Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC845889, Richard E.L. Strauss, Judge.
O'ROURKE, J.
Appellant Gregory Smith appeals from a judgment confirming an arbitration award in favor of Danny Hance and Jennifer Hance. On appeal, Gregory challenges the existence of a valid arbitration agreement as well as arbitrability of his disputes with the Hances. He argues the Hances' petition should have been denied for their failure to allege and prove a contract to arbitrate or an arbitrable controversy. We affirm the judgment.
Gregory's brother Steven Smith, is a signatory to the arbitration agreement at issue in this appeal. We refer to Gregory and Steven collectively as the Smiths or at times separately by their first names not out of disrespect, but for purposes of clarity. Danny Hance is the only named respondent on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
Our prior unpublished opinions reflect some of the background of these parties' long running disputes: Smith v. Hance (May 4, 2007, D047471), Hance v. Smith (Mar. 3, 2009, D051917) and Smith v. Hance (Nov. 10, 2009, D054295). We need not detail those matters other than to say that in July 2003, after a series of disputes and lawsuits, one of which was resolved during a JAMS mediation, the Hances, their neighbor Steven Smith and another neighbor, Gilda Mullette, entered into a handwritten memorandum of understanding (MOU). The MOU contemplated that the parties would enter into a settlement agreement in part containing mutual non-disparagement/harassment provisions; a provision requiring all parties to comply with all state and local laws, codes and ordinances; and a provision requiring the parties to refrain from trespassing on each other's property.
Paragraph 5 of the MOU provides: "Any future violation of this MOU or the Settlement Agreement shall be resolved by a JAMS arbitrator who shall have the jurisdiction to determine the existence or non-existence of the alleged violation, and discretion to award damages. The prevailing party shall be entitled to recovery of his or her reasonable attorney fees and costs." The MOU also provides it "shall be binding, enforceable and admissible, and subject to enforcement under [Code of Civil Procedure section] 664.6."
Thereafter, the parties negotiated the terms of a settlement agreement. Ultimately, only the Hances and Steven signed the settlement agreement, which states it "shall be binding upon and inure to the benefit of the parties herein, and their respective officers, directors, agents, employees, heirs, successors, assigns and legal representatives." The settlement agreement also contains an arbitration clause providing in part: "Any dispute between the parties arising out of this Agreement, including but not limited to any alleged violation of any term or condition of this Agreement, shall be resolved by way of binding arbitration before a JAMS arbitrator in San Diego County, under the JAMS rules of procedure and in accordance with California substantive law."
The clause continues: "Notwithstanding any JAMS rule of procedure to the contrary, the arbitrator shall have the jurisdiction and discretion to award money damages, grant injunctive relief, and/or determine the meaning of any internal provision of this Agreement in connection with such arbitration. The prevailing party in any such arbitration proceeding shall, in addition to any and all other relief, be entitled to an award of reasonable attorneys' fees and arbitration costs."
After Mullette refused to sign the settlement agreement, the Hances enforced the MOU by reducing it to a December 2003 judgment against Steven and Mullette. The judgment provides, "Any alleged violations of the MOU shall be resolved by arbitration as set forth in Paragraph 5 of the MOU."
In April 2005, Gregory sued the Hances, their company and other individuals, alleging causes of action for nuisance, assault and intentional and negligent infliction of emotional distress. In part, Gregory alleged the Hances maintained their residence in such a manner as to violate the Municipal Code and that their operation of a commercial construction and demolition business constituted public and private nuisances. Gregory alleged Hance "violently charged" at him while he was "gathering photographic evidence, " placing him in fear and anticipation of imminent physical injury, harm or death, as well as causing him extreme emotional distress. At about the same time, Steven and the Hances filed cross requests for civil harassment temporary restraining orders (TROs); the Hances sought to enjoin both Steven and Gregory from picture taking, stalking, and confronting Danny Hance's employer. In May 2005, the Hances asked Gregory to stipulate to arbitrate the outstanding complaints and his April 2005 action.
In June 2005, the superior court ordered the parties' cross-requests for TROs to be returned to arbitration with JAMS. Thereafter, having received no response from Gregory regarding their request that he stipulate to arbitration, the Hances petitioned to stay his April 2005 action and compel arbitration of the matter. In part, they asserted that the matters involving the TROs were intertwined with Gregory's lawsuit, and thus Gregory's matter should be ordered to arbitration notwithstanding his status as a nonsignatory to the MOU. Specifically, they argued that Gregory was Steven's agent for the purpose of "continuing the harassment campaign in a venue (and by a means) which is no longer available to his brother Steve"; that Gregory was living in a home owned by Steven and acting in concert with Steven as an undisclosed principal and alter ego. They also argued that principles of equitable estoppel dictated that the matter be arbitrated.
Gregory opposed the petition on grounds he was not a party or signatory to the MOU, and thus he had an "indispensable" right to pursue his lawsuit in the superior court. He maintained that "even where a party has agreed to be bound by a contractual arbitration agreement, any one of the parties to such an agreement may resort, for resolution of a legal dispute, to an action at law." He also argued "a party may waive arbitration by filing a suit in superior court, such as [Gregory] has done in the instant case." He concluded, "It goes without saying that a contract cannot bind a nonparty."
In reply, the Hances pointed out, among other things, that Gregory had admitted that the same facts and issues were currently being arbitrated in JAMS, he had previously stated he was willing to arbitrate the issues, Gregory was Steven's tenant and agent, and Gregory did not refute he acted in concert with Steven "as a means to circumvent the arbitration agreement to which his brother is bound as a signatory." They lodged a copy of the parties' settlement agreement, explaining that Steven Smith had signed it and had agreed to bind his agents, successors and assigns, including Gregory. They maintained that the court should compel arbitration because Gregory's case was brought in an attempt to ignore the settlement and judgment and continue the Smiths' harassment.
The trial court granted the Hances' petition, finding Gregory was subject to the MOU and that binding arbitration was compelled by the MOU as well as the parties' settlement agreement. It ruled, "Several reasons dictate that [Gregory] is subject to the MOU and that this case should proceed to binding arbitration. Among those reasons is the fact that [Gregory] filed a Notice of Related Cases on July 8, 2005, stating that this case and [Superior Court San Diego County, No.] GIC847788, a case currently pending before Judge Frances M. DeVaney, are related within the meaning of [California Rules of Court, rule] 804(a) [now rule 3.300].... It defies reason to state one case is subject to the MOU while the other is not in light of [Gregory's] assertions in that document. Additionally, as Steve Smith's tenant, [Gregory] is bound by the arbitration agreement. The Court understands that Steve Smith is [Gregory's] brother and landlord as well as a signatory to the MOU. California case law dictates that an arbitration clause is a 'covenant that runs with the land' that is binding on an assignee during the period of assignment of tenancy.... Therefore, the Court finds that [Gregory] is indeed bound by the terms of the MOU. [¶] Thus, in accordance with the MOU and Settlement Agreement executed in relation to Case No. GIC797733, this matter shall proceed to binding arbitration with JAMS; more specifically, in front of... Judge Hayden (Ret.) of JAMS."
On October 31, 2006, the arbitrator issued its award in the Hances' favor. It ordered that the Hances recover from Gregory a total of $272,698, consisting of $206,003 in principal and $66,695 in attorney fees, as well as costs in the amount of $5,898.
About two and a half years later, Gregory filed a petition to vacate the arbitration award. On March 13, 2009, the Hances petitioned to confirm the award, referencing paragraph 5 of the MOU as the arbitration provision and attaching as exhibits the MOU, the December 2003 judgment, the order granting their petition to arbitrate, and the arbitrator's award. In response, Gregory made three main arguments: (1) that the trial court was without jurisdiction to compel arbitration under the MOU because the MOU had been performed; (2) the hearing to compel arbitration was an "irregular proceeding" because the Hances used a confidential and inadmissible document - the settlement agreement - to persuade the trial court he was subject to the terms of the MOU; and (3) the trial court did not order arbitration of the Hances' cross-complaint and the arbitrator thus decided an issue falling outside the scope of the matters ordered to arbitration.
Code of Civil Procedure section 1288 requires that a petition to confirm an arbitration award be filed not later than four years after the date of service of a signed copy of the award on the petitioner. The Hances' petition to confirm was timely filed under this statute.
On July 2, 2009, the superior court entered a judgment confirming the arbitration award. It directed the Hances to recover from Gregory the amount of the original award plus $78,464.85 in interest, for a total award of $357,060.85. Gregory appeals from that order.
DISCUSSION
I. Timeliness of and Request to Dismiss Appeal
Preliminarily, we address Hance's challenge to the timeliness of Gregory's appeal, as well as Hance's request to dismiss the appeal.
Hance contends Gregory's appeal is not timely because he failed to file a petition to vacate within 100 days after the signed copy of the award was served on him as required by Code of Civil Procedure section 1288. Citing Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648 and Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, he maintains Gregory's appeal from the judgment confirming the award does not extend the 100-day time limit for a petition to vacate, and, absent such a petition, Gregory may not attack the award on grounds that would have supported an order vacating the award.
Under the cited authorities, Hance is correct that Gregory cannot on this appeal advance grounds for vacating the award. (Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc., supra, 82 Cal.App.4th at p. 659; Knass v. Blue Cross of California, supra, 228 Cal.App.3d at pp. 393-396.) Thus, to the extent Gregory argues the Hances procured the award by fraud or other undue means, or that the arbitrator exceeded his powers (Code Civ. Proc., § 1286, subd. (a)(1), (4)), we do not consider those arguments. However, as Gregory points out in his brief, his appeal largely challenges the trial court's order compelling him to arbitrate his complaint. Orders compelling arbitration are considered interlocutory and not directly appealable; the order is reviewable on appeal from the judgment confirming the award. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1566; Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1359; Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 648.) Accordingly, we may consider Gregory's challenges to the trial court's order compelling arbitration. If the trial court's decision is based on the resolution of disputed facts, we apply the substantial evidence standard of review. (Fagelbaum, at p. 1360.) If the facts are not in conflict, we review the order de novo. (Ibid.)
Hance makes a request to dismiss the appeal on the same grounds, and accordingly, we deny that request. The Hances have separately moved to dismiss Gregory's appeal and seek sanctions for his filing a frivolous appeal under California Rules of Court, rule 8.276(a) and Code of Civil Procedure section 907. They point out Gregory was declared a vexatious litigant in October 2009, but argue he continues to file appeals in an effort to keep the Hances in litigation and avoid a substantial payment to them under the judgment. We deny the motion. An appeal is not frivolous simply because it has no merit, as we shall conclude is the case with the present appeal. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Though many issues within Gregory's appeal come close, we cannot say the appeal is totally and completely, or indisputably, without merit. (Dodge, at p. 1422.)
II. Standard of Review of Order Compelling Arbitration and General Principles of Appellate Review
As we have stated, where no conflicting evidence is introduced to assist the interpretation of an agreement to arbitrate, the Court of Appeal reviews de novo the trial court's ruling on a petition to compel arbitration. (Parada v. Superior Court, supra, 176 Cal.App.4th at p. 1567; California Correctional Peace Officers Assn. v. State (2006) 142 Cal.App.4th 198, 204.) Such de novo review is likewise appropriate where the trial court did not resolve any factual disputes in rendering its decisions. (Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1573-1574.) " 'To the extent that the trial court's ruling rests upon a determination of disputed factual issues, we apply the substantial evidence test to those issues.' " (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217; see also Parada, at p. 1567.)
Overarching these principles are fundamental principles of appellate review: We are required to presume the trial court's judgment is correct and must draw all inferences in favor of the trial court's decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "Thus, even if there is no indication of the trial court's rationale for [its ruling], the court's decision will be upheld on appeal if reasonable justification for it can be found. 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." ' " (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
An appellant's brief should set out a careful assertion of legal error with meaningful argument and discussion of authorities. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265; 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 193, fn 3.) And " 'error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, we will not presume prejudice from an error. It is an appellant's burden to persuade us that the court erred in ways that result in a miscarriage of justice. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 204-205; Cal. Const., art. VI, § 13.)
Our review is governed by the appellate record; with rare exception, we are not permitted to consider new evidence and will not consider facts or contentions not supported by citations to the record. (In re Zeth S. (2003) 31 Cal.4th 396, 405; clarified in In re Josiah Z. (2005) 36 Cal.4th 664, 676; In re S.C. (2006) 138 Cal.App.4th 396, 406-407; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207; Cal. Rules of Court, rule 8.204(a)(1)(C).) Along the same lines, we cannot address issues that were not properly raised and preserved in the trial court. (See City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 684-685; Royster v. Montanez (1982) 134 Cal.App.3d 362, 367.) On appeal, as in the superior court, unsworn statements or argument by counsel or a pro per litigant are not evidence. (See In re Zeth S., at p. 414, fn. 11.)
Self-represented litigants are held to the same standard as those represented by trained legal counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247; In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 830.) " 'When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.... Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.' " (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)
III. Gregory Has Either Forfeited His Arguments or Failed to Show Error in the Trial Court's Order Compelling the Matter to Arbitration
Gregory contends the Hances did not affirmatively allege or prove by a preponderance of the evidence the existence of an agreement to arbitrate the controversy alleged in his April 2005 complaint, or the existence of an arbitrable controversy. He contends that under Code of Civil Procedure section 1281.2 the trial court was required to, but did not, determine whether the asserted dispute alleged in his complaint was covered by the agreement; that he had no duty to arbitrate the assault controversies because they were not "enumerated in the MOU." He argues alternatively that paragraph 4 of the MOU is not enforceable due to the absence of mutual assent.
A. Sufficiency of Allegations of an Agreement to Arbitrate
We reject Gregory's first contention that the Hances did not affirmatively allege, by pleading nonconclusory ultimate facts, the existence of an arbitration agreement. He did not advance this argument in opposition to the Hances' petition to compel arbitration, nor did he mention the sufficiency or insufficiency of the Hances' allegations in response to the Hances' petition to confirm the award. The argument is forfeited. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 685.)
Even if that were not so, we observe the Hances did in fact specifically allege the existence of an agreement to arbitrate contained in paragraph 5 of the MOU. They alleged: "[Gregory], Steve Smith and Mullette... relentlessly called the police and made complaints to City Council and Neighborhood Code Compliance (NCCD) about the Hances violating various Municipal Codes, using commercial vehicles, having improper license plates, running a business from their home and similar complaints. More than 60 calls and complaints were filed, culminating in a letter from the City stating that no further resources would be used in the matter." The Hances alleged that their "patience ended" after someone made a false complaint to Child Protective Services against them, and they sued Mullette and Steve Smith. They alleged that case was resolved during mediation and the MOU was thereafter prepared and signed in July 2003. They alleged: "The key feature of the MOU was that if there were any future claims of violations, including Municipal Code violations, those claims would be submitted to JAMS for arbitration." They set out the pertinent portion of the MOU verbatim, and attached the MOU as an exhibit to their attorney's declaration accompanying their petition. In both their petition and reply papers, they alleged (and the Hances' attorney averred in a supplemental declaration) that Gregory was a coconspirator or agent, tenant, successor or assign of his brother Steven. This case is entirely unlike Brodke v. Alphatec Spine, Inc., supra, 160 Cal.App.4th 1569, relied upon by Gregory, in which the defendants "denie[d] the very existence of the contract sought to be enforced." (Id. at p. 1577.).
We conclude the Hances' allegations satisfy the "most basic statutory prerequisite to granting [a] petition [compel arbitration] - to allege the existence of a written agreement to arbitrate." (Brodke v. Alphatec Spine, Inc., supra, 160 Cal.App.4th at p. 1574.)
B. Proof of Valid Arbitration Contract
Gregory contends that Hance did not meet his burden to prove by a preponderance of the evidence the existence of a contract to arbitrate, and the trial court did not undertake its duty to determine the issue of the arbitration contract's validity. In advancing these assertions, Gregory correctly points out that while there is a strong policy in favor of enforcing agreements to arbitrate, "there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate and which no statute has made arbitrable." (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 481; see also Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1069 (Crowley); Toal v. Tardif, supra, 178 Cal.App.4th at pp. 1219-1220 [before granting a petition to compel arbitration, the court must determine the factual issue of " 'the existence or validity of the arbitration agreement' "].)
Gregory's bare assertions concerning the applicable law, though mostly correct, do not convince us to reverse the trial court's order. Gregory simply does not address the trial court's legal reasoning or the evidence supporting the factual findings underlying its order. Presumably, his position is that the Hances presented no evidence on which the trial court could make a factual determination that he agreed to arbitrate any disputes. However, Gregory does not explain why the evidence in the record is insufficient to make such a determination. In fact, he entirely ignores the lower court's express factual finding that Gregory was Steven's tenant and thus bound by the terms of the MOU as an assignee. This court "is not required to make an independent, unassisted study of the record in search of error...." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769.)
Nor does Gregory appreciate that this court will imply findings to support the judgment if supported by substantial evidence in the record. A nonsignatory who is the agent of a signatory can be compelled to arbitrate claims against his will because there is " 'a preexisting relationship... between the nonsignatory and one of the parties to the arbitration agreement, making it equitable to compel the nonsignatory to also be bound to arbitrate his or her claim.' " (Crowley, supra, 158 Cal.App.4th at p. 1069; see also Young Seok Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513 [citing cases]; Bouton v. USAA Cas. Ins. Co. (2008) 167 Cal.App.4th 412, 424, Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1285; Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 587; Harris v. Superior Court (1986) 188 Cal.App.3d 475, 477-478.) "[T]he existence of agency is generally a question of fact...." (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1124.) As this court explained in Flores, even when there is no written agency authorization, an agency relationship may arise by oral consent or by implication from the parties' conduct. (Flores, 148 Cal.App.4th at p. 587.) Gregory does not acknowledge the evidence presented by the Hances that Gregory, who has preexisting familial and landlord/tenant relationships with Steven, began surveillance and monitoring of the Hances' home only two days after depositing the settlement monies paid by Steven, and continued Steven's activities by lodging complaints with the Neighborhood Code Compliance Department and City Council in April and June 1994. As we have stated above, we must presume the judgment to be correct absent a showing otherwise. We will not presume error.
Nor will we presume prejudice, which Gregory is obligated to demonstrate. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106 ["[O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice"]; Vaughn v. Jonas, supra, 31 Cal.2d at p. 601 ["to presume in favor of error or prejudice would be directly contrary to the policy of this state"].)
C. Existence of an Arbitrable Controversy
We likewise are compelled to reject Gregory's contention that the trial court failed to examine the MOU as it was required to do under Code of Civil Procedure section 1281.2 and determine that his controversy or disputes with the Hances were encompassed within the scope of the arbitration clause.
Code of Civil Procedure section 1281.2 provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists...." " 'In ruling on a petition to compel arbitration, the trial court may consider evidence on factual issues relating to the threshold issue of arbitrability, i.e., whether under the facts before the court, the contract excludes the dispute from its arbitration clause or includes the issue within that clause.' " (In re Tobacco Cases I (2004) 124 Cal.App.4th 1095, 1105.) When there is no conflicting extrinsic evidence, the Court of Appeal will apply a de novo, or independent, standard of review from the trial court's decision as to whether an arbitration agreement applies to a particular controversy. (Ibid. [citing cases].) This review standard applies when " 'there is no evidence extrinsic to the contract or no conflict in the extrinsic evidence or the conflicting evidence is entirely written....' " (Ibid.) On such de novo review, the appellate court is not bound by the trial court's findings. (Ibid.)
Once the existence of a valid arbitration clause is established, the party opposing arbitration has the burden to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute. (Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.) "In other words, 'an order to arbitrate a particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.' " (Ibid, quoting Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 414.)
Here, Gregory, the party opposing arbitration, did not meet this burden either below or on appeal. He does not meaningfully address the language of the arbitration provisions of the MOU and the settlement agreement, the latter of which applies to "[a]ny dispute between the parties arising out of this Agreement" including "any alleged violation of any term or condition of this Agreement...." Both the MOU and the settlement agreement state: "All parties shall comply with all state and local laws, codes and ordinances." The settlement agreement further states that "[t]he parties to this agreement... agree to refrain from harassing and/or disparaging any of the other parties...." It is for Gregory to show the arbitration clauses at issue are not susceptible to an interpretation that covers his claims against the Hances. Those include Gregory's claim that the Hances were violating the Municipal Code resulting in public nuisances, and causing private nuisances within the meaning of various provisions of the Civil Code. It includes Gregory's claim that Hance assaulted him by "violently charg[ing]" at him while running and also while operating a commercial dump truck. Gregory's failure to meaningfully address this question alone permits us to uphold the trial court's order, which we deem correct absent a showing of error.
We turn to the merits in any event. Because the parties did not present conflicting extrinsic evidence concerning the arbitration clauses (to the extent there is any extrinsic evidence in the record, it is undisputed), we may interpret the clauses independently. (In re Tobacco Cases I, supra, 124 Cal.App.4th at p. 1105.) Even in the face of extrinsic evidence in the record, "[w]hen the contractual language is clear, there is no need to consider extrinsic evidence of the parties' intentions; the clear language of the agreement governs." (EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1322.) Here, the parties' agreement to arbitrate "any dispute between the parties arising out of this agreement" is "plain, clear, and very broad." (Ibid, citing Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 684.) " 'It is clear that the parties agreed to arbitrate "any problem or dispute" that arose under or concerned the terms of the [agreement]. That contractual language is both clear and plain. It is also very broad. In interpreting an unambiguous contractual provision we are bound to give effect to the plain and ordinary meaning of the language used by the parties. [Citations.] We interpret ["any problem or dispute"] to mean just what it says.' The language '[a]ny dispute or other disagreement' extends beyond contract claims to encompass tort causes of action." (EFund, 150 Cal.App.4th at p. 1322.)
Less broad is the language in the MOU, which provides that "[a]ny alleged future violation of this MOU or the Settlement Agreement shall be resolved by a JAMS arbitrator...." However, the MOU is violated when a party fails to comply with any state and local law, code or ordinance, and thus Gregory's claims based on the Hances' alleged violation of city codes and other laws are plainly covered by that provision. Under the authorities cited above (part III(B), ante), it is not necessary that the MOU include a provision that it is binding on agents, successors, and assigns.
We have no difficulty concluding that the causes of action set forth in Gregory's April 2005 complaint are covered by the broad form arbitration provisions as a matter of law. Indeed, they are a mere continuation of the long standing conflict concerning the Hances' alleged business operations and Danny Hance's behavior. They are the very same disputes (or kinds of disputes) that gave rise to the MOU and settlement agreement in the first place.
D. Enforceability of Paragraph 4 of the MOU
Paragraph 4 of the MOU provides: "The Settlement Agreement to be executed by the parties shall contain mutual non-disparagement/harassment provisions, and shall also contain the following provisions: [¶] (a) All parties shall comply with all state and local laws, codes and ordinances; [¶] (b) The parties shall refrain from trespassing on each other's property; [¶] (c) The Hances and Mullet agree that to the extent they maintain video cameras, the camera angle or line of sight shall extend no further in the direction of the other party's property than the curb line adjoining that property."
On appeal Gregory asks us to hold this paragraph unenforceable on grounds that the provision is ambiguous and not supported by the parties' mutual consent or "meeting of the minds." He points to evidence that, following the MOU's execution, the parties continued to negotiate the terms of the settlement agreement on the terms remaining in paragraph 4. Relying on various tenets of contract formation and interpretation, he argues the outward manifestations of the parties show that "the parties agreed to continue their negotiations, after the signing of the MOU, in order to arrive at their ultimate settlement." He asserts: "The conclusion is clear, either the parties agreed to continue negotiations as indicated by the extrinsic evidence, or there was no meeting of the minds in paragraph 4. If there was no meeting of the minds, paragraph 4 was not enforceable by anyone."
These arguments are unavailing. First, Gregory never sought to invalidate paragraph 4 of the MOU in the trial court, in response to either motion to compel arbitration or confirm the arbitration award. Rather, he argued that the paragraph was performed. He has thus forfeited the arguments, which depend on consideration of extrinsic evidence. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at pp. 684-685.) Second, even assuming we may reach his arguments, we disagree that the paragraph is ambiguous or that the parties did not intend it to be a binding clause. As we pointed out above, the MOU contains an enforcement clause in which the parties expressly provided that the MOU "shall be binding, enforceable and admissible, and subject to enforcement under [Code of Civil Procedure section] 664.6." Code of Civil Procedure section 664.6 authorizes the trial court in a summary procedure to enter a judgment pursuant to a stipulated settlement if the stipulation is either made orally before the court or is a "writing signed by the parties outside the presence of the court." (In re Marriage of Assemi (1994) 7 Cal.4th 896, 905.)
We interpret the MOU, and paragraph 4, by ascertaining the mutual intentions of the parties from the writing alone, if possible, at the time of execution. (Civ. Code, §§ 1636, 1638, 1639; Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126.) Doing so, and viewing the MOU in its entirety and particularly in light of the enforcement clause, leads us to conclude that the parties intended the MOU to be a free standing agreement, separately enforceable from any settlement agreement, and not merely an agreement to agree in the future. Even considering Gregory's proffered extrinsic evidence, which is not in dispute and merely shows the parties negotiated other terms of the settlement agreement, we conclude the MOU is not reasonably susceptible to an interpretation that the parties intended paragraph 4, or any other part of the MOU, to be void or unenforceable if they did not later finalize the settlement agreement. Accordingly, we reject Gregory's arguments that the parties' lacked mutual consent on this point. His arguments do not convince us to hold unenforceable either the MOU or the settlement agreement, or their respective arbitration provisions.
IV. Motion for Attorney Fees
Hance asks for attorney fees on appeal under the MOU and Code of Civil Procedure section 1717, subdivision (a). He is entitled to such fees. (Civ. Code, § 1717; West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 706-707; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1321, 1324-1325 [successful pro per litigant can recover attorney fees under Civil Code section 1717 for legal services of assisting counsel even though counsel did not appear as attorneys of record].) We leave it to the trial court to determine the amount. (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498.)
DISPOSITION
The judgment is affirmed. The matter is remanded to the superior court for a determination of the proper amount of attorney fees in accordance with this opinion. In addition to attorney fees, Hance shall recover costs on appeal.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.