Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Fresno County, No. 08CECG02849, Alan M. Simpson, Judge.
Edwin Loeb, in pro. per., for Defendant and Appellant.
Baradat, Edwards & Paboojian and David G. Edwards for Plaintiff and Respondent.
OPINION
Dawson, Acting P.J.
In Loeb v. Record (2008) 162 Cal.App.4th 431, this court concluded that a law firm failed to follow the correct procedures for enforcing an arbitration award in an attorney-client fee dispute. Our decision reversed an order that directed the clerk of the superior court to deliver $35,028.82 to the law firm to satisfy the arbitration award.
After our decision, the law firm filed a petition to confirm the arbitration award. The superior court granted the petition, entered judgment in favor of the law firm, and again directed the clerk to deliver the $35,028.82 to the law firm. The client appealed, contending that the fee dispute should be resolved in a trial rather than by treating the arbitration award as binding.
We conclude the order confirming the arbitration award is supported by sufficient evidence and is consistent with applicable law. The judgment will be affirmed.
FACTS AND PROCEEDINGS
Appellant Edwin Loeb was in a motor vehicle accident in April 2003. He retained the law firm of Baradat & Edwards to represent him in a personal injury lawsuit against the driver of the other vehicle. David G. Edwards was the attorney of record who handled that lawsuit.
For convenience, further reference to Edwards includes both the law firm of Baradat & Edwards and David G. Edwards.
A dispute regarding attorney fees arose between Loeb and Edwards. The dispute was submitted to arbitration in accordance with California’s Mandatory Fee Arbitration Act (MFAA) (Bus. & Prof. Code, § 6200 et seq.). The arbitration was conducted through the fee arbitration program of the Fresno County Bar Association. Robert Koligian, Jr., served as the arbitrator. The arbitration hearing was held in July 2006. The August 2006 arbitration award stated Edwards was entitled to $32,485.59 as a fee for services rendered and $2,593.23 for out-of-pocket costs.
Our earlier decision sets forth additional factual details concerning the personal injury lawsuit, Edwards’s representation of Loeb, the subsequent attorney-client fee dispute, and the arbitration conducted under the MFAA. Consequently, those facts will not be repeated here.
Our April 2008 decision reversed the superior court’s order granting Edwards’s motion to disburse fees and costs from settlement funds on deposit with the court. (Loeb v. Record, supra, 162 Cal.App.4th at p. 453.) We noted that to enforce the award made by the arbitrator, Edwards would have to follow the procedures set forth in the California Arbitration Act (Code Civ. Proc., § 1280 et seq.) for the confirmation of an arbitration award. (Loeb v. Record, supra, at p. 452; see § 1285.)
All further statutory references are to the Code of Civil Procedure unless indicated otherwise.
Initially, Edwards filed a petition to confirm the arbitration award before the remittitur had been issued by the clerk of this court. The superior court determined that it lacked jurisdiction and dismissed the petition without prejudice. Edwards filed an amended as well as a first amended petition, which the superior court denied after hearing argument on August 19, 2008.
On August 20, 2008, Edwards filed a petition to confirm an attorney-client fee arbitration award using the three-page Judicial Council form ADR 103 (rev. Jan. 1, 2004). The petition asked for the arbitration award to be confirmed and for the funds held by the superior court to be released to Edwards. In early September 2008, Edwards filed a motion for order confirming award of arbitrator, a memorandum of points and authorities, and a supporting declaration.
About two weeks later, Loeb filed a petition to vacate the attorney-client fee arbitration award (also using Judicial Council form ADR 103) as well as an opposition to Edwards’s motion. Loeb’s opposition included as attachments 58 pages of documents labeled exhibits A through N. Exhibits A through M were part of the appellate record in the prior appeal and are attached to Loeb’s opening appellate brief in this appeal. Item 10.c. (1) of the form petition lists the grounds upon which an arbitration award may be vacated. Loeb checked the boxes in item 10.c. (1) that asserted the award was obtained by corruption, fraud, or other unfair means; the arbitrator was corrupt; arbitrator misconduct substantially prejudiced his rights; and the arbitrator exceeded his authority and the award could not be fairly corrected.
The grounds listed in Judicial Council form ADR 103 correspond to the grounds for vacation of an arbitration award set forth in paragraphs (1) through (6) of subdivision (a) of section 1286.2.
Edwards responded to Loeb’s opposition by objecting to Loeb’s exhibits on the grounds that they lacked authentication, were hearsay, and were irrelevant in light of this court’s decision in Loeb v. Record, supra, 162 Cal.App.4th 431. Edwards also filed a short reply to Loeb’s opposition, asserting that Loeb’s only possible ground for attacking the arbitration award was corruption or fraud and that Loeb had presented no supporting evidence.
A hearing on the petitions was scheduled for October 23, 2008. The superior court issued a tentative ruling and Edwards requested oral argument. The tentative ruling is not part of the appellate record, but during the October 23, 2008, hearing Edwards characterized the tentative ruling as follows: “[T]he meat of … the tentative ruling is a denial upon the grounds … that the arbitrator refused to consider evidence material to the controversy.” Edwards then argued that Loeb’s opposition did not set this forth as a ground for challenging the award and, thus, did not comply with section 1285. Edwards contended the only ground cited in the opposition was the alleged corruption of the arbitrator and noted that the tentative ruling stated that there was no evidence that the arbitrator was in any way corrupt. Alternatively, Edwards argued that the arbitrator’s evidentiary rulings could not be equated to a refusal to hear evidence material to the controversy, an act that might justify vacation of the award pursuant to section 1286.2, subdivision (a)(5), if Loeb’s rights had been substantially prejudiced.
The hearing on October 23, 2008, ran past 5:00 p.m. and Loeb was not able to complete his presentation. As a result, the hearing was continued and then rescheduled for November 13, 2008. Prior to the November 13, 2008, hearing, the superior court issued a tentative ruling. Loeb did not request oral argument because he thought the hearing was simply continued and was not expecting a new tentative ruling. Edwards did not attend the November 13, 2008, hearing. The superior court acknowledged that the matter had been continued and allowed Loeb to submit evidence and to present his arguments. At the end of the November 13, 2008, hearing, the superior court took the matter under advisement.
On November 14, 2008, the superior court filed a judgment confirming the award of the arbitrator. The judgment ordered the clerk of the court to release the sum of $35,028.82 on deposit to Edwards and awarded him costs of $352.50. An amended order confirming award of arbitrator was filed in December 2008; it included additional details about the funds previously deposited with the clerk of court that were to be released to Edwards.
Loeb filed a timely notice of appeal. As in the prior appeal, Loeb is representing himself.
DISCUSSION
I. Standard of Review
Generally, appellate courts independently review questions of law and apply the substantial evidence standard to the findings of fact made in the superior court. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461.) The substantial evidence standard for review has been described by our Supreme Court as follows:
“Where findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that … the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
These are the standards of review that this court will apply in this case. We will review the superior court’s explicit and implicit findings of fact to determine if they are supported by substantial evidence. We will conduct an independent review of questions of law.
II. Litigants Proceeding in Propria Persona
Loeb asserts that it was impossible for him to find an attorney willing to go against another attorney and, as a result, he was forced to proceed in propria persona in his attempt to challenge the arbitration award. Loeb contends that he thought he had met the 30-day filing requirement that would have stopped the arbitration award from being binding, but he failed due to his mistake, inadvertence, or excusable neglect to file the required separate action.
These and other assertions by Loeb imply that courts should be lenient with self-representing litigants in civil matters in comparison to litigants who are represented by attorneys. As a result, we will set forth the well-established rules of law regarding the standards that apply to self-representing litigants.
Self-representing litigants, as well as the pleadings and motions they file in the trial court, are subject to the standards generally applied by California courts in civil litigation. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285 [self-representing litigants are not exempt from statutes or court rules governing procedure].)
The same approach applies in the Court of Appeal. We treat self-representing litigants like any other party and, therefore, they are subject to the same rules of appellate procedure as parties represented by an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [appellant representing self on appeal must follow correct rules of procedure].) Accordingly, the general principle of appellate practice that an “‘order of the lower court is presumed correct’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) applies in this case. Under this general principle, an appellant, whether represented by an attorney or not, will not win on appeal unless he or she affirmatively shows an error occurred. (Ibid.)
III. Timeliness of Edwards’s Petition to Confirm
A question raised in the superior court was whether Edwards’s August 20, 2008, petition to confirm the arbitration award was timely.
Section 1288 provides that a petition to confirm shall be served and filed no later than four years after a signed copy of the arbitration awarded has been served on the petitioner. In this case, the arbitration award was served on the parties in August 2006 and Edwards filed his petition a little more than two years later. Therefore, Edwards’s petition is timely under section 1288. Our decision in Loeb v. Record, supra, 162 Cal.App.4th 431 did not shorten this statutory timeframe.
IV. Bias and the Disqualification of a Trial Judge
Loeb’s opening brief asserts that the trial judge was “vindictive and completely biased.” Loeb attempts to support this assertion by (1) describing instances when he had disagreed with the trial judge and pointed out mistakes he thought the trial judge made, (2) stating that his prior appellate briefs listed several improper actions and mistakes of the trial judge, “which had to increase his animosity toward me,” (3) referencing the reversal he obtained in the prior appeal, and (4) noting that the trial judge did not vacate the arbitration award despite the obvious corruption of the arbitrator.
We will treat Loeb’s assertions as an argument that the judgment should be reversed and the matter remanded for further consideration by a different trial judge.
The California Legislature has enacted a detailed set of rules that identify the circumstances that constitute grounds for disqualifying a judge and the procedures that a party must follow to obtain a disqualification. (§§ 170-170.9.)
A. Effect of Reversal in a Prior Appeal
California law provides that a party may disqualify an assigned judge without a showing of good cause on the basis of an affidavit asserting that the party believes the judge is biased. (§ 170.6.) This is sometimes referred to as a peremptory challenge. (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1251.)
In 1985, the Legislature expanded the peremptory challenge to trial judges by including situations where a reversal is obtained and “the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.” (§ 170.6, subd. (a)(2), 2d par.; see Paterno v. Superior Court (2004) 123 Cal.App.4th 548, 556.) The amendment was intended to address the concern that a judge who has been reversed might be biased against the party who successfully appealed. (Paterno, at p. 556.) To disqualify a trial judge on this ground, the party must file a motion within 60 days after learning of the assignment. (§ 170.6, subd. (a)(2).)
When a party does not assert a peremptory challenge in a timely manner, the party is deemed to have consented to the trial judge hearing the matter. (Sunkyong Trading (H.K.) Ltd. v. Superior Court (1992) 9 Cal.App.4th 282, 289, fn. 3.) As a result, parties are not allowed to wait and see what the outcome of their case is and then, on appeal, argue for the first time that the trial judge should have been disqualified. (Ibid.)
In this case, the record does not show that Loeb followed the proper procedures for making a peremptory challenge or that he requested disqualification within the 60-day time limit. Accordingly, he has failed to show he was entitled to have the trial judge disqualified based on the judge’s role in the matter previously appealed. Furthermore, because the issue of disqualification was not raised in the trial court, we are prevented by established precedent from considering the issue on appeal. In short, Loeb is deemed to have consented to the trial judge conducting the proceedings.
B. Disqualification for Cause
As an alternative to the peremptory challenge, a litigant may disqualify a judge by establishing good cause. “The grounds for disqualification of a judge for cause are set out in detail in the Code of Civil Procedure (see § 170.1), and the procedure to be followed for such a disqualification is set out in section 170.3.” (Peracchi v. Superior Court, supra, 30 Cal.4th at p. 1251.)
A party’s failure to raise the issue of disqualification for cause at the earliest opportunity will result in a court deeming the right to pursue disqualification forfeited. (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337.)
In this case, the record does not show that Loeb followed the procedures for disqualifying the trial judge based on good cause. Accordingly, Loeb’s claim of judicial bias is a ground that cannot be raised for the first time on appeal.
C. Due Process
Civil litigants have a constitutional due process right to an unbiased judge. (Tri Counties Bank v. Superior Court, supra, 167 Cal.App.4th at p. 1339.) This due process right also is deemed forfeited by a party’s failure to raise an objection in a timely manner. (Ibid.) Again, the record presented on appeal leads to the conclusion that Loeb forfeited the right to assert the trial judge was biased because he failed to object in the superior court.
V. Trial Court’s Comments from the Bench and Tentative Ruling
A. October 23, 2008, Hearing
Loeb contends that the trial court committed a serious infraction when, at the start of the hearing on October 23, 2008, the trial court stated that it thought a service or benefit had been provided by Edwards and “to reach a result that concludes that Counsel is entitled to nothing is contrary to my thoughts about what the result should be in this case.” Loeb’s opening brief asserts:
“This is astounding and has to be contrary to all proper legal procedure. How in the world can you state that you are going to give money to one of the parties in a dispute before even one shred of evidence, pro or con has been submitted? This has to be gross judicial misconduct.”
We will analyze these assertions sentence by sentence. First, when a trial court states its views of a matter at the beginning of an oral argument, it is neither astounding nor contrary to proper procedure. It is a common practice for a trial court to inform the litigants of its view on particular issues or its view of the matter in general. This allows the litigants to tailor their arguments and makes the proceeding more efficient for both the litigants and the trial court. Here, the trial court’s statement merely expanded its tentative ruling, which was in favor of Loeb. The statement did not violate the rules applicable to tentative rulings—namely, rule 3.1308 of the California Rules of Court and rule 2.2.6, Local Rules of the Superior Court of Fresno County. Instead, the statement was consistent with the purpose underlying those rules.
Second, Loeb has mischaracterized the trial court’s statement by interpreting it to mean that the court had decided to give money to Edwards. The trial court’s statement merely informed the litigants of the court’s “thoughts” about what the result “should be.” The statement did not mean the court already had made up its mind about the result, particularly when the statement is considered in light of the tentative ruling, which was in Loeb’s favor. The most likely reason that the trial court made the statement was so that Edwards would not waste time arguing that his services had achieved a benefit and he was entitled to some compensation for the benefit his services conferred.
Third, Loeb’s conclusion that the trial court’s statement has to be gross judicial misconduct is wrong. The court’s statement was appropriate under the circumstances, consistent with applicable rules, and furthered the purpose underlying the written rules concerning tentative rulings. Therefore, we conclude that Loeb’s claim of judicial misconduct at the October 23, 2008, hearing is incorrect.
B. November 13, 2008, Hearing
The arguments were not completed on October 23, 2008, so the matter was continued to another date. Later, the parties were notified that the matter was rescheduled for November 13, 2008. Another tentative ruling was issued on November 10, 2008. The trial court opened the November 13, 2008, hearing by identifying the matter and stating: “In that matter, the Court has issued a tentative ruling, and no one has requested oral argument. And it’s the Court’s intention to adopt its tentative ruling.”
The trial court and Loeb then had a discussion in which Loeb stated he had run out of time at the earlier hearing and the court acknowledged that the prior hearing had been continued and rescheduled. The court then stated that Loeb should go ahead. Loeb stated that he thought the hearing was for him to continue the same argument he had been making when they ran out of time. He then proceeded to argue that the arbitrator had been corrupt. After Loeb presented his arguments, the trial court stated: “All right. Well, Mr. Loeb, thank you very much. I’ll consider the matter some more and decide soon. Thank you, sir.”
The law and motion minute order for the November 13, 2008, hearing indicates that Loeb submitted evidence and arguments and the matter was taken under advisement.
On appeal, Loeb argues that the November 10, 2008, tentative ruling that stated Edwards should be paid his attorney fee was inappropriate because (1) his (Loeb’s) evidence and most important arguments had yet to be presented to the court and (2) he was not expecting a new tentative ruling because the hearing was a continuation of the October 23, 2008, hearing. Loeb contends that the trial court made “a Tentative Ruling that he knows I will not be expecting and will not know about and then he states that since I did not request oral argument, he adopts his ruling and it becomes law.”
Loeb’s contention mischaracterizes the basis for the trial court’s decision. The record clearly shows that the trial court allowed Loeb to present evidence and arguments on November 13, 2008. Both the minute order and the reporter’s transcript demonstrate that the trial court took the matter under advisement for the purpose of considering the matter further after the hearing. Therefore, it does not appear that the trial court adopted its tentative ruling because Loeb did not request oral argument. Rather, it appears the trial court reached the same result as set forth in its tentative ruling after hearing and considering Loeb’s arguments of November 13, 2008.
In short, the trial court gave Loeb the opportunity to present his side of the matter and did not restrict that opportunity on the ground that Loeb had not requested oral argument. Therefore, Loeb has not identified any procedural error or judicial misconduct in connection with the November 13, 2008, hearing.
VI. Corruption of the Arbitrator
Initially, we note that the statement in our earlier decision that Loeb could respond to a petition to confirm the arbitration award by asserting corruption and other grounds specified in section 1286.2, subdivision (a) was not meant to imply that the arbitrator was corrupt. (See Loeb v. Record, supra, 162 Cal.App.4th at p. 451.) That statement was included to provide, among other things, balanced treatment to the parties. On the one hand, we identified the correct procedures for Edwards to follow to enforce the arbitration award. On the other hand, we identified the ways in which Loeb could challenge the award. It was left to the superior court to decide the merits of each party’s position.
A. Arbitrators Acquainted with a Party
Loeb asserts that the arbitrator admitted that he was acquainted with Edwards. Loeb contends that because the arbitrator and Edwards knew each other and the arbitrator did not withdraw, it follows that the arbitrator was corrupt.
Loeb’s position does not correctly apply the principles of California law that identify the circumstances under which an arbitrator is considered biased or corrupt and must disqualify him or herself from acting as an arbitrator. The principles applicable to a personal acquaintance between an arbitrator and one of the parties are summarized by one secondary authority as follows:
“A personal relationship (acquaintance) between an arbitrator and a party to the arbitration does not require vacation of an award for possible bias. Because arbitrators are selected for their familiarity with the type of business dispute involved, they are not expected to be entirely without business contacts in the particular field, and the fact that an arbitrator and a party to the arbitration are members of the same professional organization is, in itself, not a credible basis for inferring even an impression of bias. However, the failure of an arbitrator to disclose the existence of an acquaintanceship involving a substantial business relationship may indicate possible bias justifying the vacation of an arbitration award.” (6 Cal.Jur.3d (2003) Arbitration and Award, § 140, pp. 257-258, fns. omitted.)
Here, the arbitrator disclosed that he was acquainted with Edwards. That disclosure was sufficient under the circumstances and, without more, cannot be the basis for invalidating the award on the ground that the arbitrator was biased in favor of Edwards.
B. Fee Arbitration Committee
Loeb argues the arbitrator was corrupt because the arbitrator appointed himself as the Fee Arbitration Committee and then selected himself to act as the arbitrator in the fee dispute. Loeb’s argument appears to be based on the “Notice of Appointment of Arbitrator” dated June 8, 2006. The one-page notice identifies the arbitrator selected and states that any claims for disqualification should be made in writing within seven days. The first line of the signature block reads “FRESNO COUNTY BAR ASSOCIATION.” The second line reads “FEE ARBITRATION COMMITTEE.” Underneath, the word “By” is typed, followed by a signature line. On the signature line, the name of the arbitrator is handwritten, followed by initials that might be “CM.”
This handwriting is notably different from the arbitrator’s handwritten signature on the arbitration award.
We conclude that Loeb has misinterpreted the notice document. The fact that the arbitrator’s name was written on the signature line does not mean that he acted as the bar association’s fee arbitration committee and decided to appoint himself as arbitrator in the dispute. Instead, the document indicates that the arbitrator provided notice to the parties of (1) his appointment and (2) his agreement to accept that appointment and act as arbitrator. The notice does not adequately support the position that the arbitrator acted as the appointment committee and appointed himself.
C. Right to Three Arbitrators
Loeb contends that “[t]he most serious of [the arbitrator’s] corrupt actions was his denying me my right to have three Arbitrators instead of just himself.” Loeb asserts that the bar association rules call for three arbitrators if the disputed fee amount is over $25,000. Loeb asserts that the information he was given before the arbitration did not mention his right to three arbitrators and that the only thing the arbitrator said about three arbitrators was that Loeb could appeal to them if he did not approve of the arbitration award, and the panel’s ruling would be binding.
Paragraph No. 11 of the arbitration award states that the arbitrator advised Loeb of his right to a three-panel binding arbitration because the amount in dispute was in excess of $10,000 and that Loeb declined to do so, stating he had been advised of this right previously. Loeb contends that these statements by the arbitrator are lies.
The superior court implicitly found that the arbitrator did not lie to Loeb about his right to a three-member panel. The credibility of the arbitrator’s statement presented a question of fact to the superior court. Generally, on matters of credibility an appellate court will not substitute its judgment for that of the trier of fact. Under the substantial evidence rule, appellate courts have the power to disregard a trier of fact’s credibility finding only if the evidence is incredible on its face or inherently improbable. (E.g., Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598, 604; People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) In this case, the implied finding that the arbitrator’s statement was accurate is not incredible on its face or inherently improbable. Indeed, one explanation for the different versions of what happened is Loeb’s difficulty hearing.
Loeb is 88 years old and a combat veteran of World War II, where he fought on the Philippine Islands. At the October 23, 2008, hearing, Loeb informed the superior court that he had “a tremendous hearing problem from firing a cannon in World War II.…”
D. Arbitrator’s Failure to Consider Evidence
Loeb contends that the arbitrator was corrupt because the arbitrator did not consider some of the pertinent evidence. Loeb further asserts that the superior court stated that not considering evidence was corrupt. This assertion appears to be based on the contents of the tentative ruling issued by the superior court before the October 23, 2008, hearing. Although the tentative ruling is not part of the appellate record, during the hearing Edwards stated: “[T]he meat of … the tentative ruling is a denial upon the grounds … that the arbitrator refused to consider evidence material to the controversy.”
Section 1286.2, subdivision (a)(5) states that a court shall vacate an arbitration award if it determines that the rights of a party were substantially prejudiced “by the refusal of the arbitrators to hear evidence material to the controversy.…”
In Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, the Court of Appeal interpreted this provision and concluded that the failure to consider evidence was not the same as refusing to hear evidence. (Id. at p. 63.)
In this case, the arbitration award itself demonstrates that the arbitrator heard the evidence relating to the insurance provider’s medical lien and even attempted to explain the law regarding medical liens to Loeb. The arbitrator’s general statements about medical liens show that he heard evidence regarding the dispute between Loeb and Edwards about those liens. Accordingly, we conclude that the superior court correctly determined that the arbitrator did not violate his responsibilities under section 1286.2, subdivision (a)(5).
VII. Relief Under Section 473
Loeb contends that denying him the opportunity to present his evidence would be improper and cites section 473, subdivision (b) as support. First, Loeb asserts that he failed through mistake, inadvertence, or excusable neglect to file the separate action within the 30 days necessary to prevent the arbitration award from becoming binding. (See Bus. & Prof. Code, § 6203, subd. (b) [arbitration award becomes binding unless party seeks a trial within 30 days].) Second, he asserts that his hearing deficiency prevented him from responding appropriately to Edwards’s oral statements and it would be a miscarriage of justice not to let him present his case in its entirety. Based on these arguments, Loeb requests the order confirming the arbitration award be set aside so that he may present his defense.
A. Loeb’s Initial Mistake of Failing to File a Separate Action
In part IV. of our earlier decision, this court addressed whether Loeb was entitled to relief under section 473, subdivision (b) from his mistake of failing to file a separate action within the 30-day time limit. (Loeb v. Record, supra, 162 Cal.App.4th at p. 447-448.) We concluded that Loeb did not request relief within the six-month time limit contained in section 473, subdivision (b) and, therefore, Loeb was not entitled to relief. (Loeb, at p. 448.)
Loeb’s contention that he should be granted relief from his mistake that led to the arbitration award becoming binding is the same contention that we considered and rejected in Loeb v. Record, supra, 162 Cal.App.4th at pages 447 through 448. Accordingly, we reject that contention again in this appeal.
B. Hearing Impairment
Loeb asserts that “due to his hearing deficiency he was unable to respond appropriately to [Edwards’s] oral statements.” Specifically, Loeb asserts that at the October 23, 2008, hearing he was unable to refute any oral testimony given by Edwards due to his poor hearing. Loeb acknowledges that the trial court repeated itself so Loeb could understand what it said, but he still was unable to understand what Edwards had said. As a result, Loeb argues that he had no way of debating any statements made by Edwards.
Our review of the October 23, 2008, reporter’s transcript demonstrates that after Edwards made his initial presentation, Loeb brought up his hearing problem and told the court: “I have not understood one word you said. You have a soft voice, and I don’t know what you said up to this point at all.” The superior court then reviewed what it had said earlier and also summarized certain aspects of the dispute and prior proceedings.
Loeb then began to present his arguments. He started with the contention that the arbitrator had appointed himself and supported this contention by referring to his exhibit A. Loeb also argued the arbitrator should have disqualified himself because he was acquainted with Edwards. Loeb also started to explain the importance of his exhibits and reached exhibit F before the superior court interrupted him to take care of another matter. A few minutes later, the superior court returned and decided to continue the matter to another day so that Loeb could finish his presentation and Edwards would have an opportunity to respond.
After reviewing Loeb’s appellate brief and the reporter’s transcripts of the hearings, we conclude that Loeb has not identified a mistake or inadvertence that resulted from his inability to hear the arguments being made by Edwards at the October 23, 2008, hearing. Specifically, Loeb has not identified an argument made by Edwards and stated how he would have responded to that argument if he had heard it. On appeal, this should not have been difficult for Loeb because he had a transcript of the October 23, 2008, hearing. As a result, Loeb has not shown that he was harmed or prejudiced by his inability to hear Edwards’s arguments. Consequently, he has not established that he was entitled to relief under section 473, subdivision (b).
DISPOSITION
The judgment confirming the award of the arbitrator is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: HILL, J., KANE, J.