Burlage v. Superior Court

PERREN, J., Dissenting

I respectfully dissent.

As my colleagues aptly note, judicial review of a contract arbitration award is extremely limited and is not to be vacated based on the arbitrator’s error of law in making it. “Further, the existence of an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33 [10 Cal.Rptr.2d 183, 832 P.2d 899]; see Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1354-1355 [82 Cal.Rptr.3d 229, 190 P.3d 586].) Here, irrespective of what course this case may take and irrespective of who shall prevail, a substantial injustice as well as an economic hardship is certain to ensue. This regrettable situation is a direct result of the arbitrator’s ruling that Spencer would not be permitted to offer evidence of the postsale lot line adjustment because “the prevailing law does not support the Respondent’s [Spencer’s] Motion.” The consequence of this ruling was the exclusion of evidence of mitigation of damages as irrelevant. Both the trial judge and my colleagues have characterized this as directly affecting Spencer’s ability to dispute the amount of damage suffered by the Burlages resulting in “the refusal of the arbitrator!] to hear evidence material to the controversy.” (Code Civ. Proc., § 1286.2, subd. (a)(5).)1

The arbitrator’s ruling unquestionably precluded the admission of evidence of mitigation of damage. The exclusion, however, was the product of the arbitrator’s determination that the law does not permit consideration of evidence of mitigation in a land fraud case following the close of escrow. Right or wrong, it was a legal ruling which, under both Moncharsh and Cable Connection, precludes judicial review. This is not a surprise. Virtually every ruling on a “legal issue” at trial results in limiting the admissibility of evidence. For example, the determination that a contract is an integrated agreement bars consideration of the terms of “any prior agreement.” (§ 1856, subd. (a) [parol evidence].) If the arbitrator wrongly concludes that the agreement is integrated, admissible evidence is excluded. The determination that a statement to a physician, an attorney, a spouse or clergy, was made in confidence is privileged and bars admission of the statement. (Evid. Code, § 900 et seq.) An erroneous finding on the question of privilege would exclude admissible evidence. The determination that a mother was not *533present at the scene of an injury to her child precludes recovery of damages for the negligent infliction of emotional distress. An erroneous application of the law under Dillon v. Legg (1968) 68 Cal.2d 728 [69 Cal.Rptr. 72, 441 P.2d 912], bars recovery. Virtually every ruling sustaining a hearsay objection precludes evidence of what was said by the declarant. Erroneously concluding that a statement, no matter how crucial, is hearsay, results in evidence exclusion. The evidence does not come in. In each example the proponent’s case is adversely affected. Section 1286.2 does not, in my opinion, afford relief.

The majority tells us that “whether the arbitrator was right or wrong about the proper date from which to measure damages arguably is not subject to judicial review.” (Maj. opn., ante, at p. 530.) The majority is correct. In an effort to evade this consequence, however, the majority recasts the evidentiary ruling as more than merely erroneous. Rather, citing section 1286.2, subdivision (a)(5), the majority declares that the ruling excluding evidence of the “modest payment to the country club” “substantially prejudiced Spencer and undermined the fundamental principle . . . that an arbitrator must consider material evidence.” (Maj. opn., ante, at p. 530.) Thus, the award is subject to judicial review. This conclusion is in direct conflict with Hall v. Superior Court (1993) 18 Cal.App.4th 427, 439 [22 Cal.Rptr.2d 376]. In Hall, the trial court vacated an arbitration award under former subdivision (e) of section 1286.2 (now subd. (a)(5)), finding among other things that the party seeking vacation (Trompas) had been substantially prejudiced by the arbitrator’s refusal to reopen the case to allow the presentation of additional evidence. The arbitrator denied the motion on the ground that the party’s defense, even with the proffered evidence, lacked merit. The Court of Appeal reversed, reasoning as follows: “To vacate an award, section 1286.2, subdivision (e), requires that the trial court find that a party has been ‘substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.’ (Italics added.) Where, as here, a party complains of excluded material evidence, the reviewing court should generally focus first on prejudice, not materiality. To find substantial prejudice the court must accept, for purposes of analysis, the arbitrator’s legal theory and conclude that the arbitrator might well have made a different award had the evidence been allowed.” (18 Cal.App.4th at p. 439, italics added.) The court continued: “Applied in this manner, subdivision (e) of section 1286.2 does not cover the arbitrator’s actions here. Trompas failed to show substantial prejudice. The arbitrator received an informal offer of proof, determined that even if presented the evidence would not persuade him *534against the Halls, and denied Trompas the opportunity to replace his offer of proof with actual testimony. The arbitrator did not prevent Trompas from fairly presenting his defense. Instead, the arbitrator concluded that Trompas’s defense, even with the proffered evidence, lacked merit. The superior court erred in applying section 1286.2, subdivision (e), to vacate the arbitrator’s award.” (Id. at p. 439.)

The same result should follow here. Having heard repeated motions in limine specifying the evidence to be offered and showing the economic damage resulting from the sale both at the close of escrow and following the lot line adjustment, the arbitrator ruled the evidence was irrelevant. Based on this premise the arbitrator was arguably correct. But, correct or not, the arbitrator had ruled both at the time the motions in limine were made and in his “Amended Final Award,” that damages would be computed at the time of the close of escrow. This was his legal conclusion. As such it is not subject to judicial review. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 33.)

In the modified opinion on rehearing, the majority state that “ ‘One cannot “consider” what one has refused to “hear.” ’ ” (Maj. opn., ante, at p. 531.) This is too fine a cut. The arbitrator was presented with repeated motions in limine in which the issue of damages actually sustained was thoroughly briefed. It is beyond question that he knew what respondent wished to prove and the evidence to be offered. The offer was rejected. It was an arbitration. The detailed procedural niceties of a civil trial yield to arbitration’s more expeditious and less formal procedures. “Having chosen arbitration over civil litigation, a party should ‘reap the advantages that flow from the use of that nontechnical, summary procedure.’ ” (Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1105 [47 Cal.Rptr.2d 650], quoting Moncharsh v. Hetty & Blase, supra, 3 Cal.4th at p. 11.) In sum, the majority draw a distinction between an offer of proof apprising the trier of fact of what the proponent wishes to admit and the presentation of the same proof to which an objection is sustained. If there is a distinction, it is one without a difference.

Whether the arbitrator was right or wrong, affirming the order of the trial court cuts the heart out of Moncharsh. I suggest that great mischief can and will result from the majority’s holding. In effect, every ruling resulting in witness preclusion attributable to a legal or evidentiary ruling will be rendered suspect and subject to challenge. The “ ‘strong public policy in *535favor of arbitration as a speedy and relatively inexpensive means of dispute resolution’ ” achieved “ ‘without necessity for any contact with the courts,’ ” will be rendered illusory and chimerical. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 9.)

I would grant the writ of mandate and direct confirmation of the award.

Petitioners’ petition for review by the Supreme Court was denied January 21, 2010, S178328. Baxter, J., and Corrigan, J., were of the opinion that the petition should be granted.

All further statutory references are to the Code of Civil Procedure unless otherwise stated.