Opinion
H029979
5-23-2007
FRANCISCO MOLINA, JR., Plaintiff and Appellant, v. FRYS ELECTRONICS, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
Plaintiff Francisco Molina, Jr., acting in propria persona, appeals a judgment confirming an arbitration award against him in favor of defendants Frys Electronics, Inc., et al. (collectively, Frys), on his claims for breach of contract, deceit, and wrongful termination in violation of public policy. Molina claims that the award was procured by corruption, fraud, and other "Undue Means" and that he complied with the statutory requisites for vacation of the award.
Defendants are Frys Electronics, Kevin Robins, Kathryn J. Kolder, John C. Fry, William R. Fry, David A. Fry and Omar Siddiqui.
FACTS
The facts are taken mainly from the final arbitration award. Molina was a licensed civil engineer hired on June 7, 1999, as an at-will structural engineer, by Frys, a software, consumer electronics, and computer chain store, headquartered in Santa Clara County with numerous stores located principally in California and other western states. Molina was to work on projects including "the Flying Lady," a building in Morgan Hill, and a free standing, 30-foot by 300-foot, metal stud wall for Frys San Diego store. Frys terminated Molina on April 26, 2002, for insubordination and unsatisfactory job performance.
Frys motion to augment the record with a copy of the final arbitration award which includes the pages omitted from the clerks transcript is granted.
In April 2003, Molina filed a complaint in Santa Clara County Superior Court alleging claims for breach of contract, deceit, and wrongful termination in violation of public policy based upon his alleged "whistle-blowing" activities. He asserted that when he was hired, he was promised that his pay would be brought up to the prevailing senior engineer III pay level within a year rather than at the standard 10 percent yearly increment.
Molina was represented by three attorneys from the inception of the case until just weeks before the scheduled arbitration hearing when he took over the prosecution of the case.
Molina claimed he was subject to retaliatory termination as prohibited by Labor Code section 1102.5, because he wrote to company executives, with a copy of the letter to the City of Morgan Hill dated June 2000, complaining that the Flying Lady was a dangerous building, and because in 2002, when his drawings for the San Diego freestanding wall were rejected in favor of a pre-engineered, prefabricated wall system, which would cost less than his design, he refused to prepare drawings and calculations, because the wall would be "criminally unsafe." He also alleged Frys breached an alleged implied covenant of good faith and fair dealing in its alleged employment agreement with him.
Because Molinas claims directly arose out of his employment relationship with Frys, and were governed by an arbitration agreement which subjected the claims to binding arbitration, the agreement was enforced over Molinas objection and a final arbitration award was issued on December 7, 2005. In a detailed 10-page, single-spaced, typewritten document with 27 footnotes alluding to testimony and conclusions about the testimony, the arbitrator ruled that "no evidence existed to establish the existence of an enforceable promise to raise [Molinas] salary," no evidence existed to establish that Molina was terminated for alleged whistle-blowing activities, the termination was legal, and Frys did not ask Molina to approve illegal plans for the wall. Frys was awarded $8,737.04 in costs of the suit.
In its reply brief, Frys claims that "[o]n June 8, 2006, the superior court granted [Frys] petition to confirm the arbitration award. Thus, judgment was entered in [Frys] favor in conformity with the Arbitrators final award." This appeal ensued.
ISSUES ON APPEAL
Molina claims that the evidence was sufficient to establish that he complied with the requirements of Code of Civil Procedure section 1286.2 et seq. which allowed him to seek reversal of the arbitration award. Furthermore, he asserts the award under review "was Procured by Corruption, Fraud, or other Undue Means."
Molina filed two motions to augment the record, on September 29, 2006, and October 17, 2006. We have granted both motions in part. We ordered the record augmented to include a supplemental clerks and/or reporters transcript and notice of entry of judgment dated April 24, 2006, notice to prepare clerks transcript and notice to prepare reporters transcript, and order granting petition to compel arbitration and stay judicial proceedings dated September 25, 2003. Molinas request for judicial notice was denied.
WAIVER
Frys begins its attack on Molinas appeal by stating the issues it chooses to discuss. The first is "[w]hether [Molina] waived his right to appeal the judgment by failing to file a petition to vacate the arbitrators Final Award" and the second is whether Molina abandoned his appeal by filing an unintelligible opening brief.
Frys claims that Molina waived his right to appeal the judgment based upon the final award because "[Molina] never filed a petition to vacate the arbitrators Final Award." Frys notes that Molina filed a petition to vacate the arbitrators interim award but never petitioned to vacate the final award.
This is a misstatement of the record. First, although Frys claims it filed a petition to confirm the award which was granted on June 8, 2006, and judgment was entered, it does not cite to the location in the clerks transcript where filed documents support these assertions. (See Cal. Rules of Court, rule 8.204(a)(1)(C) (hereafter, rule) ["Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].)
Second, in stating that Molina filed a petition to vacate the interim award, Frys refers us to the clerks transcript for the petition. However, that petition is file stamped March 10, 2006, and is entitled "Petition to Vacate Contractual Arbitration Award." The "motion for reconsideration to vacate JAMS [Judicial Arbitration and Mediation Services] interim order" appears at a location in the record which Frys did not cite. (See Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379 [partys duty to support arguments in briefs by citation to the record which includes exact page citations. Appellate court has no duty to search the record for evidence and may disregard factual contentions not supported by citation to record]; rule 8.204.)
The motion for reconsideration to vacate JAMS interim order was filed on November 28, 2005, and was denied by order of the Honorable William J. Elfving on February 16, 2006. That motion states that the final arbitration order was served on January 20, 2006. The motion also refers to attachment 10(c) to the motion which references a letter Molina wrote to Judge Elfving on February 20, 2006, which stated that there was no final judgment or entry of judgment in the record. Molina explained he needed these documents to file an appeal. On March 8, 2006, Molina filed a motion to confirm the award and enter judgment which predated by two days Molinas petition to vacate the JAMS interim order. There are no documents in the clerks transcript reflecting a ruling on Molinas March 8 or 10 motions.
Molina filed his notice of appeal on March 13, 2006. This predates the final judgment which Frys states was entered on June 8, 2006. Frys does not cite to the record where the final judgment can be found or augment the record with a copy. Molinas motion to augment the record in this court filed on April 11, 2007, states that Molina filed a notice of entry of judgment on April 24, 2006. On its own motion, this court deemed the notice of appeal filed in the instant case to be filed after the superior court order dated April 24, 2006. (Rule 8.104(e).) We move on to Molinas issue on appeal.
That motion seeks to require the superior court to augment the record on appeal pursuant to rule 8.340(a)(1)(A) to include a minute order dismissing the entire action on March 1, 2007, for failure to attend Judge Elfvings status conference. The motion is granted.
PROCUREMENT OF THE AWARD BY FRAUD, ETC.
Frys declares loftily that Molinas brief is "entirely unintelligible and fails to articulate any cognizable legal argument as to why the judgment should be reversed. [Frys is] simply unable to ascertain [Molinas] purported argument." We admit that on first glance Molinas briefing style appears dense, but with very little effort, it becomes clear that Molina maintains the final arbitration award was procured by corruption, fraud, or other undue means, language quoted from and cited to Code of Civil Procedure section 1286.2, subdivision (a)(1).
Specifically, Molina asserts that Frys "did not attack [Molinas] Complaint before the JAMS Arbitration, but instead reverted to MISCONDUCT." The "most pertinent" misconduct Molina listed included perjury, destruction of evidence, five instances of actual fraud, the last being the "fabricat[ion of] the `KVAS [sic] scheme to disguise [Frys] request to compromise [a] 30-foot High Free Standing Metal Stud Wall Engineer Stamped December 31, 2001. Construction Drawings and Calculations"; tampering with witnesses, and abuse of the "DISCOVERY ACT." These allegations are supported by citations to the record, for example, "EXHIBIT 14, [RECORD VOL. 1 of 5, page 208 to page 209]." (Original uppercase.)
The Kvass Construction Co., Inc., submitted the proposal to build a prefabricated wall in San Diego that would be less expensive than Molinas design.
Unfortunately, the exhibits and record pages which Molina cites are not contained in the clerks transcript. Molina is referring to the record of the arbitration hearing.
A party seeking to vacate an arbitration award on the grounds of fraud, corruption, or other undue means must show by clear and convincing evidence that there was corruption, fraud, or other undue means and that it had a substantial impact on the arbitrators decision. Whether or not a witness is believable or committed perjury is an issue for the arbitrator to decide. (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 833, 837.) This court may not review either the merits of the dispute or the sufficiency of the evidence to support the arbitration award (Horn v. Gurewitz (1968) 261 Cal.App.2d 255) and in fact the evidence produced before the arbitrator is not even made part of the record on appeal. (Downer Corp. v. Union Paving Co. (1956) 146 Cal.App.2d 708.)
In the final award, the arbitrator alluded to the arguments Molina raises ante which he also raised at the arbitration hearing. The arbitrator ruled that they were unfounded. First, Molinas attempts to subpoena various Frys employees and documents were not properly issued and lacked supporting declarations. Service on employees was not attempted at their actual work locations but at corporate headquarters and Molina did not make a written or oral demand on Frys to produce any employees as witnesses or prepare a witness list advising of the intended testimony. The arbitrator concluded there was no evidence that Frys tampered with or attempted to dissuade the witnesses.
Second, Molina made an offer of proof of witnesses he wanted to call, which the arbitrator considered in deciding whether he should continue or bifurcate the proceedings or order Frys to produce witnesses or records. The arbitrator determined that no good cause existed for a continuance or bifurcation of the hearing, and that the evidence Molina sought was unnecessary to the resolution of the dispute and would be cumulative, collateral, or related to uncontested issues.
Next, the arbitrator considered Molinas ex parte application to reconsider orders incidental to the JAMS grant of Frys motion for summary adjudication. Molina served the application on Frys but did not request a hearing. The arbitrator concluded that Molina intended him to review the application without a hearing. The arbitrator reviewed the documents and concluded there was no basis in law or fact requiring the vacation or amendment of the interim award.
In addition, the arbitrator considered Molinas allegations about his supervisors directions to him regarding the San Diego wall and expert witness testimony by John Walsh, a structural engineer, who testified about Kvasss proposal for the San Diego wall and compared it with Molinas. Walsh was familiar with the San Diego building codes and its engineering requirements, and was a past president of the Structural Engineers Association of San Diego. He testified that the Kvass proposal was a reasonable design, conformed to the San Diego building code requirements, and that Molinas plans provided for a wall that would have been three times as stiff as the building code requirements and was an inefficient design. The arbitrator found nothing illegal about the Kvass proposal and no suggestion that the Kvass proposal was unsafe. There was no evidence that Frys "fabricated the `KVAS [sic] scheme to disguise their April 12, 2002, request to compromise" the San Diego wall construction drawings and calculations "engineer stamped" on December 31, 2001.
Finally the arbitrator found there was just cause for Molinas termination where none was legally required and Frys bases for terminating him were legitimate, nonretaliatory bases. Molina had been insubordinate because he refused to do calculations to support the Kvass design or to sign or seal drawings for the proposal. Also he had no reasonable basis for believing that the Kvass proposal was illegal and, he argued without basis, that any alteration of his drawings would be illegal.
These determinations depended on the credibility of the evidence and witnesses that were presented to the arbitrator and we may not review them. Molina has not established Frys resorted to fraud and misconduct in the procurement of the final arbitration award. The appeal fails.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs and attorney fees.
We concur:
Rushing, P.J.
Elia, J.