Tentative Ruling: G. Eric Kuskey v. Jacqueline Misho
Case Number
26CV00105
Case Type
Hearing Date / Time
Wed, 10/28/2026 - 10:00
Nature of Proceedings
1. Petition of G. Eric Kuskey to Vacate Arbitration Award; 2. Petition of Jacqueline Misho to Confirm Arbitration Award
Tentative Ruling
For G. Eric Kuskey: Self-Represented
For Jacqueline Misho: Paul R. Burns, Solange D. Sanhueza
RULING
For the reasons set forth below, the Petition to Vacate Arbitration Award is denied. The Petition to Confirm Arbitration Award is granted. Jacqueline Misho shall submit a proposed order that conforms to this ruling.
Background
This action follows a binding fee arbitration between Kuskey and Misho that took place on September 17, 2025. The Arbitration Panel consisted of three arbitrators.
Misho was Kuskey’s attorney in a family law matter. The Arbitration Panel found that the total amount of fees and costs that should have been charged is $60,138.51, that Kuskey paid $32,825.00, and that Kuskey owes Misho $27,308.51 plus interest in the amount of 10 percent per annum from the 30th day after the date of mailing of the award. The date of mailing the award was September 30, 2025.
The action commenced in this court on January 6, 2026, by the filing of the petition to vacate attorney-client fee arbitration award by G. Eric Kuskey against Jacqueline Misho. By way of the petition to vacate, Kuskey alleges that the award of $27,313.51 is disputed.
On May 1, 2026, Misho filed her response to the petition to vacate.
On May 1, 2026, Misho also filed her petition to confirm the arbitration award.
On September 30, 2026, Kuskey filed his response and opposition to the petition to confirm.
Analysis
Code of Civil Procedure section 1286 provides: “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.”
“Under section 1286, the superior court has only four options when a petition to confirm or vacate an arbitration award is filed. The superior court may (1) confirm the award as made; (2) correct the award and confirm it as corrected; (3) vacate the award; or (4) dismiss the proceeding.” (Kelly Sutherlin McLeod Architecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 527-528.) The court has no authority to alter the terms of an arbitration award absent a petition to correct. (Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.)
“(a) 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. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.” (Code Civ. Proc., § 1286.2, subd. (a).)
Kuskey argues that the arbitration award should be vacated because: (1) the award was obtained by corruption, fraud, or other unfair means; (2) the misconduct of a neutral arbitrator substantially prejudiced petitioner’s rights; (3) the arbitrator exceeded his or her authority, and the award cannot be fairly corrected; and (4) the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute. (Petition to Confirm, ¶ (10)(c).)
Misho argues that the arbitration award should be confirmed.
“[I]t is the general rule that, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or law. In reaffirming this general rule, we recognize there is a risk that the arbitrator will make a mistake. That risk, however, is acceptable for two reasons. First, by voluntarily submitting to arbitration, the parties have agreed to bear that risk in return for a quick, inexpensive, and conclusive resolution to their dispute. [Citation.] As one commentator explains, “ ‘the parties to an arbitral agreement knowingly take the risks of error of fact or law committed by the arbitrators and that this is a worthy ‘ “trade-off’ in order to obtain speedy decisions by experts in the field whose practical experience and worldly reasoning will be accepted as correct by other experts.” ’ [Citation.] “ ‘In other words, it is within the power of the arbitrator to make a mistake either legally or factually. When parties opt for the forum of arbitration they agree to be bound by the decision of that forum knowing that arbitrators, like judges, are fallible.’ ” [Citation.]” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11-12.)
Kuskey’s first argument is that he did not receive a copy of Misho’s written statement in advance of the arbitration hearing as required by Rule 34.0 of the Santa Barbara Bar Association Arbitration Rules. (Kuskey decl. in Support of Petition, p. 2, ll. 4-13.)
Rule 34 of the Santa Barbara Bar Association Arbitration Rules states: “The Panel Chair may require that the Parties clarify the issues, submit additional documentation, and exchange documents in advance of the hearing. The Hearing Panel may, in its discretion, decline to admit into evidence documents that were required to be exchanged in advance but were not.” (Italics added.)
The use of the word “may,” as opposed to “shall,” signifies that the provision is discretionary rather than mandatory. The court has no information before it tending to show that the Panel Chair required the parties to exchange copies of any written statement in advance of arbitration.
Further, Misho declares: “Very early in the proceedings, Mr. Kuskey alleged that he had not received my Response to his request to arbitrate, and after a few minutes’ delay, it was handed to him. The Arbitration Panel took a recess to allow Mr. Kuskey as much time as he needed to review my response. We resumed the hearing only after Mr. Kuskey stated he was ready to do so.” (Misho decl. in Opp. to Petition, ¶ 3.)
Finally, by Kuskey’s own admission: “After the completed hearing, [Kuskey] was informed by Jablonka that Panel Chair Penny Clemmons was offering an additional twenty-minute hearing because Petitioner had not received [Misho’s] Written Statement before arbitration. [Kuskey] contemporaneously memorialized that offer in his October 28, 2025 email to Jablonka.” (Kuskey Opp. to Petition to Confirm, p. 5, ll. 24-27.) “[T]he Panel Chair considered the failure to provide Respondent’s Written Statement serious enough to propose reopening the proceeding so that Petitioner could review it and return for an additional hearing.” (Id. at p. 5, l. 28 - p. 6, l. 3.) Kuskey refused the offer of the continued hearing date because he did not believe that the additional 20 minutes offered could recreate the position he would have occupied had the written statement been provided in advance. That argument is not persuasive. Kuskey could have accepted the offer and, if more time were needed following the continued hearing, he could have requested it. Additionally, Misho declares: “Subsequent to the Arbitration Hearing, I received a phone call from Dr. Clemmons, regarding scheduling of an additional hearing or continued hearing on Mr. Kuskey’s request to arbitrate. I conveyed my acquiescence to another hearing. Dr. Clemmons did not mention any limitation on hearing time, nor did we discuss any substantive or procedural issue other than the continued hearing.” (Misho decl. in Reply to Opp. to Confirm, ¶ 6.) In short, Kuskey has failed to show that it was error for him to have not received the written statement prior to the hearing or, that even if he were supposed to have received it pre-hearing, that he was prejudiced by any failure of Misho to provide it.
Kuskey’s next argument is that the arbitration panel did not allow him to introduce emails into evidence, because they were late-filed, in violation of Rule 33 of the Santa Barbara Bar Association Rules. Rule 33 provides: “Any relevant evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule to the contrary.”
Kuskey argues: “Petitioner appeared without counsel in the fee arbitration. He submitted his Written Statement before the hearing and brought an organized timeline and contemporaneous emails supporting the factual assertions in that Statement to the hearing, expecting to present and explain those materials there. The Panel refused to receive them because they had not been submitted earlier.” (Opp. to Pet. to Confirm, p. 4, ll. 4-8.)
Kuskey acknowledges that he is not exempt from the Rules of arbitration. In that, he is correct. “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Kuskey presents no persuasive argument regarding any error on the part of the Arbitration Panel in excluding the emails. As discussed above, the Panel offered a further hearing date. Additionally, Kuskey had provided no evidence that the Panel’s evidentiary ruling, on excluding the emails, was prejudicial or would have resulted in any other ruling than the one that was made. The court has reviewed the emails submitted by Kuskey and does not see how they would change the result.
Kuskey takes issue with the Arbitration Panel’s findings regarding Kuskey’s credibility.
By way of the arbitration award, the Arbitration Panel made the following comments and rendered corresponding opinions as follows:
“Client described himself as a successful businessman who negotiated contracts and had dealt with countless attorneys for decades. Yet, when questioned about his objections to his Attorney’s work by the Panel, he would claim ignorance, I never saw those documents, I didn’t understand what that meant eg.” ‘Meet and Confer’ ”, etc.” (Arb. Award, p. 2.)
“During his testimony Client frequently contradicted himself. On one hand he said Attorney never had a settlement discussion with opposing counsel despite evidence of a billing entry. Then he chastised Attorney for having a Meet and Confer and told her he didn’t want any more “Meet and Confers.” Client stated that he didn’t understand what a Meet and Confer was, but insists that no substantive settlement discussions took place between Attorney and opposing counsel, despite his repeated requests that Attorney initiate and engage in said discussions.” (Arb. Award, p. 3.)
“Client was very distressed by Attorney’s request for a FLARPL [Family Law Attorney’s Real Property Lien]. At the time of her request, he owed her approximately $21,197.75. He neglected to inform the panel that previously, Attorney had offered to carry him on credit if he signed a promissory note, or he could use a community asset bank account for his fees as permitted by statute. She provided him with three proposals to pay his fees.” (Arb. Award, p. 3.)
“Client insists that Attorney was pushing him to execute a FLARPL because she planned to avoid settlement of his case, prolong litigation and incur excessive fees against his interest in the marital home. As evidence, he points to her refusal to initiate and engage in substantive settlement discussions. Client claims that his adult children had informed him of their mother’s (the opposing party) eagerness to settle the case. However, Attorney testified that the opposing party had not been responsive to discovery demands and that she had repeatedly cautioned Client that his adult children’s statements may not be accurate. Attorney testified that she did send opposing counsel a meet and confer letter and initiated settlement discussions, but opposing counsel never responded.” (Arb. Award, p. 3.)
“Client claims that he always paid his invoices in full as soon as they were due. However, under questioning from the panel Client acknowledged that he delayed paying his January 22, 2025 invoice of $11,712.50 until March 17, 2025. Client claims he did not receive his February 18, 2025 invoice from attorney of $9,485.25. Client further claims that this is the reason that he only paid $11,000 on March 17, leaving a balance owed to attorney of $10,197.75 at that time. Client made no further payments to attorney, while attorney sent additional invoices to Client on March 26, 2025 in the amount of $10,987, and again on May 30, 2025, in the amount of $6131.90, for a total of $27,308.51.” (Arb. Award, p. 3.)
“Client claims he cannot afford new representation because he interviewed four attorneys, and they all required a $25,000 retainer. The Panel is acquainted with many family law attorneys who would not require a $25,000 retainer. In fact, Attorney only required a $15,000 retainer.” (Arb. Award, p. 3.)
“Client was adamant that Attorney lied in the Motion to Withdraw as Attorney of Record she filed with the Court. He said the lie was that he had not paid his bill. If true, this is an egregious act. However, the document said: “ ‘Client is in breach of retainer agreement.’ ” When confronted with the evidence of his prevarication, he argued vehemently that that’s what the sentence meant. In reality, it was the blandest reason an attorney could provide the court.” (Arb. Award, p. 4.)
“It was statements like the above that led the Panel to question the Client’s credibility. It was the Panel’s conclusion that the Client prevaricated in his testimony and in the presentation of his evidence.” (Arb. Award, p. 4.)
Despite Kuskey’s disagreement with the Arbitration Panel’s credibility judgments, those judgments are integral to the duties of the Arbitration Panel. It is the primary reason that in-person testimony takes place, rather than just submitting arguments in writing. The credibility assessments made by the Arbitration Panel have no tendency to show any prejudice to Kuskey.
Kuskey’s final argument is that one of the members of the Arbitration Panel had an unauthorized communication with Misho. The argument, like the others, lacks merit. The evidence shows that the communication, like the one Kuskey himself had with a Member of the Panel, was simply regarding scheduling. This is permitted by the Santa Barbara Bar Association Arbitration Rules.
Kuskey presents no viable grounds for vacating the award. His petition will be denied and Misho’s petition to confirm the arbitration award will be granted.