Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CC04909 Geoffrey T. Glass, Judge.
Richard A. Higbie for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
ARONSON, J.
Defendant David Brennan appeals from a judgment in an action for breach of contract and quantum meruit brought by plaintiff Mark Mitchell. The trial court conducted a bench trial and awarded judgment in Mitchell’s favor on the quantum meruit claim. Brennan contends on appeal the trial court lacked jurisdiction to adjudicate Mitchell’s claim because the contract required binding arbitration. For the reasons expressed below, we conclude the trial court did not err in finding Brennan waived the right to arbitrate and therefore affirm the judgment.
I
Factual and Procedural Background
Brennan has elected to appeal with an appellant’s appendix (Cal. Rules of Court, rule 8.124) and no reporter’s transcript. The limited record reflects that in April 2007, Mitchell filed a verified complaint for breach of contract and other claims against Brennan. Mitchell, a licensed contractor, alleged that in June 2005, he contracted with Brennan to remodel Brennan’s Newport Beach residence. Subsequently, Brennan breached the agreement by failing to pay Mitchell $90,000 for supervising the work. Mitchell attached only three pages of the contract to his complaint (numbered 1, 3, and 5); none contains an arbitration clause.
Mitchell did not file a respondent’s brief. We notified him failure to file a brief could result in the court deciding the appeal “on the record, the opening brief, and any oral argument by the appellant.” (Cal. Rules of Court, rule 8.220(a)(2).) Because the judgment is presumed correct and the constitutional doctrine of reversible error places the burden on the appellant to make an affirmative showing, we examine the record on the basis of appellant’s brief and reverse only if prejudicial error is shown. (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; Walker v. Porter (1974) 44 Cal.App.3d 174, 177; Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226 227 [appellant’s burden to affirmatively demonstrate error remains the same whether or not respondent files a brief].)
Mitchell also named Brennan’s wife Colleen as a defendant, and she joined in a cross-complaint. Before trial, all claims involving her were dismissed and she is not a party to the appeal.
Brennan answered the complaint in June 2007. His sixth affirmative defense alleged the contract contained an arbitration clause. He filed several versions of a cross-complaint for breach of contract and other claims. The cross-complaint in appellant’s appendix does not include the contract or any other attachments.
The court conducted a trial in January 2009 and filed a statement of decision in May 2009. The court found the parties’ written contract contained an arbitration clause, but Brennan had waived the right to demand arbitration.
On the merits, the court found the parties entered into a contract to remodel Brennan’s condominium. The contract required completion of the project in three months, at cost not to exceed $130,000, including a monthly $10,000 supervision fee ($30,000 maximum) for Mitchell. The scope of the project expanded dramatically, however, after the parties signed the initial agreement. The project, started in June 2005, was not completed until October 21, 2006. The court found both parties responsible for delays. The court concluded the parties had compromised Mitchell’s claim to fees for work performed through May 2006, but Brennan owed Mitchell the reasonable value of his time between June and October 2006. The court determined Mitchell spent 225 hours supervising during this period, and determined an hourly rate of $85, for a total of $19,125 on Mitchell’s quantum meruit claim.
The court also found Mitchell breached the contract in a few particulars. It found Mitchell owed Brennan for the cost of repairing various “punch list” items, such as poor fitting doors and jambs, peeling paint, an unlevel bathtub, and retiling a shower, and awarded Brennan $9,500 on the cross-complaint. The court declared Mitchell the prevailing party.
II
Discussion
Waiver of Right to Arbitrate
The contract between Mitchell and Brennan contained the following arbitration clause: “11. All disputes hereunder shall be resolved by binding arbitration in accordance with rules of the American Arbitration Association.” In its statement of decision, the court agreed the contract contained an arbitration provision, but denied Brennan’s arbitration request, explaining: “Brennan requested arbitration on the first day of trial under this section. The court denied the request... because Brennan had waived the right to demand arbitration.” Brennan insists he did not waive the right, but he fails to provide an adequate record to reverse the ruling.
It is a fundamental rule of appellate review that an appealed judgment or order is presumed to be correct. “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness and, for this purpose, must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires the appellate court to resolve the matter against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [“‘if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed’”]; Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [argument on appeal forfeited by failing to include transcript of hearing or copy of minute order].)
A trial court may deny an arbitration demand when “[t]he right to compel arbitration has been waived by the petitioner[.]” (Code Civ. Proc., § 1281.2, subd. (a); see Kaneko Ford Design v. Citipark, Inc. (1988) 202 Cal.App.3d 1220, 1228 [waiver by participation in settlement negotiations and failure to notify opposing party of intention to seek arbitration].) “Although the statute speaks in terms of ‘waiver, ’ the term is used ‘“as a shorthand statement for the conclusion that a contractual right to arbitration has been lost.”’ (St. Agnes [Medical Center v. PacifiCare of California (2003)] 31 Cal.4th [1187], 1195, fn. 4 [(St. Agnes)].) This does not require a voluntary relinquishment of a known right; to the contrary, a party may be said to have ‘waived’ its right to arbitrate by an untimely demand, even without intending to give up the remedy. In this context, waiver is more like a forfeiture arising from the nonperformance of a required act. [Citations.] [¶] In St. Agnes, our Supreme Court set forth a multifactor test to assess waiver claims. While waiver is not a mechanical process, and no one factor is predominant, the pertinent factors for this appeal are: (1) Did the party seeking arbitration act inconsistently with the right to arbitrate or otherwise substantially invoke the litigation process? (2) Are the parties ‘well into preparation’ of the lawsuit? (3) Is there an imminent trial date? (4) Has the delay affected, misled, or prejudiced the opposing party? [Citation.]” (Burton v. Cruise (2010) 190 Cal.App.4th 939, 944-945.)
Here, based on the trial court’s statement of decision, the court found Brennan’s belated arbitration request at trial came too late in the lawsuit and therefore he forfeited the right to arbitration. Challenging this conclusion, Brennan asserts he “repeatedly raised the issue of the court’s jurisdiction, in the form of his motions in limine, and in his request to the court to try the special defense first....”
The motion in limine Brennan refers to does not have a superior court filing date stamp, but a handwritten notation asserts Brennan filed the motion May 9, 2008, more than a year after Mitchell filed his complaint. In his motion, Brennan sought an order staying the proceedings pending a “ruling by an arbitrator on the issue of whether the contract between the parties contains a mandatory binding arbitration provision.” Brennan asserted there was “no pending arbitration because [Mitchell] refuses to cooperate in filing one and steadfastly insists he is entitled to a jury trial.” Citing Preston v. Ferrer (2008) 552 U.S. 346, Brennan argued the Federal Arbitration Act divested the court “of all jurisdiction to hear such a case and lodging the exclusive jurisdiction with the arbitrator.”
Brennan filed a motion for judgment on the pleadings or trial on his special defense (Code Civ. Proc., § 597) on January 2, 2009. He argued that at a December 26, 2008 “‘at issue conference, ’” Mitchell admitted the contract contained a binding arbitration provision. Brennan asserted “with this recent stipulation” the complaint was “amended... based on a contract containing a binding arbitration provision and the court no longer has jurisdiction to hear the case pursuant to U.S. Supreme Court precedent.”
Brennan’s appendix contains no opposition to these motions, nor any ruling on them. (Cal. Rules of Court, rule 8.124(b)(1)(B) [appendix must contain any item “that is necessary for proper consideration of the issues”].) As noted, Brennan failed to provide a reporter’s transcript, so there is no report of any hearing on the motion. Other than the register of actions, nothing in the appendix describes what occurred in the litigation, between the date of Mitchell’s complaint and the dates of Brennan’s motions, nor does anything explain Brennan’s delay in seeking judicial enforcement of the arbitration provision. The register of actions reflects Brennan answered the complaint, filed original and amended cross-complaints, opposed several demurrers, and participated in a case management conference before moving to stay the action. Presumably, the parties engaged in discovery before Brennan filed his May 2008 motion. The court could have reasonably concluded Brennan’s participation in the litigation and delay in seeking to enforce the arbitration provision was unreasonable, and constituted a forfeiture of his right to arbitrate the claim. (Burton v. Cruise, supra, 190 Cal.App.4th 939; Allstate Ins. Co. v. Gonzalez (1995) 38 Cal.App.4th 783, 790 [insured’s protracted and unexplained delay in petitioning to compel arbitration of uninsured motorist claim was unreasonable as matter of law, and thus constituted waiver of his right to arbitrate claim, even without proof that insurer had been prejudiced by delay].)
None of the cases Brennan cites supports reversal. California’s public policy favoring arbitration (see Pietrelli v. Peacock (1993) 13 Cal.App.4th 943, 946), is premised on the notion arbitration is “‘a speedy and relatively inexpensive means of dispute resolution which eases court congestion. [Citation.]’” (Ibid.) A party, like Brennan, who delays seeking enforcement of a contractual arbitration provision until the eve of trial does not further the policy.
Brennan cites Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, for the notion “an arbitration agreement is governed by Federal Law” and “the court must actually find that the party [seeking arbitration] committed laches since there’s a requirement that the proponent show no harm to the other party.” Rodriguez concerned a California statute authorizing a court to refuse to enforce arbitration agreements in certain multi-party disputes. (See Code Civ. Proc., § 1281.2, subd. (c).) In Rodriguez, the parties to the arbitration agreement did not dispute the contract involved interstate commerce, and expressly designated any arbitration proceeding should proceed under the Federal Arbitration Act’s (9 U.S.C. §1 et seq. (FAA)) procedural provisions. Rodriguez held the parties’ express adoption of the FAA’s procedural provisions, which contain no analogue to Code of Civil Procedure section 1281, subdivision (c), required reversal of the trial court’s order denying a motion to compel arbitration. Rodriguez did not involve laches or waiver of the right to arbitrate. The parties in our case did not adopt the FAA’s procedural rules. Rodriguez has no application here.
We also reject Brennan’s contention the FAA governed the contract and that when he “offered a contract into evidence that contained a provision for binding arbitration... the court had no jurisdiction to do anything other than dismiss the case and reserve the power to enforce an award.” Brennan’s reliance on the FAA, in the trial court and here, is misplaced. The FAA governs arbitration agreements in contracts involving maritime matters, and interstate and foreign commerce. (Southland Corp. v. Keating (1984) 465 U.S. 1, 12-13.) It did not apply to the home remodeling contract in this case. (See also Rosenthal v. Great Western Financial Sec. Corp. (1996) 14 Cal.4th 394, 413 [notwithstanding FAA, under California law, the court, not an arbitrator, determines whether the agreement to arbitrate exists and whether it is enforceable]; Gilbert Street Developers, LLC v. La Quinta Homes, LLC (2009) 174 Cal.App.4th 1185 [arbitration provision referring to American Arbitration Association rules did not “clearly and unmistakably” provide arbitrator would determine own jurisdiction].)
We deny Brennan’s request for judicial notice of the American Arbitration Rules contained in the appendix because there is no indication the rules were presented to the trial court. “Reviewing courts generally do not take judicial notice of evidence not presented to the trial court.... ‘[An] appellate court will consider only matters which were part of the record at the time the judgment was entered.’” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
Brennan also cites Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233 (Simms). There, the appellate court held a plaintiff did not waive arbitration by filing a complaint and seeking a temporary restraining order (TRO) when the plaintiff also requested arbitration in his complaint. The appellate court held merely suing on an arbitrable claim, and seeking a TRO to preserve the status quo, did not result in a waiver of the plaintiff’s right to compel arbitration where the complaint requested arbitration, plaintiff did not take any other actions inconsistent with the right to arbitrate, and defendant could not establish any prejudice from the delay. (Simms, supra, at pp. 239-240; see Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 992.)
Here, Brennan did not request or demand arbitration in his answer, or in his cross-complaint. As noted, the first action he took to enforce the arbitration provision was in May 2008, just before the original trial date. According to a May 29, 2008 minute order in the superior court file, which we have reviewed, the court directed Brennan to file a “proper noticed motion regarding the Arbitration Clause issue.” Brennan neglected to do so, and again waited until the eve of trial, rescheduled for early January 2009, to file his motion for judgment on the pleadings and trial on the special defense. Simms does not support Brennan’s claim.
Brennan complains Mitchell frustrated his efforts to arbitrate by filing the complaint without attaching the contract containing the arbitration provision. But Brennan’s answer alleged the contract contained a binding arbitration provision, and our review of the superior court file shows he attached the five-page contract containing the provision to his cross-complaint. Brennan therefore was not misled or otherwise prevented from filing a petition to compel arbitration, a course of action he failed to pursue.
Brennan seeks to excuse his delay by arguing “the existence of a binding arbitration provision was in dispute.” He relies on an unsigned document contained in the appendix captioned “Joint List of Controverted and Uncontroverted Issues.” The document has a handwritten notation reflecting it was filed November 12, 2008. The document lists as controverted whether the operative written agreement signed by the parties contained three or five pages, and whether there was an operative agreement to arbitrate between the parties.
We have reviewed the superior court file and did not find this document. In any event, the record does not reflect the court deprived Brennan of his right to arbitrate the dispute. Brennan did not timely tender the question to the trial court, despite the court’s direction to do so. Brennan’s delay in attempting to resolve any dispute concerning the arbitration provision before the litigation machinery had been substantially invoked was inconsistent with his right to arbitrate. (See Gunderson v. Superior Court (1975) 46 Cal.App.3d 138 [appellate court issued writ of mandate directing court to deny arbitration where after plaintiff rejected defendant’s demand for arbitration, parties engaged in discovery, and plaintiff filed an at-issue memorandum; defendant impliedly accepted plaintiff’s refusal of the demand by delay through the trial preparation period and failure to follow up on its demand by designating an arbitrator].) The record, such as it is, supports the trial court’s factual finding Brennan waived any right to arbitrate because of delay.
Brennan faults Mitchell for conducting a “‘full court press’” by filing “voluminous demurrers, objections, and motions.” But nothing prevented Brennan from filing a timely motion or petition to arbitrate the dispute rather than responding to Mitchell’s complaint, demurrers and motions.
III
Disposition
The judgment is affirmed. Respondent is entitled to costs.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.