Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV121313.
BAMATTRE-MANOUKIAN, ACTING P. J.
I. INTRODUCTION
Plaintiff Pamela G. Hahn operated a business on property that she leased from defendant Mike Atkar. At some point, Mike Atkar authorized defendant Robert Paul Medina to manage the property for him. Hahn alleged in a civil complaint against Mike Atkar, Kulwinder Atkar, and Medina that they failed to conduct repairs on the property, failed to make tenant improvements, and made false representations to induce Hahn to sign a new lease that included an increase in rent.
Hahn’s notice of appeal and opening brief indicate that she is appealing the judgment only with respect to Mike Atkar, and not Kulwinder Atkar. Medina is not a party to this appeal.
Upon petition by the Atkars, the trial court ordered Hahn to arbitrate certain claims against the Atkars. The Atkars ultimately prevailed in the arbitration. Meanwhile, Hahn was allowed to continue litigating her claims against Medina in the judicial forum, and she eventually obtained a default judgment against him after he failed to comply with discovery obligations. The Atkars petitioned the trial court to confirm the arbitration award and Hahn sought to have the award vacated. The trial court confirmed the arbitration award and entered judgment against Hahn.
On appeal, we understand Hahn to be challenging the trial court’s order compelling arbitration and the court’s order confirming the arbitration award. Regarding the latter order, we understand Hahn to be contending that the arbitration award should have been vacated pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(5) because (1) the arbitrator refused to grant a continuance to allow her to complete discovery, (2) the arbitrator refused to “allow” in the arbitration hearing the admissions of Medina “that had been deemed admitted” in her court action against Medina, and (3) the arbitrator refused to allow her to amend her complaint.
Further unspecified statutory references are to the Code of Civil Procedure.
For reasons that we will explain, we affirm the judgment confirming the arbitration award.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Complaint and the Cross-Complaint Filed in the Trial Court
On August 27, 2008, Hahn (individually and doing business as Pamela’s East Side Cafe) filed a civil complaint against Mike Atkar, Kulwinder Atkar, and Medina (individually and doing business as T & M Consulting Services). Hahn alleged eight causes of action, including contract and fraud-related claims, as well as a claim for declaratory relief. According to the complaint, in 2002, the Atkars “purchased 2122 McKee Road, San Jose, ” which was subject to a December 1976 lease. Hahn agreed to be bound by the lease in 1996, and she operated her business, Pamela’s East Side Cafe, on the McKee Road property under that lease. After the Atkars purchased the McKee Road property, they allegedly retained Medina to manage the lease. Among other things, Medina purportedly “induced” Hahn to “cancel” the 1976 lease and enter into a new lease dated May 2008, with Mike. According to Hahn, she agreed to an increase in rent under the new, May 2008 lease in exchange for $50,000 in tenant improvements and a waiver of current rent. Mike was also to make repairs to the property at his expense. A dispute apparently arose as to whether Medina promised to waive some of Hahn’s rent. An unlawful detainer action was eventually initiated against Hahn. In her civil complaint against the Atkars and Medina, Hahn alleged, among other things, that the defendants failed to conduct repairs and make tenant improvements and that they made false representations to induce her to sign the new lease.
Since Mike Atkar and Kulwinder Atkar have the same surname, we will refer to Mike by his first name for purposes of clarity.
In October 2008, Mike Atkar filed a cross-complaint against Hahn, Medina, Robert E. Schieberl (also known as Ted Schieberl, individually and doing business as T&M Consulting Services), and others. Mike alleged that Hahn had breached the December 1976 lease, and he sought unpaid rent among other amounts. With respect to Medina and Schieberl, Mike’s causes of action included tort and contract claims. Mike alleged that he had authorized Medina and Schieberl to “represent him in management” of the McKee Road property and other premises, but they had “failed to conform to the standard of care of property managers.” Further, he allegedly “authorized” Medina and Schieberl “to represent him as agents to his tenants” at the McKee Road property and other premises, but they “failed to perform their services as agent with reasonable care and skill, failed to account to [him], collected money which belongs to [him], and failed to collect rent from tenants.”
Schieberl is not a party to this appeal.
The Atkar’s Petition to Compel Arbitration
In response to Hahn’s complaint, in October 2008, the Atkars filed a petition to compel arbitration. The Atkars sought (1) to compel arbitration of Hahn’s claims arising out of the May 2008 lease pursuant to an arbitration clause contained in that lease, (2) to stay the trial of Hahn’s complaint against them pending completion of arbitration, and (3) to recover attorney fees and costs incurred in connection with the petition pursuant to the 2008 lease. The Atkars recognized that there was a possibility of conflicting rulings if Hahn’s claims against them were resolved in arbitration while Hahn’s claims against Medina, allegedly the agent of Mike Atkar, were resolved in the judicial forum. To avoid this risk, the Atkars suggested that the trial court stay Hahn’s action against Medina pending completion of the arbitration between Hahn and the Atkars.
Hahn filed written opposition to the petition to compel arbitration contending, among other things, that Mike Atkar “waived the right to compel arbitration” by “suing several third parties unrelated to the arbitration clause, ” and that pursuant to section 1281.2, subdivision (c), the trial court had the authority to “refuse arbitration.” The Atkars filed a reply brief in support of their petition to compel arbitration.
The Trial Court’s November 4, 2008 Order Requiring Arbitration
On November 4, 2008, the trial court granted the petition to compel arbitration. The court ordered Hahn and the Atkars to “submit to binding arbitration any dispute (except for the issue of unlawful detainer) in law or equity arising between them” out of the May 2008 lease, and it ordered the trial of Hahn’s allegations in her complaint against the Atkars stayed pending completion of arbitration. The court also severed that trial from the trial of Mike Atkar’s cross-complaint and the trial of Hahn’s complaint with respect to her allegations against Medina, which allowed Hahn to continue litigating her claims against Medina in the judicial forum. Hahn was ordered to pay $3,320 to the Atkars for attorney fees and costs incurred in connection with the petition to compel arbitration. The court denied without prejudice the Atkar’s request that the court appoint an arbitrator.
Thereafter, Medina filed an answer to Hahn’s complaint, and Medina, Schieberl, and Hahn filed answers to Mike Atkar’s cross-complaint.
The June 19, 2009 Stipulation and Trial Court Order Regarding Arbitration
After Hahn and the Atkars had begun proceedings in the arbitral forum concerning the May 2008 lease, Mike Atkar filed a motion in the trial court seeking to compel arbitration and/or amend the court’s earlier November 4, 2008 order regarding arbitration. On June 19, 2009, after the motion was heard but before the trial court made a ruling on the motion, a stipulation by the parties and order by the court was filed, expanding the scope of the arbitration between the Atkars and Hahn to include not only issues arising out of the May 2008 lease, but also issues arising out of the December 1976 lease. Further, unlike the trial court’s earlier November 4, 2008 order, the June 19, 2009 stipulation and order did not exclude the issue of the unlawful detainer action against Hahn. Specifically, the parties stipulated in the June 19, 2009 stipulation and order: “All issues pertaining to or arising out of the parties’ leases of December, 1976, and May, 2008, shall be heard and decided by binding arbitration, with the honorable Michael E. B[a]llachey, Judge of the Superior Court, ret., serving as arbitrator, according to the court’s Order Compelling Arbitration Etc, filed November 4, 2008....” The June 19, 2009 stipulation and order also provided that the trial of the allegations between Hahn and the Atkars was stayed pending completion of the arbitration, and that the trial of Hahn’s allegations against Medina was severed. Thus, the June 19, 2009 stipulation and order allowed Hahn, similar to the court’s earlier November 4, 2008 order, to continue litigating her claims against Medina in the judicial forum, while her claims against the Atkars arising out of the leases were to be resolved in the arbitral forum.
The record on appeal does not contain a copy of Mike Atkar’s motion.
The Trial Court Proceedings Involving Hahn, Medina, and Schieberl
While Hahn pursued her claims against the Atkars in arbitration, she continued to pursue her claims against Medina and apparently claims against Schieberl in the court action. In July and August 2009, she propounded written discovery, including requests for admission, upon Medina, and she served deposition notices for both Medina and Schieberl. In October 2009, upon motion by Hahn, the trial court deemed Medina to have admitted the truth of the matters specified in Hahn’s requests for admission, because he had served only unverified responses to the requests. The court also granted Hahn’s motion to compel responses by Medina to other written discovery, to compel the depositions of Medina and Schieberl, and for an award of monetary sanctions against Medina and Schieberl.
Schieberl is not named as a defendant in the copy of Hahn’s complaint that is contained in the record on appeal. The record on appeal also does not contain an answer by Schieberl to Hahn’s complaint. Based on the register of actions contained in the record on appeal, it appears that in late 2009, Hahn made an amendment to her complaint regarding Schieberl and Schieberl filed an answer.
In November 2009, counsel for Medina and Schieberl filed motions in the trial court seeking to be relieved as counsel due to the failure of Medina and Schieberl to communicate with counsel and/or cooperate with counsel to prepare discovery responses or appear at a deposition. The motions were granted by the court on January 5, 2010.
Meanwhile, on January 4, 2010, Hahn filed a motion seeking terminating sanctions against Medina and Schieberl due to their failure to provide the requested discovery. On March 4, 2010, the trial court granted the motion, struck “defendant Robert Medina and Robert Schieberl’s answer, ” and “enter[ed] default.”
The Arbitration Between Hahn and the Atkars
In the meantime, in the arbitration proceedings between Hahn and the Atkars, the arbitrator in July 2009, scheduled the arbitration hearing for late October 2009.
In September 2009, the arbitration hearing date was vacated after Hahn raised “discovery issues” pertaining to Medina and/or Schieberl with the arbitrator. The arbitration hearing was rescheduled for early December 2009.
In October 2009, the arbitration hearing date was again vacated, this time to accommodate the Atkars. The arbitration hearing was rescheduled to begin on January 20, 2010.
On January 7, 2010, Hahn sought from the arbitrator a second continuance of the arbitration hearing date. Hahn “requested a continuance based on the inability to complete the discovery process with respect to... Medina and Schieberl.” The arbitrator denied the request for a continuance. The arbitrator also indicated that Hahn could subpoena Medina and Schieberl to testify at the arbitration hearing.
That same day, the arbitrator signed subpoenas for Medina and Schieberl to appear at the January 20, 2010 arbitration hearing. Hahn, however, was unable to effect service on them.
On or about January 12, 2010, Hahn made a motion in the arbitration proceedings “for an order permitting the admission of [Medina’s] Deemed Admissions....” Hahn also moved “for an order permitting the filing of an amended complaint, ” and attached a copy of the proposed pleading. Hahn indicated that the proposed pleading added “more factual detail to the complaint mostly arising from the deposition of ATKAR which was only recently completed.” The proposed pleading also included additional causes of action for (1) retaliatory eviction; (2) wrongful eviction; (3) intentional infliction of emotional distress; (4) conversion; (5) unjust enrichment; (6) negligent hire, supervision; and “retainment”; and (7) interference with prospective economic advantage.
The Atkars apparently opposed both of Hahn’s motions.
On January 14, 2010, the arbitrator held a hearing regarding Hahn’s motions and, in a written order the following day, denied both motions. Regarding the denial of Hahn’s motion for “admission” of Medina’s “Deemed Admissions, ” the arbitrator explained: “There is no showing that Medina’s admissions, which appear to be by default, were adopted, approved, or acknowledged by Respondent Atkar. [¶]... Medina is not a party to this Arbitration and apparently will not be appearing as a witness at the hearing raising serious questions regarding Respondent’s right to confront the witnesses who give evidence against him.” Regarding the denial of Hahn’s motion to amend the complaint, the arbitrator explained: “a. The motion is untimely with no justification or explanation for the delay. [¶] b. The proposed amended complaint contains several new theories of recovery first stated less than a week before the commencement of the hearing. c. The scope of the hearing in this case will be defined by the pleadings filed in [the trial court] on August 27, 2008 and the [November 4, 2008 and June 19, 2009] Orders” of the trial court pertaining to the scope of the arbitration.
The Arbitrator’s Award
The arbitration hearing took place between January 20 and 22, 2010. In a subsequent written award, the arbitrator concluded that Hahn “failed to prove any of the claims made by her in this Arbitration.” The arbitrator also determined that the Atkars proved on “their cross claim” that they were entitled to $24,897.32 in damages from Hahn for unpaid taxes and a mechanic’s lien. The arbitrator also awarded the Atkars $57,102.50 for attorney fees and $23,730.11 for other fees and costs.
The Atkar’s Petition for the Trial Court to Confirm the Arbitration Award and Hahn’s Request to Vacate the Award
The Atkars filed a petition in the trial court to confirm the arbitration award. They also sought attorney fees and costs incurred in connection with the petition and the arbitration.
Hahn filed opposition to the petition and sought to vacate the arbitration award. Hahn contended that pursuant to section 1286.2, subdivision (a)(5), the award should be vacated based on (1) the arbitrator’s refusal to grant a continuance so that she could complete discovery with respect to Medina and/or Schieberl, including taking Medina’s deposition, (2) the arbitrator’s refusal to admit into evidence the admissions of Medina that had been deemed admitted by the trial court following Medina’s failure to provide verified responses to Hahn’s requests for admissions, and (3) the arbitrator’s refusal to allow her to amend her complaint.
The Atkars filed a reply brief in support of their petition, and Hahn filed evidentiary objections and a request to strike the Atkar’s reply brief.
After a hearing on the Atkar’s petition to confirm the arbitration award, and by order filed on September 28, 2010, the trial court granted the petition and denied Hahn’s request to vacate the arbitration award. The court also ordered Hahn to pay the Atkars $3,833.75 for attorney fees and costs incurred in connection with the petition.
On October 1, 2010, a judgment was filed in favor of the Atkars and against Hahn in the amount of $109,563.68.
III. DISCUSSION
On appeal, we understand Hahn to be challenging the trial court’s November 4, 2008 order compelling arbitration of certain issues with the Atkars and the court’s September 28, 2010 order confirming the arbitration award. Regarding the latter order, we understand Hahn to be contending that the arbitration award should have been vacated pursuant to section 1286.2, subdivision (a)(5), because (1) the arbitrator refused to grant a continuance to allow her to “complete her discovery of vital witnesses, ” Medina and Schieberl; (2) the arbitrator refused to “allow” in the arbitration hearing “the ‘Admissions of Medina’ that had been deemed admitted” in her court action against him; and (3) the arbitrator refused to allow her to amend her complaint. We will address each contention in turn.
The Trial Court’s November 4, 2008 Order Compelling Arbitration
Hahn contends that the trial court’s November 4, 2008 order, which required her to arbitrate with the Atkars issues arising out of the 2008 lease, and which allowed her to continue litigating her claims against Medina in the judicial forum, was “erroneously entered” and she seeks to have “this appellate panel... overrule” the order. She argues that “Atkar and Medina should have been jointly and severally liable under the doctrine of Respondent Superior [sic]” and that “[i]n addition to the fact that fraud permeated the inducement of the signing of the new lease, the arbitration and separate trials should not have been bi-furcated.”
Mike Atkar responds that Hahn’s contentions are “waived” in view of the parties’ June 19, 2009 stipulation to arbitrate issues arising out of the parties’ leases.
In her reply brief on appeal, Hahn cites section 1281.2, subdivision (c), among other authorities. We understand her to argue in her reply brief that the trial court should not have ordered some of her claims against the Atkars into arbitration while she was litigating claims in the judicial forum against Medina, because Medina was acting as an agent of Atkar while engaging in wrongful acts against Hahn, and there was a risk of conflicting rulings in the arbitral and judicial forums on a common issue of law or fact.
We determine that reversal of the judgment is not warranted.
As Mike Atkar points out in his responding brief on appeal, subsequent to the trial court’s November 4, 2008 order requiring Hahn to arbitrate certain issues with the Atkars, the parties stipulated in June 2009, to expanding the scope of the arbitration between them, and to severing Hahn’s claims against Medina so that Hahn was allowed to continue litigating against him in the judicial forum. In a footnote in her opening brief on appeal, Hahn asserts that she entered the stipulation “rather than risking another order imposing” attorney fees and costs against her. Hahn fails to cite anything in the record on appeal that would support her assertion that this was the reason she entered into the stipulation. We will assume, however, that the June 2009 stipulation to arbitrate by Hahn and the Atkars does not preclude Hahn from challenging the trial court’s earlier November 4, 2008 order requiring arbitration. Hahn nonetheless fails to demonstrate that the judgment should be reversed.
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, unless it determines that:... (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (Italics added.)
We understand Hahn to be arguing in her reply brief that the trial court should have denied the Atkar’s October 2008 petition to compel arbitration because there was a possibility of conflicting rulings between the arbitral forum and the judicial forum if she simultaneously pursued her claims against the Atkars in the arbitral forum and her claims against Medina in the judicial forum.
A trial court’s ruling under section 1281.2, subdivision (c) is reviewed for abuse of discretion, and we will reverse such a ruling only if the ruling “exceeded the bounds of reason.” (Fitzhugh v. Granada Healthcare & Rehabilitation Center, LLC (2007) 150 Cal.App.4th 469, 475.)
Here, we will assume that there was a “possibility of conflicting rulings on a common issue of law or fact” (§ 1281.2, subd. (c)) at the time the trial court ruled on the Atkar’s petition to compel arbitration in November 2008. Conflicting rulings were possible at that time because an arbitrator in the Hahn/Atkar arbitration might conclude that Mike Atkar was not liable because his agent, Medina, had not engaged in wrongdoing with respect to Hahn, while in the Hahn/Medina court action, a finding might be made that Medina was liable because he had engaged in wrongdoing with respect to Hahn.
Where section 1281.2, subdivision (c) applies, the trial court has discretion to choose among four options. “If the court determines that a party to the arbitration is also a party to litigation in a pending court action... with a third party as set forth under subdivision (c) herein, the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding.” (§ 1281.2, subd. (c).)
We understand Hahn to be asserting that the trial court should have selected the first option and refused to enforce the arbitration agreement between the Atkars and her. Hahn, however, fails to articulate why the court’s decision to order arbitration among the parties who had agreed to arbitration (that is, the Atkars and her) was an abuse of discretion. The third option under section 1281.2, subdivision (c) allows a trial court to “order arbitration among the parties who have agreed to arbitration and stay the pending court action... pending the outcome of the arbitration proceeding.” Although in this case, the trial court did not stay the litigation between Hahn and Medina pending the outcome of the arbitration between Hahn and the Atkars, and instead allowed Hahn to pursue her claims against Medina while the arbitration between Hahn and the Atkars also proceeded forward, Hahn does not challenge the absence of a stay concerning her claims against Medina. In fact, she states that it “was a correct decision taken by the trial court to not have stayed the discovery of the underlying litigation” between her and Medina.
Even assuming it was error for the trial court to not have stayed Hahn’s claims against Medina in the judicial forum pending completion of the arbitration between Hahn and the Atkars, Hahn fails to demonstrate that the judgment should be reversed. “Pursuant to article VI, section 13, of the California Constitution, ‘[n]o judgment shall be set aside, or new trial granted, in any cause, ... or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ ‘A miscarriage of justice... occurs... when it appears reasonably probable that were it not for the error a result more favorable to the appellant could have been obtained.’ [Citation.] ‘Prejudice is not presumed and the burden is on the appellant to show its existence.’ [Citation.]” (Candelaria v. Avitia (1990) 219 Cal.App.3d 1436, 1444 (Candelaria); accord, Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9, quoting Candelaria.) In this case, Hahn failed to prevail in the arbitration against the Atkars, but she succeeded in obtaining a default and default judgment against Medina. Hahn fails to articulate why it was reasonably probable that she would have obtained a more favorable outcome in the arbitration or the court action had her claims against Medina in the court action been stayed pending the outcome of the arbitration with the Atkars. As Hahn ultimately obtained a default judgment against Medina due to his failure to comply with discovery obligations, it is not apparent how or why a stay of either the arbitration proceedings against the Atkars or the judicial proceedings against Medina would have affected Hahn’s recovery in either proceeding if one proceeding was stayed pending the outcome of the other.
We also observe that Hahn in her appellate briefing refers to a default judgment that she obtained against Medina and the record on appeal refers to Hahn’s default judgment against Medina and Schieberl. On our own motion, we take judicial notice of the default judgment filed in the trial court on July 15, 2010. (Evid. Code, § 452, subd. (d).) In the default judgment, Hahn was awarded a total of $57,544.56 in damages, of which $50,000 were for “monies promised for tenant improvements.”
Accordingly, because Hahn failed to meet her burden of showing that she was prejudiced by the court’s November 4, 2008 order compelling arbitration of certain issues with the Atkars and allowing her to simultaneously litigate against Medina in the court action, we determine that even if there was error, it does not warrant reversal of the judgment. (Candelaria, supra, 219 Cal.App.3d at p. 1444.)
The Trial Court’s Order Confirming the Arbitration Award and Denying the Request to Vacate the Award
On appeal, we understand Hahn to be contending that the arbitration award should have been vacated pursuant to section 1286.2, subdivision (a)(5), because (1) the arbitrator refused to grant a continuance to allow her to “complete her discovery of vital witnesses, ” Medina and Schieberl; (2) the arbitrator refused to “allow” in the arbitration hearing “the ‘Admissions of Medina’ that had been deemed admitted” in her court action against him; and (3) the arbitrator refused to allow her to amend her complaint. We first set forth the standard of review before considering the substance of Hahn’s conentions.
Standard of Review
“It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943; see Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10-11, 27-28, 33 (Moncharsh).) “Because ‘arbitral finality is a core component of the parties’ agreement to submit to arbitration’ [citation] and because arbitrators are not required to make decisions according to the rule of law, parties to an arbitration agreement accept the risk of arbitrator errors [citation], and arbitrator decisions cannot be judicially reviewed for errors of fact or law even if the error is apparent and causes substantial injustice [citations].” (Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 534.)
The same rules apply to limit appellate review of a judgment confirming an arbitration award. Appellate courts cannot review the merits of the dispute, the sufficiency of the evidence, or the reasoning in support of the arbitrator’s decision. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23.)
The grounds for vacating an arbitration award that are specified in section 1286.2, subdivision (a), are exclusive. (Moncharsh, supra, 3 Cal.4th at p. 12, 33.) Further, the circumstances under which an award may be vacated pursuant to this section are “very limited.” (Delaney v. Dahl (2002) 99 Cal.App.4th 647, 654.) In this case, Hahn challenges the judgment on the arbitration award under subdivision (a)(5) of section 1286.2. Subdivision (a)(5) requires that the court vacate the arbitration award if “[t]he rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor 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.”
“We review de novo the trial court’s order confirming the arbitration award. [Citations.]” (Gravillis v. Coldwell Banker Residential Brokerage Co. (2010) 182 Cal.App.4th 503, 511; see also SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1198 (SWAB Financial, LLC).) However, “we must accept the trial court’s findings of fact if substantial evidence supports them, and we must draw every reasonable inference to support the award.” (Alexander v. Blue Cross of California (2001) 88 Cal.App.4th 1082, 1087; see also SWAB Financial, LLC, supra, 150 Cal.App.4th at p. 1198.) With the standard of review in mind, we now turn to the specific issues raised by Hahn in this appeal.
The Arbitrator’s Refusal to Grant a Continuance
On appeal, Hahn contends that the trial court should have vacated the arbitration award pursuant to section 1286.2, subdivision (a)(5), based on the arbitrator’s refusal on January 7, 2010, to grant a continuance of the arbitration hearing in order to allow her to complete discovery. According to a declaration by Hahn’s counsel filed in the trial court, Hahn requested a second continuance from the arbitrator “based on the inability to complete the discovery process with respect to... Medina and Schieberl.” Previously, in September 2009, the arbitrator granted Hahn’s first request to continue the arbitration hearing after Hahn raised “discovery issues” pertaining to Medina and/or Schieberl. In her appellate briefing, Hahn contends that the arbitrator should have continued the arbitration hearing a second time until after a court hearing on her January 4, 2010 motion seeking terminating sanctions against Medina and Schieberl due to their failure to provide discovery.
We determine that Hahn fails to show substantial prejudice from the arbitrator’s refusal to grant a continuance. (§ 1286.2, subd. (a)(5).) So far as the record on appeal discloses, after the arbitrator denied Hahn’s second request for a continuance, Hahn was not able to obtain discovery responses from Medina or Schieberl in the court action, she was not able to depose them, and she ultimately obtained a default against them as a result of their failure to comply with their discovery obligations. Further, the record on appeal indicates that by the time Hahn requested the second continuance of the arbitration hearing, she was not able to contact Medina and Schieberl through counsel. Moreover, she was not able to locate Medina and Schieberl thereafter in order to serve them with subpoenas to appear at the arbitration hearing. Hahn fails to cite anything in the record on appeal that would indicate that she would have been able to obtain discovery from Medina and Schieberl had the arbitration been continued, in light of their failure to respond to previous discovery and their default. She also does not make any assertion in her appellate briefing that she needed a continuance in order to conduct discovery from other sources in the event of her inability to obtain discovery from Medina and Schieberl. In sum, Hahn fails to articulate how the lack of a continuance of the arbitration hearing substantially prejudiced her.
Although her appellate briefing is not clear on this point, to the extent Hahn’s claim of prejudice is based on Medina’s and/or Schieberl’s absence from the arbitration hearing due to her unsuccessful efforts to serve them with subpoenas for personal appearance at the arbitration hearing, Hahn fails to cite to anything in the record on appeal that indicates she requested a continuance from the arbitrator for the purpose of procuring Medina’s and/or Schieberl’s attendance at the arbitration hearing.
We conclude that the arbitrator’s failure to continue the arbitration hearing upon Hahn’s second request in January 2010, does not constitute a sufficient basis for vacating the arbitration award, because Hahn has not demonstrated that her rights were “substantially prejudiced” as a result. (§ 1286.2, subd. (a)(5).)
The Arbitrator’s Refusal to “Allow” Medina’s “Admissions”
Hahn next contends that the trial court should have vacated the arbitration award pursuant to section 1286.2, subdivision (a)(5), because the arbitrator refused to “allow” in the arbitration hearing “the ‘Admissions of Medina’ that had been deemed admitted” in her court action against Medina. In refusing to allow Medina’s admissions in the arbitration hearing, the arbitrator explained: “There is no showing that Medina’s admissions, which appear to be by default, were adopted, approved, or acknowledged by Respondent Atkar. [¶]... Medina is not a party to this Arbitration and apparently will not be appearing as a witness at the hearing raising serious questions regarding Respondent’s right to confront the witnesses who give evidence against him.”
As we stated, section 1286.2, subdivision (a)(5) provides that the court shall vacate the arbitration award if “[t]he rights of the party were substantially prejudiced... by the refusal of the arbitrators to hear evidence material to the controversy....” This provision has been interpreted “as a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a party from fairly presenting its case.” (Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439 [discussing former section 1286.2, subdivision (e)]; see also Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1110-1111 [analyzing former section 1286.2, subdivision (e)].)
Hahn fails to demonstrate substantial prejudice by the arbitrator’s refusal to allow Medina’s admissions in the arbitration hearing. (§ 1286.2, subd. (a)(5).) There is no suggestion by Hahn that the arbitrator precluded her from offering evidence in the arbitration hearing regarding the issues covered by Medina’s admissions. Rather, the arbitrator’s ruling only prevented her from relying on Medina’s admissions as the form of her evidence. Indeed, the arbitrator’s recitation of evidence and findings in the written arbitration award indicate that evidence was presented concerning the business relationship between Medina and Mike Atkar. Further, Mike himself admitted, in response to requests for admission propounded by Hahn, the truth of some of the same matters that were covered by the requests for admission that Hahn propounded on Medina. For example, Mike admitted that on or about September 5, 2007, Medina was “authorized by [Mike] to represent him in management of” the McKee Road property. On appeal, Hahn fails to identify which, if any, admission by Medina in the court action pertained to a material issue upon which she was unable to, or precluded from, introducing evidence in the arbitration hearing. Lastly, even assuming, as Hahn implicitly does in her appeal, that the provisions contained in section 2033.010 et seq. concerning requests for admission were applicable to the parties’ arbitration, we observe that an admission by a party “is binding only on that party....” (§ 2033.410, subd. (b), italics added.) “The only purpose of requests for admissions is that the matters admitted can be used against the party making them. (Code Civ. Proc., § 2033.410, subd. (a).)” (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 261, second italics added.) In other words, Mike would not be bound by any admissions that Medina made concerning issues in the case.
We note that in the written arbitration award, the arbitrator generally referred to the “veritable blizzard of exhibits and testimony” and indicated that a total of six witnesses testified in the arbitration hearing and that “numerous exhibits were received in evidence.”
In sum, Hahn fails to show that the arbitrator prevented her from fairly presenting her case by refusing to admit into the arbitration hearing certain admissions by Medina from the court action. In the absence of a showing of substantial prejudice, we conclude that the arbitrator’s refusal to allow Medina’s admissions at the arbitration hearing does not constitute a sufficient basis for vacating the arbitration award. (§ 1286.2, subd. (a)(5).)
The Arbitrator’s Refusal to Allow an Amended Complaint
Shortly before the arbitration hearing took place, Hahn sought from the arbitrator leave to amend the complaint that she had filed in the court action. Hahn described the proposed pleading as including “more factual detail” as well as including seven additional causes of action. The arbitrator denied the motion, explaining that the motion was “untimely with no justification or explanation for the delay” and that the proposed complaint contained “several new theories of recovery first stated less than a week before the commencement of the hearing.”
Although it is not clear from Hahn’s briefing on appeal whether she is raising this denial of leave to amend by the arbitrator as a separate basis for vacating the arbitration award pursuant to section 1286.2, subdivision (a)(5), the issue is discussed in the respondents’ brief on appeal, and therefore we will address the issue.
As we stated, section 1286.2, subdivision (a)(5) requires that the court vacate the arbitration award if “[t]he rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor 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.” Hahn fails to articulate how the arbitrator’s denial of leave to amend falls within this provision.
Nonetheless, even assuming the arbitrator’s denial of leave to amend may fall within subdivision (a)(5) of section 1286.2 (but see SWAB Financial, LLC, supra, 150 Cal.App.4th at pp. 1201-1202 [holding that the arbitrators refusal “to allow an amendment to introduce new claims into a pending arbitration is not one of the statutory grounds for a trial court’s vacation of an arbitration award”]), we determine that Hahn fails to demonstrate substantial prejudice.
First, Hahn fails to articulate in her appellate brief the significance of the new “factual detail” that she sought to add to her preexisting complaint. Although she was denied leave to add factual allegations, there is no contention by Hahn on appeal that she was precluded from introducing evidence at the arbitration hearing to support those proposed new allegations. She therefore fails to establish any prejudice by the failure of the arbitrator to allow her to add factual allegations to her complaint.
Second, as to the proposed seven additional causes of action, Hahn similarly makes no contention on appeal that she was precluded from introducing evidence on the issues raised by those causes of action. In this regard, we observe that the seven additional causes of action were for retaliatory eviction; wrongful eviction; intentional infliction of emotional distress; conversion; unjust enrichment; negligent hire, supervision, and “retainment”; and interference with prospective economic advantage. The allegations in several of these causes of action appear to relate to the unlawful detainer proceeding against Hahn. However, the arbitrator’s written award indicates that evidence was presented at the arbitration hearing concerning the unlawful detainer proceeding. In the absence of a clear articulation of how she was prejudiced by the denial of leave to add factual allegations or causes of action, we conclude that the arbitrator’s refusal to allow Hahn to amend her complaint does not constitute a sufficient basis for vacating the arbitration award. (§ 1286.2, subd. (a)(5).)
IV. DISPOSITION
The October 1, 2010 judgment confirming the arbitration award is affirmed.
WE CONCUR: MIHARA.J., LUCERO, J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.