Opinion
Michael K. Perkins, FINE, BOGGS & PERKINS LLP., Half Moon Bay, California. Attorneys for Defendants LITHIA MOTORS, INC. LITHIA TOYOTA, LITHIA MOTORS SUPPORT SERVICES, LITHIA TOYOTA/SCION OF REDDING and GARY RUEBER.
PERKINS, MANN & EVERETT APC JERRY H. MANN, Attorney for Defendant Corey Kersten.
STIPULATION TO APPOINT ARBITRATOR AND TO FOLLOW CALIFORNIA SUBSTANTIVE LAW AND PROCEDURE, AND ORDER THEREON
JOHN A. MENDIZ, District Judge.
Plaintiff JOSEPH D. ATCHLEY IV ("Plaintiff") and defendants LITHIA MOTORS, INC., LITHIA TOYOTA, LITHIA MOTORS SUPPORT SERVICES, LITHIA TOYOTA/SCION OF REDDING, COREY KERSTEN and GARY RUBBER, ("Defendants") (collectively the "Parties") by and through their respective counsel of record hereby stipulate to appointing Judge Raul Ramirez (Ret.) as the arbitrator in this matter.
RECITALS
WHEREAS all parties have agreed in writing to resolve their disputes through binding arbitration and have been ordered to do so by the Federal Court;
WHEREAS that order signed 3/30/15 by Hon. Judge John A. Mendez in onse No. 2:15-cv-00099-JAM-CMK, and its provisions are incorporated herein by reference;
WHEREAS prior to beginning the arbitration, the parties attempted an early mediation conducted by Judge Raul Ramirez but the case did not settle at the mediation;
WHEREAS all parties nevertheless desire to appoint Judge Raul Ramirez as the arbitrator in this matter;
WHEREAS counsel for all parties represent that they have explained to their respective clients the risks, benefits and potential for conflicts of interest by using Judge Ramirez as both the mediator and the arbitrator in this matter;
WHEREAS all parties and their counsel knowingly waive any conflicts of interest that may result from appointing Judge Ramirez as the arbitrator after he acted as the mediator in this matter;
WHEREAS all parties have agreed to follow California procedure and substantive law in the arbitration, while preserving the other terms of the arbitration agreements including the right to appeal;
IT IS HEREBY STIPULATED by and between the parties that:
1. The "Recitals" above are incorporated into this Stipulation as though fully set forth herein;
2. The parties stipulate and agree to appoint Judge Raul Ramirez, as the arbitrator in this matter with full knowledge and consent that Judge Ramirez also acted as the mediator in this action;
3. All parties with full knowledge of the benefits, risks and potential for conflicts of interest that could occur when a mediator is appointed to be the arbitrator, waive any and all conflicts of interest related to Judge Ramirez acting as the mediator and arbitrator in this action;
4. Judge Ramirez shall open a new arbitration file for this matter which shall be separate from the mediation file. The mediation file shall be closed and will not be reviewed again;
5. Nothing which occurred during the mediation will be used an any subsequent arbitration proceedings, including reference to the same in a final award;
6. The parties agree that nothing which occurred at the mediation shall be used as a basis to seek an appeal from the arbitrator's final award, Likewise, the parties' agreement that the fact that the mediation occurred before Judge Ramirez, who is also the arbitrator, shall not be a basis to appeal any final award. Thus, the parties agree that even though Judge Ramirez served as a mediator, (i) he can serve as the arbitrator; and (ii) the parties waive any conflict that Judge Ramirez may have in serving as a mediator and arbitrator;
7. The parties agree that this Stipulation does not alter, in any fashion, the arbitral immunity afforded to arbitrators and mediators in private arbitration proceedings. La Serena Properties v. Weisbach (2010) 186 Cal.App.4th 893;
8. The parties agree to follow California procedure and substantive law in the arbitration, while preserving the other terms of the arbitration agreements, including the right to appeal;
9. The parties' counsel represent that they have the full authority to execute this Stipulation.
IT IS SO STIPULATED.
I hereby accept the appointment as arbitrator.
IT IS SO ORDERED