Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 1-01-CV797447
Premo, J.
I. INTRODUCTION
This is the second appeal filed by plaintiff Peter P. Nghiem in this case. Plaintiff sued his former employer Fujitsu Microelectronics, Inc. (FMI), among others, for wrongful termination. The matter was arbitrated pursuant to FMI’s written arbitration policy and the arbitrator ruled against plaintiff. Plaintiff challenged the ruling by way of a petition to the superior court to vacate the arbitration award. The superior court denied the petition. (Code Civ. Proc., § 1285.) Plaintiff took his first appeal from the order denying his petition to vacate the arbitration award. (Nghiem v. Fujitsu Microelectronics, Inc. (Dec. 13, 2006) H029952 [nonpub. opn.] (Nghiem I).) After reviewing the briefs and the record in Nghiem I, we determined that the order was not appealable and obtained supplemental briefing on the question of whether we should dismiss the appeal as being taken from an unappealable order. Defendants urged us to dismiss. Plaintiff asked us to reach the merits by treating the appeal as a petition for extraordinary relief. It was appropriate to do so, he claimed, because “confirmation of the award and entry of judgment of confirmation here would be a mere formality in light of the trial court’s denial of Plaintiff’s motion to vacate. . . .”
All further statutory references are to the Code of Civil Procedure.
Pursuant to the request of the parties we have taken judicial notice of the case of Nghiem I.
After considering the supplemental briefing in Nghiem I,we concluded that since the issues had been fully briefed and the rights of the parties had, in effect, been finally decided the interests of judicial economy warranted consideration of the merits of plaintiff’s arguments. As the award had not been confirmed and no judgment had been entered, we treated the ineffective appeal as a petition for writ of mandate, rejected plaintiff’s arguments, and denied the “writ,” affirming the order denying plaintiff’s motion to vacate the arbitration award. Thereafter, plaintiff petitioned the California Supreme Court for review and petitioned the United States Supreme Court for a writ of certiorari. Both petitions were denied.
The order denying the petition to vacate should perhaps have led directly to judgment. Section 1286 provides that if a petition to confirm, correct, or vacate the award is “duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” (Italics added.) Thus, once the superior court denied plaintiff’s petition to vacate, section 1286 appears to require the court to confirm the award. (Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 659.) The superior court did not do that here, nor did the parties ask it to do so, and, therefore, the question of appealability arose in Nghiem I.
While Nghiem I was pending, plaintiff filed a motion for judgment on the pleadings in the superior court. The superior court denied that motion because the proceedings in the superior court had been stayed by the pending appeal. Plaintiff refiled the motion after Nghiem I was final. The superior court denied the renewed motion on April 27, 2007. On June 14, 2007, the superior court denied plaintiff’s second renewed motion for judgment on the pleadings and granted defendants’ petition to confirm the arbitration award. Judgment was entered on June 26, 2007. Plaintiff now appeals from the judgment.
II. ISSUES
Plaintiff raises three issues on appeal. First he claims that the arbitration agreement was unenforceable as a contract of adhesion and that it contained six substantively unconscionable provisions. Second, he maintains that the arbitrator did not correctly apply the law and that the evidence supported his version of the dispute. Third, he contends that the superior court erred in denying his motions for judgment on the pleadings since defendants had never filed an answer sufficient to put the matter at issue.
III. DISCUSSION
A. Issues Raised in Nghiem I are Barred by the Law-of-the-Case Doctrine
Plaintiff’s argument pertaining to the enforceability of the arbitration agreement was considered and decided in Nghiem I. The law-of-the-case doctrine precludes reconsideration of the same issue.
“ ‘Questions determined by an intermediate appellate court constitute the law of the case after the decision becomes final. In the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision.’ ” (People v. Shuey (1975) 13 Cal.3d 835, 848, overruled on another point as recognized by People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5.) “From a policy standpoint it is not difficult to envisage the frustrating consequences that could flow from a practice allowing different panels of the Court of Appeal to redetermine issues which were disposed of on a previous appeal in the same case.” (People v. Shuey, supra,13 Cal.3d at p. 840.) The rule does not generally apply to summary denials of writ petitions but it does apply to writ proceedings in which the matter was fully briefed, there was an opportunity for oral argument, and the cause was decided by written opinion. (Kowis v. Howard (1992) 3 Cal.4th 888, 894.) “Application of the rule is subject to the qualifications that ‘the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision.’ ” (People v. Shuey, supra,13 Cal.3d at p. 842, quoting Pigeon Point Ranch, Inc. v. Perot (1963) 59 Cal.2d 227, 231.) “The unjust decision exception does not apply when there is a mere disagreement with the prior appellate determination.” (People v. Stanley (1995) 10 Cal.4th 764, 787.) “The principal ground for making an exception to the doctrine of law of the case is an intervening or contemporaneous change in the law.” (Clemente v. State of California (1985) 40 Cal.3d 202, 212.)
Plaintiff maintains that relitigation of the issue of the enforceability issue is not barred by the law-of-the-case doctrine because this court did not decide that issue on the merits in Nghiem I. Plaintiff is correct that we did not reach the substance of his unenforceability argument but that was because we decided that he had waived the issue by failing to raise it below. Our conclusion was a point of law actually raised and decided in Nghiem I. His argument on the point in this appeal is identical to the argument he made in the previous appeal. Since we considered and decided the point in Nghiem I,we decline to reconsider it now.
B. Judicial Review of Plaintiff’s Remaining Claims is not Permitted
Plaintiff’s second argument is that the arbitrator did not apply the correct legal analysis and ignored plaintiff’s evidence. His third argument is that the superior court erred in denying his serial motions for judgment on the pleadings. Neither argument presents an issue we may review.
“ ‘As the courts of this state have repeatedly emphasized, the merits of a controversy that has been submitted to arbitration are not subject to judicial review. This means that we may not review the validity of the arbitrator’s reasoning, the sufficiency of the evidence supporting the award, or any errors of fact or law that may be included in the award. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) Judicial review is severely limited because that result “vindicates the intentions of the parties that the award be final, and because an arbitrator is not ordinarily constrained to decide according to the rule of law . . . .” (Ibid.)’ (Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1313.) The exclusive grounds for judicial review of arbitration awards are those found in the statutes governing arbitration.” (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 825.) The pertinent statute here, section 1286.2, subdivision (a), lists the only available grounds for vacating an arbitration award: “(1) The award was procured by corruption, fraud or other undue means. [¶] (2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. [¶] (5) The rights of the party were substantially prejudiced by . . . the refusal of the arbitrators to hear evidence material to the controversy . . . . [¶] (6) An arbitrator . . . failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware . . . .”
Plaintiff’s argument pertaining to the arbitrator’s reasoning goes directly to the merits of his case and the arbitrator’s application of the law to the facts she found. This is not a basis for vacating the arbitration award under section 1286.2 and, therefore, we have no jurisdiction to review this aspect of the case.
Plaintiff’s motions for judgment on the pleadings were, as defendants’ maintain, merely attempts to vacate the arbitration award. The time to do that is long past. (See § 1288.) Furthermore, plaintiff’s motions for judgment on the pleadings reiterated his claim that the arbitration agreement was unenforceable and maintained that he was entitled to judgment on the pleadings because defendants’ answer, filed in the arbitration proceedings, was not sufficient to put plaintiff’s allegations at issue. We have already decided the enforceability issue. And we have no jurisdiction to determine the sufficiency of pleadings that were filed in the arbitration.
We note that plaintiff’s further litigation of this case, after he filed his appeal in Nghiem I, might have been precluded by the doctrine of judicial estoppel. Under the judicial estoppel doctrine, a party who has taken a position in one proceeding may be estopped from taking an inconsistent position in another. (In re Stier (2007) 152 Cal.App.4th 63, 80.) “This doctrine rests on the principle that litigation is not a war game unmoored from conceptions of ethics, truth, and justice. It is quite the reverse. Our adversarial system limits the affirmative duties owed by an advocate to his adversary, but that does not mean it frees him to deceive courts, argue out of both sides of his mouth, fabricate facts and rules of law, or seek affirmatively to obscure the relevant issues and considerations behind a smokescreen of self-contradictions and opportunistic flip-flops.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 558.) Plaintiff represented to this court in Nghiem I that entry of judgment would be a mere formality and he urged this court to treat the order from which he had appealed as a final judgment. At the same time he continued to take advantage of the fact that no formal judgment had been entered to further litigate his case in the superior court. Judicial estoppel might, arguably, have precluded this strategy.
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.