Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS121444, David L. Minning and Terry A. Green, Judges.
Van Parys Law Office, Nicholas H. Van Parys, in pro. per.; Law Offices of Mustafa Abdul-Rahman and Mustafa Abdul-Rahman for Plaintiff and Appellant.
Paul L. Giannini, in pro. per.; and L. Paul Mankin, IV for Defendant and Respondent.
TURNER, P.J.
I. INTRODUCTION
Plaintiff, Nicholas Van Parys, appeals from a September 29, 2009 judgment confirming an arbitration award in favor of defendant, Paul Giannini. We affirm the judgment. First, plaintiff has failed to provide an adequate record. Second, based on the record provided, plaintiff’s contentions have no merit.
II. BACKGROUND
The parties entered into an attorney association agreement on October 4, 2008. Plaintiff agreed to share equally with defendant fees recovered by way of contingency; however, if plaintiff terminated defendant without good cause, defendant was entitled to compensation for time spent at a rate of $300 per hour. The agreement included an arbitration provision, “In the event any dispute relating to this Agreement is not resolved by mediation or mutual agreement, the parties agree to arbitrate the dispute under the Rules of the American Arbitration [Association] for the resolution of Commercial Disputes.” Plaintiff terminated defendant as co-counsel and filed a Disassociation of Attorney on December 8, 2008. A dispute over attorney fees due defendant subsequently arose. An arbitration was conducted under the auspices of the American Arbitration Association’s Commercial Arbitration Tribunal. The arbitrator, Charles B. Parselle, awarded defendant a quatum meruit recovery measured at $300 per hour. Plaintiff filed a petition to vacate the arbitration award. The trial court found the arbitrator’s decision was consistent with the attorney association agreement and there was no ground for interfering with the award. The trial court confirmed the award and entered a judgment for defendant in the amount of $70,560.50.
III. DISCUSSION
A. Plaintiff Has Not Provided An Adequate Record
We presume the judgment is correct. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1362; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) It is well established that it is an appellant’s burden on appeal to affirmatively show error by an adequate record. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.) And, issues that were not raised in the trial court may not be raised for the first time on appeal. (People v. Anderson (2001) 25 Cal.4th 543, 592, fn. 17; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 865, fn. 4.)
Plaintiff chose to utilize an appellant’s appendix. Pursuant to California Rules of Court, rule 8.124 (b)(1), an appellant’s appendix must contain: “(A) All items required by rule 8.122 (b)(1), showing the dates required by rule 8.122 (b)(2).” Under Rule 8.122 (b)(1), the following must be included in the appellant’s appendix: “(A) The notice of appeal; [¶] (B) Any judgment appealed from and any notice of its entry; [¶] (C) Any order appealed from and any notice of its entry; [¶] (D) Any notice of intention to move for a new trial, or motion to vacate the judgment, for judgment notwithstanding the verdict, or for reconsideration of an appealed order, with supporting and opposing memoranda and attachments, and any order on such motion and any notice of its entry; [¶] (E) Any notices or stipulations to prepare clerk’s or reporter’s transcripts or to proceed by agreed or settled statement; and [¶] (F) The register of actions, if any.” Rule 8.122(b)(2) states, “Each document listed in (1)(A), (B), (C), and (D) must show the date necessary to determine the timeliness of the appeal under rule 8.104 or 8.108.” Also pursuant to rule 8.124(b)(1), the appendix must include “(B) Any item listed in rule 8.122(b)(3) that is necessary for proper consideration of the issues, including, for an appellant’s appendix, any item that the appellant should reasonably assume the respondent will rely on; [¶] [and] (C) The notice of election [to proceed by an appendix];....” Rule 8.122(b)(3) lists the following items: “(A) Any other document filed or lodged in the case in superior court; [¶] (B) Any exhibit admitted in evidence, refused, or lodged; and [¶] (C) Any jury instruction that any party submitted in writing....” An appellant’s appendix may only include accurate copies of documents that were filed in the superior court (Rule 8.124(g); The Termo Co. v. Luther (2008) 169 Cal.App.4th 394, 404) and must be arranged chronologically with a chronological index. (Rules 8.124 (d)(1), 8.144 (a)(1)(C) & (b)(1); Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 554, fn. 7.) When an appellant proceeds by way of an appendix, the respondent may also file an appendix. (Rule 8.124(b)(5).) Pursuant to rule 8.124(b)(5), “A respondent’s appendix may contain any document that could have been included in the appellant’s appendix or a joint appendix.”
All further references to a rule are to the California Rules of Court.
Plaintiff’s purported appendix is limited to the following: an unsigned, undated copy of the association agreement; a client consent document dated October 3, 2008; email communications between the parties dated December 6, 2008; a “Disassociation of Attorney” dated December 8, 2008; a facsimile transmission from defendant dated February 18, 2009, together with his time records; a list of disbursements; the arbitration award; and the judgment. Defendant filed a respondent’s appendix that included plaintiff’s “Notice of Petition to Vacate Expedited Arbitration Award, ” and defendant’s opposition memorandum of points and authorities. According to the judgment confirming the arbitration award, both parties filed, in addition to their points and authorities, declarations in support of their positions. Neither party has provided us with plaintiff’s points and authorities in support of his petition or any declarations filed in connection with the proceeding.
Plaintiff predicates error only on the documents he chose to provide. We cannot tell whether those documents, other than the arbitration award, were before the trial court when it ruled on plaintiff’s petition. We do not have before us a complete set of the papers filed in the trial court in connection with plaintiff’s petition. Plaintiff has not presented portions of the proceedings below that might provide grounds to uphold the trial court’s decision. The record before us does not enable us to determine whether the trial court’s ruling was correct or in error. Under these circumstances, the judgment is presumed to be correct and must be affirmed. (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 122-123; Osgood v. Landon (2005) 127 Cal.App.4th 425, 435; Conner v. Rose (1963) 219 Cal.App.2d 327, 328-329.)
B. Based On The Record Provided, No Error Occurred
Plaintiff argues the trial court failed to properly apply the law. The standard of review of a trial court order affirming a contractual arbitration award is de novo. (San Francisco Housing Authority v. SEIU Local 790 (2010) 182 Cal.App.4th 933, 944; Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892, fn. 7; see Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.) The parties entered into a contractual arbitration agreement. Although the contract does not expressly state that the arbitrator’s decision will be final and binding, the parties impliedly so agreed. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9; Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 402.) Further, it is the general rule that an arbitrator is not required to act in conformity with rules of law but may base his or her decision on broad equitable principles. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 831-832; Advanced Micro Devices, Inc. v. Intel Corp., supra, 9 Cal.4th at pp. 374-375; Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 10-11.) Moreover, judicial review of an arbitrator’s decision in a contractual arbitration is extremely limited. Our Supreme Court has held: “[I]t 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.” (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 11; accord, Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 669 [“We have emphasized in our case law the limited nature of judicial review of contractual arbitration awards, concluding that, generally speaking, a court is not permitted to vacate an arbitration award when the award is based on errors of law”]; Vandenberg v. Superior Court, supra, 21 Cal.4th at pp. 831-832.) If, however, the parties have expressly so agreed, judicial review of an arbitrator’s award may extend to errors of law or legal reasoning. (Cable Connection, Inc. v. DIRECTV, Inc, supra, 44 Cal.4th at pp. 1340, 1361; Gravillis v. Coldwell Banker Residential Brokerage Co. (2010) 182 Cal.App.4th 503, 515.)
No doubt, the Legislature has provided for limited judicial review of an arbitration award. (Cable Connection, Inc. v. DIRECTV, Inc., supra, 44 Cal.4th at p. 1344; Aguilar v. Lerner (2004) 32 Cal.4th 974, 981-982.) That review includes grounds for vacating the award under Code of Civil Procedure section 1286.2 or correcting the award under section 1286.8. (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184; Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 12-13.) Section 1286.2 provides: “(a)... 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.... [¶] (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing.... [¶] (6) An arbitrator making the award [breached disclosure obligations or was subject to disqualification].” Section 1286.6, states in part: “[T]he 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: [¶] (a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; [¶] (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or [¶] (c) The award is imperfect in a matter of form, not affecting the merits of the controversy.”
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
Here, plaintiff has not shown the trial court had the power to review the arbitrator’s decision for errors of law or legal reasoning. There is no language in the arbitration agreement allowing for such judicial review. Nor has plaintiff established that the trial court, if it had such power, in fact exercised it. Absent the parties’ express agreement providing for expanded judicial review, the only potential issues before the trial court were the statutory grounds for vacating or correcting the award. In his opening brief, plaintiff makes no mention of any of those grounds.
Page 14 of a 19-page reply brief asserts for the first time that the arbitrator exceeded his power (§ 1286.2, subd. (a)(4)) because the award and the fee agreement on which it is based both violate clear public policy as expressed in California Rules of Professional Conduct rules 2-200 and 4-200. California Rules of Professional Conduct rule 2-200 states: “A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of, or shareholder with the member unless: [¶] (1) The client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division; and (2) The total fee charged by all lawyers is not increased solely by reason of the provision for division of fees and is not unconscionable as that term is defined in rule 4-200.” Consistent with well-established authority, absent justification for failing to present an argument in the opening brief, we will not consider an issue raised for the first time in a reply brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584; Kahn v. Wilson (1898) 120 Cal. 643, 644; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 425-426; In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.)
In any event, the written client consent meets the requirements of rule 2-200. The association agreement states in part: “This letter confirms our agreement that associate counsel, Paul Giannini, will be retained to associate with this firm as trial counsel on your case. Your legal fees under our agreement will not be increased by reason of this association. Rather, associate counsel Paul Giannini will receive [one-half] of the fee and this law firm will receive [one-half]. [¶] Please acknowledge your consent to the terms of this association of counsel by signing the enclosed copy of this letter and returning it to me in the envelope provided.” The client executed the association agreement. Assuming we can address the merits of plaintiff’s legal error contention, based on the record provided, it has no merit.
IV. DISPOSITION
The judgment is affirmed. Defendant, Paul Giannini, is to recover his costs on appeal from plaintiff, Nicholas Van Parys.
We concur: ARMSTRONG, J., MOSK, J.