Representing Walnut Creek Officer Greg Thompson
Attorney Amanda Bevins reprented Chris Butler arrested the Narcotics Scandal, and Paul Pelosi husband of Speaker Pelosi, beaten and Pete Bennett awaits decades answers for decades of incidents.
| U.S. Attorney’s OfficeMarch 28, 2014 |
OAKLAND—A federal grand jury in Oakland yesterday returned a two-count indictment charging Benny Chetcuti, Jr. with wire fraud, stemming from Chetcuti’s Walnut Creek, California-based real estate investment business, announced United States Attorney Melinda Haag and FBI Special Agent in Charge David J. Johnson.
According to the indictment, as early as October 2002 and continuing through June 2010, Chetcuti allegedly defrauded private investors who loaned money to him and his business, Chetcuti & Associates. Chetcuti started Chetcuti & Associates in 1998 for the purpose of purchasing homes, renovating them, and selling them within a short time period. Chetcuti financed his business, in part, by obtaining loans from private investors in exchange for promissory notes that were supposed to be secured by interests in real properties. The indictment alleges that Chetcuti defrauded investors by misrepresenting how much debt was already secured by the properties, falsely promising to record deeds of trust that would have secured the investors’ interests in the properties, directing others to impersonate lenders or title company officers in telephone calls, and forging letters purportedly written by lenders and title company officers.
A summons was issued upon filing of the indictment. Chetcuti is scheduled to make his initial appearance on April 2, 2014, at 9:30 a.m. before the Honorable Kandis A. Westmore, United States Magistrate Court Judge in Oakland.
The maximum statutory penalty for each count of wire fraud in violation of 18 U.S.C. § 1343 is 20 years’ imprisonment and a fine of $250,000, or twice the gross loss or gain resulting from the offenses, plus restitution and forfeiture, if appropriate. However, any sentence following conviction would be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.
Andrew S. Huang is the Assistant U.S. Attorney who is prosecuting the case with the assistance of Vanessa Quant. The prosecution is the result of an investigation by the Federal Bureau of Investigation.
Please note, an indictment contains only allegations against a defendant, and, as with all defendants, Benny Chetcuti, Jr. must be presumed innocent unless and until proven guilty.
Philip KAHN et al., Plaintiffs and Respondents, v. Benny CHETCUTI, Jr., Defendant and Appellant.
In this dispute arising from the sale of a home to respondents, seller Benny Chetcuti, Jr., appeals from a judgment confirming an award in a contractual arbitration and denying his petition to correct the award. He contends (1) the arbitrator exceeded his powers, and (2) the arbitrator erred procedurally when he awarded attorney fees and costs to respondents. In the published portion of the opinion, we interpret the parties' agreement to authorize the arbitrator to determine whether the prevailing party's act of filing a complaint before an obligatory mediation barred the award of attorney fees to that party. That determination, we conclude, is not subject to judicial review. We reject the second argument in the unpublished portion of our opinion and affirm the trial court's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In March 1995, appellant purchased a residence located on Edgehill Drive in Burlingame as a business investment. Appellant renovated the property and then listed it for sale. Respondents Philip and Mara Kahn purchased the residence from appellant in June 1996 for $455,000. The purchase agreement contained clauses stating that any disputes arising out of the contract must be mediated, and if that was unsuccessful, submitted to binding arbitration. The agreement also provided that the prevailing party in any arbitration or other legal proceedings was entitled to reasonable attorney fees, with a limitation on the right to fees where an arbitrator determined that a party otherwise entitled to fees resisted mediation.
In April 1998, Lori Lutzker, an attorney representing respondents, sent a letter to appellant alleging he had failed to disclose certain defects that were present in the residence. Acknowledging the alternative dispute resolution clauses in the purchase agreement, Lutzker demanded that appellant submit the dispute to mediation.
Gerald Filice, an attorney, replied to Lutzker's letter on appellant's behalf. He denied that appellant had made any misrepresentations, but he agreed to “undertake” mediation. He urged Lutzker to submit the names of potential mediators.
In the weeks that followed, Lutzker and Filice exchanged a series of letters trying to select an appropriate mediator. That process was still not complete by late June 1998, and Lutzker became concerned that the statute of limitations for certain claims respondents had against appellant might pass. Hoping to “avoid [an] unnecessary legal action” Lutzker drafted an agreement and sent it to Filice, asking him to waive “all applicable statutes of limitations during the time when we are attempting to resolve the dispute through mediation and arbitration.”
Filice refused to sign the agreement. Therefore, on July 2, 1998, Lutzker filed a complaint against appellant on respondents' behalf. Respondents did not intend to proceed with the litigation. They filed the complaint solely to preserve their legal rights. In fact, Lutzker prepared a stipulation proposing to stay the action pending the conclusion of the arbitration.
The mediation was conducted in September 1998. It was unsuccessful. The parties then proceeded to arbitration.
An arbitration hearing was conducted before an attorney selected by the parties, William L. Nagle, on three days in January and February 2001. During the arbitration, both parties agreed that the issue of attorney fees would be litigated after the arbitrator had issued his initial award.
On February 15, 2001, the arbitrator issued his award and memorandum of decision. He ruled respondents were entitled to $100,000 in damages, but that those damages were subject to a $50,000 setoff based on sums respondents had received from their broker and real estate agent. Thus respondents were awarded $50,000 from appellant. The arbitrator also ruled respondents were the prevailing parties and that they were entitled to their attorney fees and costs under the terms of the arbitration agreement.
On April 3, 2001, respondents filed a memorandum with the arbitrator setting forth the fees and costs they had incurred. Appellant then filed what he described as a motion to strike and to tax costs. He raised two issues that are relevant here. First, appellant argued the arbitrator exceeded his authority when he awarded attorney fees and costs to respondents because respondents had filed a complaint before the mediation hearing. According to appellant, that act (filing the complaint) precluded an award of fees and costs under the terms of the purchase agreement. Second, appellant argued the arbitrator lacked jurisdiction to award fees and costs because respondents' application for those fees and costs was a “correction” to the arbitration award that was not “timely” under the California arbitration statutes. (See Code Civ. Proc.,1 § 1280 et seq.)
The arbitrator held a hearing on the fee request on May 14, 2001. On May 31, 2001, the arbitrator issued his written ruling awarding respondents $83,289.75 in attorney fees, plus $13,638.95 in costs.
Appellant then filed a petition in the San Mateo Superior Court seeking to correct the arbitration award. As is relevant here, he raised the same two issues that he raised before the arbitrator in his motion to strike and to tax costs.
On June 18, 2001, respondents filed a petition to confirm the arbitration award.
Both petitions were heard by the court at a hearing on July 17, 2001. The court denied appellant's motion to correct the award and granted respondents' request to confirm. In addition, the court awarded respondents an additional $3,690 in attorney fees. This appeal followed.
II. DISCUSSION
A. Did the Arbitrator Exceed his Power?
Appellant contends the trial court should have granted his motion to correct the arbitration award because the arbitrator exceeded his powers when it awarded attorney fees and costs to respondents. Whether the arbitrator exceeded his powers presents a question of law that we decide de novo on appeal. (Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal.App.4th 1662, 1666, 24 Cal.Rptr.2d 216.)
The pivotal question a court must answer when deciding whether an arbitrator exceeded his powers is whether the arbitrator had the authority to rule on a particular issue under the terms of the controlling arbitration agreement. (Creative Plastering, Inc. v. Hedley Builders, Inc., supra, 19 Cal.App.4th at p. 1666, 24 Cal.Rptr.2d 216; Southern Cal. Rapid Transit Dist. v. United Transportation Union (1992) 5 Cal.App.4th 416, 422, 6 Cal.Rptr.2d 804; cf. DiRussa v. Dean Witter Reynolds, Inc. (2d Cir.1997) 121 F.3d 818, 824.) Here, the purchase agreement contains a clause that specifically authorized an award of attorney fees and costs. It states, “Should any legal or equitable action, arbitration or other proceeding between Buyer and Seller arise out of this agreement, the prevailing party shall be awarded reasonable attorney's fees and court or arbitration costs in addition to any other judgment or award.” Clearly the arbitrator had the power to award fees and costs.
Appellant contends the arbitrator exceeded his powers because he awarded fees and costs to respondents even though such an award was prohibited under the facts of this case. Appellant bases his argument on the mediation clause contained in the purchase agreement, which states in part, “Buyer [and] Seller ․ agree to and shall mediate any dispute or claim between them arising out of this contract․ The mediation shall be held prior to any court action or arbitration․ Should the prevailing party attempt an arbitration or a court action before attempting [to] mediate, THE PREVAILING PARTY SHALL NOT BE ENTITLED TO ATTORNEY FEES THAT MIGHT OTHERWISE BE AVAILABLE TO THEM IN A COURT ACTION OR ARBITRATION․” (Italics in original.) Appellant contends respondents were not entitled to fees and costs under this language because they filed a complaint against him before the mediation hearing and thus they “attempt[ed] ․ a court action before attempting [to] mediate.” Under these circumstances, appellant contends, the arbitrator exceeded his powers when he made such an award.
We must reject appellant's argument. The arbitration clause in the purchase agreement states that the arbitrator was authorized to decide “[a]ny dispute or claim in law or equity arising out of this contract or any resulting transaction․” One dispute or claim the arbitrator was authorized to decide under this broad language was whether respondents had in fact “attempt[ed] ․ a court action before attempting [to] mediate.” By rejecting appellant's motion to strike and to tax costs, the arbitrator impliedly concluded respondents had not “attempt[ed] ․ a court action before attempting [to] mediate.” (Cf. Rosenquist v. Haralambides (1987) 192 Cal.App.3d 62, 67, 237 Cal.Rptr. 260 [“courts must indulge every reasonable intendment to give effect to arbitration proceedings”]; Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 516, 289 P.2d 476, [same]; see also Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 381, 36 Cal.Rptr.2d 581, 885 P.2d 994 [courts must defer to an arbitrator's implied findings].) The arbitrator did not “exceed his powers” when he decided an issue he was clearly authorized to decide.
Appellant seems to contend that because respondents filed a complaint against him before the mediation hearing the arbitrator had no alternative but to conclude that respondents had “attempt[ed] ․ a court action before attempting [to] mediate.” However “the merits of a controversy that has been submitted to arbitration are not subject to judicial review. This means that we may not review the validity of the arbitrator's reasoning, the sufficiency of the evidence supporting the award, or any errors of fact or law that may be included in the award.” (Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1313, 117 Cal.Rptr.2d 910.)
Our deference to the arbitrator's implied ruling should not be interpreted as meaning that we somehow disagree with his decision. Absent a restriction to the contrary, “ ‘arbitrators ․ may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.’ ” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10-11, 10 Cal.Rptr.2d 183, 832 P.2d 899, quoting Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523, 212 P.2d 233.) “ ‘[A]rbitrators are not bound to award on principles of dry law, but may decide on principles of equity and good conscience, and may make their award ex aequo et bono [according to what is just and good].’ ” (Id. at p. 11, 10 Cal.Rptr.2d 183, 832 P.2d 899, quoting Muldrow v. Norris (1852) 2 Cal. 74, 77.)
Here, the evidence shows respondents filed a complaint against appellant prior to the mediation hearing. However, the evidence also shows respondents only did so because the statute of limitations for some of their claims was about to pass, and appellant's counsel refused to sign an agreement waiving the statute of limitations. Furthermore, the evidence shows respondents did not intend to pursue the suit, and that they filed it only to preserve their legal rights. The arbitrator reviewing this evidence could reasonably conclude respondents did not, in any real sense, “attempt ․ a court action before attempting [to] mediate.”
Appellant's final argument on this issue is that the arbitrator exceeded his power as that concept is interpreted in DiMarco v. Chaney (1995) 31 Cal.App.4th 1809, 37 Cal.Rptr.2d 558. We disagree. In DiMarco, the parties to a real estate transaction submitted their dispute to arbitration under a contract that said the prevailing party “shall be entitled to reasonable attorney's fees and costs.” (Id. at p. 1812, fn. 1, 37 Cal.Rptr.2d 558.) The arbitrator ruled the seller was the prevailing party but declined to award her fees and costs. The appellate court ruled the arbitrator had exceeded his powers under those circumstances because “having made a finding [the seller] was the prevailing party, the arbitrator was compelled by the terms of the agreement to award her reasonable attorney fees and costs.” (Id. at p. 1815, 37 Cal.Rptr.2d 558.) 2
DiMarco is distinguishable because here, the arbitrator did not find that respondents had “attempt[ed] ․ a court action before attempting [to] mediate.” Indeed precisely the opposite is true. By rejecting appellant's motion to strike and tax costs, the arbitrator impliedly made an opposite finding. DiMarco is inapposite.
We conclude the arbitrator did not exceed his powers when he awarded respondents their attorney fees and costs.3
B. Did the Arbitrator Err Procedurally when he Awarded Attorney Fees and Costs? **
III. DISPOSITION
The judgment confirming the award and denying appellant's petition to correct the award is affirmed.
FOOTNOTES
FN1. Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.. FN1. Unless otherwise indicated, all further section references will be to the Code of Civil Procedure.
2. Our Supreme Court recently took note of the decision in DiMarco but declined to decide whether its reasoning was correct. (See Moshonov v. Walsh (2000) 22 Cal.4th 771, 779, 94 Cal.Rptr.2d 597, 996 P.2d 699.) We too need not state an opinion on the issue because the case is distinguishable.
3. Having reached this conclusion, we need not reach respondents' argument that any limitation on the right of the prevailing party to recover attorney fees would be unenforceable.
FOOTNOTE. See footnote *, ante.
JONES, P.J.
We concur: STEVENS and SIMONS, JJ.
pcb_James_Greenan
Surrounded by family with his son Nate Greenan lying in casket.
Surrounded by family with his son Nate Greenan lying in casket.
Surrounded by the greedy Alamo 1st Mormon Ward
She was murdered sometime between our last conversation about the picinic.
Sadly few noticed that Alicia Driscoll brother name was all over the CalFire Pipeline Safety Reports
During the court proceedings no one ever mentioned that the sister of Mountain Cascade employee Joe Driscoll had been murdered. Not even the district attorney or her other brother Commander George Driscoll of CalDOJ or Contra Costa DA Inspector. That also suggests they have connections to the Contra Costa Narcotics Taskforce (CNET
Jan 2013 – Present7 years 8 months
Walnut Creek, Ca
Provides information to the public on nuisance and zoning ordinance requirements and compliance; provides notification of violations to property owners and achieves compliance by voluntary compliance and when necessary by issuing warnings and citations; locates owners of property using tax rolls, maps, and court records. Investigates reports of violations of laws relating to nuisances and zoning; monitors sites for compliance, conducts follow-up investigations, and oversees abatement of violations. Coordinates with and performs joint inspections with other City departments and outside agencies; may assist planning staff in updating zoning maps and in investigating permit and variance applications. Keeps field notes, takes photographs and writes letters and notices; prepares detailed written reports and routine correspondence; provides evidence and testimony at City hearings and in court; maintains inspection files and records; attends meetings and conferences as assigned.
2001 – Jul 2012 11 years
City’s representative to manage and administer the Community Preservation program including the enforcement of a variety of occupancy, public nuisance, zoning and land use regulations. Work closely with subcontractors, residences and commercial establishments. Coordinate, monitor and disperse Redevelopment Agency and CDBG (Community Development Block Grants) funding. Responsible for both the Housing Rehabilitation and Code Enforcement budgets. The total combined annual budgets for these projects amount to approximately $800,000. I am the Economic and Community Development Department’s contact to the Finance Department regarding any budget issues concerning payment vouchers and purchase orders from my programs. Assist with the development of the Economic Development & Housing Department annual budget. Frequently called upon to provide project and budget audits for Economic Development & Housing Department. Investigate issues related to suspected code, ordinance, building and conditions of approval violations. Conduct in-the-field investigations to verify violations; advise individuals of violations and the methods of abatement; issue any appropriate warning or violation notice. Work with City Attorney to seek abatement through voluntary compliance or, as necessary, through direct enforcement activity. Perform outreach, marketing and administration of available programs for property improvement and rehabilitation; including the housing rehabilitation program, landscaping, fence grant programs and the first fully ADA compliant community garden. Provide public education regarding compliance with municipal codes and ordinances; when necessary explain related zoning subdivision or other related regulations to property owners and the general public. Responsible for handling and processing all requests for the city assisted rehabilitation programs. On average, handle from initiation to completion approximately 21 projects per year.
Show lessMay 1997 – May 20014 years 1 month
Research background information on code enforcement complaint properties and conduct field investigations of potential code violations. Issue verbal and/or written warnings, correction letters and notices of violation to any non-compliant citizens. Assisted the Building Department by providing inspection of roof and water heater permits. Meet with property owners, tenants and business operators to review and explain code requirements and potential violations. Work cooperatively...
Show moreApr 1982 – May 199513 years 2 months
The county of Contra Costa is a rapidly growing, extremely diversified community. The population within the county is 948, 816 of which approximately 155,000 live within the unincorporated county areas. The Office of the Sheriff provides service for citizens ranging from the very wealthy, living in affluent areas to those who are completely dependent on welfare and live in county subsidized housing. The department has approximately 1000 employees; about 800 are sworn law enforcement officers, 4 Commanders, 8 Captains, 31 Lieutenants, 200 Sergeants, and 600 Deputy Sheriff’s. Duties have varied according to each assignment. Initially worked in Detention Division, then Patrol Division, and a few temporary assignments in Investigation and Administration Divisions. As a Deputy Sheriff in Detention, assigned to the Sheriff's Main Detention Facility, my responsibilities included the care, custody and control of over 790 incarcerated inmates. The housing unit Deputy was responsible for the supervision of 65-100 incarcerated inmates at any given time. While employed as a Deputy Sheriff, I was required daily to document detailed reports concerning incidents, crimes or civil events that were highly scrutinized by District and Defense Attorneys or other legal personnel. These reports were vital for potential prosecution and personal recall of critical events or circumstances. As a Patrol Division Officer, I worked as a “beat” officer and responded to various crimes in progress to apprehend suspects and/or investigate penal code, health & safety code or vehicle code violations. Worked in the Marine Patrol unit investigating boating accidents and providing boating safety. Frequently testified in Superior Court as a witness in criminal or civil related matters. A physical injury while performing my duties resulted in a permanent medical disability of my right knee and caused me to accept a medical retirement from active law enforcement service.
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1978 – 1981
1978 – 1978
California Basic Police Officer Academy
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23 others named Nancy Templeton are on LinkedIn
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Elizabeth Stratton vanished, her car found at the Sacramento Airport but she is married to Neil Stratton of the Walnut Creek Police Department. The same city where San Francisco Officer Lester Garnier was found dead in 1988 located at the Ross Stores parking lot.
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| Party Number | Party Type | Party Name | Attorney | Party Status | ||||||||||
| 1 | PLAINTIFF | NEIL R. M. STRATTON | BRAY, OLIVER W. | |||||||||||
| 2 | PLAINTIFF | CHRISTINE CALLIS CHITLIK | BRAY, OLIVER W. | |||||||||||
| 3 | PLAINTIFF | DANIEL M. CALLIS III | BRAY, OLIVER W. | |||||||||||
| 4 | DEFENDANT | ELIZABETH L. STRATTON | Unrepresented | Serve Required (WaitS) | ||||||||||
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| 08/24/1998 | DECL.RE POUROVER WILL, IRA BENEFICIARY DESIGNA-TION & DISCLAIMER | |||
| 08/24/1998 | ORDER DETERMINING TRUST ASSETS FILMED: 8-24-98 | |||
| 08/24/1998 | COPY & CERTIFICATIONS | |||
| 08/24/1998 | PROOF OF SERVICE BY MAIL RE: ORDER DETERMINING T RUST ASSETS | |||
| 08/24/1998 8:00 AM DEPT. 37 | PETN TO DETERMINE TRUST ASSESTS (PETRS NEIL STRAT TON, CHRISTINE CHITLIK & DANIEL CALLIS, III) | GRANTED | ||
| 08/18/1998 | DECL OF NEIL RM STRATTON | |||
| 07/17/1998 8:00 AM DEPT. 37 | PETN TO DETERMINE TRUST ASSESTS (PETRS NEIL STRAT TON, CHRISTINE CHITLIK & DANIEL CALLIS, III) | |||
| 07/15/1998 | PETITION TO DETERMINE TRUST ASSETS (P-N. STRATTON, C. CHITLIK & D. CALLIS III) | |||
| 07/15/1998 | NTC OF HRG RE PETITION TO DETERMINE TRUST ASSETS 8/24/98 11AM D51 |
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| This Case Does Not Have Any Pending Hearings | |||
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| Party Number | Party Type | Party Name | Attorney | Party Status | ||||||||||
| 1 | PLAINTIFF | NEIL R. M. STRATTON | BRAY, OLIVER W. | |||||||||||
| 2 | PLAINTIFF | CHRISTINE CALLIS CHITLIK | BRAY, OLIVER W. | |||||||||||
| 3 | PLAINTIFF | DANIEL M. CALLIS III | BRAY, OLIVER W. | |||||||||||
| 4 | DEFENDANT | ELIZABETH L. STRATTON | Unrepresented | Serve Required (WaitS) | ||||||||||
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| 08/24/1998 | DECL.RE POUROVER WILL, IRA BENEFICIARY DESIGNA-T ION & DISCLAIMER | |||
| 08/24/1998 | ORDER DETERMINING TRUST ASSETS FILMED: 8-24-98 | |||
| 08/24/1998 | COPY & CERTIFICATIONS | |||
| 08/24/1998 | PROOF OF SERVICE BY MAIL RE: ORDER DETERMINING T RUST ASSETS | |||
| 08/24/1998 8:00 AM DEPT. 37 | PETN TO DETERMINE TRUST ASSESTS (PETRS NEIL STRAT TON, CHRISTINE CHITLIK & DANIEL CALLIS, III) | GRANTED | ||
| 08/18/1998 | DECL OF NEIL RM STRATTON | |||
| 07/17/1998 8:00 AM DEPT. 37 | PETN TO DETERMINE TRUST ASSESTS (PETRS NEIL STRAT TON, CHRISTINE CHITLIK & DANIEL CALLIS, III) | |||
| 07/15/1998 | PETITION TO DETERMINE TRUST ASSETS (P-N. STRATTO N, C. CHITLIK & D. CALLIS III) | |||
| 07/15/1998 | NTC OF HRG RE PETITION TO DETERMINE TRUST ASSETS 8/24/98 11AM D51 |
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| This Case Does Not Have Any Pending Hearings | |||
by Guest on Thu Dec 17, 2009 12:05 pm
