Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. William Highberger, Judge, Los Angeles County Super. Ct. No. BC320894
Michael J. Perry for Defendant and Appellant.
Sheppard Mullin Richter & Hampton, Gregory A. Long, Richard W. Brunette and Theresa W. Bangert for Plaintiff and Respondent.
JOHNSON, J.
Curtis D. Somoza and Robert A. Coberly, Jr., the principals of Persistence Capital, LLC, a California limited liability company, (Persistence Capital) engaged in a fraudulent investment scheme to acquire pools of life insurance polices. Somoza appeals from the judgment confirming an arbitration award in favor of Bruinbilt, LLC, (Bruinbilt) an investor. Somoza asserts the award must be vacated. We disagree.
As we previously explained, the appeal lies from the judgment rather than the order confirming the arbitration award. (Cheeks v. California Fair Plan Assn. (1998) 61 Cal.App.4th 423, 424, fn. 1; accord, Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326-327.)
On appeal, Somoza contends he was deprived of his due process right to present a defense when the arbitrator refused to continue the arbitration although good cause existed, namely, Somoza’s principal witness was unavailable, because his attorney was required to be in court on an unrelated matter. He contends the award must be vacated for mistake, inadvertence, or excusable neglect, because Somoza’s former attorney requested arbitration although the contract between Somoza and Bruinbilt did not contain an arbitration clause. He further contends his guarantee of due process was abridged by the award of punitive damages at the arbitration proceeding, because the arbitrator had bifurcated the punitive damages issue for resolution subsequent to arbitration and no evidence was admitted regarding Somoza’s net worth.
Code of Civil Procedure section 473. All further section references are to the Code of Civil Procedure.
Based on our review of the record and applicable law, we affirm the judgment. Somoza fails to establish any valid basis for vacating the award.
FACTS AND PROCEEDINGS BELOW
On July 14, 2004, Bruinbilt and Persistence Capital entered into a Master Agreement and related agreements to acquire five pools of life insurance policies for investment. Bruinbilt invested $7.5 million. Somoza and Coberly signed personal guaranties regarding certain aspects of this enterprise.
On November 11, 2004, Bruinbuilt filed a first amended complaint based in part on allegations Persistence Capital breached the contract by failing to return Bruinbilt its $7.5 million by September 1, 2004; Persistence Capital, Somoza, and Coberly defrauded Bruinbilt; and Somoza and Coberly breached their guaranty agreement. In addition to compensatory damages, Bruinbuilt sought recovery of punitive damages, attorney fees and costs, declaratory and injunctive relief.
Eight causes of action were pleaded, respectively: (1) breach of written contract against Persistence Capital; (2) fraud against Persistence Capital, Somoza, and Coberly; (3) theft against Persistence Capital; (4) conversion against Persistence Capital; (5) constructive trust against Persistence Capital; (6) breach of guaranty by Somoza and Coberly; (7) declaratory relief against Persistence Capital; and (8) injunctive relief against Persistence Capital, Somoza, and Coberly.
Coberly answered by generally denying the material allegations and pleading ten affirmative defenses.
The record does not indicate whether Somoza filed a responsive pleading to the first amended complaint.
1. Arbitration and Award Involving Persistence Capital
Commencing February 14, 2005, a non-judicial arbitration of Bruinbilt’s breach of contract, fraud, theft, and conversion claims against Persistence Capital was held before retired Justice Robert Feinerman as arbitrator. The arbitrator made an award in favor of Bruinbilt on the breach of contract (first) and fraud (second) causes of action against Persistence Capital in the total amount of $13,101,849.72, consisting of $7.5 million as compensatory damages; $5 million as punitive damages; and $601,849.72 as fees and costs.
In a written decision dated July 8, 2005, which was incorporated into the award, the arbitrator concluded Somoza and Coberly, “as officers and agents of [Persistence Capital], acting within the scope of their authority as [its] co-managing members . . ., orchestrated and implemented a scheme characterized by misrepresentation, deceit and ‘double dealing’ legally causing . . . [Bruinbilt] . . . to be defrauded of $5 million and placing an additional $2.5 million in severe jeopardy.”
On March 9, 2006, the trial court confirmed the arbitration award against Persistence Capital and entered judgment on the confirmation order. No appeal was taken from the judgment.
2. Arbitration Ordered as to Somoza and Coberly
In December 2004, Lloyd K. Chapman, then attorney for Somoza and Coberly, filed a petition to compel arbitration and stay proceedings pending completion of arbitration. He argued all causes of action, including the second for fraud, sixth for breach of guaranty, and eighth for injunctive relief against Somoza and Coberly, “are governed by the Master Agreement and the contemporaneously signed Guaranty” and therefore “subject to the arbitration clause.” In his supporting declaration, Mr. Chapman stated “[h]is clients[, namely, Somoza and Coberly] desire to arbitrate all matters raised in the First Amended Complaint.”
At the January 27, 2005, hearing, the trial court granted the petition as to the claims for fraud and injunctive relief, denied the petition as to the guaranty claim, and stayed further proceedings pending the outcome of the arbitration.
In the Final Award, the arbitrator deemed the injunctive claim to have been abandoned, because Bruinbilt did not seek any injunction during arbitration.
On September 27, 2005, Richard Chernick (JAMS) was appointed as the sole arbitrator. November 7, 2005, was the date designated for commencement of arbitration.
In its arbitration claim, Bruinbilt took the position that the liability of Somoza and Coberly derived from their status as alter egos of Persistence Capital. It argued because Somoza and Coberly were and had been in control of Persistence Capital and directed the defense it mounted in the prior Persistence Capital arbitration, Somoza and Coberly were both responsible for the award against Persistence Capital and collaterally estopped by the findings and award made by Justice Feinerman in the prior arbitration.
3. Arbitration Continuance Granted and Denied
On October 31, 2005 Joseph S. Fischbach was substituted in as Coberly’s attorney in place of Mr. Chapman. In his facsimile (fax) to the arbitrator, Mr. Fischbach stated Coberly refused to waive the conflict of interest arising from Mr. Chapman’s representation of Persistence Capital, Somoza, and Coberly and requested a continuance to prepare. Somoza announced his joinder in the continuance request in order to obtain new counsel.
On November 4, 2005 the arbitrator granted the requests for a continuance to allow new counsel to prepare for the arbitration. In response to Mr. Fischbach’s request for a late February date, the arbitrator continued the arbitration to February 27, 2006. The arbitrator advised Somoza to obtain counsel promptly and to inform new counsel of the hearing date and the arbitrator’s expectation that the hearing will proceed at that time absent some extreme circumstance. The arbitrator ruled “‘[l]ack of availability or lack of time to prepare will not be entertained as a ground for any further continuance.’” (Emphasis deleted.)
On January 20, 2006, the trial court in an unrelated matter ordered Coberly’s attorney, Mr. Fischbach, to be available for a jury trial on February 21, 2006, which would last for about 15 court days.
On January 24, 2006, Coberly requested the arbitrator continue the arbitration rescheduled for February 27, 2006, because his attorney, Mr. Fischbach, was ordered to appear at trial although the trial court was aware of his arbitration commitment.
On January 25, 2006, the arbitrator denied Coberly’s second continuance request. He noted after continuing the original arbitration to February 27 at Mr. Fischbach’s request, he had admonished “‘[l]ack of availability or lack of time to prepare [would] not be entertained as a ground for any further continuance.’” (Emphasis deleted.)
The arbitrator declined to decide whether the trial court had been advised of counsel’s arbitration obligation or whether the court’s setting of trial for February 21, 2006, was either reasonable or valid in light of the prejudice to Bruinbilt. He found the initial continuance prejudiced Bruinbilt and additional prejudice would ensue from any more continuances, because Somoza and Coberly “have sought to defer for as long as possible their obligation to participate in the hearing in this matter and have placed undue financial burden on and undue delays for [Bruinbilt] by that conduct.”
Coberly made an ex parte application to the trial court for stay of the arbitration due to unavailability of counsel. In his supporting declaration, Mr. Fischbach stated on January 20, 2006, he had informed the trial court about the scheduled arbitration and attached a copy of a minute order dated January 2, 2006. Bruinbilt filed opposition pointing out the arbitrator had denied Coberly’s second continuance request and arguing the court was without jurisdiction once arbitration was ordered.
On February 2, 2006, the trial court denied ex parte application with prejudice.
On February 16, 2006, Michael J. Perry became counsel of record for Somoza and requested a 60-day continuance in order to prepare for arbitration.
In his letter to arbitrator, Mr. Perry stated on November 17, 2005, he had substituted in as Somoza’s attorney but substituted out in December 2005, because Somoza did not retain him. He denied reading the “voluminous files,” because he could not afford to do so without being paid.
On February 23, 2006, the arbitrator denied Somoza’s second continuance request, pointing out when the first continuance was granted, Somoza had been advised that “[l]ack of availability of or lack of time to prepare will not be entertained as a ground for any further continuance.” Somoza did not seek judicial review of this ruling.
4. Arbitration Involving Somoza and Coberly
On February 27, 2006, as rescheduled, the arbitration as to Somoza, Coberly, and Bruinbilt commenced. No appearance was made by Coberly, Mr. Fischbach, or anyone else on behalf of Coberly. Mr. Perry, Somoza’s attorney, appeared “specially” and objected to the arbitration going forward. He submitted six exhibits and made this statement on the record: “Again, I am specially appearing today. As I believe the arbitrator is aware, Mr. Fischbach is ordered to be in trial in the Los Angeles Superior Court downtown; he could not be here and there at the same time. Mr. Coberly is not here, also presumably under the instructions of his counsel, for the reasons set forth in my earlier motion to you and also because . . . to assist with my defense, I need Mr. Coberly to be here and he’s not here and for the other reasons stated in Exhibit[s] A through F, I, on behalf of Mr. Somoza, [am] objecting to the arbitration going forward today. That’s all I have to say, and I’m going to leave the proceedings at this point[,]” which he did.
In addition to the six exhibits offered by Mr. Perry, the arbitrator admitted into evidence: (1) 294 exhibits from the Persistence Capital arbitration; (2) 45 new exhibits submitted by Bruinbilt; and (3) those portions of the reporter’s transcripts (14 vols.) from the Persistence Capital arbitration designated by Bruinbilt in its noticed designation of transcript. These transcripts included the testimony of Somoza and Coberly. The arbitrator then took the matter under submission.
5. Interim and Final Awards and Memorandum of Costs
On March 6, 2006, the arbitrator issued an Interim Award in favor of Bruinbilt and against Somoza and Coberly in the amount of $7.5 million as compensatory damages and $15 million as punitive damages. The arbitrator also found that Bruinbilt, as the prevailing party, was entitled to reasonable attorney fees and costs of suit and arbitration fees and expenses, the amount of which would be determined as a documentary matter unless an oral hearing was requested in writing.
On March 20, 2006, Bruinbilt filed a cost memorandum seeking a total of $1,142,899.92, exclusive of recent attorney fees. Coberly opposed the requested fees and costs for the prior arbitration as improper “‘double dipping’” and objected to redactions on the legal bills as precluding him from ascertaining whether the charges were justified. By letter brief, Somoza purported to make a “special appearance,” and joined in Coberly’s written comments. He also objected to the memorandum as failing to comply with section 1033.5, subdivision (c)(5). The arbitrator overruled these objections.
On April 26, 2006, the arbitrator issued a Final Award in favor of Bruinbilt and against Somoza and Coberly in the total amount of $24,792,351.70, consisting of $8,737,500.00 as compensatory damages; $15,000,000.00 as punitive damages; and $1,054,851.79 as fees and costs.
6. Confirmation of Award Against Somoza and Coberly
On June 6, 2006, Bruinbilt filed its petition to confirm the arbitration award against Somoza and Coberly.
Coberly filed a petition to vacate the arbitration award. Somoza filed a partial joinder in the points and authorities in support of Coberly’s petition to vacate. Somoza also filed his own petition to vacate the award.
Coberly opposed the petition to confirm by incorporating by reference his petition to vacate, the supporting memorandum of points and authorities and supporting evidence. Bruinbilt filed responsive opposition to both petitions to vacate. Coberly and Somoza filed a separate reply.
On July 6, 2006, at the hearing on petitions, Louis Samson appeared on behalf of Fischbach and Fischbach, Coberly’s attorney of record. Mr. Perry appeared for Somoza.
The trial court announced its tentative ruling was to confirm the award and explained: “It appears to me to be not even a close case as to whether the award should be confirmed. I think it would be egregious error if I were to do anything other than to confirm the award and deny the two petitions to vacate.”
The court found the failure of Somoza and Coberly to pay their allocated share of the arbitration cost, which prejudiced Bruinbilt, was itself reason not to grant the initial continuance and noted that upon granting “about a three-and-a-half month continuance[,] “ the arbitrator made it very clear: “‘‘Lack of availability or lack of time to prepare will not be entertained as a ground for any further continuance.’”
The court noted there was nothing in the record indicating what steps, if any, Mr. Fischbach took to apprise the judge in the unrelated matter of the “double booking,” and to request the judge for relief. The court pointed out Mr. Fischbach did not arrange for another attorney to handle either the trial or the arbitration; rather, Mr. Fischbach himself and Coberly personally simply did not appear at the arbitration.
The court further noted although Mr. Perry appeared at the arbitration, he merely “made a very brief cameo appearance[,]” “offered some exhibits, which were received in evidence, stated the problems that resulted from the unavailability of Coberly, which in turn presumptively flowed from the unavailability of attorney Fischbach and exited the proceedings, choosing not to participate in the balance of the proceedings.”
As for the remaining issues, including the absence of evidence to support the punitive damages award, the trial court concluded they were “classic matters that are not reached by the trial court in reviewing arbitration awards.”
Mr. Perry responded Coberly had “nothing to add” other than repetitive argument. Mr. Samson argued Mr. Fischbach’s unavailability constituted good cause for a continuance and suggested imposition of monetary sanctions against Coberly would have been an adequate remedy to protect Bruinbilt.
The trial court disagreed and pointed out such remedy was not raised before the arbitrator and found it would not have been successful. It was evident from the record Coberly already had been “totally non-cooperating with the obligation to share the expenses for arbitration” at the time of the first continuance.
In support of his due process claim, Mr. Samson argued because Mr. Fischbach was not present and Coberly did not testify, it was “a situation where it’s a slam dunk over millions of dollars that’s going to be granted[.]” The trial court noted although millions of dollars were still at stake, Mr. Fischbach was not present and was happy to have Mr. Samson appear. When Mr. Samson explained Mr. Fischbach was ordered to trial in Santa Barbara for closing argument, the trial court pointed out that Mr. Fischbach solved his problem by hiring Mr. Samson and did not even request a continuance.
Mr. Perry informed the court the due process denial of Coberly’s right to counsel issue was raised in the petition and argued it was “uncontroverted California public policy that all are entitled to counsel at every stage of the proceeding.” Addressing both Mr. Perry and Mr. Samson, the trial court stated it found “no due process violations[,] even marginal or slight ones,” in the arbitration proceeding.
After concluding there was no due process violation and no showing to vacate under section 1286.2, the trial court signed the order confirming the arbitration award and judgment on that order. This appeal followed.
On May 18, 2007, this court dismissed Coberly’s companion appeal. (Cal. Rules of Court, rule 8.220(c).)
DISCUSSION
I. STANDARD OF REVIEW
“California has a well-established policy favoring arbitration as a speedy and inexpensive means of settling disputes. . . . The present contractual arbitration law (§1280 et seq.) . . . functions as a comprehensive scheme regulating contractual arbitration. ‘The purpose of this law is to promote contractual arbitration, in accordance with a “strong public policy” in favor thereof [citation] as a more expeditious and less expensive means of resolving disputes than litigation.’ [Citation.] [¶] To support this policy and encourage parties to settle their disputes through arbitration, it is essential that arbitration judgments be both binding and final. Thus, as a general rule, courts will indulge every reasonable intendment to give effect to arbitration proceedings. [Citations.] To ensure that an arbitrator’s decision is the end of the dispute, arbitration awards are subject to very narrow judicial review.”
A.M. Classic Construction, Inc. v. Tri-Build Development Co. (1999) 70 Cal.App.4th 1470, 1474-1475.
“‘The merits of the controversy between the parties are not subject to judicial review.’ [Citations.] More specifically, courts will not review the validity of the arbitrator’s reasoning. [Citations.] Further, a court may not review the sufficiency of the evidence supporting an arbitrator’s award. [Citations.] [¶] Thus, it is the general rule that, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or law.”
Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.
Error of law is not listed as one of the statutory grounds for vacating (§1286.2, subd. (a)) or correcting (§1286.6, subd. (a)) the award. Judicial review of private arbitration awards is restricted to these statutory grounds. Our Supreme Court expressly disapproved those “decisions permitting review of an award where an error of law appears on the face of the award causing substantial injustice[.]”
Moncharsh, supra, 3 Cal.4th at pages 27, 33.
The sole exclusive statutory grounds for vacating a private arbitration award are set forth in section 1286.2, which include in relevant part: “. . . (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. . . .”
Section 1286.2, subdivision (a)(4)&(a)(5).
“In short, we review the superior court’s order de novo, while the arbitrator’s award is entitled to deferential review. [Citation.]” “In reviewing a judgment confirming an arbitration award, we must accept the trial court’s findings of fact if substantial evidence supports them, and we must draw every reasonable inference to support the award. [Citations.]”
Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 541.
Pierotti v. Torian (2000) 81 Cal.App.4th 17, 24.
An award is not to be vacated for any error that does not prejudice the rights of the party complaining. “The burden is thus upon the party attacking the award to affirmatively establish the existence of error by a proper record.” “[A] showing of substantial prejudice is required if the arbitration award is to be vacated pursuant to section 1286.2.”
See, e.g., Pacific Vegetable Oil Corp. v. C. S. T., Ltd. (1946) 29 Cal.2d 228, 240; Davey Tree Surgery Co. v. International Brotherhood of Electrical Workers (1976) 65 Cal.App.3d 440, 450; United Brotherhood of Carpenters etc., Local 642 v. DeMello (1972) 22 Cal.App.3d 838, 840.
Rosenquist v. Haralambides (1987) 192 Cal.App.3d 62, 67.
Rosenquist v. Haralambides, supra, 192 Cal.App.3d at page 69.
II. REFUSAL TO CONTINUE HEARING NOT BASIS FOR VACATING AWARD
Somoza contends he was denied due process, because the arbitrator refused to continue the arbitration. He argues good cause for a continuance existed, because Coberly’s attorney was ordered by the trial court in an unrelated matter to appear despite knowing the attorney had to be at the arbitration in this matter. The inability of Coberly’s attorney to appear at the arbitration prejudiced Somoza, because Coberly made it clear that he would not attend without his attorney. We find Somoza’s good cause claim unpersuasive.
An arbitration award may be vacated where a party has been substantially prejudiced by the refusal of the arbitrator to postpone the arbitration upon a showing of good cause. Good cause exists where the party would not have the opportunity to present evidence. These are not our facts.
See, e.g., Humes v. Margil Ventures, Inc. (1985) 174 Cal.App.3d 486, 495, 495, 500 [principal witness incarcerated].
The arbitration originally set forth for November 7, 2005 was continued to February 27, 2006, more than three months later, at the behest of Somoza and Coberly. Both were on actual notice the arbitration would go forward on that latter date and “unavailability” was not good cause for another continuance. Somoza could have compelled the attendance of the recalcitrant Coberly by means of a witness subpoena. (See §1282.6, subd. (a).) Additionally, although a party has the right to an attorney at the arbitration, the record supports the trial court’s finding no good cause was shown why substitution of another attorney in place of Mr. Fischbach, either at the trial or the arbitration, could not have resolved the appearance conflict.
Somoza argues he had no reason to participate in the subject arbitration, because he should not have been compelled to defend himself at the subject arbitration and then at the subsequent one for Coberly who was entitled to a continuance due to his attorney’s unavailability. The basic fallacy of this argument lies in Somoza’s refusal to acknowledge the record establishes Coberly was not entitled to a continuance based on the unavailability of his attorney. Coberly’s continuance request was denied both by the arbitrator and the trial court. Also, Somoza was on notice the arbitration would proceed that very date despite the “unavailability” of anyone, which necessarily includes Coberly or his attorney (or both).
Section 1282.4, subdivision (a).
Additionally, Somoza fails to show any prejudice. In making both his Interim and Final Awards, the arbitrator relied on certain testimony of Somoza and Coberly from the prior Persistence Capital arbitration. Somoza does not demonstrate what anticipated new testimony of Coberly would have been material to Somoza’s defense.
See, e.g., Moore v. Griffith (1942) 51 Cal.App.2d 386, 388 [refusal to vacate award proper although arbitrator refused to postpone hearing one hour to enable attorney to be present where client presented evidence during that time frame and no showing of prejudice to client by refusal to postpone hearing].
III. NO SHOWING OF MISTAKE, INADVERTENCE, OR EXCUSABLE NEGLECT
Somoza contends the award must be vacated based on his former attorney’s mistake, inadvertence, or excusable neglect in requesting arbitration, because the contract between Somoza and Bruinbilt did not contain an arbitration clause. He argues he was prejudiced, because the arbitrator abridged his guarantee of due process by excluding new evidence, namely, any evidence not already presented at Persistence Capital arbitration; allowing the award against Persistence Capital to be used as evidence against Somoza; and prohibiting Somoza from calling witnesses on his own behalf who had not been called at the prior Persistence Capital arbitration. We find Somoza has failed to carry his initial burden to show any mistake, inadvertence, or excusable neglect.
We note the record does not reflect any arbitrary preclusion of evidence. The arbitrator delineated a detailed procedure for the admissibility of exhibits and transcripts from the prior Persistence Capital arbitration and new exhibits. On February 5, 2006, the arbitrator denied Bruinbilt’s motion to preclude Somoza and Coberly from relitigating the claims and defenses in the prior arbitration on the basis “Coberly and Somoza are entitled to an individual determination in this proceeding of their liability, if any, to [Bruinbilt].” He also denied Bruinbilt’s companion motion to preclude Somoza and Coberly from offering evidence at the arbitration. He ruled: “All of the admitted evidence from the prior arbitration may be utilized in this proceeding. [Bruinbilt] supplementally identified certain documents [and] also identified witnesses. Its list largely overlaps the list filed belatedly by [Somoza and Coberly]. [Bruinbilt] also designated large portions of the transcript from the prior proceeding. [Somoza and Coberly] are free to utilize all of these materials in the arbitration.” The arbitrator explained the failure of Somoza and Coberly to abide by and comply with the arbitrator’s scheduling order foreclosed them from offering any documentary evidence or calling any witnesses not identified by Bruinbilt.
Somoza’s failure to submit a declaration setting forth facts demonstrating mistake, inadvertence, or excusable neglect on the part of his former attorney forecloses his reliance on section 473.
Cf. MJM, Inc . v. Tootoo (1985) 173 Cal.App.3d 598, 600, 602, 604 [upholding denial of award confirmation where trial court persuaded by declaration demonstrating failure to appear at arbitration due to excusable neglect].
In light of this fatal flaw, we need not reach the issue of whether section 473 is authority for vacating a nonjudicial arbitration award following Moncharsh v. Heily & Blas, supra, 3 Cal.4th 1, 11, 27, 33 [restricting judicial review to enumerated statutory grounds for vacating award].
We note the statute applicable to judicial arbitration proceedings expressly authorizes a challenge based on section 473. (§1141.23.)
IV. PUNITIVE DAMAGES AWARD NOT DUE PROCESS VIOLATION
Somoza contends the arbitrator denied him due process by awarding punitive damages on the same date as the arbitration, because earlier the arbitrator had bifurcated the issue of punitive damages and ordered this issue be determined at a later hearing. Somoza’s contention is unsuccessful.
Initially, nonjudicial arbitration does not implicate the due process clauses of the United States and California Constitutions. Nonetheless, a party to an arbitration must be afforded notice of what is to be arbitrated and an opportunity to present evidence and argument in support of the party’s position. Somoza was not deprived of either process.
See U.S. Const., 14th Amend., § 1 [no “State [shall] deprive any person of life, liberty, or property, without due process of law”]; Cal. Const. Art. I, § 7, subd. (a) [“A person may not be deprived of life, liberty, or property without due process of law”]); see, e.g., Rifkind & Sterling, Inc. v. Rifkind (1994) 28 Cal.App.4th 1282, 1291 [private “arbitration and award themselves were not governed or constrained by due process, including its elements applicable to judicial proceedings to impose punitive damages”]; see also, Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 276, 281-282.
See, e.g., section 1282, subdivision (a)(5).
On November 4, 2005, the arbitrator ordered: The issue of “punitive damages to which any party may be entitled shall be bifurcated and determined subsequent to the Hearing. The entitlement, if any, to an award of . . . punitive damages shall be determined as part of the Hearing.” This order “shall continue in effect unless and until amended by subsequent order of the arbitrator.” When viewed in context, only the issue as to the amount of punitive damages would be resolved subsequent to arbitration, and this ruling was subject to change by further order of the arbitrator.
If Somoza’s attorney had not walked out of and refused to participate in the arbitration, he could have objected to the arbitrator’s change of ruling that resulted in the award of $15 million in punitive damages as part of the arbitration. Additionally, although Somoza joined in Coberly’s objection to the award of fees and costs in the Interim Award, neither objected to the Interim Award of $15 million in punitive damages. Somoza therefore forfeited any claim of error based on the award during the arbitration of $15 million as punitive damages.
See Moncharsh v. Heily & Blase, supra, 3 Cal.4th at page 31 [failure to raise illegality claim before arbitrator “waives the claim for judicial review”].
V. LEGAL ERROR NOT BASIS FOR VACATING PUNITIVE DAMAGES AWARD
Somoza contends the $15 million punitive damages award must be vacated, because the arbitrator did not admit evidence of Somoza’s net worth as required by law. We disagree. The failure of the arbitrator to follow applicable legal principles and insufficiency of evidence to support the award are not cognizable grounds for vacating a nonjudicial arbitration award.
Bruinbilt contends the record reflects evidence of Somoza’s net worth was before the arbitrator and cites to page 63, lines 5 through 7, of the clerk’s transcript as support. Our review of that page fails to reveal any facts from which an inference might be drawn regarding Somoza’s net worth.
See, e.g., Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pages 11, 27, 33.
DISPOSITION
The judgment is affirmed. Bruinbilt is awarded costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.