Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Los Angeles County Super. Ct. No. BS105095
Stephanie Ray, in pro. per., for Plaintiff and Appellant.
Kohut & Kohut, Ronald J. Kohut and Sarah K. Kohut for Defendant and Respondent.
KLEIN, P. J.
Stephanie Ray, dba Sespe Cellular, appeals an order confirming an arbitration award in favor of Cingular Wireless, the successor in interest to AT&T Wireless, and denying Ray’s petition to vacate the award. We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
The record on appeal does not contain a transcript of the arbitration proceedings. In order to place the findings of the arbitrator in context, the factual summary presented here includes facts drawn from post arbitration filings by Cingular and Ray, as well as from Cingular’s petition to confirm the arbitration award, Ray’s petition to vacate the award and Ray’s opening brief.
1. Events giving rise to the arbitration.
On April 24, 2002, Ray, the owner of a retail cellular telephone store in Fillmore, California, executed an Exclusive Dealer Agreement (the agreement) with AT&T Wireless (AT&T), pursuant to which Ray was authorized to sell AT&T products and services in Ventura and Santa Barbara counties, referred to as the Central California or BAK market. Ray also had an agreement with All American Distributing, an AT&T master dealer, by which Ray was able to sell AT&T products and services in Los Angeles County, referred to as the Los Angeles or LAX market. In 2003, LA Tel acquired All American.
In October of 2004, Cingular acquired AT&T. Cingular sent Ray a plastic sign which read, “AT&T Wireless Now A Part of Cingular Wireless.” Ray placed this sign on the front door of her store.
Ray received a letter dated March 16, 2005, from the director of indirect sales of the Cingular Los Angeles Market entitled, “Second and Final Notice to Stop Using the AT&T Wireless Trade Marks/Brand.” The body of the letter indicates Comcom Wireless (apparently another subdealer) had to debrand, i.e., cease using AT&T marks, within five days and that inspections for compliance would commence after March 23, 2005. On April 14, 2005, a Cingular employee from the LAX market visited Ray’s store, found it to be out of compliance and removed various items bearing the AT&T mark, including several boxes of Ray’s business cards, but left behind the plastic sign on the door. Ray assumed the Cingular employee had removed all offending marks and she took no further debranding action.
Ray also received a letter dated April 21, 2005, from Charlie Moe, Area Sales Director of Cingular’s Central California Markets, that constituted “final notice” to remove all AT&T brands and that failure to do so would result in termination of Ray’s agreement with Cingular. The letter stated that, as of April 26, 2005, Ray would have to cease using all AT&T promotional material.
On May 2, 2005, Moe sent Ray a letter via fax and messenger notifying Ray that her failure to remove AT&T marks from her store had caused Cingular to exercise its right to terminate the agreement, effective immediately. On May 18, 2005, Moe rescinded the termination for cause. However, by letter dated May 23, 2005, Moe served 90 days notice of termination of the agreement without cause and demanded approximately $25,000 for handsets Ray had received from Cingular.
By letter dated May 26, 2005, LA Tel terminated Ray’s agreement with LA Tel.
2. The arbitration proceedings.
On October 29, 2005, Ray, represented by counsel, commenced an arbitration proceeding with the American Arbitration Association (AAA) against Cingular for breach of the agreement, violation of the covenant of good faith and fair dealing, tortious interference with Ray’s contract with LA Tel and conversion based on the removal of Ray’s business cards. During the course of the arbitration proceeding, Ray added claims for unpaid commissions.
a. The hearing.
On June 7, 2006, an arbitration hearing was conducted in Los Angeles. At the hearing, Ray asserted her dual mode of business was known to Cingular because she received communications from Charlie Moe, the head of sales in the BAK market, and from Cingular representatives in the LAX market. Also, Ray’s AT&T representative, Ron Brukel, left AT&T to work for LA Tel. Ray offered into evidence an email Brukel sent Ray and other retailers when he left AT&T which stated, “Seeing a lot of you are doing some of your numbers through LA Tel already, I am looking forward to working with you in my new position.” Ray claimed the email showed Cingular’s knowledge and approval of her arrangement with L.A. Tel. However, the arbitrator sustained Cingular’s objection to this email.
Ray claimed Cingular breached the agreement in March of 2005 by unilaterally increasing the number of activations required of Ray from 25 a month to 80 a month. Ray further claimed Cingular “targeted her for closure” when she indicated she would not be able to activate 80 new accounts per month. Ray argued the Cingular employee who inspected her store for AT&T trademarks left behind the offending door sign “for easy access for future ‘photo ops’ by other Cingular employees.”
Ray argued Cingular demonstrated animus toward her when Cingular employee Joe Graves permitted a new LA Tel subdealer, Central Cellular, to open a retail store across the street from Ray’s store and that Central Cellular’s subdealer agreement required activation of only 10 lines per month. However, LA Tel representative John Khamneipur testified Central Cellular closed in August of 2005 without reaching final contract approval with Cingular.
Khamneipur also testified with respect to the circumstances surrounding LA Tel’s termination of Ray’s subdealer arrangement. Khamneipur indicated Cingular instructed him to terminate all subdealers who had failed to comply with the debranding requirements, Ray must have been on a list of non-compliant subdealers, and LA Tel would not have terminated Ray had Cingular not directed LA Tel to do so.
The evidence presented by Cingular at the hearing included Exhibit 5, which consisted of an email from Khamneipur to Ian Compton of Cingular dated May 27, 2005, which states: “After reviewing your email and the attached Unauthorized Sub Dealer list, we realize there were 5 sub-dealers on that list that we had not canceled (we were never informed to do so). We have taken the liberty and pro-active approach and canceled these subdealers. Please check attachments.” Attached to Khamneipur’s email are five termination letters from LA Tel to various subdealers, including a letter to Ray, dated May 26, 2005, which states: “This letter is to inform you that LA Tel Cellular has canceled your agreement with our company as well as with AT&T Wireless/Cingular. This is because you are in trademark violation with Cingular and AT&T Corp . . . . You have been informed multiple times to remove AT&T Wireless signage, and you have failed to do so . . ., LA Tel is canceling your agreement so that we will not be liable for your violation of this serious trademark law. Please note that AT&T may be pressing legal action against your company.”
b. The arbitrator’s ruling.
On July 28, 2006, the arbitrator issued a “Ruling and Order” which denied each of Ray’s claims. In the ruling, the arbitrator agreed the termination for cause of Ray’s contract was based on unreasonably short notice. However, Cingular “promptly rescinded” the termination for cause by letter dated May 18, 2005, and Ray remained open for business throughout the month of May 2005 without any diminution of her operations. “Accordingly, I find that the Termination for Cause was effectively negated before it resulted in any damage to [Ray], and accordingly did not result in any breach of the Agreement.”
The arbitrator further found Cingular had the right to terminate the agreement without cause on 90 days notice. Thus, the termination without cause dated May 23, 2005, did not violate the implied covenant of good faith and fair dealing or the provision of the agreement that required each party to “adhere to the highest standards of fair dealing and ethical business conduct in performing its duties under this Agreement.” The arbitrator rejected Ray’s claim the termination without cause was “pretextual” or that it had “resulted from improper motives, such as animus against [Ray] or a desire to deprive her of the benefits of the Agreement. [Ray] has failed to introduce any credible evidence of any such improper motives.” Although a Cingular representative discussed with Ray “the goal of 80 activations per month (Exhibit R) at the March 17, 2005 [meeting] . . ., there is no evidence that this ‘goal’ was ever embodied in a contract amendment or actually enforced. There is also no evidence that this goal was part of a scheme to pressure or ‘get rid of’ [Ray]. [¶] [Ray] asserts that animus against her is shown by [Cingular’s] ‘allowing’ Central Cellular ‘to open up directly across the street’ from [Ray], given [Cingular’s] assertion that it was eliminating dealers and subdealers in Fillmore. However, Central Cellular was never approved as a subdealer by [Cingular]. Mr. Khamneipur did testify that he believes Central Cellular had been ‘pre-approved’, since he prepared an agreement for them. But there is no other evidence of such ‘pre-approval’, nor any evidence that [Cingular] ever actually approved or even knew about Central Cellular before they went out of business.”
The arbitrator noted “Cingular was not obliged to continue doing business in exactly the same manner as AT&T Wireless. [Cingular] was clearly within its rights to establish different territorial boundaries; eliminate smaller dealers in certain markets; eliminate any dealers at all in Fillmore; retain only dealers which ‘looked and felt’ like Cingular stores; and the like. The evidence shows that this is what happened here. [¶] . . . The termination of the Agreement was not aimed at depriving [Ray] of a benefit extrinsic to the Agreement . . .; it was merely intended to terminate the Agreement.”
The arbitrator further found Cingular did not interfere with Ray’s relationship with LA Tel or improperly cause LA Tel to terminate its relationship with Ray. The arbitrator noted Ray never had a written agreement with LA Tel and her relationship with LA Tel was based primarily on her relationship with its predecessor in interest, All American. Further, Ray’s relationship with LA Tel was inactive during 2004 and 2005, and the relationship had never been approved by AT&T or Cingular, as would have been required under the agreement.
The arbitrator also found it was not clear that Cingular directed LA Tel to sever its relationship with Ray or that Cingular even knew of that relationship. The arbitrator noted, “Mr. Khamneipur of LA Tel testified [Ray] must have been on a list provided [to] him by [Cingular] of dealers who had not complied with the de-branding requirements. However, he was unable to produce such a list [that included Ray].” Also, Khamneipur testified “he only wanted to retain 10 of LA Tel’s existing subdealers who were on Cingular’s lists, that [Ray] was not one of the subdealers he wanted to retain, given [Ray’s] very low level of activity; and that terminations [by letter such as the one Ray received] were ‘a quick way’ to cancel the remaining approximately 90 subdealers, including [Ray].” Although Ray hoped revenue generated through her relationship with LA Tel would replace the revenue lost from termination of her agreement with Cingular, the arbitrator found this hope speculative and there was no evidence that LA Tel wished to continue its relationship with Ray or establish a new relationship with her.
The arbitrator observed it was uncontested that Cingular did not approve any subdealers for the Central California area after it acquired AT&T and LA Tel itself was phased out of the Central California area. Thus, Ray could not have been a Cingular subdealer through LA Tel in any event. Moreover, the approval of subdealers was a discretionary matter within Cingular’s exclusive control.
Finally, the arbitrator rejected Ray’s unpaid commission claims. The arbitrator directed Cingular to file a declaration with respect to attorneys fees and costs by August 11, 2006, and indicated the hearing would close on that date and that a final award would be issued on or before September 11, 2006.
c. Post ruling motions.
Ray appeared in propria persona after issuance of the arbitrator’s ruling. In that capacity, Ray filed numerous requests for reconsideration and to reopen the hearing.
The first request for reconsideration, submitted August 4, 2006, reiterated claims Ray presented at the hearing and concluded the termination without cause did not cure the faulty termination for cause. Ray also complained Cingular had obstructed her attempts to depose Joe Graves, the Cingular employee who approved Central Cingular’s subdealer application and who had been transferred to Utah. Ray argued it was not in LA Tel’s economic interest to terminate her as a subdealer and that LA Tel had been forced to end its relationship with Ray upon threat of having its own contract with Cingular cancelled. Also, Cingular clearly knew Ray was an LA Tel subdealer because Ray was on the Cingular mailing list as a subdealer in the LA market, which is why Ray received a letter intended for Comcom Wireless.
In a “Clarification of Request for Reconsideration” dated August 6, 2006, Ray indicated Khamneipur did not want to keep only 10 of the more than 100 subdealers presented to him as being out of compliance. Rather, the only way he could cure the apparent breach of his contract with Cingular was to cancel the subdealers. Ray asserted that, but for Cingular’s conduct, Khamneipur would not have canceled her contract with LA Tel.
In a “Final Request for Reconsideration,” filed August 9, 2006, Ray asserted: (1) Cingular knew of her “loose, but long-term and mutually beneficial contractual relationship” with LA Tel; (2) Cingular forced LA Tel to terminate its agreement with Ray based on a list that Ray should not have been on in the first place because she was never out of compliance with the debranding program in that, as a dealer, she had the right to use AT&T marks until April 26, 2006; and, (3) Cingular denied Ray’s request to be an “out of area” subdealer but approved Central Cellular’s request. Ray asserted her case would have been more completely documented had she been able to depose Graves.
Ray filed a “Request for Reopening of Hearing” dated August 12, 2006, in which Ray again claimed she had received correspondence related to the debranding issue from the LAX director of indirect sales and from the BAK market. Ray argued Cingular knew Ray was a subdealer through LA Tel because Al Jimenez, Cingular’s in house counsel, in a letter dated June 20, 2006, acknowledged that Ray had received one warning letter as a Cingular dealer and another as an LA Tel subdealer.
On August 21, 2006, the arbitrator issued a Post Hearing Order which indicated the arbitrator had reviewed and considered Ray’s requests to reopen the hearing dated August 13 and 14, 2006, as well as related correspondence from the parties dated August 4, 6, 9, 10, 11, 2006. The Post Hearing Order directed Cingular to submit its declaration for fees and costs on or before August 25, 2006
On August 25, 2006, Ray submitted a “Final Request to Reopen Hearing” by fax to AAA. Ray again asserted Cingular improperly had increased the number of monthly activations required of her and submitted the original contract that All American’s representative Stacey Peterson presented to Ray at a meeting attended by Brukel, then an AT&T rep. Ray also submitted an email dated November 8, 2005, which demonstrated that Graves approved Central Cellular’s operation.
On August 29, 2006, the AAA case manager acknowledged receipt of Ray’s letter of August 25, 2006, and indicated the letter had been transmitted to the arbitrator. The case manager indicated the matter was deemed closed as of August 22, 2006.
d. The award of the arbitrator.
By letter dated August 31, 2006, the case manager transmitted the Award of the Arbitrator, which was dated August 28, 2006. The substantive portions of the award were identical to the arbitrator’s ruling, quoted extensively above. The arbitrator found Cingular to be the prevailing party and ordered Ray to pay attorney’s fees in the amount of $82,611.67, and to reimburse Cingular for arbitration fees in the amount of $4,262.50.
3. Proceedings in superior court.
On September 11, 2006, Cingular filed a petition to confirm the award.
On October 2, 2006, Ray filed a petition to vacate the award alleging: (1) the award was obtained by corruption, fraud or other unfair means; (2) misconduct by the arbitrator substantially prejudiced Ray’s rights; and, (3) the arbitrator unfairly refused to postpone the hearing or to hear evidence relevant to the dispute. In the petition to vacate, Ray alleged, inter alia, that Cingular perjured itself with respect to the 80 activation requirement and LA Tel would not have terminated Ray but for Cingular’s insistence. Ray claimed the arbitrator committed misconduct by refusing to credit Khamneipur’s testimony that LA Tel had the right to subcontract in the LAX market until November of 2006 and that LA Tel cancelled Ray under duress from Cingular. Ray noted Khamneipur’s testimony had been given at the risk of losing his relationship with Cingular. Ray suggested Cingular may have had undue influence on the arbitrator because of Cingular’s status as a frequent party to arbitration due to the arbitration clause in all of its dealer agreements and customer contracts. Ray also claimed the arbitrator failed to acknowledge receipt of her final brief dated August 25, 2006 or its attachments.
Cingular’s opposition to Ray’s petition to vacate the award noted that Khamneipur testified he terminated Ray because Cingular gave him five days to bring over 100 subdealers into compliance and, when Khamneipur protested, Graves suggested that cancellation of the agreements would be an easy way to resolve the dilemma. Cingular attached to its opposition Exhibit 5 from the arbitration hearing, the email from Khamneipur to Cingular dated May 27, 2005, to demonstrate that LA Tel cancelled Ray on its own initiative.
Ray filed a supplemental declaration in which she claimed Exhibit 5 had been presented out of context because it is a reply to an earlier email from Ian Compton. Ray attached to the supplemental declaration the original email from Compton and its attachments, which Ray asserts recently had been recovered from LA Tel’s computer archives and could not have been produced at the arbitration hearing because the computer on which it was believed to have been stored was stolen in a burglary of LA Tel’s offices. The original email dated May 25, 2005, from Cingular employee Ian Compton to LA Tel employee John Khamneipur, directed LA Tel to stop working with subdealers who had not debranded on a timely basis. Compton’s email stated: “This letter is being sent out today to all Master Dealers. If you are currently doing business through any of these locations, you need to stop. . . . You will be held responsible whether or not you deal directly with the location, so if you have subs that take activations from other subs, you will want to rethink that.” The basis for Compton’s demand is a letter attached to the email from Cingular to Michael Ezekial of LA Tel delivered by the fax and messenger, regarding the continued use of unauthorized subdealers in violation of LA Tel’s dealer agreement with Cingular. That letter states “Cingular Wireless has completed an audit of all former AT&T sub-dealers to ensure the removal of AT&T brands and logos. Non-compliant locations have been served notice that they can no longer sell Cingular Wireless products and services. Attached as schedule A is a list (‘List’) of these sub-dealers as well as other sub-dealers who have been notified that they are not authorized to sell Cingular and sub-dealers who have violated Cingular’s advertising guidelines. If You are currently doing business with any of these locations you must cease doing so immediately. This notice applies to the locations’ street address as well as the business listed. [¶] Effective May 30, 2005, if Cingular determines that You are operating through any sub-dealers on the List or through any other unapproved sub-dealer (‘Rogue Sub-dealers’) in violation of the Agreement, Cingular shall take the following remedies as provided to it under the Agreement. 1. Upon notice (‘the Notice’), Cingular shall withhold from any compensation otherwise due you under the agreement, an amount equal to twenty thousand dollars ($20,000) per each Rogue sub-dealer retail location.”
Ray again claimed she should never have been on the list on noncompliant subdealers and asserted LA Tel would not have terminated her contract unless Cingular had insisted. Ray asserts this list of “rogue subdealers” is the list the arbitrator noted Khamneipur had been unable to produce. Ray claims this email with attachments showed Cingular obtained the award based on false statements to the arbitrator and that the arbitrator relied upon these false statements to Ray’s detriment.
On October 27, 2006, the trial court conducted a hearing at which Ray argued she had demonstrated that Cingular knew Ray was an LA Tel subdealer and that the full email exchange related to Exhibit 5 would have shown that Cingular forced LA Tel to cancel Ray’s contract based on Ray’s use of AT&T marks after April 14, 2005, when she had the right to use the marks as a regular dealer until April 26, 2005. Ray also asserted there was no evidence the arbitrator received or considered her final request to reopen the hearing.
The trial court granted Cingular’s petition to confirm the award and denied Ray’s petition to vacate the award.
CONTENTIONS
Ray contends her petition to vacate the award should have been granted and it is not in the public interest to allow confirmation of arbitration awards that have been obtained improperly.
DISCUSSION
1. Relevant legal principles.
Where the parties to a contract agree to waive the right to appeal the decision of an arbitrator, the grounds for judicial review of an arbitration award are extremely limited. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 26-28.) An appellate court cannot review the merits of the controversy, the arbitrator’s reasoning, or the sufficiency of the evidence supporting the award. (Id. at pp. 11-13.) Even “an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review.” (Id. at p. 33.) A trial court may vacate an arbitration award only as expressly authorized in Code of Civil Procedure section 1286.2. (Moncharsh, supra, at p. 33; Luster v. Collins (1993) 15 Cal.App.4th 1338, 1344-1345.)
Ray’s dealer agreement with Cingular provides that disputes must be resolved by “submission to binding arbitration” and that “[n]either party has the right to appeal the decision of the arbitrator.” The agreement further provided that “[i]f any arbitration or court action is commenced by either party, the substantially prevailing party in that action is entitled to recover its out of pocket and court costs and reasonable attorney’s fees incurred therein.”
As relevant here, Code of Civil Procedure section 1286.2, subdivision (a) directs a trial court to vacate an arbitration award if it determines: the award was procured by corruption, fraud or other undue means (§ 1286.2, subd. (a)(1)); the rights of a party were substantially prejudiced by misconduct of a neutral arbitrator (§ 1286.2, subd. (a)(3); or, the rights of a party were substantially prejudiced by the refusal of the arbitrator to postpone the hearing upon sufficient cause being shown or by the refusal of the arbitrator to hear evidence material to the controversy (§ 1286.2, subd. (a)(5)).
Subsequent unspecified statutory references are to the Code of Civil Procedure.
The provision of section 1286.2, subdivision (a)(1), which states an award is to be vacated if procured by “corruption, fraud or other undue means” has been construed to include any conduct which amounts to fraud or which deprives either party of a fair and impartial hearing to his or her substantial prejudice. (See Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 831.) In determining whether an arbitration award should be vacated for fraud, a three part test is applied. “ ‘First, the movant must establish the fraud by clear and convincing evidence. [Citations.] Second, the fraud must not have been discoverable upon the exercise of due diligence prior to or during the arbitration. [Citations.] Third, the person seeking to vacate the award must demonstrate that the fraud materially related to an issue in the arbitration. [Citations.]’ [Citations.]” (Id. at p. 830.)
“On appeal from an order confirming an arbitration award, we review the trial court’s order (not the arbitration award) under a de novo standard. [Citations.] To the extent that the trial court’s ruling rests upon a determination of disputed factual issues, we apply the substantial evidence test to those issues. [Citations.]” (Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892, fn. 7; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23-24.)
2. Ray fails to demonstrate the award was procured by fraud.
Ray contends the trial court should have vacated the award because Cingular committed perjury with respect to a material issue and there was a connection between the perjury and the arbitrator’s ruling. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132; § 1286.2, subd. (a)(1).) Ray argues she demonstrated that Cingular altered Exhibit 5 prior to submitting it to the arbitrator and the trial court, and that the complete version of the email exchange showed that Cingular intentionally procured LA Tel’s termination of Ray’s contract without justification.
The agreement provides that the substantive laws of the State of New York govern the rights of the parties. Under New York law, tortious interference with contract requires an existing valid contract between the plaintiff and a third party, the defendant’s knowledge of that contract, the defendant’s intentional procurement of the third party’s breach of the contract without justification, actual breach of the contract and resulting damages. (Lama Holding Co. v. Smith Barney Inc. (1996) 88 N.Y.2d 413, 424.)
Ray argues Cingular presented Exhibit 5 in its altered state in order to misrepresent its position to the arbitrator. Ray asserts she was prejudiced by Cingular’s mendacity because the arbitrator relied on Exhibit 5 in finding, “[i]t is not at all clear that [Cingular] actually ‘directed’ LA Tel to sever its relationship with [Ray], or indeed had any knowledge of such relationship.” Ray asserts the evidence showed Cingular knew of Ray’s status as an LA Tel subdealer. Although the arbitrator acknowledged that Khamneipur testified Ray must have been on a list of noncompliant subdealers provided to him by Cingular, the arbitrator noted Khamneipur “was unable to produce such a list.” Instead, the arbitrator believed Cingular’s assertion that L.A. Tel canceled Ray on its own initiative. The arbitrator may have ruled differently had she been aware of the complete email exchange and the attached list. Ray concludes she has demonstrated that Cingular procured the award by corruption, fraud or other undue means.
Ray claims she had no way to refute Cingular’s inappropriate submission of incomplete evidence at the arbitration due to the brevity of discovery in arbitration proceedings and the theft of the computer on which the list from Cingular was archived. Ray notes Khamneipur was called as a Cingular witness, not her witness. Ray suggests that although Khamneipur testified he no longer had the list of subdealers Cingular considered to be out of compliance due to the theft of the computer, he may have actually been unwilling to produce the list for fear of alienating Cingular and Cingular did not make it available to Ray in discovery. Ray asserts the altered email which eventually became Exhibit 5 was given to her attorney one week before the arbitration hearing during an exchange of exhibits and it was buried under 41 other exhibits. Ray claims Cingular cannot avail itself of the simplified and expedited procedures afforded by arbitration and also engage in intrinsic fraud. (Pour Le Bebe, Inc. v. Guess? Inc., supra, 112 Cal.App.4th at pp. 829-833.)
Ray asserts her diligence under the circumstances was shown by the production of the letter of termination from LA Tel dated May 26, 2005, which referred to the agreement between LA Tel and Ray, as well as the actual breach of the agreement. Ray concludes she has demonstrated each portion of the three-part test used to determine whether an arbitration award should be vacated for fraud and that the actions of Cingular constituted perjury and were contrary to the express covenant of good faith and fair dealing contained in the agreement.
Ray’s claims are not persuasive. Cingular’s failure to produce the entire email exchange does not constitute perjury, which is defined as a willfully false statement, under oath, of a material fact. (People v. Garcia (2006) 39 Cal.4th 1070, 1091) Nor does it appear that Cingular’s conduct amounted to fraud, which requires a knowing misrepresentation, concealment or omission, made with the intent to induce reliance thereon, justifiable reliance by a third party and resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.)
Here, although Cingular did not produce the email that precipitated Khamneipur’s email to Ian Compton, the email Cingular did produce, Exhibit 5, referred to the earlier email and the list of non-compliant subdealers.
Further, earlier production of the first email would not have altered the outcome of the arbitration. The arbitrator stated multiple grounds for concluding Cingular did not interfere with Ray’s relationship with LA Tel. The award expressly noted that Khamneipur testified LA Tel wanted to retain only 10 of its existing subdealers, Ray was not one of those subdealers, and the termination letter was a quick way of canceling the unwanted subdealers. The arbitrator also found Cingular was “clearly within its rights to establish different territorial boundaries; eliminate smaller dealers in certain markets; eliminate any dealers at all in Fillmore; retain only dealers which ‘looked and felt’ like Cingular stores . . . . The evidence shows that this is what happened here.” Thus, it is apparent the arbitrator would not have ruled any differently if the complete email exchange had been submitted at the arbitration hearing.
Additionally, Ray had the opportunity to rebut Cingular’s claims at the arbitration hearing as shown by Khamneipur’s testimony that LA Tel terminated Ray because she was on a list of noncompliant subdealers. Consequently, the award cannot be seen as having been obtained fraudulently. (Pacific Crown Distributors v. Brotherhood of Teamsters (1986) 183 Cal.App.3d 1138, 1148.)
In sum, Ray’s request to vacate the award under section 1286.2, subdivision (a)(1) fails.
3. Ray fails to demonstrate misconduct by the arbitrator or failure to hear relevant evidence.
Ray contends the arbitrator committed misconduct and failed to consider all the evidence that was pertinent to the controversy. Ray argues the arbitrator should have reopened the hearing to consider the evidence submitted with Ray’s final request to reopen the hearing dated August 25, 2006, or at least should have acknowledged receiving it. Ray also contends the arbitrator’s failure to consider the All American contract, which was submitted with Ray’s request for reconsideration dated August 25, 2006, was tantamount to a refusal to hear evidence material to the controversy, or a refusal to postpone the hearing on sufficient cause being shown. The arbitrator’s failure to consider the written contract substantially prejudiced Ray’s rights with respect to her claim of interference with contract. Because Ray’s rights were substantially prejudiced by the conduct of the arbitrator, the trial court should have vacated the award. (§ 1286.2, subds. (a)(3), (a)(5).)
Ray is unable to show the arbitrator’s refusal to reopen the hearing constituted an abuse of discretion or resulted in a refusal to hear material evidence. The record reveals that all the evidence Ray submitted to the arbitrator was considered either at the arbitration hearing or through Ray’s numerous requests for reconsideration. The arbitrator’s post hearing order dated August 21, 2006, indicates the arbitrator reviewed and considered Ray’s requests to reopen the hearing dated August 13 and 14, 2006, as well as related correspondence from the parties dated August 4, 6, 9, 10, 11, 2006. Further, the AAA case manager’s letter of August 29, 2006, acknowledged receipt of Ray’s letter dated August 25, 2006, and indicated the letter had been transmitted to the arbitrator for the arbitrator’s consideration.
In any event, nothing in Ray’s submission of August 25, 2006, suggests the arbitrator might have ruled differently. The arbitrator’s award noted Ray had a relationship with All American, but concluded Cingular did not tortiously interfere with that relationship. Thus, consideration of the contract that All American presented to Ray would not have altered the result of the arbitration. Similarly, the email in which Graves assertedly approved Central Cellular’s subdealer arrangement through LA Tel was not material to the dispute in that the arbitrator expressly found Cingular never granted final approval of Central Cellular subdealer application. In sum, even assuming the arbitrator failed to consider the evidence Ray submitted on August 25, 2006, none of this evidence would have resulted in a different award. Consequently, no error or abuse of discretion appears.
4. Ray’s public policy argument fails.
Ray contends it is against public policy to confirm arbitration awards obtained by inappropriate means. However, as noted above, we disagree with Ray’s premise that the arbitrator’s award was tainted by perjury or other impropriety. Consequently, public policy imposes no impediment to affirmance of the trial court’s confirmation of the award. (See Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 11-13.)
DISPOSITION
The order of the trial court is affirmed; Cingular shall recover its costs on appeal.
We concur: CROSKEY, J., KITCHING, J.