Smith v. Campbell & Facciolla, Inc.

SCHOTTKY, J.

This is an appeal from an order of the court affirming an arbitration award.

It appears from the record that in July 1959 Frank Smith entered into a contract with Campbell and Facoiolla, Inc., a corporation, whereby the latter agreed to construct a residence for .Smith at Squaw Valley for $25,480. The house was

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completed and thereafter the builder sought payment of the sum of $6,287.84. This amount was disputed and correspondence ensued between the attorneys for the parties. On May 24, 1960, Smith’s attorney wrote the builder’s attorneys a letter in which a demand was made for arbitration pursuant to the provisions of the contract. On May 27th Smith’s attorney wrote a letter to the builder’s attorneys in which Smith’s arbitrator was named. On the same day the builder filed an action in the Superior Court of San Mateo County to recover the sum of $6,287.84, allegedly due under the contract. On June 3,1960, a demand for arbitration was made on the builder, and he was notified that Smith had appointed an arbitrator. On June 13th Smith, having been served in the San Mateo action, asked for a change of venue. On July 6, 1960, the motion for a change of venue to Contra Costa County was granted.

On September 27, 1960, Grahn, the arbitrator appointed by Smith, made an award in favor of Smith in the sum of $847.08 without any notice of hearing to Campbell and Faeciolla. On October 10, 1960, a petition for confirmation of the award was filed in the Superior Court of Placer County, and the award was confirmed on November 10, 1960, without notice having been given to the builder or its attorneys. On motion this award was set aside, and thereafter the award was confirmed on June 9, 1961. This appeal followed.

We have concluded that the order confirming the award must be reversed because the arbitrator did not give appellant notice of any hearing, nor did he give it any opportunity to be heard. Two rules must be kept in mind. First of all, section 1286 of the Code of Civil Procedure, as it read at the time the arbitration was had, impliedly required a hearing. (The section discusses the authority of the arbitrators at the hearing.) Secondly, the rule is that a waiver of a right to a hearing will not be deemed to have been made in the absence of explicit language to that effect.