Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. BS105740 of Los Angeles County, William F. Fahey, Judge.
Pasternak, Pasternak & Patton and John W. Patton, Jr., for Defendant and Appellant.
Law Offices of Glenn D. Hamovitz and Glenn D. Hamovitz for Plaintiff and Respondent.
ASHMANN-GERST, J.
Anna K. Herzog (Herzog) appeals from a judgment confirming an arbitration award against her and in favor of respondent Grubb & Ellis Company (Grubb & Ellis). The arbitration agreement required the arbitrator to apply applicable law, and then provided that if the arbitrator failed to do so, a party could appeal to the trial court. According to Herzog, the arbitrator did not apply applicable law, so the trial court erred when it denied her motion to vacate the award and granted Grubb & Ellis’s petition to confirm. We find no error and affirm.
FACTS
Background
Grubb & Ellis is a licensed real estate broker, and Herzog is licensed as a real estate salesperson in California.
Herzog signed an independent contractor agreement (agreement) with Grubb & Ellis to be a salesperson. Paragraph 7(c) of the agreement provided that any dispute between the parties “regarding the subject matter of this [agreement] shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. . . . The arbitrator(s) must apply applicable law.” While working for Grubb & Ellis, Herzog signed promissory notes in favor of Grubb & Ellis for $10,000, $10,000 and $16,000. They each provided that if Herzog failed to pay, such claim shall be settled by arbitration, and that “[t]he arbitrators shall apply the internal law of the state in which the office of [Grubb & Ellis] to which [Herzog] was assigned on the date of the execution of [the] note . . ., and should the arbitrator(s) fail to follow such law, the ruling of the arbitrator(s) can be appealed to the court of general jurisdiction in such state.”
Grubb & Ellis’s policy and procedures manual provides that if there is a dispute among salespeople concerning the division of commissions, a salesperson must seek internal binding arbitration.
In 2000, Herzog teamed with Dave Casper and Mike Shusak of Grubb & Ellis to list vacant land in downtown Los Angeles. The broker fee was $84,000. Grubb & Ellis was entitled to $42,000, and the salespersons were entitled to divide the rest. Grubb & Ellis credited Herzog’s account with 20 percent of the salesperson commission, which was $8,400. Because Herzog owed more than that on the promissory notes, she did not receive any money. She never requested arbitration concerning the division of the commission.
Arbitration
Claiming that Herzog breached the promissory notes, Grubb & Ellis initiated arbitration to recover $36,000 plus interest.
Herzog filed a cross-claim. She alleged that Grubb & Ellis breached the agreement by failing to pay her 40 percent of the salesperson commission from the sale of the vacant land in downtown Los Angeles pursuant to an agreed division between her, Dave Caspar and Mike Shusak. She further alleged that even though Grubb & Ellis improperly determined she was entitled to only 20 percent of the commission, nothing was paid to her. In her second cause of action, she alleged that Grubb & Ellis violated Civil Code section 1725, subdivision (a) by improperly telling consumer credit reporting agencies that she owed money on the promissory notes even though the amounts were disputed.
The arbitrator issued a final award that contained rulings on various motions and an award in favor of Grubb & Ellis.
As detailed in the final award, Grubb & Ellis filed motions for an order deeming matters admitted, discovery sanctions and summary judgment. Herzog filed a motion for an extension of time to respond to Grubb & Ellis’s motions, and a motion to file a second amended cross-complaint. Herzog’s motions were denied because she did not establish good cause for an extension of time, and because the filing of a second amended cross-complaint would result in delay. The arbitrator deemed Grubb & Ellis’s requests for admissions admitted. As well, the arbitrator granted summary judgment in favor of Grubb & Ellis, noting that Herzog did not file an opposing points and authorities or an opposing separate statement, and that she made no effort to comply with Code of Civil Procedure section 437c subdivision (h) by filing a declaration attesting to the need for further discovery. According to the arbitrator, summary judgment was supported by the declaration of Monique Carter detailing the computation of the money owed to Grubb & Ellis and the credits given to Herzog. Also, the ruling was supported by the admissions deemed admitted. The motion for discovery sanctions was denied. In its final ruling, the arbitrator awarded Grubb & Ellis $40,347.34 in damages for breach of the promissory notes and $26,688.92 in legal fees, then allocated 75 percent of the arbitration costs to Herzog.
All further statutory references are to the Code of Civil Procedures unless otherwise indicated.
Trial court proceedings
Grubb & Ellis filed a petition to confirm the arbitration award, and Herzog filed a motion for vacatur. According to Herzog’s motion, the arbitrator did not follow applicable law, and he did not hold a hearing on the merits of either the claim or the cross-claim. It also argued that the agreement was unenforceable because Herzog was impermissibly classified as an independent contractor so that Grubb & Ellis could avoid minimum wage laws, and that she was owed close to $100,000 in wages and overtime pay. At the hearing, Herzog’s attorney stated: “I’m not here to say that the arbitrator did anything but enforce an invalid contract. That’s all I’m here to say.” He asked the trial court to consider a case he did not cite in his briefs, Loving & Evans v. Blick (1949) 33 Cal.2d 603 (Loving & Evans), a case which predated the enactment of section 1286.2. Loving & Evans held that an arbitration award based on an illegal contract cannot be enforced. According to Herzog, the portion of the agreement which designated her as an independent contractor was contrary to the law. The trial court opined that the law was against Herzog and explained that “[t]he policy in California is to favor arbitration awards, and absent a showing under [section] 1286.2, I just don’t think she can overturn [the arbitration award].” Herzog’s attorney urged the trial court to take the matter under submission to consider Loving & Evans. Grubb & Ellis objected to the citation to Loving & Evans because it did not have notice that it would be argued, and did not have an opportunity to brief it. Also, it argued that the arbitrator followed the law and that the arbitration award was independently supported by the arbitration provisions in the promissory notes. Moreover, it argued that Herzog based her cross-claim on the agreement. Therefore, she claimed that it was valid. She should not be able to now say the opposite.
The motion to vacate was denied and the arbitration award was confirmed. Judgment was entered accordingly.
This timely appeal followed.
STANDARD OF REVIEW
On appeal from a ruling on a motion to vacate an arbitration award, we review the trial court’s order from a blank slate. (Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55.) However, insofar as the trial court’s ruling rests upon a determination of disputed factual issues, we review that determination under the substantial evidence test. (Ibid.)
DISCUSSION
In her statement of the case, Herzog posits that the arbitrator committed an error of law that the trial court should have reviewed due to the unique arbitration clauses in the agreement and promissory notes. Upon examining Herzog’s analysis, we find it lacking, as is detailed below.
1. Judicial review of arbitration awards.
“[A]n award reached by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in sections 1286.2 (to vacate) and 1286.6 (for correction). Further, the existence of an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33 (Moncharsh).)
A trial court is empowered to vacate an arbitration award if it was procured by corruption, fraud or other undue means; there was corruption in any of the arbitrators; the rights of the petitioner were substantially prejudiced by the misconduct of a neutral arbitrator; the arbitrator exceeded his powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; the rights of the petitioner were substantially prejudiced by the refusal of the arbitrator to postpone the hearing upon sufficient cause being shown, or by the refusal of the arbitrator to hear evidence material to the controversy, or by other conduct of the arbitrator contrary to the provisions of the California Arbitration Act; the arbitrator’s failure to disclose a ground for disqualification or the arbitrator received a timely request and failed to disqualify himself pursuant to section 1281.91. (§ 1286.2, subd. (a).)
Finally, in 2002, we held that parties to an arbitration agreement cannot validly agree that an arbitration award is subject to judicial review to determine whether it is supported by law or substantial evidence. (Crowell v. Downey Community Hospital Foundation (2002) 95 Cal.App.4th 730, 732 (Crowell).)
2. The trial court was not empowered to review legal errors.
Herzog argues that she was entitled to judicial review of legal errors because the arbitration agreement in the promissory notes stated that the arbitrator must follow the law of the state in which she was employed and that “should the arbitrator(s) fail to follow such law, the ruling of the arbitrator(s) can be appealed to the court of general jurisdiction.” But Herzog did not cite any law that allows her to avoid the strictures in Moncharsh or our holding in Crowell. Indeed, she does not even suggest that they are somehow inapplicable. It is timely, then, to explain that “[i]t is not our responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)
Related authority exists, and we take heed of it. In Marsch v. Williams (1994) 23 Cal.App.4th 238, the court explained that “[e]ven where application of a particular law or body of law is required by the parties’ arbitration agreement, an arbitrator’s failure to apply such a law is not in excess of an arbitrator’s powers” and is therefore not grounds to vacate an award. (Id. at p. 244.) If an award cannot be vacated under section 1286.2 on the theory that an arbitrator failed to apply a particular body of law and therefore exceeded the scope of his authority, it would be inconsistent for us to hold that the same award can be reviewed for legal error.
Because Moncharsh is binding precedent, and because we have not been presented with good reason to depart from our decision in Crowell, we must conclude that the trial court’s power of review was circumscribed by section 1286.2, and that the agreement did not change that power. Both below and on appeal, Herzog did not argue that there are grounds to vacate under section 1286.2. This renders her arguments on the merits moot and ends our inquiry.
DISPOSITION
The judgment is affirmed.
Grubb & Ellis is entitled to its costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.