Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2009-00122601, Glenda Sanders, Judge.
Telep Law and Desiree Telep for Plaintiffs and Appellants.
No appearance for Respondents.
OPINION
RYLAARSDAM, ACTING P.J.
Plaintiffs Synergy Management Systems, Inc., Aaron Cuha, and Michael Timoschuk appeal from a $32,000 judgment entered after the court confirmed an arbitration award against them in favor of defendants Gregg McElwee and Lloyd B. Feldman for a commission in connection with the sale of real estate. They contend the arbitrators exceeded their powers by compelling Aaron to arbitrate because he was not a party to the arbitration agreement and by rendering an illegal award in violation of the Business and Professions Code by requiring an agent to pay and another agent to be paid a commission. They further assert Deborah Cuha cannot be bound by the award because she was not a party to the arbitration agreement. Finally, they challenge the substantive merits of the award. These arguments do not persuade.
As a preliminary matter, none of the exhibits from the arbitration are in the record. Nor have any of the operative documents in the transaction or those critical to the issues on appeal been included in the record. Although the latter documents are attached as exhibits to the opening brief we cannot consider them. California Rules of Court, rule 8.204(d) allows a party to attach exhibits to a brief but only if they are part of the record. (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 546, fn. 1 [court ignores exhibit to brief because not in record].) Also, California Rules of Court, rule 8.204(a)(1)(C) requires a brief to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” To provide context for our opinion we include facts from the arbitration briefs of both sides, which are in the clerk’s transcript.
Synergy, a real estate brokerage firm for which Aaron was the broker, listed for sale a residence owned by Aaron and his wife, Deborah Cuha, as trustees of their trust. Timoschuk was an agent for the sellers pursuant to Synergy’s license. The listing provided for a three percent commission. McElwee, a licensed broker, and Feldman, an agent working under his license, represented the buyer. Plaintiffs claimed the operative purchase agreement contained an agreement reducing the commission to two percent and that is what was paid at the close of the transaction. Thereafter defendants filed a demand for arbitration under the rules of the Orange County Association of Realtors seeking the additional one percent. All of the parties in their professional capacities were members of that organization.
Subsequently plaintiffs filed this action for breach of oral contract, fraud, unfair business practices, and declaratory relief, primarily concerning the amount of the commission. After the trial court granted defendants’ motion to stay the action and the arbitration was conducted, defendants were awarded $32,000 representing the remaining one percent commission. The award against all plaintiffs was confirmed by the trial court, which denied their motion to vacate or correct the award.
Relying on Code of Civil Procedure section 1286.2, subdivision (a)(4), which allows an award to be vacated if an arbitrator exceeds his or her power, plaintiffs contend the arbitration provision applied only to brokers and thus cannot bind Aaron because he was acting only as a seller. But the arbitration agreement is one of the documents that is only an exhibit to the brief and there is nothing in the record to factually substantiate plaintiffs’ claim. Plaintiffs’ argument that the award was incorrect because it violated the sales agreement fails for the same reason: the agreement is not in the record. Moreover, as discussed below, generally we do not review arbitration awards on the merits and it appears there would be no basis to do so here.
Plaintiffs rely on the same excess of powers theory when they argue the award was illegal under Business and Professions Code section 10137, which prohibits a real estate salesperson from accepting payment from anyone other than his or her broker or paying anything in connection with a sales transaction except through the employing broker, and Business and Professions Code section 10138, which makes it a misdemeanor to pay anyone other than a broker for real estate services.
It is well established that review of an arbitration award is quite limited. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10; Code Civ. Proc., §§ 1286.2, 1286.6.) “Inherent in [the power of an arbitrator pursuant to contractual arbitration] is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such error, for ‘“[t]he arbitrator’s resolution of these issues is what the parties bargained for in the arbitration agreement.”’ [Citations.]” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184.) “[A]rbitrators are not required to make decisions according to the rule of law... 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.)
We acknowledge that in extraordinary and “rare cases” we may review an award that is “incompatible with the protection of a statutory right” (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 33) and “violates an explicit expression of public policy” (Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431, 438 [arbitration award of $88 million for a claim of $18 million violated prohibition against gift of public funds and subject to review]). But the statutes at issue here do not embody the kind of public policy that justifies a departure from the general rule limiting judicial review of arbitration awards. And since all the parties to the judgment appear to be subject to the statutes, they would have a responsibility to abide by their provisions, regardless of the judgment.
As their final argument plaintiffs assert the award cannot bind Deborah, but by their own admission she was not named in the award. Plaintiffs hypothesize that if the award bound her vis-à-vis her breach of contract and fraud claims against defendants and the buyer she would be prejudiced and her due process rights violated. But she is not a party to the complaint contained in the clerk’s transcript. In her statement of facts she notes the existence of an amended complaint in which she apparently was a party but that complaint is not in the record and thus not before us. Finally, Deborah is not even a party to the appeal and has no standing to make any arguments.
The judgment is affirmed. Since respondents did not appear, they incurred no costs and none are awarded.
WE CONCUR: BEDSWORTH, J., O’LEARY, J.