Julie Fax writes July 20, 2010 in the Jewish Journal:
Despite two rabbinic court rulings against him, a Sherman Oaks rabbi is refusing to turn over four Torah scrolls that a rabbi’s widow says belong to her.
In May, a beit din (rabbinic court) confirmed a previous rabbinic ruling that the scrolls belong to Rita Pauker, widow of Rabbi Norman Pauker, but Rabbi Samuel Ohana has so far refused to hand them over. Ohana, who sits on his own beit din, is using the scrolls in his synagogue, Beth Midrash Mishkan Israel.
Ohana says Rabbi Pauker gave him the scrolls when the latter retired in the mid-1990s from Valley Mishkan Israel Congregation.
Rita Pauker says the scrolls belong to the Pauker family and were merely lent to Ohana, and she wants them back to give to her nephews, who are pulpit rabbis in other cities. Pauker has been trying to get the scrolls back since her husband died in 2002.
The four scrolls, hand-inked on vellum, are valued at around $100,000.
Attorney Scott Sobel writes 7/27/2010 to the Jewish Journal:
Dear Editor:
I am the attorney for Rabbi Samuel Ohana and Beth Midrash Mishkan Israel in the case discussed in this 3rd Journal article about the disputed ownership of the four Torah scrolls. Unfortunately, the title of the article does a gross injustice to Rabbi Ohana. He does not and never has claimed ownership of the Torah scrolls. He properly claims that they belong to the community, which is represented by the synagogue. Whether you consider Jewish law (halachah) or California law, Rabbi Ohana has no legal right to “turn them over” to Mrs. Pauker, and she has no legal right to own them. In essence, we believe that is what was decided after the January Beit Din.
When Ms. Gruenbaum Fax contacted me about the matter some weeks ago, Mrs. Pauker had not yet filed her recent petition in the L.A. Superior Court. Now that we have filed our response to her petition, our position is public. Anyone who wishes may read or even download our response (lasuperiorcourt.org), and will then fully understand the case. We look forward to the judge’s decision, following the August 31 hearing on Ms. Pauker’s petition and on our request that the court once again vacate the decision of the Beit Din, as a flagrant violation of the synagogue’s rights, and enter a final judgment that the Torah scrolls belong to the synagogue, and not to Mrs. Pauker.G. Scott Sobel
Scott Sobel writes on Facebook July 27, 2010:
Scott Sobel
Drora, excuse me, but just because they are Rabbis, doesn’t mean that Beit Din always acts with seichel or according to halachah! In this case, the Beit Din decided that the widow should get the Sifrei Torah. The Beit Din did not see one sh…red of evidence that the widow’s deceased husband (former Rabbi) ever legally owned them, or that she had any right to them. The Rabbi had created a non-profit corporation for the shul. In fact, one of the reasons for non-profit corporations is to protect assets from theft. The Sifrei Torah were owned (presumptively) by the non-profit corp. (There are no records or memory of how the shul acquired the Sifrei Torah.) The law says that assets of a non-profit cannot be transferred willy-nilly to any individual. That way, Rabbis can’t give their wives the shul’s Sifrei Torah or other assets, at the expense of the community! Now since when does the widow of a deceased Rabbi get to come & demand that the community’s four Sifrei Torah be turned over to her?? And for what purpose? She claimed that her husband “always intended that they be for my retirement.” To sell to fund her retirement? Ask any ben Torah the law about when/why a Sefer Torah can be sold. Not to fund a widow’s retirement!
Over one year ago the LA Superior Court Judge vacated the decision of Beit Din because one of the 3 dayanim had given an interview to a newspaper for an article about this case, stating the halacha of the matter. Several months later that dayan sat on the Beit Din & decided the case. Such action by a dayan/judge is 100% forbidden, both in halacha & secular law. Judges are not allowed to decide cases before hearing the evidence! The dayan explained that his statement was general, and not about the case. The halacha and the law say that judges must avoid even the appearance of impropriety! This Beit Din thought: “No problem.” The LA Superior Court Judge wrote: “the statenent to the media in the context of the instant matter – however misconstrued it may be and however unbiased Rabbi Sauer may be – could cause a reasonable person to entertain doubts as to Rabbi Sauer’s impartiality. … Therefore, the Court vacates the arbitration award.”
About 5 years ago, Rabbi Ohana offered to create a pension fund for the widow, rather than give her the Sifrei Torah to be sold. She refused the offer. One year ago I offered, on behalf of my clients, to turn the 4 Sifrei Torah over to the RCC for halachically proper distribution, in exhcange for the widow’s promise: 1) No more motzi shem ra/lashon hara in the press; 2) Final settlement & promise never to sue Rabbi Ohana or his Beit Midrash in court about the Sifrei Torah. Both the RCC and the widow (through her attorney) refused our offer.
After a 2nd Beit Din hearing, we believe that the Beit Din again ignored the law in order to arrive at the same decision. We shall see…
Love the Torah and her ways, but don’t be blind to corruption in the “Torah world!” Rabbis are not infallible!
By the way, lest anyone get the mistaken idea that I do not believe in or hold by Beit Din, please understand that I do! I insert a Beit Din arbitration clause in my contracts with Jewish clients. When disputes are between Jews, I always pu…sh for Beit Din.
I have attempted to work with this Beit Din to improve their procedures, to no avail. Unfortunately, they cannot be reformed. There is injustice in the world. We must all strive to increase the amount of justice in the world! “Tzedek, tzedek tirdof.” Pursue justice ‘without question or pause’ to quote an old favorite fight song! (Man of La Mancha – gotta see that again…)
HERE IS THE ARBITRATION BRIEF FILED ON BEHALF OF RABBI OHANA TO THE RCC PANEL IN JANUARY 2010:
I. INTRODUCTION
This matter involves the claim of Petitioner Rita Pauker that she owns four Sifrei Torah possession of which were transferred to Respondent Beth Midrash Mishkan Israel American Institute For Judaic Studies, Inc. (hereinafter referred to as “Beth Midrash Mishkan Israel”) twelve (12) years ago.
II. BACKGROUND FACTS:
Rabbi Norman Pauker, A”H, succeeded Rabbi Max Leder, A”H, as the Rabbi of Valley Mishkan Israel Congregation (hereinafter referred to as “Valley Mishkan Israel”), located at Coldwater Canyon and Victory in Valley Village. Rabbi Pauker served as the Rabbi of Valley Mishkan Israel for approximately 20 years, until his retirement in 1994, when he closed the synagogue. At one point, he moved the synagogue to Bellingham Avenue in North Hollywood. Rabbi Ohana served as an unpaid assistant to Rabbi Pauker until his retirement, approximately 17 to 18 years. Rabbi Ohana recalls that throughout these years, the four Sifrei Torah belonged to the Congregation, no additional Sifrei Torah were acquired, the smallest Torah was pasul, and another (not the largest) was not used due to its poor condition.
Upon his retirement and closure of the synagogue in 1994, Rabbi Pauker stored the four Sifrei Torah and other items, including the shulchan, talleisim, siddurim, machzorim and chairs, in the Paukers’ garage at their home. He also stored the empty aron kodesh, his own chair and shtender, and some tables in Rabbi Ohana’s covered back yard.
The year following his retirement and the closure of Valley Mishkan Israel, Rabbi Pauker asked Rabbi Ohana to lead services on the yomim naoraim. Rabbi Ohana agreed in writing to insure the Sifrei Torah against loss for two years. In 1995 and 1996, Rabbi Ohana rented space at the Jewish Community Center on Burbank Boulevard, and Rabbi Pauker loaned the two usable Sifrei Torah to Rabbi Ohana for use on Rosh Hashana and Yom Kippur services. In both 1995 and 1996, Rabbi Ohana returned the Sifrei Torah to the Rabbi Paukers’ garage on Tzom Gedalia and again after Yom Kippur.
In late 1996, the two Rabbis discussed re-opening the synagogue. Rabbi Pauker agreed to give all four Sifrei Torah and other items to the new synagogue on the condition that Rabbi Ohana would incorporate the former name, “Mishkan Israel,” into that of the new synagogue. In December 1996, Rabbi Ohana opened a California non-profit corporation named “Beth Midrash Mishkan Israel American Institute For Judaic Studies, Inc.” The new synagogue rented space at the corner of Burbank and Fulton in Sherman Oaks, about 1.5 miles from Mishkan Israel’s original location, and in May 1997 moved into the new location. Thereafter, Rabbi Pauker unconditionally gave Rabbi Ohana the four Sifrei Torah and the other items to Beth Midrash Mishkan Israel. Rabbi Ohana remembers Rabbi Pauker’s words: “Rabbi, the Sifrei Torah are gathering dust in my garage. Please take them to your shul.” The Rabbis never discussed ownership of the Sifrei Torah, payment, any loan, nor any time limitation on their use. Rabbi Ohana personally moved three of the Sifrei Torah and other items from the Paukers’ garage to the new Mishkan Israel in 1997, and he moved the aron kodesh, shulchan, Rabbi Pauker’s personal chair and shtender from his own backyard to the new location.
From the opening of the new synagogue until his death in August 2002 , Rabbi Pauker occasionally attended services at Beth Midrash Mishkan Israel. During this period, he never mentioned any intent to retain ownership or control of the Sifrei Torah. It was only after Rabbi Pauker’s death that Rita Pauker first claimed to own the Sifrei Torah.
In a telephone call to Rabbi Ohana late in 2002, Mrs. Pauker told Rabbi Ohana “My husband told me that the Sifrei Torah would be [the source of money for] my retirement.” In response, Rabbi Ohana explained that the Sifrei Torah belong to Beth Midrash Mishkan Israel. Instead, Rabbi Ohana offered to seek funding from the community to provide a stipend to Mrs. Pauker. She refused the offer.
Biographical Note: Rabbi Pauker arrived in Los Angeles over 40 years ago and had two children, a son and a daughter (see Exhibit A), with his first wife. After arriving in Los Angeles, he divorced and married Petitioner, Rita Pauker, his second wife.
III. PETITIONER’S CLAIM AND EVIDENCE:
Attached as Exhibit B hereto is a letter dated June 16, 2008 by Baruch Cohen (Petitioner’s former attorney in this matter) entitled “Summons to a Din Torah.” In it, Mr. Cohen set out the following claim (which remains unproven and is not admitted):
Rabbi Norman Pauker’s four Sifrei Torah were originally donated decades ago by his sister to the Young Israel of the Bronx. When the Bronx synagogue closed, the four Sifrei Torah were given to Rabbi Pauker. When he retired in 1994 and closed his synagogue, Rabbi Pauker transferred ownership of most of the assets to Rabbi Samuel Ohana of Beth Midrash Mishkan Israel, including the Aron Kodesh, Telleisim and Seforim. But according to a handwritten contract between Rabbi Pauker and Rabbi Ohana, signed by Rabbi Ohana, the four Sifrei Torah were to be loaned for only two years. Since Rabbi Pauker’s death in 2002, his widow, Rita Pauker, has been repeatedly begging and imploring Rabbi Ohana for the return of the four Sifrei Torah… [Emphasis in original]
Petitioner has produced as the only evidence of that purported “contract,” a photocopy of five pages of handwritten memoranda, allegedly written by Rabbi Pauker, a copy of which is attached hereto as Exhibit C. The first page of this document appears to be addressed to Rabbi Gabbai and entitled “Shul for Sale.” It mentions “income stream,” “return on investment,” “Figure of 25,000 not out of Ballpark.”
The second page (bearing only the words “short, short federal bonds under a year” and “investment 5-10 years”) is not clearly related to the first page, and in fact appears to be in a different writing, possibly by someone other than Rabbi Pauker.
The third page appears to be in the same handwriting as the first, and consists of a “List” of two items:
1. Written statement – on Torahs -;
2. [undecipherable] Mishkan Israel gave him 3x – machzorim – Tallethim – and Shulchan.
The fourth page (in the handwriting of the first and third pages) consists of the following:
1. Torah – Rita’s Retirement fund – funded by Torah.
2. Enforce right of Torah – certificate of Insurance – 2 Torah + 1 Pasul Torah – Mishkan Israel; 1 Torah Norman Pauker; 1 Torah Rabbi Furst has – statement of co-Insurance.
1. House Held in whose names –
2. Will – Have a trust set up
The fifth page (mostly in the same handwriting as the first, third and fourth pages) begins with a list of 8 items (June through March, year unknown) and amounts ranging from $50.00 to $10,000, and some notes which may indicate payments by the abbreviation “Pd.” Below that is the word “Passover,” and below that the note: “Torahs for two years 1995 + 1996 insured by Samuel Ohana.” Below is the signature of (Rabbi) Samuel Ohana. Rabbi Ohana acknowledges that the last two lines of writing and the signature are his. However, Rabbi Ohana will testify that this writing and signature have been cut and pasted onto this page from another, as the writing above was not on the page that Rabbi Ohana signed when he agreed, as above, to insure two Sifrei Torah for the yomim naoraim in 1995 and 1996. Rabbi Ohana will also testify that he never saw the first 4 pages and top portion of the fifth page of Exhibit C before seeing the purported contract in Beit Din.
Petitioner has no other evidence of any purported contract or agreement between her husband and Rabbi Ohana that the four Sifrei Torah were on loan to him or to Valley Mishkan Israel. Further, Petitioner cannot produce any evidence of her late husband’s ownership of the Sifrei Torah, other than her own testimony. To date, she has presented no other evidence that her husband ever actually owned any of the four Sifrei Torah. In fact, she has no direct knowledge of the historical facts asserted regarding ownership and transfer of the four Sifrei Torah.
IV. THE EVIDENCE PROVIDED BY THE SIFREI TORAH DISPROVES THE CLAIM OF OWNERSHIP BY THE PAUKER FAMILY:
The four Sifrei Torah have been examined and researched by Rabbi David Rue, a Sofer and expert examiner of Sifrei Torah. Attached as Exhibit D is Rabbi Rue’s summary concerning the origin and status of the four Sifrei Torah.
The 32 inch Torah is 55 years old and was donated in Los Angeles, according to the inscription on the atzei chaim. This Torah itself proves without any doubt whatsoever that Petitioner’s claim is false. It could not conceivably have been donated decades ago by the late Rabbi Pauker’s sister to Young Israel of the Bronx.
The 46.5 inch Torah is 50 years old and was donated by Betty Mayer in memory of her husband, Walter Mayer. Rabbi Rue searched public death records nationwide and discovered only one such instance of a Walter Mayer who was survived by a wife named Betty Mayer. The resulting “Detailed Death Search Results” (attached hereto as Exhibit E), state that Walter Mayer died in Tarzana, California in November 1979, survived by Betty Mayer. It is therefore abundantly clear that this Sefer Torah was also donated in the Los Angeles area (probably in the San Fernando Valley), and could not have been owned by Rabbi Pauker’s sister in New York, and then brought to Los Angeles by Rabbi Pauker over 40 years ago (long prior to the death of Walter Mayer), as Petitioner claims.
The 56 inch Torah is almost certainly a Holocaust Torah from the Westminster Synagogue of London. The Westminster synagogue has distributed thousands of Holocaust Sifrei Torah of this type throughout the world, all on long term loan. (See Exhibit F attached) No individual can legally acquire ownership of a Sefer Torah on loan from the Westminster synagogue of London.
V. PETITIONER’S EVIDENCE DOES NOT CONSTITUTE A CONTRACT.
The California Civil Code provides as follows:
Section 1549: A contract is an agreement to do or not to do a certain thing.
Section 1550: It is essential to the existence of a contract that there should be:
1. Parties capable of contracting;
2. Their consent;
3. A lawful object; and,
4. A sufficient cause or consideration.
The document proffered by Petitioner as a “contract” (Exhibit C) utterly fails to prove the existence of any contract between the parties. No agreement is set out in the document. No parties are stated. No terms are stated. No time or date for performance of the terms ever stated. Finally no signature block for both parties. No witnesses or statement of the authority of the persons purporting to enter into the agreement. There is no consent. No “lawful object” is specified with any clarity. No “cause or consideration” is specified. Three of the four “essential” elements of any contract are absent.
Rabbi Ohana admits that he agreed to insure the four Sifrei Torah for the yomim naoraim of 1995 and 1996. Rabbi Ohana admits that the signature appended to page 5 of the document (Exhibit C) is a copy of his signature. However, Rabbi Ohana testifies that he never signed any paper bearing the other matters written on page 5 of Exhibit C. Rather, it appears that his signature has been copied or pasted onto that page. Rabbi Ohana has requested that Petitioner produce the original of Exhibit C. She responded that she has no knowledge of the original, and has only the photocopy.
VI. PETITIONER LACKS STANDING TO MAKE THIS CLAIM.
As above (Exhibit A), Rabbi Pauker was survived by two children and the Petitioner. Pursuant to California law, in order to maintain any claim by right of survivorship, Petitioner must establish her rights as an heir to the property claimed. Under the California legal system known as “Community Property,” any property acquired by either spouse during the marriage is presumptively acquired on behalf of the marital union, such that upon the death of one spouse, the surviving spouse automatically inherits the entire item of property. However, any property owned by either spouse prior to the inception of the marriage remains that spouse’s separate property, unless that property has been commingled with marital property, or treated as such. By her own admission in the claim that all four of the claimed Sifrei Torah were owned by the Pauker family prior to her husband’s move to Los Angeles (consistent with Rabbi Rue’s analysis, Exhibit D), the four Sifrei Torah pre-date Petitioner’s marriage to Rabbi Pauker. Thus, under California law, if the four Sifrei Torah were ever owned privately by any Pauker, absent evidence of commingling, they would have been the separate property of Rabbi Pauker at the time of his death, subject to inheritance only by his natural children from his prior marriage. Had they been willed or verbally promised to Petitioner, succession to the Sifrei Torah could only have been determined in the Probate Division of the Superior Court of the State of California.
VII. BOTH FEDERAL AND STATE LAW PROHIBIT TRANSFER OF THE SIFREI TORAH TO PETITIONER.
Valley Mishkan Israel Congregation remains an active California nonprofit corporation, for which Petitioner is the registered agent. See Corporate status and Nonprofit Organization status, attached together as Exhibit G. Respondent Beth Midrash Mishkan Israel American Institute For Judaic Studies, Inc. is also an active California non-profit corporation, for which Rabbi Ohana is the registered agent. See Corporate status and letters from the IRS and California FTB confirming nonprofit status, attached together as Exhibit H.
Pursuant to the United States Code, Title 26, Section 501(c)(3)-1(b)(4), the Internal Revenue Service has strict requirements for nonprofit status, including the dedication and distribution of the assets of such an organization. The IRS requires:
“Assets of an organization must be permanently dedicated to an exempt purpose. This means that should an organization dissolve, its assets must be distributed for an exempt purpose… To establish that your organization’s assets will be permanently dedicated to an exempt purpose, the articles of organization should contain a provision insuring their distribution for an exempt purpose in the event of dissolution.”
See “Tax-Exempt Status for Your Organization,” IRS Publication 557, pages 1 and 22 of which attached hereto as Exhibit I. The establishment of nonprofit status is properly demonstrated in the Articles of Incorporation of Respondent, Beth Midrash Mishkan Israel American Institute For Judaic Studies, Inc., attached hereto as Exhibit J.
Accordingly, Petitioner’s claim is in violation of Federal law.
California law equally prohibits the acquisition of the property of a non profit upon its dissolution. The California Corporations Code governing non profit and charitable organizations prescribes what must be done with the property of tax exempt or charitable organizations upon cessation of the charity.
“After the debts and obligations of the corporation are paid or adequately provided for, any assets remaining shall be transferred to the religious organization governed by the corporation sole, or to trustees in its behalf, or disposed of as may be decreed by the superior court of the county in which the dissolved corporation had its principal office upon petition therefor by the Attorney General or any person connected with the organization.” Cal.Corp.Code § 10015
The merger of one charity into another is expressly permitted.
VIII. PETITIONER’S CLAIM IS BARRED BY THE STATUTE OF LIMITATIONS.
The California Code of Civil Procedure (“C.C.P.”), sections 312-366, provides the times within which an action must be commenced as follows:
Section 312: Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued …
Section 337: Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing …
Section 339: Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing …
Petitioner claims that her husband loaned the Sifrei Torah to Rabbi Ohana in 1997. If the loan agreement had been in writing, the above law (C.C.P. § 337) would permit her to bring her action for breach of the agreement within 4 years of the breach. If oral, within 2 years pursuant to C.C.P. § 339. To date, she has not stated the period of the purported loan. One might postulate that she terminated any loan agreement (assuming she had the power and authority as her husband’s successor in interest to do so) in 2002, when she asked Rabbi Ohana to return them to her, thus terminating the purported loan. Thus, under the laws of the State of California, Petitioner would have to have filed suit in the Superior Court, or at least issued a Summons to Beit Din, prior to the end of 2006. In fact, because she did not act until June 16, 2007 at the earliest, this claim is in violation of the Statute of Limitations and must be dismissed.
IX. CONCLUSION
Based upon the foregoing, Petitioner Rita Pauker’s cannot meet her burden of proof and persuasion, either under California or Jewish Law. The claim is baseless and should be denied in its entirety, if not dismissed for lack of standing and/or violation of the Statute of Limitations.
HERE IS RABBI OHANA’S BRIEF TO THE COURT FILED ON 7/27/10 TO BE HEARD IN DEPT 23 DOWNTOWN LOS ANGELES On 8/31/10:
TO THE COURT AND TO PLAINTIFF:
Defendants Rabbi Samuel Ohana and Beth Midrash Mishkan Israel American Institute For Judaic Studies, Inc. (incorrectly named herein “Beth Midrash Mishkan Israel”) hereby oppose the Petition filed by Rita Pauker, request that the award be vacated, and request that this Court enter Judgment in favor of Defendants.
SUMMARY OF ARGUMENTS:
The arbitration Award should be vacated:
In the second Beit Din arbitration hearing, Plaintiff argued and prevailed in proving to the arbitrator that Plaintiff lacks standing to claim ownership of the four Torah scrolls. Thus, the arbitrator decided: “I rule that the four Torah Scrools in question are the property of the non-profit Valley Mishkan Israel Congregation of which Rita Pauker is the Agent.”
In this contractual arbitration, the arbitrator’s power to act is derived exclusively from, and is limited by, the contractual agreement of both parties. The arbitrator exceeded the power granted him by the parties in granting an award in favor of a non party, non signatory to the agreement. Defendants were never asked to and did not, in any manner, consent to arbitrate any dispute with Valley Mishkan Israel Congregation. Defendants did not waive their fundamental rights of legal process, and particularly the right to a jury trial, vis-à-vis any such entity. As one of Defendants’ primary defenses was Plaintiff Rita Pauker’s lack of standing to assert ownership of the Torah scrolls, the arbitrator’s sua sponte award in favor of a non-party is prejudicial error which cannot be affirmed by the Court.
Further, the arbitrator violated Defendants’ fundamental right to the counsel of their choice by excluding one of Defendants’ two attorneys present at the arbitration hearing from participating in and arguing the law at the hearing.
This Court should enter Judgment in favor of Defendants:
This Court should NOT order the parties to return to arbitration for a third time in this matter. The Rabbinical Council of California, “RCC,” has shown its extreme prejudice against Defendants throughout the course of the matter. The conduct of the first arbitration hearing, the course of conduct since the last hearing in this Department (exhibits attached), and the second RCC Award demonstrate the prejudice against Defendants. Because the arbitrator ruled against Plaintiff Rita Pauker in her claimed ownership of the Torah scrolls, this Court should enter Judgment in favor of Defendants.
THE PROPOSED JUDGMENT EXCEEDS THE AGREEMENT OF THE PARTIES BECAUSE THE DEFENDANT NEVER AGREED TO CONTRACTUAL ARBITRATION WITH ANY PLAINTIFF ENTITY.
Plaintiff Rita Pauker, an individual, has never had any ownership interest in the property in question (four Torah scrolls) and therefore lacked any standing to commence, prosecute or obtain judgment on her claim of ownership of the Torah scrolls. Based thereon, Defendants agreed to binding arbitration exclusively between Rita Pauker, the individual, and the Defendants. Plaintiff Rita Pauker’s lack of standing was one of Defendants’ primary argument at both arbitration hearings in this matter.
The contractual agreement to arbitrate is limited to determining the rights of the parties to the agreement: Rita Pauker as an individual and the Defendants. The arbitrator in fact concluded that Defendants’ position that Pauker had no right to the property in question was correct. Therefore judgment in favor of the Defendants must be entered, as the affirmative defense of lack of standing was found to be correct.
As the Court will recall, the prior arbitration award was vacated due to violation of the appearance of impropriety and failure to disclose the potential conflict: one of the arbitrators had given an interview which was published in a newspaper, indicating his conclusion as to the law of the case prior to sitting as an arbitrator and the taking of evidence.
Thereafter, in this Court the Defendants opposed further proceedings before the same arbitration organization (RCC), due to demonstrated bias of the RCC against Defendants and because the RCC had few neutral Rabbis available to empanel as arbitrators. In reply, Petitioner represented to the Court that the RCC has many other trained and qualified arbitrators. Defendants were ordered by the Court to return to the RCC for arbitration with a new panel.
Petitioner’s representation that the RCC has many other trained and qualified arbitrators proved not to be true. Upon returning to the RCC to select a new arbitration panel, the RCC was able to propose only five “qualified” Rabbis. Defendants served a peremptory challenge to one, and objections for cause to three of them, pointing out that the three were, in essence, alter egos of the three Rabbis from the first hearing, all disqualified by this Court. Finally, upon Defendants’ proposal, a single arbitrator, Rabbi Shalom Tendler, was appointed. (See Exhibit A, extensive correspondence between Rabbi Union, (Administrator of the RCC and a disqualified prior arbitrator), Baruch Cohen, Plaintiff’s counsel at the time, Benny Westreich, Esq. (counsel for the RCC), and Sobel, concerning the constitution and selection of the second panel of arbitrators, including objections, “disclosures” made, and resolution. The extensive correspondence is copied not only to illuminate the selection and “disclosure” process, but also to demonstrate the alarming degree of cooperation between the RCC and Plaintiff, and the alarming degree of the RCC’s prejudice against Defendants herein.
The arbitration hearing was held on January 13, 2010. Unfortunately this arbitrator was also untrained in the law and unfamiliar with the law. The request of the Defendant to record the proceedings was denied by the arbitrator. The request to determine the substantive law which would be applied by the arbitrator, California or Jewish law (“Halacha”), was denied. And in a strange twist, the arbitrator refused to allow licensed counsel to appear and argue issues of Jewish Law for the Defendant entity.
Prior to the commencement of arbitration, Defendants’ two counsel submitted to the arbitrator, and copied to Plaintiff, two trial briefs: one trial brief in English addressing the facts and California law (attached hereto as Exhibit B), and a separate two page brief entirely in Hebrew (attached as Exhibit C), addressing issues of Jewish law. Both of Defendants’ counsel arrived timely for the arbitration. Immediately prior to the hearing, the arbitrator appeared in the lobby waiting area of the RCC offices and invited each side to enter the conference room with a single advocate of his/her choice. Mr. Sobel accompanied Defendant Rabbi Ohana into the room. Once inside the room behind closed doors, the arbitrator announced that each party would be allowed to have one, and only one, attorney or advisor attend the hearing. All others were barred. Mr. Sobel explained that each of defense counsel was assigned and prepared to argue a different area of the law: that Sobel was prepared to present witnesses and argue issues of State and Federal law, and that Rabbi Ohana had retained Steven Friedman, Esq. to address or argue issues of Jewish law. The arbitrator stated in response: “With all due respect, I don’t need to hear argument from Mr. Friedman on Jewish law.”
The matter proceeded, over Defendants’ objections. Among the defenses presented was the fact that under both state and federal law, the property of non-profit organizations is not the personal property of the non-profit’s officers. The arbitrator clearly accepted this point, and the evidence was conclusive that the property in question was at all times either the property of the Defendant non-profit or of the non party Valley Mishkan Israel Congregation, Inc.
The arbitrator agreed that Mrs. Pauker, an individual, the Petitioner here and the sole Plaintiff party to the arbitration agreement, had no right, title or interest in the property in question. That was the SOLE question presented by the arbitration agreement.
In entering into a contract for binding arbitration, Defendants never agreed to waive their rights to trial by Court or jury, to the protections of the Code of Civil Procedure and the application of California law, as to anyone other than Rita Pauker, an individual.
Despite the express language of the agreement and the unambiguous identity of the only parties to the agreement (“Mrs. Rita Pauker v. Rabbi Samuel Ohana and Beth Midrash Mishkan Israel”) the arbitrator’s award seeks to award the property in question to a non party: “the non profit Valley Mishkan Israel Congregation, of which Rita Pauker is the Agent.”
In other words the arbitrator, probably due to his lack of training and education in the law, simply took the affirmative defense, agreed with that defense, and exceeded his authority and jurisdiction by attempting to award the property to an entity which was never a party to the arbitration agreement. Further, the arbitrator erroneously identified Plaintiff as “the Agent” of the corporation. In fact, in their brief, Defendants had presented evidence that Plaintiff was the Agent for Service of Process for the Corporation. No evidence or testimony whatsoever was presented that Plaintiff acted in any other or greater capacity for the non party Valley Mishkan Israel Corporation.
Given Defendants’ now clearly meritorious defense of lack of standing in the Plaintiff, it is clearly understandable that the Defendants would be willing to arbitrate the claim, because the party plaintiff had no evidence or law to support her expressly pleaded and briefed position that the Torahs in question belonged to her as an inheritence from her husband.
Because the Defendant never entered into an agreement to arbitrate any claim with Valley Mishkan Israel Corporation, the Court cannot enter judgment in favor of that entity.
CONCLUSION:
Plaintiff argued and prevailed in proving to the arbitrator that Plaintiff lacks standing to claim ownership of the four Torah scrolls. The arbitrator exceeded the power granted him by the parties in granting an award in favor of a non party, non signatory to the agreement. Defendants did not waive their fundamental rights of legal process, and particularly the right to a jury trial, vis-à-vis Valley Mishkan Israel Congregation. The arbitrator’s sua sponte award in favor of a non-party is prejudicial error which cannot be affirmed by the Court.
Further, the arbitrator violated Defendants’ fundamental right to the counsel of their choice by excluding one of Defendants’ two attorneys from participating in and arguing the law at the hearing.
Due to the RCC’s pattern and practice of prejudice against Defendants, this Court should NOT order the parties to return to arbitration for a third time in this matter.
Based upon the foregoing, this Court should Vacate the award of the arbitrator, and because the arbitrator ruled against Plaintiff Rita Pauker in her claim of ownership of the Torah scrolls, this Court should enter Judgment in favor of Defendants.
DECLARATION OF G. SCOTT SOBEL
G. Scott Sobel declares:
1. I am an attorney licensed to practice law in the State of California and the attorney of record for Defendants herein. The following facts are within my personal knowledge, or based upon information and belief. If called as a witness, I could and would competently testify thereto.
2. Upon returning to the RCC to select a new arbitration panel, the RCC was able to propose only five “qualified” Rabbis. Defendants served a peremptory challenge to one and objections for cause to three of them, pointing out that the three were, in essence, alter egos of the three Rabbis from the first hearing, all disqualified by this Court. Finally, upon Defendants’ proposal, a single arbitrator, Rabbi Shalom Tendler, was appointed. Attached hereto collectively as Exhibit A are true and correct copies of extensive correspondence between Rabbi Union, (Administrator of the RCC and a disqualified prior arbitrator), Baruch Cohen, Plaintiff’s counsel at the time, Benny Westreich, Esq. (counsel for the RCC), and me, concerning the constitution and selection of the second panel of arbitrators, including objections, “disclosures” made, and resolution. The extensive correspondence is copied not only to illuminate the selection and “disclosure” process, but also to demonstrate the alarming degree of cooperation between the RCC and Plaintiff, and the alarming degree of the RCC’s prejudice against Defendants herein.
3. The arbitration hearing was held on January 13, 2010.
4. Prior to the commencement of arbitration, Mr. Friedman and I submitted to the arbitrator, and copied to Plaintiff, two trial briefs: one trial brief in English addressing the facts and California law (a true and correct copy of which is attached hereto as Exhibit B), and a separate two page brief entirely in Hebrew (a true and correct copy of which is attached hereto as Exhibit C), addressing issues of Jewish law. In the Beit Din Rabbinical courts, briefs are commonly presented in Hebrew, and the proceedings are often conducted in Hebrew or Yiddish, according to the preferences of the participants, as is provided in the Agreement to Binding Arbitration herein.
5. At the outset of the arbitration, I requested to record the proceedings. The arbitrator denied my request. I requested that the arbitrator specify which substantive law would be applied in deciding the case, California or Jewish law (“Halacha”). The arbitrator declined to indicate which law would be applied in deciding the matter. The arbitrator refused to allow Attorney Steven Friedman to appear and argue for the Defendant entity, as follows:.
6. Mr. Friedman and I arrived timely for the arbitration. Immediately prior to the hearing, the arbitrator appeared in the lobby waiting area of the RCC offices and invited each side to enter the conference room with a single advocate of his/her choice. I accompanied Rabbi Ohana into the room. Once inside the room behind closed doors, the arbitrator announced that each party would be allowed to have one, and only one, attorney or advisor attend the hearing. All others were barred. I explained that each of defense counsel was assigned and prepared to argue a different area of the law: that I was prepared to present witnesses and argue issues of State and Federal law, while Rabbi Ohana had retained Steven Friedman, Esq. to address or argue issues of Jewish law. The arbitrator stated in response: “With all due respect, I don’t need to hear argument from Mr. Friedman on Jewish law.”
7. I objected to the arbitrator’s three rulings not to allow us to record the hearing, not to advise whether he would apply California or Jewish law to decide the matter, and to exclude Mr. Friedman from participating. The matter proceeded, over Defendants’ objections.
8. Among the defenses presented was the fact that under both state and federal law, the property of non-profit organizations is not the personal property of the non-profit’s officers. It is clear from the arbitrator’s decision that he accepted this point, and the evidence was conclusive that the property in question was at all times either the property of the Defendant non-profit or of Valley Mishkan Israel Congregation, Inc., but never the property of Rabbi Pauker, or his wife Rita Pauker, by gift or by bequest. The arbitrator agreed that Mrs. Pauker, an individual, had no right, title or interest in the property in question. In essence, that was the sole question presented by the arbitration agreement.
9. No evidence or testimony whatsoever was presented at the arbitration hearing, or in any of the briefs, that Plaintiff acted in any capacity other than as Agent for Service of Process for the non party Valley Mishkan Israel Corporation.
10. Throughout the course of this matter, Defendants were never asked to and did not, in any manner, consent to arbitrate any dispute with Valley Mishkan Israel Congregation.
11. Defendants did not waive their fundamental rights of legal process, and particularly the right to a jury trial, vis-à-vis Valley Mishkan Israel Congregation.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
LUKE SAYS: I understand: A petition to vacate the award of an arbitrator is NOT a retrial, but essentially an appeal, which may NOT be based on the facts of the case, nor is it based on the law (for the sake of judicial economy & encouraging settlements, the arbitrator is allowed to get the applicable law wrong – that would be tough luck).
Appeal from arbitration to overturn the ruling of the arbitrator can be based only on procedural irregularities – the right to a fair hearing. That’s why the same judge overturned the prior RCC Psak Din award, based upon the appearance of impropriety by one of the 3 Dayanim (if not actual impropriety, which the court was careful to avoid saying).
