In February 2013, Jose de Jesus Ortiz was admitted to Elmcrest Care Center, LLC, a skilled nursing facility. He suffered from Parkinson’s disease, dysphagia, and dementia; he had a history of falling; and he was on an advanced dysphagia diet.

On August 4, 2017, staff at Elmcrest found the Ortiz on the floor and nonresponsive. They administered CPR and called 911. Paramedics later transported him to a hospital, where he passed away four days later. He was 63 years old.

Plaintiff Ericka Ortiz, as personal representative and administrator of the Estate of Jose de Jesus filed a civil action against Elmcrest and the individual staff members, asserting causes of action for elder abuse and neglect; negligence/willful misconduct; and fraud. The operative pleading alleged that, as result of Respondents’ failure to provide basic and necessary care to the decedent, he suffered a fall from his bed that led to suffocation, deprivation of oxygen to his brain, and respiratory arrest.

The trial court granted Elmcrest’s motion to compel the Estate to arbitrate its claims based on an agreement the decedent executed upon his admission to Elmcrest. On March 30, 2022, after a 15-day arbitration hearing, the arbitrator served the parties with a 90-page document entitled “Interim Award” (the First Interim Award)

The First Interim Award concluded with the arbitrator’s liability determinations on all causes of action and set forth conditions for further proceedings before the award would become final. The Award stated that the Estate “did not sustain her burden of proof as to the first cause of action for Elder Abuse and Neglect, the third cause of action for Negligence/Willful Misconduct[,] and the sixth cause of action for Fraud.” And it provided “This Interim Award will become final twenty days after service unless either side (a) points out in writing an omission to decide a submitted issue or (b) moves for further relief authorized by the law and the parties’ Arbitration Agreement.”

On May 26, 2022, the arbitrator served the parties with “Interim Award No. 2” (the Second Interim Award). The Second Interim Award reaffirmed that the Estate “did not sustain its burden of proof as to the third cause of action for Negligence/ Willful Misconduct” and “did not sustain its burden of proof as to the sixth cause of action for Fraud.” However, as to the “first cause of action for Elder Abuse/Neglect,” the Second Interim Award found the Estate had “sustained its burden

On July 6, 2022, the Estate petitioned the trial court to vacate the First Interim Award. Among other things, the Estate argued the First Interim Award was not final and had been superseded by the Second Interim Award.

On September 7, 2022, the Arbitrator issued a “Final Award,” awarding the Estate $100,000 in damages on the elder abuse claim, $208,035 in attorney fees, and $92,921.77 in costs. Unlike the First Interim Award, this award placed no conditions on finality. It stated: “This Award is binding and is intended to address all issues in dispute even if not expressly discussed herein. The Arbitrator is not empowered to redetermine the merits of any claim already decided. [¶] This Award may be presented to the Court pursuant to CCP §1285 et seq.”

On September 30, 2022, the Arbitrator issued a “Final Award (Corrected),” again awarding $100,000 in damages and $92,921.77 in costs (the Final Award). The Final Award corrected a miscalculation related to the lodestar and multiplier to award the Estate $207,000 in attorney fees.

On December 14, 2022, Elmhurst filed a petition to vacate the Final Award. The same day, the Estate filed a petition to confirm the Final Award. the trial court entered an order (1) denying the Estate’s petition to confirm the Final Award and (2) granting Respondents’ petitions to vacate the Final Award and to confirm the First Interim Award.

On May 2, 2023, the trial court entered its order vacating the Final Award and confirming the First Interim Award. The Estate filed a timely appeal. The Court of Appeal reversed and vacated the order with directions to enter a new order confirming the final arbitration award served on September 30, 2022 in the published case Ortiz v. Elmcrest Care Center, LLC -B330337 (November 2024).

The California Arbitration Act (§§ 1280-1294.4; the Arbitration Act) represents a comprehensive statutory scheme regulating private arbitration in this state. Section 1283.4 specifies the requisite “form and contents” of an arbitration award. The statute provides the “award shall be in writing,” “signed by the arbitrators concurring therein,” and it “shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” (§ 1283.4.)

The issuance of an ‘award’ – meeting the requirements of section 1283.4 “is what passes the torch of jurisdiction from the arbitrator to the trial court.” (Lonky v. Patel (2020) 51 Cal.App.5th 831, 843- 844. Thus, it is incumbent on the trial court, before confirming or vacating what has been deemed an award, ‘to ensure that the “award” is an “award” within the meaning of [section 1283.4].

Two points of law were critical to the resolution of the issues on appeal: (1) a ruling is an “award” under the Arbitration Act only if it determines all questions submitted to the arbitrator that are “necessary in order to determine the controversy” and (2) it “is for the arbitrators to determine which issues were actually necessary to the ultimate decision in deciding whether a ruling constitutes an award under the statute.

Here, as in Lonky, the arbitrator could have made a final determination that she had addressed all necessary issues when she served the parties with the First Interim Award. She did not. Instead, she expressly deferred final disposition of the matter until 20 days had lapsed or, in the event either party identified an omitted issue or moved for further relief, until she issued a later ruling after additional briefing.

“By its terms, the First Interim Award was not a final ‘award’ as defined in section 1283.4 because, in issuing the ruling, the arbitrator expressly reserved for further proceedings her ultimate decision on whether all questions necessary to a determination of the controversy had been resolved and whether either party was entitled to further relief.”

Arbitrator’s Award is Not Final or Appealable Until it Resolves All Issues