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Toal v. Tardif

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 30, 2012
G044594 (Cal. Ct. App. Jan. 30, 2012)

Opinion

G044594 Super. Ct. No. 06CC02050

01-30-2012

ADAM TOAL et al., Plaintiffs and Respondents, v. VALERE A. TARDIF et al, Defendants and Appellants.

Theodore C. Beall for Defendants and Appellants. Law Office of Peter E. Ronay and Peter E. Ronay for Plaintiffs and Respondents.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed.

Theodore C. Beall for Defendants and Appellants.

Law Office of Peter E. Ronay and Peter E. Ronay for Plaintiffs and Respondents.

Defendants Valere A. and Helen M. Tardif appeal from a judgment confirming an arbitration award in favor of plaintiffs Adam and Joy Toal. Defendants contend no substantial evidence supports the court's findings that (1) Valere consented to and ratified the arbitration agreement, and (2) Valere acted as Helen's agent and therefore Helen is also bound by the agreement. As we shall explain, defendants have waived their contentions by failing to summarize the evidence adequately and to furnish sufficient legal argument. And, in any case, substantial evidence supports the court's findings. We therefore affirm the judgment.

The judgment is appealable under Code of Civil Procedure section 1294, subdivision (d). For clarity and ease of reference, we sometimes refer to the parties by their first names in this opinion. We mean no disrespect.

FACTS

Background

We draw the facts in this opening paragraph from our prior published opinion in this case. (Toal v. Tardif (2009) 178 Cal.App.4th 1208 (Toal I).) Plaintiffs sued defendants for breach of contract and other causes of action related to a house that plaintiffs bought from defendants. The dispute was submitted to binding nonjudicial arbitration pursuant to an arbitration agreement signed by the parties' attorneys, but not by the parties themselves. The arbitrator awarded plaintiffs $65,284. The trial court confirmed the award. In Toal I, we reversed the judgment confirming the award and remanded the matter to the trial court for an evidentiary hearing on "whether defendants consented to or ratified the arbitration stipulation, i.e., whether a valid arbitration contract exists between the parties." (Toal I, at p. 1224.)

The 2010 Hearing on Remand

On remand, the trial court, in accordance with Toal I, held an evidentiary hearing on September 24, 2010 (the 2010 hearing) to determine whether a valid arbitration agreement exists. The witnesses who testified at the 2010 hearing were: Adam Toal, Valere Tardif, Andre Tardif (defendants' son), and Robert Malin (defendants' former attorney, who signed the arbitration agreement purportedly on their behalf at a time when he served as their counsel). In addition, the court admitted eight exhibits into evidence.

Andre Tardif, the son of defendants, is referred to in this opinion as Valere's son for ease of reference.

The arbitration agreement was denominated a "Stipulation and Order for Arbitration and Appointment of Arbitrator," and was signed by the parties' attorneys and the trial court. In this opinion, we refer to the document as the arbitration agreement or the arbitration stipulation.

At the 2010 hearing, the following evidence was adduced concerning Valere's consent to arbitrate. Malin testified: In June 2006, he attended a case management conference with Valere and Valere's son. There, the court advised the parties to go out in the hallway and discuss arbitration or mediation. Malin "explained to [Valere] that there are other ways to resolve cases besides a trial." Malin recommended to Valere that if they agreed to arbitration, they should require that the arbitration be binding. Valere responded with words to the effect of, "'[I]f that's what you think, okay.'" Malin was satisfied that Valere heard and understood him because Valere "actively asked questions [and] engaged in the conversation." Valere was present in court when the attorneys announced that the parties had agreed to binding arbitration; Valere made no objection.

On this issue, Adam testified: On the day of the case management conference, his attorney told him "the other side would agree to arbitration only if it was binding." Adam authorized his counsel to stipulate to arbitration. At the case management conference, Valere made no objection.

At the 2010 hearing, the court also considered (as to this issue) plaintiffs' counsel's declaration that stated: Plaintiffs' counsel attended the June 2006 status conference with plaintiffs. Also present were Valere, Valere's son, and Malin. In the hall outside the courtroom, plaintiffs' counsel suggested to Malin that the parties engage in mediation or non-binding arbitration. Malin went over and talked with Valere and Valere's son, then returned to tell plaintiffs' counsel that Valere would agree to arbitration only if it were binding. Plaintiffs agreed to binding arbitration. Plaintiffs' counsel conveyed his clients' agreement to Malin, who then went over and spoke with Valere again. Valere, Malin, Valere's son, plaintiffs, and plaintiffs' counsel then entered the courtroom for the status conference. In front of everyone, including the judge, Malin stated on the record that the parties had agreed to binding arbitration and that he (Malin) would prepare the stipulation. Plaintiffs' counsel believed the parties could hear Malin's statement. Valere expressed no objection. "At no time prior to, during or after the arbitration and while [Valere] was represented by [Malin] was there any indication whatsoever that [Valere] had not consented to binding arbitration or was at all unaware of the purpose and binding effect of the arbitration."

In contrast to the foregoing evidence, Valere testified at the 2010 hearing that he did not "recall" whether he was present at the case management conference. However, he acknowledged that, just three months earlier, in his June 2010 deposition, he had testified he was not present at the case management conference. (In that deposition, he testified he was "positive" he was not there.) Valere further testified he never saw the arbitration agreement prior to that June 2010 deposition.

The reporter's transcript of the June 2006 case management/status conference contains the following pertinent statements made by the attorneys and the trial court on the decision to arbitrate. At the conference, Malin stated: "If we had to plan this morning, we would continue this to the second week of July. In the meantime, we will try and agree on binding arbitration and to pick an arbitrator. And if the court would permit that, . . . if we could submit a written stipulation by then, both for binding arbitration and the identity of the arbitrator, we wouldn't have to come back to court . . . ." The court stated, "Put that down as July the 10th that they are going to stipulate to binding arbitration." Plaintiffs' counsel stated, "I believe we will have an agreement at that time."

Evidence was also adduced at the 2010 hearing about the December 2006 arbitration proceeding. On the first day of the two-day arbitration, Valere signed the arbitrator's compensation agreement, to which the arbitration agreement was attached. Valere testified he was present both days of the arbitration, but stated he was positive he never testified there, although he later tempered his answer to say he did not "recall" testifying there. In contrast, Malin and Adam both testified Valere did indeed testify at the arbitration. Adam even recalled specific statements made by Valere during his arbitration testimony, such as that "there was a defect."

Valere admitted he never told the arbitrator during the arbitration hearing that he did not want to have the matter arbitrated. He also admitted he never complained to Malin that he (Valere) was "unhappy with the way that things were going" until after the arbitration hearing was over.

Valere's testimony (along with documentary evidence) showed that Valere wrote a check for his share of the arbitrator's fee. He wrote the check in January 2007, prior to the arbitrator's issuance of the arbitration award, but after the completion of the arbitration hearing.

As to whether Helen was bound by the arbitration agreement, Valere testified: Helen was not present at the arbitration because Valere wanted to keep her out of the proceedings. Valere made decisions on behalf of himself and Helen as to the arbitration. When Valere filed his request to dismiss the arbitration award, he was presenting the case on behalf of himself and Helen.

Malin testified: Although several depositions were taken prior to the arbitration, Helen was not deposed because he and Valere had agreed that Helen would not testify, and on that basis counsel for the Toals agreed not to take her deposition. Valere told Malin he wanted to keep Helen "out of the case as much as possible; that she was distressed by it and he didn't want her to be worried and concerned." When Malin told Valere that Helen would not be deposed, Valere acted relieved. (In a stipulation signed by all the parties, including Helen, in July 2010 — i.e., subsequent to Toal I and prior to the 2010 hearing — the parties agreed (1) plaintiffs would withdraw their notice to depose Helen, and (2) Helen would not be called as a witness by either party at the hearing.)

The Court's 2010 Ruling

The court found plaintiffs had met their burden of proving the existence of an arbitration agreement between the parties, having proved (1) defendants "consented to the arbitration agreement signed by their then-counsel," and (2) defendants ratified the agreement. The court further found Helen was "bound by the arbitration agreement to which her husband consented and ratified." Accordingly, the court granted plaintiffs' petition to confirm the arbitration award.

On the issue of Valere's consent to arbitrate, the court stated: Valere "testified that he never agreed to arbitration and was never even present at the [June 2006 case managment] status conference at which the agreement to arbitrate was reached. [Defendant's] testimony with respect to his presen[ce] at the [June 2006] status conference was directly contradicted by the testimony of his former counsel, Robert Malin, as well as the testimony of plaintiff [Adam], both of whom testified that [Valere] was physically present at the . . . case management conference. [¶] According to [Malin], while at a June 5, 2006 status conference, which [Valere] and his son [] also attended, the Court instructed the parties to go out into the hall to discuss mediation and/or arbitration. At that time, [Malin] discussed binding arbitration with [Valere], explained that it was final and very difficult to overturn, and recommended the process to [Valere]. [Valere] asked questions of [Malin], demonstrating to [Malin] that he heard and understood what [Malin] had told him, and then he consented to arbitration. Specifically, [Valere] indicated to [Malin], 'If that's what you think, okay.' Based on [Valere's] consent, [Malin] informed the Court on the record that the parties were agreeing to binding arbitration and would submit a written stipulation to that effect along with [the] identity of the arbitrator. [Valere] was present in the court when the intent to arbitrate was placed on the record, and [Valere] never objected to same." (Fn. omitted.) The court further noted that plaintiffs' counsel confirmed, in a declaration, that: (1) Valere was present at the June 2006 status conference; (2) Malin spoke outside the courtroom to Valere and Valere's son before approaching plaintiffs' counsel and advising him that defendants agreed to arbitration only if it were binding; (3) counsel and the parties (including Valere) entered the courtroom for the status conference; (4) Malin informed the court the parties had agreed to binding arbitration; and (5) Valere expressed no objection. Valere's son "testified that he did not recall that day and has no memory of events alluded to by [Malin]."

The court found Malin's testimony was more credible than Valere's because of the reasons expressed above and the following additional ones: (1) Valere claimed he was not permitted to testify at the arbitration, but Malin and Adam testified that Valere did indeed testify; (2) Valere testified he did not recall whether he attended the July 7, 2007 hearing on the petition to confirm the arbitration award, but the minute order of the proceeding states he was present; (3) Valere testified he did not recall attending the December 11, 2007 hearing on the petition to confirm the corrected arbitration award, but the minute order of the proceeding states he was present (as do the facts of Toal I); (4) Valere claimed he never saw the arbitration stipulation until his June 2010 deposition, but Valere signed an arbitrator's compensation agreement in December 2006, to which a copy of the arbitration stipulation was stapled; and (5) Valere claimed Malin, prior to arbitration, never discussed any potential arbitration witnesses with him, but Valere admitted and Malin testified that Malin hired an expert witness to inspect the premises prior to arbitration, and told Valere the date of the inspection.

On the issue of Valere's ratification of the arbitration agreement, the court stated: "Specifically, although [Valere] testified that he informed [Malin] on the first day of arbitration that he never agreed to arbitration, he conceded that he never communicated his alleged lack of consent to [plaintiffs] or the arbitrator — either prior to arbitration, during arbitration, or after arbitration but prior to receiving the arbitrator's award. Instead, [Valere] went forward with the arbitration, signed the arbitrator's compensation agreement ([plaintiffs'] Exhibit B), took part in the arbitration by testifying at same, and even wrote a check to the arbitrator for his services ([plaintiffs'] Exhibit C). It was not until after the arbitrator issued his award that [Valere] denied he ever consented to arbitration. [¶] Citing Sanker v. Brown (1985) 167 [Cal.App.3d] 1144, [Valere] contends he did not ratify the arbitration process by allowing the arbitration to proceed to an award. [Valere's] reliance on Sanker is misplaced. Unlike in Sanker, where the client did not learn the arbitration was binding until after the proceeding when he moved for a trial de novo, in the present case, [Valere] was aware the arbitration was binding prior to the proceeding going forward. ([Plaintiffs'] Exhibit B, which [Valere] signed and to which the binding arbitration agreement was attached.) Nevertheless, he permitted the arbitration to proceed to an award, without objecting to either the arbitrator or [plaintiffs]. Indeed, he wrote a check for the arbitrator's service before the award was issued."

Finally, the court found that Helen was "bound by the arbitration agreement on an agency theory." The court first summarized some principles of agency law, including: "Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess." (Civ. Code, § 2317.) '"[W]here the principal knows that the agent holds himself out as clothed with certain authority, and remains silent, such conduct on the part of the principal may give rise to liability."' (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 439.) The court explained that although Helen was "conspicuously absent" from the arbitration communications and proceedings, the evidence showed Valere acted on Helen's behalf and Helen never objected to this. The court explained: "According to [Valere, Helen] was not present at the arbitration, or any of the court hearings, because he wanted to keep her out of the litigation and was making the decisions on behalf of both of them. Indeed, because of [Valere's] desire to keep his wife out of the litigation to [prevent] her from becoming distressed, counsel agreed not to use [Helen's] testimony and not to depose her — much to [Valere's] relief and agreement. Moreover, although [Valere] had no written authorization to act on behalf of his wife, he filed the request for trial de novo and the appeal on behalf of the both of them." Helen "was named as a defendant and cross-complainant, and yet allowed her husband to act on her behalf with respect to the entirety of [the] case. Unlike her husband and her son, she failed to appear for the case management conference or the arbitration, allowing her husband to appear on her behalf. At no time did she inform [Malin] that her husband had no authority to speak for her. She also failed to file an opposition to the petition to confirm the arbitration award, and even failed to sign the notice of appeal of the order confirming the arbitration award. Instead, she was content to allow her husband to pursue the litigation on behalf of the both of them. Accordingly, she may be held bound by the arbitration agreement to which her husband consented and ratified."

Based on the court's finding defendants "consented [to] and/or ratified the arbitration agreement," the court "re-confirm[ed] the corrected arbitration award in the amount of $65,284 . . . , plus prejudgment interest and [postarbitration] award costs to be determined by separately noticed motion." The court entered judgment on the award on November 17, 2010.

DISCUSSION

Defendants contend no substantial evidence supports the court's factual findings that Valere consented to and ratified the arbitration agreement, and did so on behalf of Helen as well.

"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." (Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892, fn. 7.) "'Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .'" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on another point.)

Substantial evidence "must be of ponderable legal significance." (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) "It must be reasonable in nature, credible, and of solid value." (Ibid.) The testimony of a single witness, "'even the party himself, may be sufficient.'" (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

Defendants assert plaintiffs, as "the proponents of the award," bear the burden of proof on appeal. They are wrong. Although a petitioner who seeks to confirm an award bears the burden in the lower court of proving the arbitration agreement's existence (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413), on appeal the appellant bears the burden of proof: "In claiming that the evidence is insufficient to support the trial court's findings, an appellant must '"demonstrate that there is no substantial evidence to support the challenged findings." . . . [Citations.]' [Citation.] 'A recitation of only [appellant's] evidence is not the "demonstration" contemplated under the above rule.'" (In re S.C. (2006) 138 Cal.App.4th 396, 414.)

The case law is replete with explications of this rule. A trial court's factual findings "will be sustained unless shown to lack substantial evidentiary support." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409, italics added.) "An appellate court '"must presume that the record contains evidence to support every finding of fact . . . ."' [Citations.] It is the appellant's burden, not the court's, to identify and establish deficiencies in the evidence . . . . [Citations.] 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]'" (Ibid.) It is the appellant's "'duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. He cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked his responsibility in this respect.'" (Huong Que, Inc., at p. 409.)

Furthermore, an appellant must specify how the evidence fails to support the finding. (People v. Stanley (1995) 10 Cal.4th 764, 793.) And where the trier of fact has made an inference, the appellant may rebut that inference only "'"by clear, positive and uncontradicted evidence of such a nature that it is not subject to doubt in the minds of reasonable men."'" (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 389.) The failure to comply with this well-established rule is fatal: If the appellant fails to set forth all material evidence on a point (as opposed to merely the appellant's own evidence), "'"the error is deemed to be [forfeited]."'" (In re S.C., at pp. 414-415.)

Here, defendants devote much of their opening brief to quoting from Toal I. They purport to provide "an analysis of the pertinent portions of the record," but then fail to do so. They summarize the evidence favorable to them, but barely acknowledge any of the evidence supporting the judgment.

In contrast, plaintiffs have fully met "their duty, as respondents, to point out the evidence they deem is sufficient to support the judgment." (Hadley v. Krepel (1985) 167 Ca1.App.3d 677, 685.)
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Based on the above inadequate briefing, defendants have waived the issue of whether Valere both consented to and ratified the arbitration agreement. In their briefing on appeal, they fail to discuss or even mention the following evidence which supports the finding that Valere consented to the agreement: Malin testified that after explaining to Valere the proposal to arbitrate, and Malin's recommendation that it be binding, Valere "actively asked questions [and] engaged in the conversation." Valere responded with words to the effect of, "[I]f that's what you think, okay." Valere was present in court when the attorneys announced that the parties had agreed to binding arbitration. He made no objection.

Defendants have also failed to discuss the following evidence that supports the finding that Valere ratified the agreement to arbitrate: Valere conceded he never communicated his alleged lack of consent to the arbitrator. Valere signed the arbitrator's compensation agreement before the arbitration commenced, to which a copy of the arbitration agreement was attached. Valere participated in the arbitration by testifying there. Valere wrote a check to the arbitrator for his services, after the arbitration hearing had concluded but before the arbitrator issued his award. Only after the arbitrator issued the award did Valere deny he ever consented to arbitration. Valere was aware the arbitration was binding prior to the proceeding.

The sole remaining issue is whether Valere acted as Helen's agent. Defendants claim no evidence showed that: (1) Helen "expressly" authorized Malin to enter into the arbitration stipulation; or (2) Helen "expressly" authorized Valere to act as her agent or knew and accepted that he was acting for both of them. Defendants assert: "No evidence was introduced regarding what [Helen] knew or didn't know. No evidence was introduced regarding any authority she purportedly gave an agent to speak or act on her behalf." Defendants' scant analysis on this issue consists of: (1) a recitation (without attribution) of the court's summary of agency law contained in its minute order; (2) no argument applying those legal principles to the facts at hand; and (3) discussion of whether Malin had authority to enter into the arbitration stipulation on Helen's behalf.

The defendants do not address whether the evidence supports a finding of Valere's implied actual authority to act on Helen's behalf (Civ. Code, § 2316 ["Actual authority is such as a principal . . . by want of ordinary care, allows the agent to believe himself to possess"]) or, alternatively, Valere's ostensible authority to act on Helen's behalf (Civ. Code, § 2317 ["Ostensible authority is such as a principal, . . . by want of ordinary care, causes or allows a third person to believe the agent to possess"]).

Defendants have failed to meet their "'daunting'" burden on appeal to prove the trial court's factual finding lacks substantial evidentiary support. (Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at p. 409.) Defendants' appellate briefs simply ignore the following evidence and inferences supporting the finding that Helen was bound by the arbitration agreement: When served with the lawsuit, Helen and Valere both met with Malin and they jointly retained him. Thereafter, either intentionally or by the want of ordinary care, Helen allowed Valere to make all decisions in connection with the case. She was not present at the arbitration or any court hearing. At no time did she inform Malin that Valere had no authority to speak for her. The postarbitration hearing payment of the arbitrator's fee was made by check drawn on a joint checking account in Valere's and Helen's name, clearly implying that the couple had granted each other the authority to purchase goods and services (including the services of an arbitrator) on the other's behalf. From this evidence, the court could infer that Helen "was content to allow her husband to pursue the litigation on behalf of the both of them," and that Valere made decisions for both himself and Helen and acted as Helen's agent. Finally, the evidence established that Helen objected to the taking of her deposition in preparation for the evidentiary hearing regarding her consent, or lack thereof, to the agreement for binding arbitration. The parties reached an agreement, signed by Helen, that the deposition would not be taken, provided that defendants would not call Helen as a witness. If Helen wished to contest her consent to the arbitration agreement, she effectively forfeited that opportunity by agreeing not to testify. "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." (Evid. Code, § 412.) Accordingly, the court was well within its discretion to view defendant's evidence regarding Helen's purported lack of consent with distrust.

Thus, defendants' failure to address the evidence supporting the court's finding has waived their contention the findings are unsupported by substantial evidence. Moreover, even if defendants had not waived the issue, substantial evidence supports the court's findings Valere consented to and ratified the arbitration agreement on behalf of Helen and himself.

DISPOSITION

The judgment is affirmed. Plaintiffs are entitled to their costs on appeal.

IKOLA, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.


Summaries of

Toal v. Tardif

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 30, 2012
G044594 (Cal. Ct. App. Jan. 30, 2012)
Case details for

Toal v. Tardif

Case Details

Full title:ADAM TOAL et al., Plaintiffs and Respondents, v. VALERE A. TARDIF et al…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 30, 2012

Citations

G044594 (Cal. Ct. App. Jan. 30, 2012)