Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC10980, Daniel J. Didier, Judge.
Bremer, Whyte, Brown & O’Meara, Keith G. Bremer, Jeremy S. Johnson, Ryan O. Hodge; and Everett L. Skillman for Plaintiffs and Appellants.
Haight Brown & Bonesteel, Rita Gunasekaran, Richard E. Morton, J. Alan Warfield, Christine D. Bolding; Van Riper Law and David A. Van Riper for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Plaintiffs Lonny Blank and Nancy Blank (the Blanks) contracted with defendant Scott Bounds to remodel their home. The Blanks were dissatisfied with Bounds’s work and, pursuant to the parties’ contract, submitted claims against Bounds to binding arbitration through the Better Business Bureau. Bounds asserted a cross-claim against the Blanks and that cross-claim was also submitted to arbitration.
The arbitrator awarded the Blanks $25,548.60 on their claims, but awarded Bounds $75,405 on his cross-claim, thereby awarding Bounds a net recovery of $49,856.40. The Blanks filed a petition to vacate the arbitration award in the trial court on the ground the arbitrator had failed to disclose that he and Bounds were members of the Better Business Bureau. The petition was supported by the declaration of the Blanks’ attorney. The trial court denied the Blanks’ petition and granted Bounds’s petition to confirm the arbitration award; judgment was entered accordingly.
The Blanks seek to overturn the trial court’s denial of their petition to vacate the award on the grounds the arbitrator (1) failed to disclose Bounds’s membership in the Better Business Bureau as required by Code of Civil Procedure section 1281.95, subdivision (a), and standard 8(b) of the California Rules of Court, Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Standards); (2) failed to disclose his own membership in the Better Business Bureau under Code of Civil Procedure section 1281.9, subdivision (a) and standard 7(d) of the Standards; and (3) exceeded his authority by awarding Bounds an amount more than his demand. (All further statutory references are to the Code of Civil Procedure.) The Blanks also argue the trial court erred by quashing deposition subpoenas they had issued to discover further information regarding the relationship between Bounds and the arbitrator.
Effective July 1, 2002, the Judicial Council adopted the Standards pursuant to Code of Civil Procedure section 1281.85, subdivision (a). (Advantage Medical Services, LLC v. Hoffman (2008) 160 Cal.App.4th 806, 817, fn. 3.)
We affirm. The Blanks seek to overturn the arbitrator’s award based on a petition which contained incomplete legal authority and which was solely supported by a scant declaration lacking the requisite evidentiary basis for vacatur. On this record, we cannot conclude the trial court erred by denying the petition to vacate the arbitrator’s award. Furthermore, the court quashed the Blanks’ deposition subpoenas on the ground there was no pending action before the court in which they had the right to conduct discovery. We find no error.
BACKGROUND
In November 2005, the Blanks filed a first amended complaint for damages in Orange County Superior Court against Bounds and Bounds’s insurers, Platte River Insurance Company and Redland Insurance Company. In the complaint, the Blanks alleged that after they entered into a contract with Bounds “for the construction and/or remodel” of a single family residence on their property, Bounds performed defective work and failed “to follow all applicable codes in regard to various areas of construction.” The complaint sought, inter alia, damages in excess of $100,000 “[f]or costs of restoration and repairs.” The Blanks asserted claims for (1) breach of contract, (2) breach of implied warranty, (3) negligence, (4) strict products liability, (5) negligent misrepresentation, (6) breach of express warranty, and (7) an action on a contractor’s bond.
Defendants Platte River Insurance Company and Redland Insurance Company are not mentioned in the arbitrator’s award and have not appeared in this appeal. The Blanks do not raise any issues on appeal pertaining to them. We therefore do not consider them further.
In October 2006, the Blanks informed the trial court that they would be arbitrating their claims through the Better Business Bureau. Bounds filed a cross-claim. The Better Business Bureau provided the parties six potential arbitrators’ biographies which included the biography of Peter Baccaro. The biography showed Baccaro was a general contractor and the owner of Baccaro Construction. The parties were instructed to complete an arbitration selection list and return it to the Better Business Bureau. Bounds’s counsel selected Baccaro as his fourth and final choice. Baccaro was appointed arbitrator of the parties’ dispute.
The parties agree their contract contained a provision requiring that their claims against each other be submitted to binding arbitration through the Better Business Bureau.
The parties agree Bounds filed a cross-claim. The record does not contain a written cross-claim or the record of the arbitration hearing.
Following a three-day hearing, the arbitrator’s decision consisted of a verdict sheet, awarding the Blanks $25,548.60 in “Special Damages/Cost of Repair” and awarding Bounds $75,405 in special damages on his cross-claim, thus providing Bounds a net recovery of $49,856.40.
In March 2007, the Blanks filed a request for clarification/correction of the arbitrator’s award with the Better Business Bureau. The arbitrator responded to the Blanks’ request, stating: “I’ve received and reviewed the Request for Clarification/ Correction of Award from Mr. Bremer, attorney for the Plaintiffs, Mr. and Mrs. Lonnie Blank, dated March 15, 2007. On January 25, 2007, the last day of the hearing, the attorneys discussed and decided my decision would not include any written opinions or reasons surrounding my decision. This is supported in the Arbitration Closing Argument Brief, dated February 9, 2007 at 8:00 a.m. from Mr. Bremer. Section VI. ‘Verdict Form[,’] states, ‘. . . The parties have conferred, and it is specifically requested that no findings of fact or reasoned decisions be given in the verdict on any issue in [the within] action. It is further requested that no specified breakdown of award be made for individual claims such as roof, tile, etc.’ I have reviewed the decision mathematics and found no errors. [¶] Therefore, the plaintiff[s’] request for clarification/correction of award is denied.”
On May 1, 2007, the Blanks filed a petition to vacate the arbitration award or, alternatively, “to stay the arbitration award to conduct discovery on the relationship between the parties.” In the petition, the Blanks argued the arbitration award should be vacated because the arbitrator failed to disclose that he “is a paying general contractor member of the [Better Business Bureau], just like Defendant, which creates an obvious conflict of interest.” The Blanks further argued that in addition to the arbitrator’s “blatant prejudice” against them, “he also rushed [the Blanks] through the presentation of their arguments and evidence, and his award bears no connection to California law or the evidence presented in this matter.”
The petition was solely supported by the declaration of the Blanks’ attorney, Keith Bremer. In his declaration, Bremer stated the arbitrator awarded Bounds $75,405 “even though [Bounds] merely sought total damages in the amount of $40,432” and the “evidence presented at the hearing showed that [the Blanks] paid approximately $311,000 to [Bounds], which represented all but $25,319 of the total contract price.” He further stated the Blanks “presented evidence that the Property required over $307,000 worth of repairs, which [Bounds] could not sufficiently dispute since [Bounds] only introduced a single roofing expert, who even agreed that there were damages to the roof that required repair.” Bremer asserted, “[a]fter the arbitration, [the Blanks] learned of conflicts that created a bias for the arbitrator, but were never disclosed to [the Blanks].” He stated Bounds and the arbitrator and his company, Baccaro Construction Co., Inc., were paying general contractor members of the Better Business Bureau. Bremer further asserted, “[e]ven though there is no requirement that members of the [Better Business Bureau] be used to arbitrate disputes, the [Better Business Bureau] assigned Arbitrator Baccaro to this dispute, irregardless of the fact that he was clearly biased in favor of [Bounds]. In addition, the [Better Business Bureau] never disclosed this material conflict to [the Blanks].”
Bounds filed an opposition to the Blanks’ petition and filed objections to all but the first paragraph of Bremer’s declaration, stating, inter alia, the assertions in Bremer’s declaration lacked foundation. The Blanks filed a reply in support of the petition along with the declarations of the Blanks.
Following a hearing at which counsel presented argument, on June 1, 2007, the trial court issued a minute order, stating in part: “Plaintiff Blank’s Petition to Vacate or Stay Arbitration Award is DENIED. Moving Party submits no authority in support of the requested stay. As to the petition to vacate, Plaintiffs fail to submit sufficient evidence to support any of the asserted grounds per CCP [section] 1286.2. The objections to the declaration of Attorney Bremer attached to the moving papers are SUSTAINED for lack of foundation. Moving Party submits no other evidence to support their contentions of misconduct or prejudice on the part of the arbitrator [the declarations of Plaintiffs filed with the reply are not considered due to lack of notice]. [Even considering the merits, it does not appear that moving party has shown that the arbitrator failed to make a material disclosure, that there was any conflict of interest, or that the arbitration was rushed or that competent and material evidence was excluded].” (First bracketed insertion added.)
On June 11, 2007, the Blanks served two deposition subpoenas on the Better Business Bureau, seeking its records pertaining to Baccaro Construction Company, Inc., and SBC Development, Inc., respectively. On June 29, Bounds filed a petition to confirm the arbitration award under section 1285. In July, Bounds filed a motion for an order quashing the deposition subpoenas.
After a hearing, the trial court granted Bounds’s motion to quash the deposition subpoenas issued by the Blanks as lacking any legal basis. The court also granted Bounds’s petition under sections 1285 and 1286 to confirm the arbitration award. The trial court’s September 7, 2007 minute order, in which the court granted that petition, stated in part, “[t]he plaintiffs’ opposition arguments were previously raised and ruled on by the court in favor of Defendant Bo[u]nd[s] on 06/01/07.” The court awarded Bounds attorney fees incurred in the trial court action.
The Blanks filed their notice of appeal on September 14, 2007. Judgment was entered on October 10, 2007. We exercise our discretion in construing the Blanks’ appeal as an appeal from the final judgment.
DISCUSSION
I.
The Trial Court Did Not Err by Denying the Blanks’ Petition to Vacate the Arbitration Award.
The Blanks contend the trial court erred by denying their petition to vacate the arbitration award because the arbitrator (1) failed to disclose that Bounds was a member of the Better Business Bureau as required by section 1281.95, subdivision (a) and Standards, standard 8(b); (2) failed to disclose he and his company were members of the Better Business Bureau under section 1281.9, subdivision (a) and standard 7(d); and (3) exceeded his authority by awarding Bounds an amount that exceeded his demand.
The statutory disclosure requirements cited by the Blanks were codified as part of the California Arbitration Act (§ 1280 et seq.). This court has demonstrated its willingness to enforce the California Arbitration Act’s disclosure requirements. (See, e.g., Advantage Medical Services, LLC v. Hoffman, supra, 160 Cal.App.4th 806 [affirming vacatur of arbitration award based on arbitrator’s failure to make disclosures under section 1281.9].) In this case, however, the Blanks’ petition to vacate the arbitration award was entirely based on a deficient declaration and incomplete legal authority. On this record, we cannot conclude the trial court erred by refusing to vacate the award.
A.
Lack of Disclosure Bounds Was a Member of the Better Business Bureau
In the context of a contractual arbitration of construction defect claims brought by a consumer against a contractor, the arbitrator is required to disclose whether either party has an affiliation with the arbitration service which facilitates the parties’ arbitration. Section 1281.95, subdivision (a) provides: “In a binding arbitration of any claim for more than three thousand dollars ($3,000) pursuant to a contract for the construction or improvement of residential property consisting of one to four units, the arbitrator shall, within 10 days following his or her appointment, provide to each party a written declaration under penalty of perjury. This declaration shall disclose (1) whether the arbitrator or his or her employer or arbitration service had or has a personal or professional affiliation with either party, and (2) whether the arbitrator or his or her employer or arbitration service has been selected or designated as an arbitrator by either party in another transaction.” Subdivision (b) of section 1281.95 provides that an arbitrator “may be disqualified from the arbitration by either party” if he or she fails to comply with this section.
Furthermore, section 1281.9, subdivision (a)(2) requires an arbitrator to disclose any matter required to be disclosed by the Standards. Standard 8(b)(1)(A) of the Standards requires that in a consumer arbitration in which a dispute resolution provider organization is coordinating, administering, or providing the arbitration services, a person who is appointed as an arbitrator must disclose that a party “is a member of the provider organization.” Section 1286.2, subdivision (a)(6)(A) requires the trial court “shall vacate the award if the court determines” that the arbitrator “failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware.” (Italics added.)
The term “consumer arbitration” is defined in standard 2(d) of the Standards as “an arbitration conducted under a predispute arbitration provision contained in a contract that meets the criteria listed in paragraphs (1) through (3) below. . . . [¶] (1) The contract is with a consumer party, as defined in these standards; [¶] (2) The contract was drafted by or on behalf of the nonconsumer party; and [¶] (3) The consumer party was required to accept the arbitration provision in the contract.” The term “consumer party” is defined in standard 2(e) as including “a party to an arbitration agreement who, in the context of that arbitration agreement, is any of the following: [¶] (1) An individual who seeks or acquires, including by lease, any goods or services primarily for personal, family, or household purposes including, but not limited to, financial services, insurance, and other goods and services as defined in section 1761 of the Civil Code.”
Here, we begin with the observation the Blanks never argued to the trial court that the arbitrator failed to make the specific disclosure required in consumer construction defect cases under section 1281.95, subdivision (a). The Blanks never cited either section 1281.95, subdivision (a) or standard 8(b) of the Standards to the trial court in their petition or in the reply they filed in support of the petition, and thus placed the trial court in the difficult position of evaluating the Blanks’ petition with only incomplete legal authority before it. Consequently, the court never ruled on whether the arbitrator failed to make the disclosures required by section 1281.95, subdivision (a) or standard 8(b). We cannot reverse the judgment on grounds not argued to the trial court.
Second, the Blanks’ petition was entirely based on the scant declaration of their attorney, Keith Bremer. The trial court sustained Bounds’s objections to all but the first paragraph of Bremer’s declaration on the ground it was without foundation. Even if we consider Bremer’s declaration, it did not establish that the arbitrator failed to comply with section 1281.95, subdivision (a) and standard 8(b) of the Standards.
The trial court noted it would not consider the Blanks’ declarations which were filed in support of their reply “due to lack of notice.” The Blanks do not challenge on appeal the trial court’s refusal to consider those declarations; we therefore do not consider them further.
The declaration’s first paragraph stated that Bremer is an attorney licensed to practice law in California, is a partner in his law firm, is counsel of record for the Blanks in this action, and “ha[s] personal knowledge of all matters set forth in this declaration and if called to testify, [he] would and could testify competently thereto.”
Bremer’s declaration vaguely stated, “[p]rior to the commencement of the hearing, neither Arbitrator Baccaro, nor the [Better Business Bureau], disclosed any potential conflicts posed by Arbitrator Baccaro’s service as the arbitrator for this matter.” This statement does not establish the arbitrator failed to disclose Bounds was a member of the Better Business Bureau.
Bremer’s declaration also generally stated, “[a]fter the arbitration, [the Blanks] learned of conflicts that created a bias for the arbitrator, but were never disclosed to [the Blanks].” It asserted that Bounds and the arbitrator and his company were “paying general contractor members of the [Better Business Bureau],” and attached copies of what appear to be printouts from the Web sites of the Better Business Bureau and the State of California showing Bounds’s and the arbitrator’s memberships in the Better Business Bureau. Bremer’s declaration, however, simply identified those exhibits as “[t]rue and correct copies of these records”; it was silent as to how or by whom the printouts were obtained.
Even if we were to consider Bremer’s statements in the declaration and the exhibits as establishing the arbitrator’s and Bounds’s memberships in the Better Business Bureau, the Blanks have still not established that the arbitrator failed to disclose Bounds’s membership in the Better Business Bureau. Conspicuously absent from Bremer’s declaration is any direct statement that the Blanks were unaware of Bounds’s membership in the Better Business Bureau.
Indeed, a logical question quickly arises: Why would Bounds draft a contract with the Better Business Bureau as the arbitration service provider if he were not a member?
Furthermore, section 1286.2, subdivision (a) mandates vacatur in the event the arbitrator failed to disclose a party’s affiliation with the provider organization of which the arbitrator was aware. Bremer’s declaration did not establish the arbitrator in this case was aware, or should have been aware, Bounds was a member of the Better Business Bureau and yet failed to disclose that fact to the Blanks.
We acknowledge that section 1281.95, subdivision (a) and standard 8(b) of the Standards set forth specific disclosure requirements that might not have been met in this case. However, it is the appellant’s burden to make an adequate record and to establish error in the trial court. The Blanks have failed to satisfy either burden. Therefore, on this record, we conclude the trial court did not err by denying the petition to vacate the arbitration award.
B.
Disclosure Arbitrator and His Company Were Members of the Better Business Bureau
The Blanks contend the trial court should have vacated the arbitration award because the arbitrator failed to disclose he and his company were members of the Better Business Bureau and, considering that Bounds was also a member, such a disclosure would cause a reasonable person to entertain a doubt whether the arbitrator would be able to be impartial. In the petition, the Blanks cited section 1281.9, subdivision (a) which states in part, “[i]n any arbitration pursuant to an arbitration agreement, when a person is to serve as a neutral arbitrator, the proposed neutral arbitrator shall disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” Standard 7(d) of the Standards, which the Blanks cited in their appellate briefs, similarly states an appointed arbitrator “must disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed arbitrator would be able to be impartial.”
As discussed ante, the Blanks failed to establish the arbitrator did not disclose Bounds’s membership status in the Better Business Bureau. The Blanks similarly failed to establish that the arbitrator did not disclose his and his company’s membership in the Better Business Bureau.
Even if the Blanks had established the arbitrator did not disclose his membership in the Better Business Bureau through Bremer’s declaration, that fact alone on this record does not constitute a matter that could cause a person to reasonably entertain a doubt the arbitrator would be able to be impartial within the meaning of section 1281.9, subdivision (a) and standard 7(d) of the Standards. Whether an arbitrator had a duty to disclose information which might indicate bias is a question of fact and our review of that issue is deferential. (Advantage Medical Services, LLC v. Hoffman, supra, 160 Cal.App.4th 806, 816.) At a minimum, the Blanks were on notice the arbitrator had some professional relationship with the Better Business Bureau because he was selected to arbitrate this dispute through the Better Business Bureau. The trial court did not abuse its discretion by concluding the disclosure requirement of section 1281.9, subdivision (a) and standard 7(d) was not triggered merely because the arbitrator was a member of the Better Business Bureau.
C.
Record Does Not Support the Blanks’ Contention Arbitrator Exceeded His Authority by Awarding Bounds $75,405
The Blanks contend the trial court erred by failing to vacate the arbitration award on the ground the arbitrator exceeded his jurisdiction. Although the Blanks do not challenge “the evidentiary basis” for the arbitrator’s decision to award Bounds $75,405 on his counterclaim, without citation to the record, they contend the arbitrator was without jurisdiction to do so because “it was uncontradicted that Bounds had only requested $40,432.”
The appellate record does not contain Bounds’s cross-claim, his demand, or the record of the arbitration hearing itself. Bounds does not concede in the respondent’s brief that he demanded a total of $40,432 on his cross-claim. We therefore do not reach the issue whether the arbitrator exceeded his jurisdiction by awarding more than Bounds’s demand because the record is insufficient to establish the amount of the demand in the first place. We find no error.
II.
The Trial Court Did Not Err by Granting Bounds’s Motion to Quash the Deposition Subpoenas.
The Blanks contend the trial court erred by granting Bounds’s motion to quash the deposition subpoenas for business records, which the Blanks served upon the Better Business Bureau. The trial court ordered the deposition subpoenas quashed on the ground that “[i]n denying the alternative request for the stay, the Court also denied the purpose of Plaintiffs’ request to stay the arbitration, i.e., so they could conduct discovery on the relationship between Defendant and the arbitrator. There is no pending action before this Court in which plaintiffs have a right to conduct any discovery. Defendants’ motion to confirm the arbitration award and to obtain fees and costs filed with this Court is an ancillary matter connected to the binding arbitration that was completed in this action. This Court retained jurisdiction over the action only for purposes of confirming or vacating the award [citations] and for attorneys’ fees [citation]. However, the parties agreed thr[ough] contract to binding arbitration with the [Better Business Bureau], thus, this Court did not have jurisdiction over the merits of the case, nor over the process used to reach the award that was rendered by the Arbitrator. The Arbitrator made his final award in this matter on 3/2/07 and thus it is over, because this Court declined to vacate the award on 6/1/07. There is no ‘pending action’ for the purposes of CCP [section] 2017.010 to apply. CCP [section] 1141.24 applies solely to judicial arbitration where there is no binding award. [Citation.] The purpose of [section] 1141.24 is to provide for post-award discovery when necessary in non-binding judicial arbitrations wherein the Court retains jurisdiction over the cases which have been de novo’ed by one or both parties. [Section] 1141.24 is inapplicable to binding arbitration which is governed by CCP [section] 1281 et seq., regarding enforcement of arbitration agreements, which is the case herein.”
The Blanks do not address in their appellate briefs the trial court’s reasons for quashing the deposition subpoenas as expressed in the court’s minute order. Nor do they cite any legal authority authorizing the issuance of deposition subpoenas in the context of the procedural posture of this case.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J., IKOLA, J.