Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CC01507, Frederick P. Horn, Judge.
Bailey & Partners and Keith A. Lovendosky for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar and Maxine J. Lebowitz for Defendant and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant Regency Air, LLC, appeals from a judgment confirming the decision of an arbitrator to enforce the parties’ settlement agreement. Regency argues the judgment must be reversed for two reasons. First, it asserts that Code of Civil Procedure section 664.6 (section 664.6) requires that a “court” – as opposed to “an arbitrator in his role as mediator” – determine an enforceable settlement agreement exists. Since that did not occur here, Regency contends the resulting judgment enforcing that settlement is void. Second, Regency argues there was no “meeting of the minds” regarding the settlement terms, and thus no agreement to enforce.
We reject these arguments and affirm the judgment. With respect to the first point, it is sufficient to note that the parties agreed to arbitrate the merits of their dispute, rather than litigate it in court. It is their agreement, rather than the specific provisions of section 664.6, which empowered the arbitrator to determine whether an enforceable settlement existed. And with respect to the second point, the answer is essentially the same. Because the parties agreed to arbitrate their dispute, neither the trial court nor we are empowered to review the factual basis for his decision.
FACTS
Regency and its former employee, Nathan Morrissey, had a dispute regarding Morrissey’s alleged obligation to repay the cost of training he underwent in preparation for his employment. Regency petitioned to compel arbitration of the dispute, citing a provision in the parties’ “conditions of employment” agreement specifying that “[i]n the event of any dispute or claim between the Employer and Employee... including, but not limited to claims arising from or related to employment, Employer and Employee jointly agree to submit all such disputes or claims to confidential binding arbitration....” (Italics added.)
Ultimately, the Honorable James L. Smith (Ret.) was selected to arbitrate Regency’s reimbursement claim, along with Morrissey’s cross-claim. As set forth in the arbitrator’s subsequent ruling on Morrissey’s motion to enforce the parties’ settlement, here’s what happened: “Prior to commencement of the hearing the parties jointly requested the Arbitrator assist in an attempt to mediate a resolution of the dispute. Having obtained from the parties appropriate stipulations and waivers that would avoid the Arbitrator being disqualified from proceeding with the arbitration hearing in the event the mediation effort was unsuccessful the Arbitrator participated in the mediation.
“At the conclusion of the mediation the parties reached agreement (Settlement Agreement) as to a full and complete settlement of all issues. A certified shorthand reporter being present, the Settlement Agreement was placed on the record and acceptance and approval of the agreement was voice[d] by both parties and their respective counsel. At the conclusion of the hearing counsel for [Regency] stated that a ‘more formal agreement’ would be prepared for signature of the parties. This document was prepared by counsel for [Regency] and submitted to [Morrissey] for signature. [Morrissey] refused to execute the proposed ‘more formal’ agreement as it contained a provision whereby [Morrissey] would have to repay the amount he was receiving from [Regency] in the event a third person not a party to this action were to initiate any claims against [Regency]. This provision was clearly not included in the Settlement Agreement placed on the record[] and accepted by both parties and their respective counsel.
“[Regency] has refused to perform pursuant to the Settlement Agreement and [Morrissey] brought this motion seeking enforcement.”
Regency opposed the motion for enforcement on the merits; it did not assert that the arbitrator had no power to decide the issue. Instead, Regency simply argued the parties had not reached a “meeting of the minds” on all key issues encompassed by the proposed settlement, and thus “respectfully requested” that the arbitrator “deny the Morrissey motion to enforce any purported settlement agreement and to, instead, order that the parties proceed to future binding arbitration.”
The arbitrator determined that the settlement agreement, as placed on the record at the conclusion of the mediation, “was specific as to the obligations of the parties and left no contingencies or unresolved issues. It achieved a global resolution of all issues presented in the arbitration proceeding... [and was thus] valid and enforceable.”
Morrissey then petitioned the court to enter a judgment in its favor based upon the arbitrator’s decision. The court granted the petition, explaining that Regency, “having submitted itself to the jurisdiction of this court and successfully obtaining an order from this court that the parties be bound by arbitration, is therefore bound by the determination of the arbitrator.”
I
Relying upon Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, Regency argues that because the section 664.6 requires that an enforcement motion be made to “the court,” and thus the court itself must determine whether an enforceable settlement has been reached, the enforcement decision in this case, made by an “arbitrator sitting in the role as mediator,” cannot be sustained.
Section 664.6 provides: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
That’s wrong. The enforcement decision herein was not made by “an arbitrator sitting in the role as mediator.” While the settlement agreement itself was reached with the help of Judge Smith acting in the temporary role of a mediator, the parties specifically agreed that if the dispute could not ultimately be solved by agreement, he would resume the role of arbitrator with authority to render a binding decision.
The key difference between an “arbitrator” and a “mediator” is that the latter has no authority to impose a result on anyone. A mediator simply assists the parties in reaching a voluntary resolution of their dispute. “The function of the mediator... is to facilitate the parties to voluntarily reach their own agreement.” (Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 270; see also Code Civ. Proc., § 1775.1, subd. (a) [“‘mediation’ means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”].)
Thus, when a dispute arose between Regency and Morrissey in the wake of their mediation, regarding the propriety of a proposed term which Regency sought to include in their formal settlement document, Morrissey submitted that dispute to Judge Smith for his decision. By doing so, Morrissey asked Judge Smith to once again assume the role of arbitrator.
In Weddington, by contrast, the decision maker on the motion to enforce had been retained as a mediator only; no one even contended that arbitration had ever been agreed to. As the Court of Appeal explained, “[w]hen the parties attempted to ‘formalize’ the additional terms [of their settlement], numerous disputes became apparent. Respondents then filed a ‘Motion to Specifically Enforce Settlement’ pursuant to Code of Civil Procedure section 664.6 (section 664.6). This ‘motion’ was filed not with the court, but rather with the mediator (hereafter private judge). The second ADR phase then followed pursuant to the clause quoted above. The exact nature of this second phase was disputed. Appellants regarded it as a continuation of mediation. Respondent and the private judge regarded it as a binding dispute resolution process authorized by section 664.6. No one contended that the further ADR proceedings were a form of arbitration, and no one has made that contention on appeal. [¶] The second ADR phase took place in several lengthy sessions. Most of these sessions were recorded by a court reporter, and transcripts are in the record. The transcripts clearly show lack of agreement on many material terms. Appellants — who regarded the process as a continuation of voluntary mediation — then declined to participate further. Respondent and the private judge, relying upon section 664.6 as authority, then continued the process in appellants’ absence. The private judge then signed a 33-page ‘Order Enforcing Settlement Agreement, etc. and Awarding Attorneys’ Fees.’ This ‘order’ purported to impose upon appellants numerous material settlement terms to which appellants had never agreed.” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at pp. 796-797.)
Thus, the problem in Weddington was twofold. First, the parties never gave their mediator the power to act as an arbitrator who could render a biding decision to resolve their disputes; and second, the mediator ultimately crafted a “settlement” which included numerous terms to which one side had never agreed.
Neither of those things occurred in this case. The parties here did empower Judge Smith to act as an arbitrator, a role from which he deviated only for the limited purpose of facilitating their settlement. The parties explicitly agreed that if they were ultimately unable to resolve their differences in mediation, Judge Smith would resume his role as arbitrator. And that is what Morrissey requested done by filing a motion for enforcement of the settlement. Moreover, by filing an opposition to the motion on the merits, without even interposing an objection to Judge Smith’s power to grant or deny it, Regency waived any objection it might have had to his deciding the issue. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 30 [“we cannot permit a party to sit on his rights, content in the knowledge that should he suffer an adverse decision, he could then raise the illegality issue in a motion to vacate the arbitrator’s award.”].)
Because the parties agreed to arbitration of their entire dispute, including the ensuing settlement issue, Judge Smith was empowered to render a binding decision on the issue presented to him – in other words, as arbitrator, he played the role of “court” for purposes of section 664.6. Weddington expressly acknowledged as much: “The private judge could theoretically have been empowered to do what he did by an arbitration agreement, and the parties could hence have invoked the summary specific enforcement procedures of the Code of Civil Procedure relating to arbitration agreements, but both sides agree that they never did that.” (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at p. 818, fn. omitted.)
Moreover, in contrast to the situation in Weddington, Judge Smith included no additional terms in the settlement agreement he enforced. Quite the opposite – Judge Smith refused to include the additional term that Regency had sought to include, on the basis that no such term had been included in the mediated settlement. There was no impropriety in that determination.
II
Regency’s other argument is the one it raised before the arbitrator; i.e., that the parties failed to achieve a “meeting of the minds” with respect to all the key terms of their settlement. The arbitrator concluded otherwise, and we have no power to review that conclusion.
The rule is set forth in Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 11-12: “[B]oth because it vindicates the intentions of the parties that the award be final, and because an arbitrator is not ordinarily constrained to decide according to the rule of law, it is the general rule that, ‘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. In reaffirming this general rule, we recognize there is a risk that the arbitrator will make a mistake. That risk, however, is acceptable for two reasons. First, by voluntarily submitting to arbitration, the parties have agreed to bear that risk in return for a quick, inexpensive, and conclusive resolution to their dispute.... [¶]... [¶] A second reason why we tolerate the risk of an erroneous decision is because the Legislature has reduced the risk to the parties of such a decision by providing for judicial review in circumstances involving serious problems with the award itself, or with the fairness of the arbitration process. As stated ante, private arbitration proceedings are governed by title 9 of the Code of Civil Procedure, sections 1280-1294.2. Section 1286.2 sets forth the grounds for vacation of an arbitrator’s award.”
In this appeal, Regency has made no argument that the arbitrator’s decision to enforce the parties’ settlement agreement was subject to challenge on any of the grounds set forth in Code of Civil Procedure section 1286.2. Consequently, we conclude, as did the trial court, that Regency, “having... successfully obtain[ed] an order from [the] court that the parties be bound by arbitration, is therefore bound by the determination of the arbitrator.”
Code of Civil Procedure section 1286.2, subdivision (a), provides as follows: “Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following: [¶] (1) The award was procured by corruption, fraud or other undue means. [¶] (2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] (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. [¶] (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.”
The judgment is affirmed. Morrissey is entitled to his costs on appeal.
WE CONCUR: O’LEARY, J., FYBEL, J.