution.’ ” (Moncharsh v. Heily & 

2 Neal did not appeal the court’s ruling that it was not substantially 

prejudiced by the panel’s refusal to postpone the evidentiary hearing.
9

Blase (1992) 3 Cal.4th 1, 9.) “To promote this alternative means of dispute 

resolution, the law minimizes judicial intervention in the proceedings, in 

part, by the doctrine of arbitral finality.” (Jones v. Humanscale Corp. (2005) 

130 Cal.App.4th 401, 407.) 

As our Supreme Court has admonished, “arbitration judgments are 

subject to extremely narrow judicial review” (Marsch v. Williams (1994) 

23 Cal.App.4th 238, 243), and while acting in excess of authority is a 

recognized ground for vacating an arbitration award (Code Civ. Proc.,

§ 1286.2, subd. (a)(4)), this ground is “narrowly construed.” (Emerald Aero, 

LLC v. Kaplan (2017) 9 Cal.App.5th 1125, 1138.) Parties to an arbitration 

agreement “have bargained for the relatively free exercise” of the arbitrator’s 

“flexibility, creativity and sense of fairness” in choosing a remedy. (Advanced 

Micro Devices, supra, 9 Cal.4th at p. 374.)

B. Panel’s Authority to Order Virtual Hearing

Neal contends that the panel exceeded its authority by ordering a 

virtual evidentiary hearing. We disagree.

To successfully dispute the panel’s interpretation of its authority under 

the Subcontract’s arbitration provision, Neal faces a high bar. Indeed, the 

panel’s award will not be overturned “as long as the [panel] is even arguably 

. . . acting within the scope of [its] authority.” (Advanced Micro Devices, 

supra, 9 Cal.4th at p. 378.) Here, we conclude that the panel was acting 

within the scope of its authority when it decided to proceed with a virtual 

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

1182 (Gueyffier) [“Absent an express and unambiguous limitation in the 

contract . . . , an arbitrator has the authority to . . . interpret the contract, 

and award any relief rationally related to his . . . contractual 

interpretation.”].)
10

According to Neal, the Subcontract required the panel to hold an inperson proceeding in Riverside. But there is no “express and unambiguous 

limitation in the [Subcontract]” (Gueyffier, supra, 43 Cal.4th at p. 1182) that 

limits how arbitration proceedings are to be conducted, including whether 

they are to be held in-person or online. On the contrary, the Subcontract 

merely provides that “the arbitration shall be in Riverside, CA.” The only 

guidance regarding whether the hearing was to take place in-person or 

virtually, is provided by the construction industry rules of the American 

Arbitration Association, which are explicitly incorporated into the 

Subcontract. The Subcontract states: “[A]ny dispute between Clark and 

Subcontractor shall, at Clark’s sole option, be decided by arbitration in 

accordance with the Construction Industry Arbitration Rules of the American 

Arbitration Association.” 
11

The construction industry arbitration rules specifically allow for the 

virtual presentation of evidence.3 Those rules give arbitrators “discretion . . . 

[to] conduct the proceedings with a view toward expediting the resolution of 

the dispute.” (Rule R-33(b), Construction Industry AAA rules.) “When 

deemed appropriate,” the rules specifically provide that arbitrators may 

conduct proceedings that “allow for the presentation of evidence by 

alternative means including video conferencing, internet communication, 

telephonic conferences and means other than an in-person presentation.” 

(Id., Rule R-33(c).) The only limitation imposed on such proceedings is that 

they “must still afford a full opportunity for all parties to present any

evidence that the arbitrator deems material and relevant to the resolution of 

the dispute and when involving witnesses, provide an opportunity for cross3 As noted, the Subcontract expressly incorporates the American 

Arbitration Association’s construction industry arbitration rules. The full, 

up-to-date text of those rules is available on the American Arbitration 

Association’s website at <https://www.adr.org/construction> [as of October 17, 

2023], archived at <https://perma.cc/G5HL-NVZS>. Having given the parties 

appropriate notice before oral argument that we proposed to take judicial 

notice of the rules on our own motion (Evid. Code, § 459, subds. (c) & (d)), we 

now do take judicial notice of the Construction Industry Arbitration Rules of 

the American Arbitration Association (hereinafter Construction Industry 

AAA rules), amended and effective July 1, 2015. (See Evid. Code, § 452, 

subd. (h) [permitting judicial notice of “[f]acts and propositions that are not 

reasonably subject to dispute and are capable of immediate and accurate 

determination by resort to sources of reasonably indisputable accuracy”]; 

Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, 

505, fn. 6 (Boghos) [noticing American Arbitration Association’s commercial 

arbitration rules]; Cooper v. Lavely & Singer Professional Corp. (2014) 230 

Cal.App.4th 1, 6, fn. 1 (Cooper) [noticing rules of Judicial Arbitration and 

Mediation Services, Inc].)
12

examination.” (Ibid.) There is no contention here that the panel failed to 

provide a full opportunity to present evidence or cross-examine witnesses.

Neal contends that the arbitration provision “cannot be interpreted as 

permitting a virtual proceeding with the parties not in the same physical 

location as identified in the agreement.” It asserts that the specification that 

“the arbitration shall be in Riverside” is “restrictive” and implicitly 

eliminated the panel’s authority to conduct virtual hearings. Contrary to

Neal’s argument, we conclude it was not unreasonable for the panel to 

interpret the provision, in conjunction with the adopted construction industry 

arbitration rules, as authorizing a virtual proceeding, particularly when faced

with an ongoing pandemic that made it “impossible” to hold an in-person 

hearing in Riverside. The panel explained that Neal “was unable to locate 

any venue in Riverside County that could accommodate the number of people 

likely to attend the hearings and still comply with Riverside County’s 

restrictions and the [p]anel’s protocol.” The panel determined that it was 

“impossible to hold an in-person hearing” as scheduled, and that “a 

continuance of the currently-scheduled hearings would push the start of the 

hearings out nearly one year.” 

Neal acknowledges that construction industry arbitration rules allow 

“the presentation of certain evidence . . . by alternate means,” but argues that

those rules do not provide the panel “authority for an entire proceeding to be 

presented virtually.” Although Neal makes a sensible distinction, the panel 

rationally determined that the pandemic made it “impossible to hold an inperson hearing” and that “conducting the hearing via videoconference is a 

reasonable alternative to an in-person hearing in light of the Covid-19 

pandemic, stay-at-home orders, and travel limitations.” Neal even

acknowledges that “an accommodation [for virtual testimony] may be made 
13

for certain witnesses.” Under the extraordinary situation of the pandemic

where in-person meetings were prohibited, the panel reasonably concluded 

that all witnesses, as well as other participants, needed an accommodation to 

appear virtually. 

Both parties and the panel cite to a National Academy of Arbitrators 

advisory opinion issued during the pandemic stating that an arbitrator “may 

order that a matter proceed by way of video hearing in whole or in part 

without mutual consent and over the objection of a party.”4 In support of its 

decision to conduct a virtual hearing in the face of the pandemic, the panel 

pointed to the advisory opinion’s statement that “ ‘[g]overnment travel 

restrictions and family health considerations of counsel or witnesses may [ ] 

weigh in the arbitrator’s decision to order or not order a video hearing.’ ” 

Neal correctly contends that the advisory opinion “is not law and cannot 

displace the specific limitations contained in the parties’ arbitration 

agreement” or other rules and laws governing the arbitration. Nevertheless,

the panel was not incorrect or irrational to use it as guidance. (Advanced 

Micro Devices, supra, 9 Cal.4th at pp. 374–375 [arbitrators “are not bound to 

award on principles of dry law, but may decide on principles of equity and 

good conscience”].)

Moreover, the distinction between the conduct of an arbitration and the 

location of an arbitration further supports the panel’s reasonable 

4 The advisory opinion is available on the National Academy of 

Arbitrators website at <https://naarb.org/advisory-opinions/> [as of

October 17, 2023], archived at https://perma.cc/4BC7-XDJK>. Having given 

the parties appropriate notice before oral argument that we proposed to take 

judicial notice of it (Evid. Code, § 459, subds. (c) & (d)), we now do so. (See 

Evid. Code, § 452, subd. (h); Boghos, supra, 36 Cal.4th at p. 505, fn. 6; Cooper, 

supra, 230 Cal.App.4th at p. 6, fn. 1.)
14

interpretation of its authority. As discussed above, the construction industry 

arbitration rules set out the “Conduct of Proceedings,” which allows evidence 

to be presented by video conference. (Rule R-33(c), Construction Industry 

AAA rules.) The rules address the arbitration location in a separate section,

“Fixing of Locale,” which provides that the parties may determine the locale 

of the arbitration and sets forth how to resolve disputes concerning the locale. 

(Id., Rule R-12.) The California Arbitration Act provides that the location of 

the arbitration determines its judicial seat. (See Code Civ. Proc., § 1292, 

subd. (b) [a petition to enforce an agreement to arbitrate may be filed in “a 

county where the agreement is to be performed”].) Consistent with this 

distinction, it was reasonable for the panel to find that the Subcontract’s 

identification of an arbitration location did not impliedly eliminate its 

authority to conduct virtual evidentiary hearings, as set out explicitly in the 

construction industry arbitration rules.

Indeed, if the parties sought to require the arbitrator to hold all 

proceedings in-person, they would have made that a material term of the 

Subcontract. They did not, and instead the agreement explicitly adopts the 

construction industry arbitration rules, which allow evidence to be presented 

virtually. Because the parties did not “explicitly and unambiguously limit[ ] 

[the panel’s] powers” (Gueyffier, supra, 43 Cal.4th at p. 1185) to conduct 

hearings virtually, we are unable to say that the court erred in confirming 

the award and rejecting Neal’s interpretation of the Subcontract. (Morris v. 

Zuckerman (1968) 69 Cal.2d 686, 690 [“[A]ny doubts as to the meaning or 

extent of an arbitration agreement are for the arbitrators and not the court to 

resolve.”].) Accordingly, we must “refrain from substituting” our own 

judgment or Neal’s judgment “for the arbitrator’s in determining the 

contractual scope of [its] powers.” (Advanced Micro Devices, supra, 9 Cal.4th 
15

at p. 372.) Requiring the parties to proceed virtually did not “constitute 

misconduct [n]or [was it] so profound as to render the process unfair.” 

(Heimlich v. Shivji (2019) 7 Cal.5th 350, 368.)

C. Complete and Final Award

Neal also argues the panel exceeded its authority by failing to issue a 

complete and final award. Specifically, Neal contends that the panel should 

have resolved its entitlement to offsets arising from the County’s lawsuit 

against HOK. Instead of resolving the issue, according to Neal, the panel left 

it “open” to be decided in “future, protracted litigation.” We disagree that the 

panel failed to resolve an issue or exceeded its authority.

Code of Civil Procedure section 1283.4 provides that the award “shall 

include a determination of all the questions submitted to the arbitrators the 

decision of which is necessary in order to determine the controversy.” “[I]t is 

for the arbitrators to determine what issues are ‘necessary’ to the ultimate 

decision.” (Advanced Micro Devices, supra, 9 Cal.4th at p. 372.) 

The panel resolved the issue regarding potential offsets to Neal when it

determined that Clark owed a credit to Neal if it recovered additional 

amounts from the County’s litigation against HOK. Specifically, the panel 

ruled, “Neal will be entitled to a credit in an unknown amount against the 

amount awarded in this matter, or payment by Clark if the award has been 

satisfied, if Clark receives proceeds from the lawsuit against HOK arising out 

of damages suffered by Clark’s subcontractors, including Neal.” Because the 

County’s lawsuit against HOK was still pending at the time of the hearing, it 

was unclear how much the credit would be. The panel therefore reasonably 

concluded that it was unable to determine the amount to which Neal was 

entitled from the pending litigation. To determine Neal’s share of a potential

recovery, the panel would have needed to determine HOK’s liability to the 
16

County, the resulting damages the County would be awarded, and then 

figure out Clark’s net recovery, minus costs, before it could award Neal a 

share of that recovery. These issues were never presented to the panel. As 

the panel stated, “the specific claims asserted in the lawsuit against HOK 

were not explored during the hearing of this matter . . . .” 

In its reply brief, Neal suggests that it was “unnecessary for the panel 

to provide Neal a liquidated sum,” and that the panel instead “could have 

adopted a formula for future recovery, awarded a sum certain, stayed the 

matter, or reserved jurisdiction to issue a subsequent award.” But Neal does 

not explain what it means by a “liquidated sum” versus a “sum certain,” or

how the panel could have reliably calculated either of those or a “formula for 

future recovery.” Moreover, where the County’s litigation against HOK could 

potentially have lasted several years, it was well within the panel’s discretion 

to “decline[ ] to hold this proceeding in abeyance or retain jurisdiction.” 

Having considered the various remedies, the panel gave the parties the 

option “to reappoint the members of the [p]anel” if any “future disputes 

aris[e] out of the distribution of any proceeds of the lawsuit against HOK.” 

The panel acted within its authority where its “discretion to determine the 

extent of remedies is as great as [its] discretion to determine the related 

question of what issues are necessary to the decision.” (Advanced Micro 

Devices, supra, 9 Cal.4th at pp. 372, 374–375 [“Were courts to reevaluate 

independently the merits of a particular remedy, the parties’ contractual 

expectation of a decision according to the arbitrators’ best judgment would be 

defeated.”].)

Finally, Neal relies on cases that do not support reversal of the court’s 

judgment. (See Ulene v. Murray Millman of California, Inc. (1959) 

175 Cal.App.2d 655, 662 [affirming the court’s denial of motion to vacate an 
17

arbitration award after holding “[t]here is no merit” to appellant’s 

contentions “that the alternative which the award gave [appellant] was vague 

and indefinite, [and] that it did not finally decide the issue before the 

arbitrator”]; Safeway Stores, Inc. v. Brotherhood of Teamsters (1978) 

83 Cal.App.3d 430, 439 [reversing the court’s decision vacating an arbitration 

award and holding that “mere ambiguity in the opinion accompanying an 

award, which permits the inference that the arbitrator may have exceeded 

his authority, is not a reason for refusing to enforce the award”]; Rodrigues v. 

Keller (1980) 113 Cal.App.3d 838, 842 (Rodrigues) [affirming court’s dismissal 

of action to set aside arbitration award where “the record does not 

demonstrate that any issue was submitted to the arbitrator which he totally

failed to consider”].) 

In Banks v. Milwaukee Ins. Co. (1966) 247 Cal.App.2d 34, 39 the 

arbitrator submitted a declaration to the court admitting “ ‘through 

inadvertence, mistake and/or excusible [sic] neglect’ ” he had “ ‘omitted an 

award for general damages.’ ” Based on the arbitrator’s declaration, the

Court of Appeal determined that “the issue of general damages had been 

submitted to the arbitrator, and that he had totally failed to consider it.” (Id.

at p. 38.) Here, by contrast, the panel did not fail to consider the issue, but

evaluated it and determined the amount of any future recovery from the 

pending litigation was “unknown.” Similarly, in M.B. Zaninovich, Inc. v. 

Teamster Farmworker Local Union 946 (1978) 86 Cal.App.3d 410, 415 the 

arbitration award was vacated where it was “fatally uncertain” because it 

failed to state the amount of the award. There, in contrast to here, the Court 

of Appeal determined the arbitrator could calculate the amount of the award 

but failed to do so. (Id. at p. 413 & fn. 1 [noting that “amount of the dues 

cannot be established without additional information which is not present in 
18

the award” and that “the information is in the possession of the [appellant]”

but that “does not cure an uncertainty in the award or in a judgment, as the 

law does not require a party to make a computation in order to render the 

judgment certain”].) Here, by contrast, the panel determined it was unable to 

calculate a potential award based on the uncertain outcome of pending 

litigation.

Because the outcome of the pending litigation was unknown, the panel

reasonably refused to attempt to calculate the amount of a potential credit for 

Neal. (See Morris v. Zuckerman (1968) 69 Cal.2d 686, 690 [“It is for the 

arbitrators to determine which issues were actually ‘necessary’ to the 

ultimate decision.”]; East San Bernardino County Water Dist. v. City of San 

Bernardino (1973) 33 Cal.App.3d 942, 954 [“The arbitrators, not the courts, 

have the task of defining the issues between the parties.”].) Because Neal 

failed to meet its “burden of proving” that “all issues submitted for decision 

have [not] been passed on and resolved” (Rodrigues, supra, 113 Cal.App.3d at 

p. 842), the trial court was correct to confirm the award. 
19

DISPOSITION

The judgment is affirmed.5 Clark shall recover its costs on appeal. 

CASTILLO, J.

WE CONCUR:

BUCHANAN, Acting P. J.

RUBIN, J.

5 Clark asks us to take judicial notice of two documents entered in the 

lawsuit between the County and HOK. We deny the request as those items 

are not necessary to the resolution of this appeal. (See Mangini v. R.J. 

Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063; County of San Diego v. 

State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)