v.
BEACH CREST VILLAS HOMEOWNERS ASSOCIATION, Defendant, Cross-complainant and Appellant.
No. G042757.
Court of Appeals of California, Fourth District, Division Three.
Filed August 4, 2010.
Gates, O'Doherty, Gonter & Guy and K. Robert Gonter, Jr., for Defendant, Cross-complainant and Appellant.
Darling & Risbrough, Robert C. Risbrough, Robert M. Yoakum and Graham M. Cridland for Plaintiffs, Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
OPINION
FYBEL, J.
INTRODUCTION
After lengthy litigation centering on the installation of an air conditioning unit, Moisey Fridman and Rosa Fridman (the Fridmans) and the Beach Crest Villas Homeowners Association (Beach Crest) stipulated to have their dispute resolved through binding arbitration. The arbitrator ultimately determined that neither party had established any of its causes of action, but nevertheless found the Fridmans were the prevailing party, and awarded them attorney fees. Beach Crest appeals from the judgment confirming the arbitration award.
We conclude Beach Crest waived the right to appeal from the judgment through the stipulation to arbitrate. We therefore dismiss the appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In 1999, the Fridmans installed an air conditioning unit in their Beach Crest Villas condominium. In 2006, the Beach Crest board voted to compel the Fridmans to remove the air conditioning unit because it had been installed without board approval. The Fridmans refused, contending they had properly applied for and received permission to install the unit. Beach Crest began fining the Fridmans on a weekly basis; the Fridmans refused to pay the fines.
On September 5, 2007, the Fridmans filed a complaint against Beach Crest for negligence, breach of fiduciary duty, intentional infliction of emotional distress, violation of fair housing laws, and breach of contract—the Declaration of Restrictions for Beach Crest Villas Condominiums (the Declaration). Beach Crest filed a cross-complaint against the Fridmans for breach of the Declaration, breach of Beach Crest's rules and regulations, private nuisance, defamation, conversion, and declaratory relief.
In September 2008, the parties stipulated to binding arbitration, pursuant to Code of Civil Procedure section 1281 et seq., of the Fridmans' fifth cause of action for breach of contract and the entirety of Beach Crest's cross-complaint.
The arbitration hearing was conducted in March 2009, and the arbitrator issued an award in May 2009. The arbitrator found Beach Crest had breached its fiduciary duties to the Fridmans, and awarded $100 in emotional distress damages. He also found Beach Crest failed to prove any of its causes of action against the Fridmans. The arbitrator determined the Fridmans to be the prevailing party, and awarded them $110,000 in attorney fees.
By letter, Beach Crest requested the arbitrator amend the award. In response, the arbitrator issued a corrected award, in which he found Beach Crest had breached the Declaration, but the Fridmans had suffered no monetary damages as a result of that breach. The corrected award therefore eliminated the reference to emotional distress damages. The arbitrator again found Beach Crest had failed to prove any of its causes of action, and the Fridmans were the prevailing party and entitled to recover $110,000 in attorney fees.
On July 9, 2009, the Fridmans filed a petition to confirm the arbitration award. On July 15, Beach Crest filed a petition to correct or vacate the arbitrator's award. The trial court heard both petitions together, confirmed the arbitration award, and entered judgment in favor of the Fridmans. Beach Crest appealed.
DISCUSSION
The Fridmans filed a motion to dismiss Beach Crest's appeal on the ground the parties' stipulation to binding arbitration constituted a waiver of Beach Crest's right to appeal. Beach Crest filed an opposition to the motion, and this court issued an order advising the parties that the motion to dismiss would be considered in connection with the merits of the appeal.
The parties' stipulation to binding arbitration reads, in relevant part, as follows: "1. The parties have agreed to a binding arbitration pursuant to [Code of Civil Procedure] Section 1281 et seq. [¶] 2. All parties agree that the decision of the arbitrator is final, that a judgment will be entered and that trial by a jury has been specifically waived. [¶] 3. Pursuant to [Code of Civil Procedure] section 1297.191 the parties agree that California Rules of Court Rules 3.823, 3.824, and 3.827(c) shall govern with regards to the conduct of the hearing. [¶] . . . [¶] 7. All rights to jury trial, the right to trial de novo, and appeal are waived."
Beach Crest opposed the motion on two grounds. First, Beach Crest argued the Fridmans had failed to comply with California Rules of Court, rule 8.57(a), which provides: "A motion to dismiss an appeal before the record is filed in the reviewing court must be accompanied by a certificate of the superior court clerk, a declaration, or both, stating: [¶] (1) The nature of the action and the relief sought by the complaint and any cross-complaint or complaint in intervention; [¶] (2) The names, addresses, and telephone numbers of all attorneys of record—stating whom each represents—and unrepresented parties; [¶] (3) A description of the judgment or order appealed from, its entry date, and the service date of any written notice of its entry; [¶] (4) The factual basis of any extension of the time to appeal under rule 8.108; [¶] (5) The filing dates of all notices of appeal and the courts in which they were filed; [¶] (6) The filing date of any document necessary to procure the record on appeal; and [¶] (7) The status of the record preparation process, including any order extending time to prepare the record." The Fridmans' motion was filed before the record on appeal was filed, and did not include a certificate of the superior court clerk or a declaration containing all of the information delineated by rule 8.57(a).
However, the record on appeal was filed soon after the motion to dismiss was filed, and before this court's order reading, "[r]espondents' motion to dismiss the appeal and request for judicial notice will be decided in conjunction with the decision on appeal." If this court had denied the Fridmans' motion to dismiss for failure to comply with California Rules of Court, rule 8.57(a), the Fridmans would have had the opportunity to refile their motion in compliance with the rule, or to file a motion after the record had been filed.
Beach Crest also argued, on the merits, that the stipulation to binding arbitration waived only the right to appeal from the actions of the arbitrator, not from the judgment confirming the actions of the arbitrator. "It is well settled, and defendant correctly concedes, that a party can waive the right to appeal. [Citations.] The Courts of Appeal have held, however, that any waiver of the right to appeal must be clear and express. `While the right to appeal may be waived by agreement [citation], any such waiver should be clear and express [citations].' [Citations.] Moreover, any doubt will be resolved against a waiver of the right to appeal. [Citations.]" (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 952-953 (Guseinov).)
The stipulation to arbitrate signed by Beach Crest and the Fridmans includes a specific reference to California Rules of Court, rule 3.827(c), which reads: "The judgment so entered has the same force and effect in all respects as, and is subject to all provisions of law relating to, a judgment in a civil case or proceeding, except that it is not subject to appeal and it may not be attacked or set aside except as provided in rule 3.828. The judgment so entered may be enforced as if it had been rendered by the court in which it is entered." (Italics added.) Additionally, the stipulation reads: "All rights to . . . appeal are waived." While alone either provision of the stipulation would be a clear and express waiver of the right to appeal from the judgment confirming the arbitration award, when read together, we conclude the waiver of the right to appeal is unassailable.
In Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1082 (Reisman), the plaintiff attorney initiated a legal action to recover fees from his former clients. The clients petitioned for binding arbitration with the Los Angeles County Bar Association, pursuant to Business and Professions Code section 6200 et seq. (Reisman, supra, 153 Cal.App.3d at p. 1082.) The petition included the following language: "`If you and the attorney both agree to make the arbitration binding, No appeal or further proceedings will be possible after the arbitration award is made.'" (Ibid.) The clients also signed a request for arbitration and stay of proceedings form, which included the following language: "`[Y]ou and the attorney may agree to make the arbitration binding, which means that once the arbitrators have rendered an award, no appeal or further proceeding will be possible.'" (Ibid.) The arbitrators issued an award in favor of the plaintiff attorney. (Id. at p. 1083.) A petition to confirm the arbitration award was granted, and judgment was entered in favor of the plaintiff attorney, and against the clients. (Id. at pp. 1083-1084.) The clients appealed from the judgment (as well as from an order denying a Code of Civil Procedure section 473 motion and an order disallowing a challenge under Code of Civil Procedure section 170.6). (Reisman, supra, 153 Cal.App.3d at p. 1086.)
The appellate court concluded the clients had not waived the right to appeal from the judgment and the postjudgment orders, despite the language in the arbitration agreement. "We conclude that the waiver agreements here are directed against a party seeking a trial de novo and against any appeal directly from the award and within the arbitration proceeding itself as distinguished from an appeal of judicial action on the award." (Reisman, supra, 153 Cal.App.3d at p. 1088.) The appellate court relied primarily on the provisions of the Business and Professions Code regarding attorney fee dispute procedures. (Id. at pp. 1088-1089.) "The waiver of such a right of access to judicial review should be clear and express. [Citation.] Here it seems uncertain whether parties checking the box form for binding arbitration would understand that they were waiving `appeal' which included review of judicial action regarding an award as distinguished from the actions of the arbitrators. Without greater specificity in the waiver agreement language, we hold it was not effective to waive rights to appeal trial court judicial action which was expressly provided for by Business and Professions Code section 6203, subdivision (b)." (Ibid.) Unlike the client participants in the mandatory attorney fee arbitration process, Beach Crest had no statutory right to trial de novo following a contractually agreed-to binding arbitration, so the parties' stipulation does not present any similar issues of confusion.
In Pratt v. Gursey, Schneider & Co. (2000) 80 Cal.App.4th 1105, 1107, the parties signed a stipulation to binding arbitration, which read in relevant part as follows: "`IT IS HEREBY STIPULATED by and between the parties hereto that: [¶] 1. The entire dispute between the parties to this action be submitted to a final determination by a binding arbitration. [¶] 2. The right to trial by judge or jury is expressly waived. Except as provided in Rule 1615(d) of the California Rules of Court, the right to appeal from the arbitrator's award or any judgment thereby entered or any order made is expressly waived. The right to trial de novo, whether pursuant to [Code of Civil Procedure] Section 1411.20 or Rule 1616 of the California Rules of Court or otherwise is expressly waived. [¶] 3. The award of the arbitrator shall constitute a final determination of the matters to all parties and all claims, and shall be submitted to judgment in this action pursuant to Rule 1615(c) of the California Rules of Court. [¶] . . . [¶] 7. This court will retain jurisdiction for the limited purpose of rendering a judgment pursuant to the award of arbitrator.'" The trial court entered judgment confirming the arbitrator's award, and the losing party appealed. (Id. at pp. 1107-1108.)
The appellate court granted respondent's motion to dismiss the appeal. (Pratt v. Gursey, Schneider & Co., supra, 80 Cal.App.4th at p. 1108.) "The broad language utilized by the parties constitutes a waiver of the right to appeal from `any judgment' or `any order.' Accordingly, the ambiguity created by the references to judicial arbitration does not affect the express waiver of the right to appeal. Regardless of whether this was a contractual or judicial arbitration case, the right to appeal `any judgment' or `any order' has been expressly waived." (Id. at p. 1110.) The court noted that an agreement to waive the right to appeal must be clear and express, and an ambiguity in the arbitration agreement not directly related to the right of appeal does not make the waiver of appeal ambiguous and thus unenforceable. (Ibid.)
In Guseinov, supra,145 Cal.App.4th 944, the appellate court found no waiver of the right to appeal from a judgment confirming an arbitration award. "Here, the arbitration provision recites, `The Parties waive any right to appeal the arbitral award.' At the same time, however, each party expressly `retain[ed] the right to seek judicial assistance' which included the power to enforce any decision or award of the arbitrator. Therefore, the appeal waiver does not prevent a party from filing a motion or petition to secure a judgment on the arbitration award. Moreover, the parties clearly contemplated that a petition to vacate or enforce the arbitration award would be permitted. The parties agreed the arbitration proceedings would be confidential but the confidentiality provision could not prevent the filing of a petition to vacate or enforce an award. Plaintiff sought judicial assistance to enforce the arbitration award and defendant has appealed from the judgment entered pursuant to that motion." (Id. at p. 954.) The arbitration provision in Guseinov specifically tied the waiver of appeal to the arbitration award, without reference to a later-entered judgment, which distinguishes it from the present case.
Beach Crest notes the parties stipulated to "a binding arbitration pursuant to [Code of Civil Procedure] Section 1281 et seq." Code of Civil procedure section 1294, which is contained within the same title as section 1281, provides: "An aggrieved party may appeal from: [¶] (a) An order dismissing or denying a petition to compel arbitration. [¶] (b) An order dismissing a petition to confirm, correct or vacate an award. [¶] (c) An order vacating an award unless a rehearing in arbitration is ordered. [¶] (d) A judgment entered pursuant to this title. [¶] (e) A special order after final judgment." (Italics added.) Beach Crest therefore argues it had the right to appeal from the judgment. Beach Crest ignores the remainder of the stipulation, which specifically waives the right to appeal and refers to the California Rules of Court, rule 3.827(c), specifying a judgment entered on an arbitration award is not subject to appeal. Parties to an arbitration agreement are free, by the terms of that arbitration agreement, to modify the procedures specified by the Code of Civil Procedure. "[I]f arbitration is what is intended by the parties, the entire applicable statutory scheme comes into play. Arbitration is provided for in the Code of Civil Procedure not only in sections 1280, subdivision (a), and 1280.1, but throughout title 9 of part III of the code. These sections govern, inter alia, the conduct of arbitration hearings [citation], the time for making the award [citation], court confirmation of the award [citation], and grounds for vacating the award [citation]. [¶] We recognize that section 1282 et seq. sets forth procedures for the conduct of arbitration proceedings and that parties are free to `otherwise provide by an agreement' [citations] . . . ." (Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 537-538.) The parties' stipulation to arbitration waived the right to appeal from the judgment otherwise granted by California statute, which was permissible as a matter of law.
At oral argument, Beach Crest's counsel argued there was no clear and express waiver of the right to appeal in the stipulation to arbitration. As set forth ante, the stipulation does contain a clear and express waiver of the right to appeal the judgment.
We conclude Beach Crest, in the stipulation to arbitration, waived its right to appeal the judgment following confirmation of the arbitration award. The Fridmans' motion to dismiss the appeal is therefore granted.
The Fridmans also filed a motion for sanctions. Beach Crest also opposed the motion for sanctions on the ground it did not comply with California Rules of Court, rule 8.57(a). As explained, ante, we reject that argument. Beach Crest provides no specific argument against imposition of sanctions on appeal, although we interpret its opposition to the motion to dismiss as an argument that sanctions are unwarranted. As explained, ante, we believe the language and the intent of the stipulation to binding arbitration were clear, and no appeal of the judgment was permitted. However, we find nothing in the appellate record establishing the appeal was pursued for an improper motive. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) We therefore deny the motion for sanctions.
Beach Crest did not oppose the Fridmans' request for judicial notice. Pursuant to Evidence Code sections 452, subdivision (d), and 459, we take judicial notice of the trial court records, identified as items 1 through 7 in the request for judicial notice. Pursuant to sections 452, subdivision (h), and 459, we take judicial notice of the existence of the items of correspondence identified in the request for judicial notice as items 1 through 4; we do not take judicial notice of any factual matters stated in those items of correspondence. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064.)
DISPOSITION
The appeal is dismissed. Respondents to recover costs on appeal.
WE CONCUR:
O'LEARY, ACTING P. J.
ARONSON, J.
