Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG5245686
Haerle, J.
I. INTRODUCTION
Charlotte Laughon appeals from a judgment denying her petition to vacate an arbitration award and granting a cross-petition by International Alliance of Theatrical Stage Employees, Local 16 (Local 16) to confirm that award. She contends that the arbitrator exceeded his powers both by awarding various remedies to Local 16 and by denying other remedies to Laughon. Laughon also appeals from a post-judgment attorney fee order. Although we affirm the attorney fee order and reject most of Laughon’s contentions, we find it necessary to make one correction to the arbitration award and will remand this case to the trial court so that correction can be made.
II. STATEMENT OF FACTS
A. The Underlying Dispute and Settlement
In July 1998, Laughon filed a complaint against Local 16 alleging gender discrimination and retaliation.
In early 2000, the parties expressed their desire to fully and finally settle their differences relating to Laughon’s complaint by entering into a “CONFIDENTIAL SETTLEMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS” (the Agreement). The Agreement was signed by Laughon in February 2000 and by representatives of Local 16 in March 2000. Because the Agreement has been filed under seal in this court, we limit our discussion to those provisions which are at issue on appeal.
Paragraph Eight of the Agreement states, in relevant part: “Laughon represents and agrees that she will keep the terms of this agreement completely confidential and that she will not hereafter disclose any information concerning this agreement to anyone, including, but not limited to any past, present or prospective employee, creditor of Local 16 with the exception of” named individuals not relevant to this action.
Pursuant to the Twelfth paragraph of the Agreement, Laughon agreed that, for a period of two years from the date of the Agreement, any claim she made against Local 16 relating to disputes arising from membership, including claims involving discrimination, would be submitted to “binding arbitration with attorneys’ fees and costs to be paid by the prevailing party.” The parties agreed to four arbitrators including John Kagel and Thomas Angelo.
Pursuant to paragraph Thirteen of the Agreement, Local 16 agreed that an individual by the name of F. X. Crowley would welcome Laughon into the union at the first union meeting after her admission into the union and that he would send a letter to individuals with hiring authority relating to Local 16 business informing them that Laughon and Victoria Lewis had been admitted to the union with full privileges, and encouraging them to treat both woman as they would any other member with respect to hiring for future projects. The letter was also to contain agreed upon language regarding the prior litigation between these women and Local 16, the resolution of that litigation and an apology from Local 16 with respect to any “inferences of ill will” toward these women that occurred during the lawsuit.
Pursuant to paragraph Fourteen of the Agreement, Local 16 agreed that Crowley would hold a meeting with Laughon, Lewis and members of the union with hiring authority to urge the members to consider the two women for employment. This paragraph also contained an agreement that a monitoring committee consisting of Laughon, Local 16 and the parties’ attorneys would meet at least three times during the year after the Agreement was executed in order to assess Laughon’s progress as a union member.
The Agreement contains both an indemnity clause and an arbitration agreement. Paragraph Eleven states: “The parties hereby mutually agree to indemnify and hold other parties harmless from, and against any and all loss, cost, damage or expense, including without limitation, attorney’s fees, costs and expenses incurred by a party arising out of any party’s breach of this Agreement or any part thereof by a party or the fact that any representation made herein by a party was false when made.” The arbitration clause is set fourth in paragraph Seventeen which states, in relevant part: “Any dispute regarding interpretation, implementation or enforceability of this Agreement shall be resolved by final and binding arbitration. The prevailing party shall be entitled to reasonable attorneys’ fees and costs.”
B. The First Arbitration
A dispute regarding the terms of the Agreement arose and, in April 2001, the parties submitted it to arbitration before John Kagel. (See International Alliance of Theatrical Stage Employees, etc. v. Laughon (2004) 118 Cal.App.4th 1380, 1383 (International Alliance).) Kagel conducted a hearing on November 5 and 13, 2001, and then “issued an award, largely in favor of Local 16, on March 29, 2002.” (Id. at p. 1384.)
Laughon filed a petition to vacate the arbitration award on the ground that Kagel had failed to disclose facts that could have resulted in his disqualification from conducting the arbitration. (International Alliance, supra, 118 Cal.App.4th at p. 1384.) The trial court denied Laughon’s petition and confirmed the arbitration award. (Id. at pp. 1384-1385.) However, this court reversed the judgment and remanded the case for further proceedings. (Id. at p. 1395.)
C. The Second Arbitration
After we issued our decision in International Alliance, supra, the parties selected Thomas Angelo to be their arbitrator and submitted their dispute to him. Both parties contended that the other party had breached the Agreement and sought damages and other relief. Pursuant to a stipulation, the arbitrator was asked to resolve seven issues, three of which pertained to alleged breaches of the Agreement by Laughon and the other four of which related to Laughon’s claims that Local 16 breached the Agreement.
Evidentiary proceedings were conducted on February 28 and March 29, 2005, after which the parties submitted written arguments. On September 1, 2005, Angelo issued a Decision and Award. The thirty-three page document contains a discussion of the evidence and Angelo’s resulting conclusions with respect to each of the issues presented to him as well as a thorough explanation as to the reasoning underlying the remedies he ultimately awarded.
Among other things, Angelo found that Laughon (1) breached paragraph Eight of the Agreement by disclosing details about the settlement at a July 5, 2000, union meeting where she was introduced as a new member of Local 16; (2) breached paragraph Twelve of the Agreement by filing charges against Local 16 with the EEOC and the NLRB in March 2001; and (3) breached paragraphs Twelve and Seventeen of the Agreement by refusing to agree to arbitrate Local 16’s claim that Laughon breached the Agreement by her statements at the July 5, 2000, union meeting.
Although Laughon was permitted, by the terms of the Agreement, to file a charge with the NLRB, she was obligated to request that the matter be deferred until it was addressed in arbitration.
With respect to the charges against Local 16, Angelo found the union did not breach any provision of the Agreement by filing a lawsuit against Laughon after she repeatedly breached the Agreement and refused to arbitrate, or by withholding further performance of its obligations after Laughon repeatedly violated the Agreement. Angelo did find, however, that Local 16 (1) failed to timely send the letters on behalf of Laughon that it was obligated to send pursuant to paragraph Thirteen of the Agreement, and (2) may have delayed too long before offering to set up a meeting with Laughon, Lewis and union members as required by paragraph Fourteen of the Agreement. Nevertheless, Angelo concluded these violations of the Agreement were either not material or were partially the result of Laughon’s own conduct and, therefore, damages to her were not warranted.
On the other hand, Laughon’s violations of the Agreement were material. The relief awarded to Local 16 included a damages award of $40,000, for breach of the confidentiality clause, and directives which extended Laughon’s confidentiality obligation for an additional two years and expressly precluded her from disclosing documents relating to the litigation that was the subject of the Agreement unless ordered to do so by a court or other forum with authority to make such an order after giving Local 16 notice and the opportunity to object.
Angelo found that Local 16 was the “prevailing party” within the meaning of the Agreement and that it was entitled to all of its attorney fees and costs incurred since July 5, 2000, with one possible exception. Angelo carved out and separately addressed attorney fees and costs incurred by Local 16 to defend the first arbitration award which was vacated on appeal. Local 16’s position was that these fees were recoverable because it was the prevailing party when all was said and done notwithstanding that the first arbitration award was reversed. However, Laughon had not had the opportunity to state her position with respect to this category of fees and, therefore, Angelo invited briefing from her and left the issue unresolved.
Angelo also treated the arbitrator fees and reporting costs as a separate category. He directed Laughon to pay all arbitration and reporting costs associated with the second arbitration. However, for equitable reasons, including the fact that the first award was vacated, Angelo determined that the costs of the first arbitration would be borne equally by the parties.
In its September 1 decision, Angelo retained jurisdiction to resolve various other issues relating to fees and costs incurred by Local 16. For example, with respect to Local 16’s right to attorney fees, Angelo directed the parties to meet and confer regarding an appropriate hourly rate as well as the number of hours that would be subject to reimbursement and, if an agreement could not be reached, the issue would be returned to him for decision “pursuant to his retained jurisdiction.”
Angelo issued Supplemental Remedial Rulings on December 28, 2005. He made findings with respect to reserved issues including the hourly rates of Local 16 attorneys and assigned dollar amounts to some of the proceedings for which Local 16 was entitled to reimbursement. In addition, in response to evidence that Laughon was ignoring his prior rulings, Angelo directed Laughon to pay interest on the prior awards.
In his December 28, 2005, decision, Angelo made permanent his preliminary finding in the September 1 decision that Laughon was obligated to pay “all attorney fees and costs incurred by attorneys representing [Local 16] from July 5, 2000, including fees and costs required to obtain compliance with the Award.” Angelo acknowledged that his first decision left open the question whether Local 16 was entitled to costs relating to its defense of the Kagel decision. Angelo stated that Laughon had opposed such an award for reasons of equity. Nevertheless, Angelo concluded that such costs were properly assigned to Laughon.
D. Court Proceedings
On December 8, 2005, Laughon filed a petition to vacate the arbitration award. On December 30, Local 16 filed its response accompanied by a cross-petition for confirmation of both the September 1 and December 28 arbitration awards.
A hearing on both petitions was conducted before the Honorable Frank Roesch on February 21, 2006. In an order filed March 13, 2006, the court denied Laughon’s petition and granted Local 16’s petition to confirm the arbitration awards. The order states: “The Arbitration Awards of Thomas Angelo at issue in these matters dated September 1, 2005 and December 29 2005, are hereby made a judgment of this court.” A formal judgment was entered on March 13, 2006, notice of entry of which was filed and served on March 23, 2006.
On May 16, 2006, Local 16 filed a motion for attorney fees on contract pursuant to which it sought an award of $6,085.00 for fees incurred in connection with the petition to vacate the arbitration awards and the cross-petition to confirm the awards.
On May 18, 2006, Laughon filed a notice of appeal in the superior court pursuant to which she appealed the March 13, 2006, judgment.
On June 28, 2006, Judge Roesch granted Local 16’s motion for attorney fees. Laughon filed a motion for reconsideration on August 9, 2006. A hearing on the motion was scheduled for September 20, 2006, before the Honorable Wynne Carvill.
On September 19, 2006, Laughon filed a second notice of appeal pursuant to which she appealed the June 28, 2006, attorney fee order. The next day, September 20, the trial court denied Laughon’s motion for reconsideration of the attorney fees order. The minute order reflects that a tentative ruling to deny the motion had been published and had not been contested.
On December 15, 2006, Laughon’s appeals were consolidated for briefing, oral argument and decision. Notwithstanding this fact, Laughon does not advance a single argument with respect to the post-judgment attorney fees order. Therefore, we affirm that order without further discussion.
III. DISCUSSION
A. Timeliness of Petition
As a preliminary matter, we address Local 16’s argument that Laughon’s petition to vacate the arbitration award was not timely and, therefore, the trial court did not have “jurisdiction” to hear it. Assuming that Local 16 has standing to raise this issue without filing its own appeal, we reject Local 16’s challenge to the lower court’s jurisdiction.
Local 16 contends that Laughon failed to comply with sections 1288 of the Code of Civil Procedure (section 1288) which provides that a petition to vacate or correct an arbitration award “shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” Characterizing this 100-day rule as jurisdictional, Local 16 contends the trial court was required to dismiss Laughon’s petition because, according to Local 16, it was not served within 100 days after September 1, 2005. There are several problems with this argument.
See also Code of Civil Procedure, section 1286.4, subdivision (a), which states that “[t]he court may not vacate an award unless . . . [a] petition or response requesting that the award be vacated has been duly served and filed.”
First, we reject Local 16’s unsupported contention that “[t]he September 1, 2005 Award was ‘final’ for purposes of the 100 day rule.” As noted above, in his September 1 ruling, Angelo expressly identified unresolved issues and retained jurisdiction to resolve them at a future date. He also authorized Laughon to present additional argument which he stated would “be considered pursuant to my retained jurisdiction and I will issue an amended award indicating whether any ruling will be confirmed or amended.” In light of this language in the September 1 ruling as well as the fact that Angelo did issue a supplemental ruling which substantively altered some of the remedies awarded in the first decision, we find merit in Laughon’s assertion on appeal that the September 1 decision was not a final ruling. To be final, in terms of the relief afforded, Angelo’s two decisions must be read together. Therefore, the final decision of the arbitrator was issued on December 28, 2005.
The second problem with this jurisdictional argument is more fundamental. All of Local 16’s authority for the proposition that failure to comply with the 100-day rule erects a jurisdictional bar are cases in which the petition was not filed within the proper time period, if at all. (See DeMello v. Souza (1973) 36 Cal.App.3d 79, 84-86; Davis v. Calaway (1975) 48 Cal.App.3d 309, 311; Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 393-395; Coordinated Construction, Inc. v. Canoga Big “A,” Inc. (1965) 238 Cal.App.2d 313, 316; Louis Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 660; Elden v. Superior Court (1997) 53 Cal.App.4th 1497, 1511; Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 396, 398.)
Here, Local 16 does not dispute that Laughon’s petition was filed on December 8, 2005, which was 98 days after Angelo issued his September 1 order. Local 16’s sole complaint to us is that the petition was not served within 100 days of September 1. Local 16’s citation to the record does not support this contention. What’s more, by looking back to Local 16’s lower court pleadings, something we should not have to do, we discovered that Local 16 did not argue lack of notice in the trial court but only that Laughon’s service of the petition was allegedly defective.
In the lower court, Local 16 argued that service of the petition was defective because Laughon served Local 16’s counsel of record who, according to that counsel, was not authorized to accept service.
Local 16 cites no authority to support the notion that an alleged defect with respect to service of a timely filed petition to vacate an arbitration award deprives the court of jurisdiction to hear the petition. In any event, by addressing the merits of Laughon’s petition, the superior court implicitly found that the service of the petition was effective. Local 16 has not demonstrated any error with respect to that trial court finding.
B. Standard of Review
“It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943 (California Faculty Assn.); see also Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-10 (Moncharsh).) “Limited judicial review is a well-understood feature of private arbitration, inherent in the nature of the arbitral forum as an informal, expeditious, and efficient alternative means of dispute resolution.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 831.) In this context, the court may not review either the merits of the controversy or the sufficiency of the evidence supporting the award. (California Faculty Assn., supra, 63 Cal.App.4th at p. 943.) With narrow exceptions, “an arbitrator’s decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties.” (Moncharsh, supra, 3 Cal.4th at p. 6.)
“[T]he grounds for vacating or correcting arbitration awards are statutorily limited to those in sections 1286.2 and 1286.6 [of the Code of Civil Procedure].” (Blue Cross of California v. Jones (1993) 19 Cal.App.4th 220, 226 (Blue Cross).) Here, Laughon seeks to vacate or correct the award on the statutory ground that the arbitrator “exceeded [his] powers.” (See Code Civ. Proc., § 1286.2, subd. (a)(4) (section 1286.2(a)(4)) and § 1286.6, subd. (b) (section 1286.6(b)).)
Section 1286.2(a)(4) provides: “(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following: . . . (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.”
“In cases involving private arbitration, ‘[t]he scope of arbitration is . . . a matter of agreement between the parties’ [Citation], and ‘“[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.”’ [Citations.]” (Moncharsh, supra, 3 Cal.4th at p. 8.) “‘Ambiguities in the scope of arbitration are resolved in favor of arbitrability.’ [Citations.]” (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1346.)
“On issues concerning whether the arbitrator exceeded his powers, we review the trial court’s decision de novo, but we must give substantial deference to the arbitrator’s own assessment of his contractual authority.” (Alexander v. Blue Cross of California (2001) 88 Cal.App.4th 1082, 1087; see also Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 373, 376, fn. 9 (Advanced Micro Devices).)
C. The Confidentiality Provision
Laughon contends that Angelo exceeded his powers by awarding Local 16 damages for Laughon’s breach of the confidentiality clause in the Agreement and by requiring her to comply with this provision for an additional two years. Alternatively, Laughon belatedly contends that the confidentiality provision is not enforceable because it violates public policy.
1. The $40,000 Damages Award
Laughon first contends that the arbitrator exceeded his powers by awarding $40,000 to Local 16 as damages for Laughon’s breach of the confidentiality clause.
The parties stipulated that Angelo was to decide the following issue: “Did Charlotte Laughon violate Article EIGHTH of the Settlement Agreement by discussing its terms at a July 5, 2000 meeting of Local 16 or on other occasions? If so, what is the appropriate remedy?” In light of this stipulation, Laughon cannot show that Angelo lacked the power to decide whether Laughon breached the confidentiality clause or to select an appropriate remedy upon finding that a breach occurred. If Laughon’s contention is that the arbitrator exceeded his powers by selecting an inappropriate remedy for her breach of the Agreement, we disagree.
Our Supreme Court established the following “deferential framework for reviewing an arbitrator’s choice of remedies” for a breach of contract in Advanced Micro Devices, supra, 9 Cal.4th at p. 381: “Arbitrators are not obliged to read contracts literally, and an award may not be vacated merely because the court is unable to find the relief granted was authorized by a specific term of the contract. [Citation.] The remedy awarded, however, must bear some rational relationship to the contract and the breach. The required link may be to the contractual terms as actually interpreted by the arbitrator (if the arbitrator has made that interpretation known), to an interpretation implied in the award itself, or to a plausible theory of the contract’s general subject matter, framework or intent. [Citation.] The award must be related in a rational manner to the breach (as expressly or impliedly found by the arbitrator). Where the damage is difficult to determine or measure, the arbitrator enjoys correspondingly broader discretion to fashion a remedy. [Citation.]”
Applying these rules to the present case, we find that Angelo did not exceed his powers by awarding monetary damages for the breach of the confidentiality clause of the Agreement. Such an award, by its very nature, is rationally related to the contract provision and the arbitrator’s determination that it was breached. As the court explained in Advanced Micro Devices, “[i]n general arbitrators enjoy greater flexibility than juries and courts in fashioning remedies, and relief that could legally have been ordered by a trial court or jury is also within the normal authority of a contractual arbitrator. Indeed, in many cases the required rational relationship between breach and award may be found in the fact the arbitrator has awarded the injured party relief of the same general type as that a jury or court could have provided had the claim been litigated, even if the quantity, extent or parameters of the award differ in some respects from that to which the party was legally entitled. [Citation.]” (Advanced Micro Devices, supra, 9 Cal.4th at p. 384-385.)
Laughon complains that the Agreement does not expressly authorize an award of monetary damages. However, as noted above, such an authorization is not required. (Advanced Micro Devices, supra, 9 Cal.4th at p. 381.) What is important here is that the Agreement does not expressly preclude such an award. (Ibid.) “[A]rbitrators, unless expressly restricted by the agreement of the parties, enjoy the authority to fashion relief they consider just and fair under the circumstances existing at the time of arbitration, so long as the remedy may be rationally derived from the contract and the breach.” (Id. at p. 383.)
Laughon also complains about the lack of any “explanation of how Local 16 remotely suffered $40,000 worth of damages.” However, to the extent Laughon is complaining about the amount of the award as distinct from the fact of the award, we do not review an arbitration award for sufficiency of the evidence or even for legal error. (Moncharsh, supra, 3 Cal.4th at p. 11 [“‘The merits of the controversy between the parties are not subject to judicial review.’”].)
2. The two-year extension
Laughon next contends that Angelo exceeded his powers by requiring her to comply with the confidentiality clause in paragraph Twelve of the Agreement for an additional two years. Again, we disagree.
As noted above, the parties’ stipulation expressly authorized Angelo to craft an appropriate remedy for Laughon’s breach of the confidentiality agreement. Further, we have no problem concluding such a remedy was appropriate in light of its direct “rational relationship to the contract and the breach.” (Advanced Micro Devices, supra, 9 Cal.4th at p. 381.) Angelo expressly found that Laughon breached paragraph Twelve of the Agreement and that, by extending the effective period of that paragraph for an additional two years, he was giving Local 16, “the full benefit of its bargain.”
Laughon complains that Local 16 has already received the benefit of its bargain and that extending the confidentiality provision for an additional two years provided Local 16 “with a windfall.” Once again, this is an allegation of factual or legal error that simply is not within the proper scope of our review.
Laughon further contends that Angelo exceeded his powers by essentially rewriting an express term of the Agreement which only and expressly required Laughon to remain silent about the settlement for a period of twenty-four months from the date of the Settlement Agreement itself. To support this contention, Laughon relies on Blue Cross, supra, 19 Cal.App.4th 220.
Blue Cross involved a dispute over health care benefits which was submitted to arbitration. Appellant insurer sought review of a superior court judgment denying its motion to vacate an arbitration award that found appellant had acted in bad fact, awarded respondent insureds out of pocket expenses and fees and also required appellant to continue to provide respondents’ disabled son with home nursing care until he reached 18 years of age or died. (Blue Cross, supra, 19 Cal.App.4th at p. 226.) Appellant argued that the arbitrators exceeded their powers by rewriting the health care agreements to require the provision of benefits in excess of the maximum financial limits of the policies.
The Blue Cross court prefaced its discussion by acknowledging the difficulty in distinguishing a legal error (which is not subject to judicial review) from a decision which exceeds and arbitrator’s power (and is thereby subject to vacation). (Blue Cross, supra, 19 Cal.App.4th. at pp. 227-228) Two rules offered some guidance. First, the determination must rest on a case-by-case analysis. (Id. at p. 228.) Second, “‘[g]enerally, a decision exceeds the arbitrator’s powers only if it is so utterly irrational that it amounts to an arbitrary remaking of the contract between the parties.’ [Citations.]” (Ibid.) Ultimately, the court found that the arbitrators exceeded their powers by fashioning a remedy which “require[d] the delivery of medical benefits without regard to the undisputed financial limits imposed by the policies, even though respondents ha[d] never contended that those limits were not in effect.” (Id. at p 229.)
Blue Cross does not advance Laughon’s claim that Angelo exceeded his powers by extending the confidentiality requirement for an additional two years. First, it is important to recognize (though neither party does) that Blue Cross was decided before the Supreme Court issued its decision in Advanced Micro Devices, supra, 9 Cal.4th 362. The Advanced Micro Devices court discussed the test employed in Blue Cross and other appellate cases, i.e., whether the award amounts to an “arbitrary remaking” of the contract. (Id. at p. 376.) Although the court acknowledged this inquiry might “sometimes” be useful, it concluded that the formula was “incomplete as a test of whether arbitrators have exceeded their powers in awarding a particular item of damages or other relief.” (Id. at p. 377.) Ultimately, the court articulated a new standard for determining whether a remedy exceeded an arbitrator’s power, i.e., whether the remedy “bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly, by the arbitrator.” (Id. at p. 367.) As we have already explained, under this test, Angelo did not exceed his powers by extending the term of the confidentiality agreement.
Further, to the extent the test employed in Blue Cross remains useful, it does not alter our conclusion. In contrast to the arbitrators in Blue Cross, Angelo did not re-write an express contract provision. He determined that an express provision had been violated; that Laughon never did or intended to comply with her contractual obligation to keep the settlement confidential for a period of two years. As a remedy for Laughon’s breach, Angelo gave effect to the express contract provision by requiring Laughon to comply with the two-year term as she had promised to do. This remedy was not “utterly irrational,” and did not result in a re-writing of the parties’ agreement. (See Blue Cross, supra, 19 Cal.App.4th at p. 228.)
3. Public Policy
Laughon contends that Angelo exceeded his powers by enforcing the confidentiality clause because that contract term violates public policy.
Laughon waived the claim that this contract term is unenforceable by failing to raise it during the arbitration. (Moncharsh, supra, 3 Cal.4th at pp. 30-31.) As our Supreme Court has recognized, applying the waiver doctrine in this context serves two important functions. First, “[a]ny other conclusion is inconsistent with the basic purpose of arbitration, which is to finally decide a dispute between the parties” (Id. at p. 30.) Second a party simply cannot wait to see if the arbitrator will rule against her knowing that if he does, she can later challenge the legality of the contract provision in a motion to vacate the arbitrator’s award. “A contrary rule would condone a level of ‘procedural gamesmanship’ that we have condemned as ‘undermining the advantages of arbitration.’ [Citation.]” (Ibid.)
Even if Laughon had preserved this claim, we would reject it. Laughon argues that “[t]he settlement agreement here, as interpreted by the arbitrator, violated public policy because the confidentiality clause, as applied here, has served to block legitimate investigations by union members and government agencies of continued illegal conduct by the union leadership.”
We reject the factual premise of this argument, i.e., that Angelo interpreted the confidentiality provision in the Agreement as precluding Laughon from reporting future misconduct by Local 16. Rather, Angelo construed the provision as precluding her from disclosing information about the settlement itself, i.e., the dispute which was the subject of the prior litigation. Indeed, as Angelo recognized, the Agreement expressly anticipated that Laughon would object to future conduct by Local 16 and made provisions as to how and where such complaints could be made and resolved.
In any event,“[w]hile a court may refuse to enforce an arbitrator’s award on public policy grounds, such policy must be explicit, well-defined and dominant, and ‘“‘be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.’”’ [Citation.]” (Paramount Unified School Dist. v. Teachers Assn. of Paramount (1994) 26 Cal.App.4th 1371, 1384-1385; see also Social Services Union v. Alameda County Training & Employment Bd. (1989) 207 Cal.App.3d 1458, 1465.) Here, Laughon has identified no statute or legal precedent which establishes an explicit, well-defined public policy precluding confidentiality provisions in agreements of this sort. Instead she mistakenly relies on Cariveau v. Halferty (2000) 83 Cal.App.4th 126 (Cariveau).
Cariveau involved a “confidentiality clause in a settlement agreement that prohibited the customer in a securities transaction from discussing the selling agent’s misconduct with regulatory authorities.” (83 Cal.App.4th at p. 128.) The trial court refused to enforce the clause on the grounds of public policy and the Cariveau court affirmed. (Ibid.) In reaching this decision the court identified numerous statutory provisions and security industry rules which were violated by the forbearance agreement. (Id. at pp. 123-134.) Indeed, the court found that the agent personally violated regulatory provisions by entering into the confidentiality provision. (Id. at pp. 130, 135, 136.) The court also underscored that the confidentiality clause was unusual in the sense that it had the “effect of allowing the broker or agent to continue violating NASD rules.” (Id. at p. 137.)
None of the statutes or regulatory provisions at issue in Cariveau are applicable here. Nor has Laughon identified any other statute or rule or law that is offended by a confidentiality provision which precludes discussion of a settlement of a lawsuit involving unproven claims of past gender discrimination. In this regard, we reiterate that Angelo did not construe the confidentiality provision in this case as applying to ongoing or future misconduct by Local 16.
For example, with respect to the finding that Laughon violated the confidentiality agreement by disclosing depositions that were taken prior to the settlement, Angelo explained that “[w]hat [Laughon] effectively did was raise in a public fashion the very allegations she knew had not been adjudicated, the very allegations she knew had not been admitted to by [Local 16], and the very allegations she had settled and agreed to put behind her.”
On this record we simply cannot accept the contention, made for the very first time on appeal, that the confidentiality provision violated public policy.
D. The Award of Fees and Costs To Local 16
As discussed in our factual summary, Angelo found that Local 16 was the prevailing party within the meaning of the Agreement and awarded it attorney fees and costs. Laughon contends that award should be vacated because the attorney who represented her in the arbitration breached his fiduciary duty to her by essentially stipulating to the award. Alternatively, Laughon contends that Angelo exceeded his powers by awarding fees and costs relating to Local 16’s unsuccessful defense of the first arbitration award.
1. Breach of Fiduciary Duty
Laughon contends that she should not be forced to comply with the fee and cost award because it resulted from her prior attorney’s breach of fiduciary duty to her. According to Laughon, the attorney who represented her during the arbitration essentially stipulated that Local 16 and/or Angelo could “have free reign” to decide the amount of fees and costs that should be awarded to Local 16. She claims her attorney refused to meet with counsel for Local 16 and that, instead of accepting Angelo’s invitation to file a brief regarding the amount of remedial payments that should be awarded, her attorney sent a two-paragraph letter to Angelo which Laughon now characterizes as insulting. Laughon maintains that she did not authorize her attorney to take these actions and, therefore, she should not be penalized.
Laughon fails to articulate any legal theory pursuant to which her dissatisfaction with her counsel’s performance during the arbitration entitles her to relief from the judgment. Instead, she mistakenly relies on Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396 (Blanton). In Blanton, appellant’s attorney stipulated that her malpractice claim would be submitted to arbitration notwithstanding appellant’s express refusal to agree to arbitrate. Once appellant discovered the stipulation, she fired her attorney and sought a trial de novo but was required by the lower court to participate in binding arbitration pursuant to rules which seriously restricted her right to recovery. Under those circumstances, the Blanton court reversed a judgment affirming the arbitration award in favor of the defendants.
Laughon’s argument also fails because it relates to and depends on proof of facts that are outside the record. (See Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481; see also Cal. Rules of Court, rule 8.204(a)(1)(c).)
The Blanton court held that “an attorney, merely by virtue of his employment as such, has no apparent authority to bind his client to an agreement for arbitration.” (Blanton, supra, 38 Cal.3d at p. 407.) This holding has no application here where Laughon herself expressly agreed to binding arbitration. Blanton does not support in any way Laughon’s argument that a party’s dissatisfaction with her attorney’s representation during a binding arbitration proceeding is a ground for reversal of the judgment.
2. Fees and Costs Relating to the First Arbitration
Laughon contends the arbitrator exceeded his powers by awarding Local 16 its fees and costs incurred during the first arbitration. Her argument is that the first arbitration award was vacated because both the arbitrator (Kagel) and Local 16 failed to disclose their prior working relationship, that this court characterized that violation as a serious one, and that Local 16 simply should not be rewarded for it. She further contends that statements in Angelo’s September 1, 2005, decision show that Angelo either misperceived or disregarded this court’s opinion regarding the seriousness of the nondisclosure violation which resulted in the reversal of the first arbitration award.
It appears, from argument in her brief, that Laughon has interpreted the judgment as awarding Local 16 only half of its costs and fees incurred during the first arbitration. In fact though, while Angelo directed that the parties share the costs of the arbitrator and reporter fees for the first arbitration, it awarded Local 16 all of its attorneys fees and personal costs incurred during the first arbitration including fees incurred to defend the first award.
Local 16’s sole response to this argument is that Angelo’s determination as to who is the prevailing party is not subject to judicial review. (See Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal.App.4th 1662, 1666; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 26.) We agree, at least when, as here, there is no dispute that the arbitrator was authorized to make the prevailing party determination. (Ibid.)
However, it is also “‘beyond question that obedience to judicial orders is an important public policy.’” (City of Palo Alto v. Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 338, quoting W.R. Grace & Co. v. Rubber Workers (1983) 461 U.S. 757, 766.) Further, as noted above, a court may refuse to enforce an arbitration award on public policy grounds. (Paramount Unified School Dist. v. Teacher Assn. of Paramount, supra, 26 Cal.App.4th at p. 1384.)
Therefore, although we decline to address Laughon’s interpretation of our decision in International Alliance, supra, 118 Cal.App.4th 1380, we agree with her that both Angelo and Local 16 are bound by that decision. In this regard, two undisputable facts about our prior decision are important here. First, we were not asked to and did not address the question of entitlement to attorney fees. Therefore, whether we agree with it or not, the attorney fee award that Angelo made does not conflict with our prior decision and is not properly reviewable by us. (See, e.g., Creative Plastering, Inc. v. Hedley Builders, Inc., supra, 19 Cal.App.4th at p. 1666; Pierotti v. Torian, supra, 81 Cal.App.4th at p. 26.)
Second, however, we did expressly award Laughon her costs on appeal in International Alliance. (118 Cal.App.4th at p. 1395.) Angelo’s award to Local 16 of costs it incurred during the appeal of the first arbitration award directly conflicts with this court’s order. Therefore, we hold that Angelo exceeded his powers to the extent he awarded a remedy which compels the parties to disobey this court’s prior express order with respect to costs on appeal in International Alliance, supra, 118 Cal.App.4th at p. 1395.
When an arbitrator has exceeded his powers, but the award may be corrected without affecting the merits of the decision upon the controversy submitted, the reviewing court will correct the award and confirm it as corrected. (See Code Civ. Proc., § 1286.6.) Therefore, we direct that the arbitrator’s award be corrected so that it provides that Local 16’s award of fees and costs does not include costs incurred in connection with the appeal of the first arbitration award.
E. Denial of Damages to Laughon
Laughon argues that Angelo exceeded his powers by refusing to enforce the indemnity provision in paragraph Eleven of the Agreement once he found that Local 16 violated paragraphs Thirteen and Fourteen of the Agreement.
Again, the legal basis for Laughon’s claim of error is not clear. To the extent she is arguing that an arbitrator must award damages once he or she determines there has been a breach of contract, she is mistaken. “ ‘[A]rbitrators are not bound to award on principles of dry law, but may decide on principles of equity and good conscience, and make their award ex aequo et bono [according to what is just and good].’ [Citation.] ‘As a consequence, arbitration awards are generally immune from judicial review.’” (Moncharsh, supra, 3 Cal.4th at p 11.)
Even if Laughon could show that she would have been entitled to damages had her claims been resolved by a trial, she would not be entitled to the relief she seeks from us now. “Arbitrators do not ‘exceed[] their powers’ within the meaning of section 1286.2, subdivision (d) ‘merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators. “The arbitrator’s resolution of these issues is what the parties bargained for in the arbitration agreement.”’ [Citation.]” (Alexander v. Blue Cross of California, supra, 88 Cal.App.4th at p. 1089.)
Here, there is no question that the parties stipulated that Angelo would decide whether Local 16 breached the Agreement and, if so, what the appropriate remedy would be. Having submitted those issues to arbitration, Laughon has no argument on appeal.
F. Sanctions
In its appellate brief, Local 16 asks that sanctions be imposed against Laughon for filing a frivolous appeal. This request is “procedurally improper.” (Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402 (Kajima).) Sanctions on appeal must be requested in a separate motion and must also be accompanied by a declaration. (Cal. Rules of Court, rule 8.276(e).)
Because Local 16 failed to file a separate sanctions motion and accompanying declaration, it is “not entitled to be heard on the subject.” (Kajima, supra, 103 Cal.App.4th at p. 1402; see also Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1273 [failure to follow proper procedure for requesting sanctions requires that request be denied]; Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1124 [“no basis for determining the appropriate amount of sanctions” when party failed to file separate motion or supporting declaration]; In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180 [court declined to “address” sanction request that was not made in separately filed motion].) Local 16’s request for sanctions is, therefore, summarily denied.
IV. DISPOSITION
The judgment is reversed and remanded with directions to modify it by providing that Local 16’s right to recover attorney fees and costs as the prevailing party in this case does not include costs incurred in connection with the appeal in International Alliance, supra, 118 Cal.App.4th 1380. Except as modified, the judgment is affirmed. The post-judgment attorney fee award is also affirmed. The parties shall bear their own costs on appeal.
We concur: Kline, P.J., Lambden, J.
Section 1286.6(b) provides: “Subject to Section 1286.8, the court, unless it vacates the award pursuant to Section 1286.2, shall correct the award and confirm it as corrected if the court determines that: . . . (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted.”