Opinion
B200819
5-16-2008
BRIAN TAYLOR, Plaintiff and Respondent, v. DEAN S. LYRAS, Defendant and Appellant.
Law Offices of Wilfred J. Killian and Wilfred J. Killian, for Defendant and Appellant. Norton & Associates and Timothy L. Norton, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Dean S. Lyras challenges the trial courts confirmation of an arbitration award in favor of respondent Brian Taylor. We affirm.
RELEVANT FACTUAL AND PROCEDURAL
BACKGROUND
On September 29, 2005, Taylor filed a petition for an order compelling Lyras to submit to arbitration pursuant to Code of Civil Procedure section 1281.2. The petition asserted that in early 2003, Taylor bought a house in Hollywood from Lyras pursuant to a residential purchase agreement. Under paragraph 17A of the agreement, the parties agreed "to mediate any dispute or claim arising between them out of [the] Agreement, or any resulting transaction, before resorting to arbitration," and further provided that if any party "refuse[d] to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party. . . ."
All further statutory citations are to the Code of Civil Procedure.
With exceptions not relevant here, paragraph 17B — entitled "Arbitration Of Disputes" — obliged the parties to submit "any dispute or claim in Law or equity arising between them out of [the] Agreement or any resulting transaction, which is not settled through mediation" to "neutral, binding arbitration." Paragraph 17B further stated: "The arbitrator shall be a retired judge or justice, or an attorney with at least 5 years of residential real estate Law experience, unless the parties mutually agree to a different arbitrator, who shall render an award in accordance with substantive California Law. The parties shall have the right to discovery in accordance with [section] 1283.05. In all other respects, the arbitration shall be conducted in accordance with Title 9 of Part III of the California Code of Civil Procedure." In bold type above Lyrass initials, the agreement further provided: "Notice: By initialing in the space below you are agreeing to have any dispute arising out of the matters included in the `Arbitration of Disputes provision decided by neutral arbitration as provided by California law. . . ."
In addition to these terms, the agreement contained an attorney fee provision, which stated in pertinent part: "In any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller . . . ."
Taylors petition alleged that after buying the house, he found numerous defects that Lyras had knowingly failed to disclose, and that Lyras never responded to his requests for mediation. The trial court granted the petition, and the matter was submitted to arbitration before retired Superior Court Judge Thomas Schneider. The principal arbitration hearing occurred on January 25, 2007.
On March 15, 2007, Judge Schneider issued his final award, which contains a written decision with findings of fact, and includes a procedural order issued at the January 25, 2007 hearing. Regarding the procedural order, the final award stated that Judge Schneider barred Lyras from presenting evidence, cross-examining witnesses, and offering arguments on the merits of the case at the hearing. In support of the order, Judge Schneider found the following facts: Lyras ignored Taylors written requests to mediate the dispute, and failed to appear at the hearing on Taylors petition to compel arbitration. After the trial court granted the petition, it issued orders to show cause regarding sanctions against Lyras. Lyras ignored the orders to show cause, did not appear at any of the hearings, and failed to pay court fees. The trial court ordered Lyras to pay sanctions, but he did not do so.
Taylor contacted Alternative Dispute Resolution Services (ADR) to engage an arbitrator, which provided a list of candidates to Taylor and Lyras. When Judge Schneider was selected as arbitrator, ADR asked the parties to pay arbitration fees and costs. Taylor paid his pro-rata share of the fees, but despite numerous requests, both written and oral, Lyras made no payments to ADR. After Judge Schneider conducted a management conference with the parties counsel in August 2006, Lyras discharged his counsel. Acting in propria persona, Lyras participated in a second management conference at which Judge Schneider issued a discovery order and set the arbitration hearing for January 25, 2007.
At the January 25, 2007 hearing, Taylor objected to Lyrass participation due to his failure to pay his share of the arbitration fees. Lyras, again represented by counsel, refused to prepay the fees. According to Judge Schneider, Lyras never suggested that he was unable to pay the fees, had been gainfully employed for many years, and had engaged two attorneys during the proceedings. After hearing argument from Lyrass counsel on Lyrass refusal to pay the fees, Judge Schneider determined that Lyras had waived his right to participate in the arbitration proceeding, due to his failure to pay the court-ordered sanctions, his refusal to comply with Judge Schneiders orders and requests, and his breach of the arbitration agreement. Judge Schneider ordered that Lyras and his counsel would be permitted to observe the proceedings, but not to participate in them. After announcing his order, Judge Schneider gave Lyras and his counsel an opportunity to reconsider their position. They declined.
Regarding the underlying dispute over the house, the final award stated that Judge Schneider heard testimony from Taylor and two expert witnesses who testified on Taylors behalf. Judge Schneider found that Lyras was a sophisticated investor and builder in real estate who made improvements to the house before selling it to Taylor, but never disclosed that he and his employees had performed the work. Lyras did not obtain the requisite permits, and the improvements were "unacceptable, ill advised and below the lowest standards of construction." During the first rainy season following the close of escrow, water entered the house through the improved areas, causing extensive damage. Judge Schneider awarded Taylor $457,756 in damages.
Regarding the attorney fee award, the final award stated that Judge Schneider issued an interim award following the January 25, 2007 hearing that accorded Taylor the right to seek attorney fees and costs. After Taylor applied for fees and costs, both parties submitted briefs on the matter, and Judge Schneider conducted a telephonic hearing on March 15, 2007, at which Lyrass counsel failed to make an appearance. Judge Schneider awarded Taylor $56,763 in attorney fees and costs.
When Taylor filed a petition to confirm the final award, Lyras opposed the petition, and requested that the trial court vacate the award. Following a hearing, the trial court confirmed the award. This appeal followed.
DISCUSSION
Lyras contends that the trial court improperly confirmed the award. We disagree.
A. Governing Law
To enforce the finality of arbitration, the statutes governing nonjudicial arbitration awards minimize judicial intervention. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10 (Moncharsh).) Once a petition to confirm an award is filed, the superior court has only four courses of conduct: to confirm the award, to correct and confirm it, to vacate it, or to dismiss the petition. (United Brotherhood of Carpenters etc., Local 642 v. DeMello (1972) 22 Cal.App.3d 838, 840; 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 518, pp. 956-957.) The trial court is empowered to correct or vacate the award, or dismiss the petition, upon the grounds set out in the pertinent statutes; "[o]therwise courts may not interfere with arbitration awards." (Santa Clara-San Benito etc. Elec. Contractors Assn. v. Local Union No. 332 (1974) 40 Cal.App.3d 431, 437; see also Moncharsh, supra, 3 Cal.4th at pp. 10-13.)
Here, Lyras sought to vacate the award primarily on the ground that Judge Schneider engaged in misconduct and improperly refused to "hear evidence material to the controversy" (§ 1286.2, subds. (a)(3), (a)(5)); in addition, he contended that Judge Schneider "exceeded [his] powers" in resolving Taylors claims regarding construction defects (§ 1286.2, subd. (a)(4)), and erred in determining the amount of the attorney fee award. To the extent the trial court made findings of fact in confirming the award, we affirm the findings if they are supported by substantial evidence. (Turner v. Cox (1961) 196 Cal.App.2d 596, 603 (Turner).) To the extent the trial court resolved questions of law on undisputed facts, we review the trial courts ruling on these matters de novo. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9 (Advanced Micro Devices).)
We apply a highly deferential standard of review to the award itself, insofar as our inquiry encompasses Judge Schneiders resolution of questions of law or fact. Absent exceptional circumstances, we will not examine an award for errors of fact or law. As our Supreme Court explained in Moncharsh, supra, 3 Cal.4th at page 10, the finality of arbitration awards is rooted in the parties agreement to bypass the judicial system. Accordingly, "it is the general rule that, `The merits of the controversy between the parties are not subject to judicial review. [Citations.] More specifically, courts will not review the validity of the arbitrators reasoning. [Citations.] Further, a court may not review the sufficiency of the evidence supporting an arbitrators award. [Citations.] [¶] Thus, . . . with narrow exceptions, an arbitrators decision cannot be reviewed for errors of fact or law." (Id. at p. 11.)
These exceptions do not encompass errors that are apparent on the face of the award and cause substantial injustice. (Moncharsh, supra, 3 Cal.4th at p. 33; Moshonov v. Walsh (2000) 22 Cal.4th 771, 775.) Nonetheless, "there may be some limited and exceptional circumstances justifying judicial review of an arbitrators decision . . . . Such cases would include those in which granting finality to an arbitrators decision would be inconsistent with the protection of a partys statutory rights." (Moncharsh, supra, 3 Cal.4th at p. 32.) Furthermore, arbitrators exceed their powers by imposing a remedy not authorized by the arbitration agreement. (Advanced Micro Devices, supra, 9 Cal.4th at p. 375.)
That the arbitration agreement here required Judge Schneider to apply "substantive California Law" does not expand the scope of our review to encompass errors in the interpretation of that law. At least two courts have concluded that when arbitration agreements impose such a requirement, arbitrators do not exceed their powers merely by misinterpreting or misapplying California law.
In Pacific Gas & Electric Co. v. Superior Court (1993) 15 Cal.App.4th 576, 583, two parties entered into contracts for the purchase of natural gas. The contracts in question contained arbitration clauses, and expressly required the arbitrators to comply with provisions of the Code of Civil Procedure that mandate the issuance of a statement of decision. (15 Cal.App.4th at p. 583.) The parties subsequently fell into a dispute that was submitted to a panel of arbitrators. (Id. at pp. 584-585.) After the arbitration award was issued, the trial court vacated the award, reasoning that the arbitration agreement was "`qualified," and the award displayed legal errors on its face. (Id. at p. 586.) The court of appeal reversed, stating: "The consideration that the submission agreement is qualified affords no persuasive reason to broaden the scope of judicial review. The fact that the parties restrict the arbitrator to a decision of the issues in the manner of a court of law does not mean that they expect that the decision is reviewable. The mode of decision and its reviewability are separate questions. [Citation.]" (Id. at p. 589.)
In Marsch v. Williams (1994) 23 Cal.App.4th 238, 241-242, 244, two individuals entered into a partnership agreement containing a provision subjecting the agreement to California law, and a provision for binding arbitration of disagreements. The partners fell into a dispute that was submitted to arbitration, and the trial court subsequently confirmed the arbitration award. (Id. at pp. 242-243.) On appeal, one of the partners contended that the award should be vacated because the arbitrators had not given him the benefit of a provision of the California Corporations Code, contrary to the terms of the partnership agreement regarding the application of California law. (23 Cal.App.4th at p. 244.) The court rejected this contention, stating: "Even where application of a particular law or body of law is required by the parties arbitration agreement, an arbitrators failure to apply such a law is not in excess of an arbitrators powers . . . ." (Ibid.; see also Baize v. Eastridge Companies, LLC (2006) 142 Cal.App.4th 293, 301 [parties to an arbitration agreement do not render the arbitrators decision reviewable for errors of law merely by providing in the agreement that the arbitrator must apply California law].)
B. Procedural Order
Pointing to subdivisions (a)(3) and (a)(5) of section 1286.2, Lyras contends that the award must be vacated due to Judge Schneiders procedural order. These provisions require the vacation of an award if "[t]he rights of the party were substantially prejudiced by misconduct of a neutral arbitrator" (§ 1286.2, subd. (a)(3)), or "refusal of the arbitrators to hear evidence material to the controversy" (§ 1286.2, subd. (a)(5)). Lyras argues that Judge Schneider erred in issuing the procedural order, and thereby violated his rights under the arbitration agreement.
To secure vacation of the award, Lyras was obliged to show that the procedural order (1) was improper, and (2) substantially impaired his rights. (See Canadian Indemnity Co. v. Ohm (1969) 271 Cal.App.2d 703, 708-709 (Canadian Indemnity Co.).) In our view, Lyras has established neither element.
1. Propriety of the Procedural Order
Lyras contends that Judge Schneider lacked the authority under the arbitration agreement to issue the order. For the reasons explained below, this contention fails.
The arbitration agreement incorporated the provisions of Californias arbitration law, as found in Title 9 of part III of the Code of Civil Procedure (§ 1280 et seq.). Pertinent here is section 1284.2, which provides that "[u]nless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator. . . ." Also relevant is section 1282.2, which identifies procedures to be followed at the arbitration hearing "[u]nless the arbitration agreement otherwise provides, or unless the parties to the arbitration otherwise provide by an agreement which is not contrary to the arbitration agreement as made or as modified by all parties thereto." Subdivision (c) of section 1282.2 states: "The neutral arbitrator shall preside at the hearing, shall rule on the admission and exclusion of evidence and on questions of hearing procedure and shall exercise all powers relating to the conduct of the hearing." Subdivision (d) of section 1282.2 states: "The parties to the arbitration are entitled to be heard, to present evidence and to cross-examine witnesses appearing at the hearing, but rules of evidence and rules of judicial procedure need not be observed."
Sections 1284.2 and 1282.2, by their plain language, permit the parties to adopt alternative fee arrangements and hearing procedures. (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066 [§ 1284.2]; Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1106-1107 [§ 1282.2].) Lyras acknowledges that the parties, in engaging Judge Schneider, became subject to the ADR guidelines governing arbitration hearings. (See Schlessinger v. Rosenfeld, Meyer & Susman, supra, 40 Cal.App.4th at pp. 1106-1107 [by agreement of the parties, the arbitration rules of the American Arbitration Association displaced section 1282.2, subdivision (d)].) Lyras also acknowledges that at the time of the January 25, 2007 hearing, ADR Guideline 34 provided in pertinent part: "ADR Services requires the parties deposit the fees and expenses for the arbitration at least thirty (30) days in advance of the first hearing and may preclude a party that has failed to deposit its pro-rata share or agreed upon share of the fees and expenses from offering evidence of any affirmative claim at the hearing."
In issuing the procedural order, Judge Schneider reasoned that permitting Lyras to participate in the hearing despite his repeated failure to pay his share of the arbitration fees would vitiate Taylors right to obtain the relief he had "bargained for and voluntarily agreed upon in a commercial setting." He stated: "A party who voluntarily consents to arbitration, participates therein, but fails to meet the conditions imposed by the court, the applicable law, and the procedural orders of the chosen arbitrator, relinquishes and waives his rights to participate thereafter."
Lyras contends that neither section 1284.2 nor Guideline 34 authorized the procedural order. In so arguing, he misapprehends the limited scope of our review. The apparent basis for the procedural order is Guideline 34, which describes remedial actions an ADR arbitrator may take when confronted with a partys failure to prepay its pro-rata share of the arbitration fees. The crux of Lyrass argument is that Judge Schneider erred in construing Guideline 34 to authorize the procedural order.
We conclude that any such error is beyond our review. Generally, we defer to Judge Schneiders determination that the resolution of an issue fell within the scope of his authority. (Advanced Micro Devices, supra, 9 Cal.4th at pp. 372, 375.) Under the arbitration agreement, Judge Schneider was accorded broad powers to resolve "any dispute" arising out of the agreement "or any resulting transaction," in accordance with substantive California law. (Italics added.) Because Guideline 34 is an element of the arbitration procedure the parties adopted when they engaged Judge Schneider through ADR, we see no error in his conclusion that he was authorized to interpret and enforce Guideline 34, as well as the contract involving him and ADR.
The key question, therefore, is whether the remedy Judge Schneider adopted for Lyrass refusal to prepay his share of the arbitrators fees — that is, the procedural order — exceeded his contractual authority. As our Supreme Court held in Advanced Micro Devices, supra, 9 Cal.4th at page 383, an arbitrator does not exceed his or her powers in imposing a remedy that is "rationally derived from the contract and the breach," absent a prohibition on the remedy set out "explicitly and unambiguously in the arbitration clause."
Here, the arbitration agreement required the application of California law, but consigned specific determinations regarding this law to Judge Schneiders judgment. As noted above, the statutes incorporated in the arbitration agreement permitted the parties to adopt alternative fee requirements and hearing rules (see §§ 1282.2, 1284.2). Moreover, under California law, a partys failure to perform under a contract may operate to forfeit the partys contractual rights. As Witkin explains: "In bilateral contracts for an agreed exchange, where one party has materially failed to perform his or her promise, or there has been a material delay in the performance, the other partys duty to perform is discharged . . . . [¶] Failure of consideration thus operates as a sort of implied (constructive) condition, and the doctrine rests upon the theory that it is unjust to compel one party to perform when, for any reason, that party does not receive the other partys performance." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 813, p. 906, italics omitted.)
In issuing the procedural order, Judge Schneider apparently concluded (1) that the parties agreed to abide by the ADR guidelines (as permitted by §§ 1282.2 and 1284.2), and (2) that Lyrass repeated failure to prepay his share of the arbitration fees pursuant to ADR guidelines worked a forfeiture of his contractual right to participate in an ADR arbitration. The merits of these specific applications of California law are beyond our review. What is crucial here is that Judge Schneiders procedural order, construed as a remedial ruling, is reasonably regarded as a determination of California law. Although Guideline 34 specified one measure an ADR arbitrator might adopt in the face of a refusal to prepay fees, it did not "explicitly and unambiguously" bar the remedy Judge Schneider adopted. (Advanced Micro Devices, supra, 9 Cal.4th at p. 383.) Because the procedural order bore "some rational relationship to the contract and the breach," it did not exceed Judge Schneiders powers. (Advanced Micro Devices, supra, 9 Cal.4th at p. 381.)
Lyras suggests that Guideline 34 did not oblige him to pay his pro rata share of "projected" arbitration fees and costs before the arbitration hearing. As we have explained, we will not examine Judge Schneiders interpretation of Guideline 34, which by its plain language required the parties to deposit their pro rata share of the fees and costs in advance of the arbitration hearing. Moreover, nothing before us suggests that Judge Schneider or ADR asked Lyras to prepay sums that were merely "projected" or speculative; on the contrary, the record establishes that the parties engaged Judge Schneider to conduct an arbitration on a settled schedule.
Lyras also contends that the procedural order was improper because he was unable to pay his full pro-rata share of the arbitration fees. The trial court rejected this contention as meritless. We agree with this determination. Judge Schneider found that Lyras was capable of paying the fees, and before the trial court, Lyras presented no support for his claim of inability to pay, other than the unsworn representations of his counsel, which are not evidence. (Van De Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 843.)
2. Substantial Prejudice
Even were we to conclude that Judge Schneider erred in issuing the procedural order, Lyrass request to vacate the award would still fail for want of an adequate showing of prejudice. Because the record discloses that Judge Schneider enforced the procedural order only at the January 25, 2007 hearing, we limit our inquiry to the existence of prejudice at that hearing.
Following the January 25, 2007 hearing, the parties submitted briefs on Taylors application for attorney fees and costs, and Judge Schneider conducted a hearing on the application, at which Lyrass counsel failed to appear.
Generally, a party seeking to vacate an arbitration award "must show substantial prejudice [citation], and this is so even though the protested irregularity involves some violation of an applicable statute. [Citation.]" (United Brotherhood of Carpenters etc. Local 642 v. DeMello, supra, 22 Cal.App.3d at p. 840.) Prejudice is not established solely by "the mere irregularity." (Ibid.)
To establish substantial prejudice from misconduct or refusal to hear evidence, the party seeking to vacate the award must make a showing that the arbitrator prevented the party from presenting a potentially meritorious claim, defense, or argument. (See Pacific Vegetable Oil Corp. v. C.S.T., Ltd. (1946) 29 Cal.2d 228, 240-241 [denial of opportunity to challenge adversarys evidence, absent a showing regarding the nature of the challenge, does not constitute substantial prejudice]; Canadian Indemnity Co., supra, 271 Cal.App.2d at pp. 708-709 [arbitrators improper independent collection of evidence (see § 1282.2, subd. (g)) does not constitute substantial prejudice, absent showing arbitrator relied on erroneous information or evidence subject to specific challenge]; Turner, supra, 196 Cal.App.2d at pp. 603-604 [issuance of award by multi-member panel in absence of partys selected arbitrator is not substantially prejudicial, in view of partys failure to show he or his selected arbitrator possessed "anything in refutation, explanation or defense" of the claims at issue].) Moreover, the refusal to hear evidence is substantially prejudicial only if "the arbitrator might well have made a different award had the evidence been allowed." (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439.) The requisite showing may be based on the record of the arbitration or on additional evidence presented to the superior court. (Canadian Indemnity Co., supra, 271 Cal.App.2d at pp. 708-709; Turner, supra, 196 Cal.App.2d at p. 604.)
We conclude that Lyras has failed to show he suffered substantial prejudice from Judge Schneiders order. As appellant, Lyras is obliged to provide a record that demonstrates reversible error. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Here, the scanty record before us includes neither Lyrass arbitration briefs (if any were filed) nor a transcript of the January 25, 2007 hearing, and contains little more than the pleadings submitted to the trial court in connection with the petition to confirm the arbitration award. Nowhere does Lyras suggest what evidence, if any, he had to dispute Taylors claims. Lyrass sole assertion before the trial court at the hearing on his request to vacate the award was that the procedural order prevented him from asserting that section 1298.7 barred the arbitration of Taylors construction defect claims.
In our view, Lyrass remarks before the trial court regarding his section 1298.7 objection do not establish substantial prejudice. The remarks conflict with Lyrass opposition to the petition to confirm and his briefs on appeal, which state that Lyras asserted the section 1298.7 objection at the January 25, 2007 hearing before Judge Schneider, who denied Lyrass request for a continuance and remand of the proceedings to superior court. More importantly, as we explain below (see pt. B, post), Lyrass contention regarding section 1298.7 is clearly erroneous, and thus incapable of affecting the outcome of the arbitration hearing. Because Lyras has made no attempt to demonstrate what he would have shown in the absence of Judge Schneiders procedural order, his assertion of substantial prejudice fails.
Pointing to section 1298.7, Lyras contends that the award must be vacated because Judge Schneider "exceeded [his] powers" in resolving Taylors construction defects claims (§ 1286.2, subd. (a)(4)). Section 1298.7 provides: "In the event an arbitration provision is included in a contract or agreement covered by this title, it shall not preclude or limit any right of action for bodily injury or wrongful death, or any right of action to which Section 337.1 or 337.15 is applicable." Because sections 337.1 and 337.15 establish the limitation periods for asserting claims for construction defects, Lyras argues that section 1298.7 barred the arbitration of Taylors claims for construction defects.
This contention is meritless. Section 1298.7 falls within a set of statutes that regulate the form and operation of arbitration agreements regarding the sale of real property (§§ 1298-1298.8). (Villa Milano Homeowners Assn. v. Il Da Vorge (2000) 84 Cal.App.4th 819, 829-830 (Villa Milano).) In Villa Milano, the court concluded that "[t]he obvious intent of these requirements is to call to the buyers attention the fact that he or she is being requested to agree to binding arbitration and to make certain that he or she does so voluntarily, if at all." (Id. at p. 830.) Section 1298.7 confers an additional benefit on buyers: it allows a buyer to bring a court action for construction defects, despite the presence of an arbitration agreement. As the court in Villa Milano remarked, "the net effect of section 1298.7 is to permit a purchaser to pursue a construction and design defect action against the developer in court, even if the purchaser signed an agreement to convey real property containing an arbitration clause." (Villa Milano, supra, 84 Cal.App.4th at p. 830.)
Lyrass contention fails in light of the plain language of section 1298.7. The provision states that an arbitration clause "shall not preclude or limit any right of action" regarding construction defects, but does not suggest that the buyer is obliged to pursue the right of action in court. (Italics added.) As one court has remarked in discussing section 1298.7, "nothing prevents the home buyer from proceeding with arbitration if he so chooses . . . ." (Woodside Homes of Cal., Inc. v. Superior Court (2003) 107 Cal.App.4th 723, 736, fn. 19.) Accordingly, Judge Schneider did not exceed his powers in resolving Taylors claims.
C. Attorney Fees and Costs
Lyras contends there is insufficient evidence to support a portion of Judge Schneiders award for attorney fees and costs, and that Judge Schneider erred in including other items in this award. Because we do not review the award for errors of fact or law, Lyrass contentions on these matters fail. (Moncharsh, supra, 3 Cal.4th at p. 11.)
In his brief on appeal, Taylor has requested sanctions. However, rule 8.276 of the California Rules of Court provides that a partys motion seeking sanctions on appeal "must include a declaration supporting the amount of any monetary sanction sought and must be served and filed . . . no later than 10 days after the time when the appellants reply brief is due" This procedure is mandatory; consequently, the "[p]ast practice under which appellate sanctions were commonly sought in [the] respondents brief is no longer permissible." (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 11:126, pp. 11-51-11-52.) Because Taylor has not sought sanctions in accordance with this procedure, we deny his request.
DISPOSITION
The judgment is affirmed.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.