Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Helen I. Bendix, Judge. Los Angeles County Super. Ct. No. BC376106
Toheed Asghar, in propria persona, for Plaintiff and Appellant.
Silver & Freedman and Mitchell B. Stein for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, Toheed Asghar doing business as Complete Construction, in propria persona, appeals from a judgment confirming an arbitration award in favor of defendants, Joseph B. and Wendy A. Bellissimo in the amount of $417,449.75. Plaintiff claims the trial court erred in refusing to set aside the arbitration award. Plaintiff argues defendants relied on fraudulent evidence during the arbitration proceeding. We affirm the judgment.
II. BACKGROUND
Plaintiff filed a complaint on August 16, 2007. A stipulation and order for binding arbitration was filed on February 5, 2008. According to the case summary, defendants filed a petition to confirm arbitration on August 1, 2008. Defendants’ petition to confirm the award is not a part of the record on appeal. The notice of appeal expressly states plaintiff is appealing from the order granting defendants’ petition to confirm the arbitration award. On June 22, 2009, we issued preference and briefing orders in which the parties were instructed to address the issue of plaintiff’s failure to designate as part of the record on appeal “many of the relevant papers” including the petition. On July 1, 2009, we granted plaintiff’s request to augment the record on appeal. Among the documents submitted by plaintiff was his own petition to vacate the award. However, plaintiff did not request augmentation of the record to include defendants’ petition to confirm the arbitration award. And, as noted, defendants’ petition to confirm the arbitration award is the subject of the notice of appeal.
Plaintiff’s petition to vacate the arbitration award alleged the arbitration award was obtained by corruption, fraud, or other means. Additionally, plaintiff alleged the arbitrator refused a continuance and unfairly refused to hear evidence useful to settle the dispute. In rendering the award, the arbitrator concluded defendants were entitled to terminate the construction contract after plaintiff made a material misrepresentation about a change order. In addition, after the contract was terminated, defendants had to hire someone to complete the construction of their home. While the project was being completed, a number of construction defects were found and had to be corrected.
In his points and authorities, plaintiff argued: during the course of the arbitration, the key controversy was whether he had completed waterproofing prior to being locked out of the job site by defendants; during the arbitration, defendants allegedly produced “doctored” photographs; the photographs supposedly showed that plaintiff had completed the work but in a substandard way; and the arbitrator refused to allow plaintiff to present evidence to refute defendants’ evidence. Plaintiff’s petition to vacate was supported by a number of declarations including several executed by subcontractors on the project. The declarations were to the effect that the photographs did not depict the actual conditions when plaintiff was locked out of the job site. The defective workmanship issue was addressed in the arbitration award which noted that plaintiff defended against the shoddy workmanship claim on the ground that the alleged substandard work was completed after defendants terminated the contract. The arbitrator rejected plaintiff’s contention finding, “[T]he defectively performed construction, was done while [plaintiff] had control over the project.”
In their written opposition, defendants asserted that plaintiff’s petition to vacate was moot. This was because plaintiff had not responded in a timely manner to defendants’ petition to confirm the arbitration award. In the alternative, defendants argued that plaintiff had not established a statutory basis for setting aside the award. This was because the fraud in Code of Civil Procedure, section 1286.2 concerns deprivation of a fair and impartial hearing. Defendants argued plaintiff unsuccessfully litigated his fraudulent photograph theory during arbitration. But, according to defendants, the arbitrator resolved the issue against plaintiff.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On September 25, 2008, the trial court granted defendants’ petition to confirm the arbitration award. Judgment was entered in defendants’ favor on November 12, 2008. This timely appeal followed.
III. DISCUSSION
In light of the strong public policy in favor of arbitration, judicial review of an award is quite limited. (Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 275; accord Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 534; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) The parties to an arbitration agreement impliedly agree that the arbitrator’s decision will be binding and final. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 831; Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 9-10.) In general, a court cannot review the merits of the controversy, the sufficiency of the evidence or the validity of the arbitrator’s reasoning. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 11; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23, fn. 2.) Moreover, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of law or fact even if the mistake appears on the face of the award and causes substantial injustice. (Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., supra, 44 Cal.4th at p. 534; Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 6, 11, 27-28.) Thus, an arbitrator may make a binding award, which must be judicially enforced even though it conflicts with substantive law and would be reversible error if entered by a court in civil litigation. (Moore v. First Bank of San Luis Obispo (2000) 22 Cal.4th 782, 784; State Farm Mutual Auto. Ins. Co. v. Guleserian (1972) 28 Cal.App.3d 397, 402; Durand v. Wilshire Ins. Co. (1969) 270 Cal.App.2d 58, 61.) Judicial review of an arbitration award in a case which does not involve a statutory right is limited to those situations enumerated in section 1286.2 to vacate an award or section 1286.6 to correct it. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 366; Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 26-28.)
Section 1286.2 provides: “(a) Subject to Section 1286.4, 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 and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. [¶] (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefore or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title. [¶] (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives. [¶] (b) Petitions to vacate an arbitration award pursuant to Section 1285 are subject to the provisions of Section 128.7.”
Section 1286.6 provides: “Subject to Section 1286.8, the 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.”
Here, the trial court confirmed defendants’ petition to confirm the arbitration award. (§ 1285; Devonwood Condominium Owners Ass’n v. Farmers Ins. Exchange (2008) 162 Cal.App.4th 1498, 1505; Louise Gardens of Encino Homeowners’ Assn. v. Truck Ins. Exchange (2000) 82 Cal.App.4th 648, 658.) Section 1286 provides, “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” If the award is confirmed, the trial court is required to enter judgment in conformity with the award. (§ 1287.4; Rubin v. Western Mutual Ins. Co. (1999) 71 Cal.App.4th 1539, 1545; see also Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 811.)
Plaintiff has refused to designate defendant’s petition to confirm the award as part of the record on appeal. Moreover, in our June 22, 2009 order, we requested the parties to brief the issue of the failure to designate the pertinent documents. Plaintiff subsequently requested augmentation of the record to include his petition to vacate the arbitration award. Plaintiff chose, however, not to include defendants’ petition to confirm the arbitration award. Plaintiff, as the appellant, has an affirmative obligation to provide an adequate record so that we may assess whether the trial court erred. We never presume error and a presumption of correctness must be accorded to the trial court’s ruling. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88.) The Court of Appeal has held: “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....’ [Citation.]” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712, orig. italics; see Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) In the absence of a complete record, a reviewing court will not presume error. (Maria P. v. Riles (1987) 43 Cal.3d1281, 1295-1296; In re Kathy P. (1979) 25 Cal.3d 91, 102; Inter insurance Exchange v. Collins, (1994) 30 Cal.App.4th 1445, 1448; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.) Because the record is inadequate to assess error, we will not presume error.
In any event, there is no merit to plaintiff’s argument the award must be set aside. The new evidence presented to the trial court should have been presented to the arbitrator. Nothing prevented plaintiff from requesting that the arbitrator reopen proceedings. Moreover, the trial court resolved the issue of whether fraud had occurred based upon conflicting evidence. The same is true as to the other allegation of arbitrator error. We are bound by the trial court’s resolution of the conflicting factual allegations on the fraud issue. (Ruiz v. Podolsky (2009) 175 Cal.App.4th 227, 234 [order denying petition to compel arbitration]; Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1360 [order granting petition to compel arbitration]; Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1469 [waiver of right to arbitrate]; Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal.App.4th 1128, 1140 [arbitrator recusal]; Ontiveros v. DHL Exp. (USA), Inc. (2008) 164 Cal.App.4th 494, 502 [facts underlying unconscionability claim]; Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 704 [existence of valid agreement]; SWAB Financial v. E*Trade Securities (2007) 150 Cal.App.4th 1181, 1197 [denial of continuance request].) Accordingly, the judgment is affirmed.
IV. DISPOSITION
The judgment is affirmed. Defendants, Joseph B. Bellissimo and Wendy A. Bellissimo are awarded their costs on appeal from plaintiff, Toheed Asghar.
We concur: MOSK, J. KRIEGLER, J.