Brownlee v. Fexco Corp. CA2/5 ( 2021 )

Filed 12/22/21 Brownlee v. Fexco Corp. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
TAMIKO BROWNLEE, B304913
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC548886)
v.
FEXCO CORP.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mel Red Recana, Judge. Reversed and
remanded.
Collinson, Daehnke, Inlow & Greco and Vicki Greco for
Defendant and Appellant.
Gordon, Edelstein, Krepack, Grant, Felton & Goldstein,
Roger L. Gordon and Joshua M. Merliss for Plaintiff and
Respondent.
_________________________________
Tamiko Brownlee filed a demand for arbitration against
several parties, including Fexco Corporation, which resulted in
an arbitration award in favor of Fexco in this personal injury
case. The trial court vacated the award after finding that the
arbitrator did not determine all of the issues submitted for
decision. On appeal from the order vacating the award, Fexco
contends the arbitrator determined all of the issues submitted to
him that were necessary to resolve the matter, because he
identified all of the claims alleged in the demand and expressly
found strict product liability was the sole claim that Brownlee
pursued in the arbitration proceeding. We conclude Brownlee
failed to meet her burden to show that the arbitrator completely
overlooked an issue submitted for determination. To the extent
that the trial court found the arbitrator wholly ignored an issue
submitted for determination, that finding is not supported by the
limited record presented to the court. Therefore, we reverse and
remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Injury and Complaint
A production company hired Brownlee to perform stunts for
a reality television show. She executed an agreement with the
production company in June 2012 containing the following
arbitration provision: “The parties agree that if any controversy
or claim arising out of or relating to this Agreement cannot be
settled through direct discussions, they shall endeavor first to
settle the controversy or claim by a mediation administered by
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JAMS under its applicable rules. IF THE DISPUTE IS NOT
OTHERWISE RESOLVED THROUGH DIRECT DISCUSSIONS
OR MEDIATION, THE PARTIES AGREE THAT THE
CONTROVERSY OR CLAIM, INCLUDING THE SCOPE OR
APPLICABILITY OF THIS AGREEMENT TO ARBITRATE,
SHALL THEN BE RESOLVED BY FINAL AND BINDING
CONFIDENTIAL ARBITRATION ADMINISTERED BY JAMS
IN ACCORDANCE WITH ITS STREAMLINED ARBITRATION
RULES AND PROCEDURES . . .”
Frank Ceglia is a licensed pyrotechnician. He formed
Fexco in 1984 to rent special effects equipment to production
companies, which he uses to perform his services. The production
company hired Ceglia to work on the same show as Brownlee.
Fexco rented a large metal cylinder known as a “propane popper”
to the production company for Ceglia’s use in creating an
explosive effect known as a “fireball” for the show. A propane
popper produces a brief fireball with no residual fuel remaining.
Ceglia had purchased the propane popper approximately 30 years
earlier from the designer and manufacturer Jack Bennett and
rented it solely to entertainment production companies. On June
21, 2011, Ceglia ignited the special effect with a live studio
audience. Brownlee suffered third degree burns from proximity
to the fireball effect.
Brownlee filed a complaint on June 17, 2014. She filed an
amended complaint on March 9, 2015, against several parties for
negligence, premises liability, product liability, peculiar risk, and
ultrahazardous activity based on the personal injuries that she
sustained from use of the propane popper. Her product liability
cause of action contained conclusory allegations based on strict
liability, negligence, and breach of warranty theories. On
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January 12, 2016, Brownlee amended the complaint to substitute
Fexco as a Doe defendant. On March 18, 2016, the trial court
granted several motions to compel arbitration, including a motion
brought by Fexco.
Arbitration Proceedings
On January 29, 2018, Brownlee submitted a demand for
arbitration against several parties (collectively referred to as the
defendants), including Fexco. The product liability cause of
action was stated as a single cause of action, including conclusory
allegations based on theories of strict liability, negligence, and
breach of warranty. The defendants filed a motion for summary
judgment, which the arbitrator denied on November 14, 2018.
The pleadings submitted and the order denying summary
judgment were not made part of the record in the trial court or on
appeal.
The parties agree that Brownlee dismissed all of the
defendants except Fexco prior to the start of the arbitration. In
June 2019, Brownlee submitted an arbitration brief which began,
“Claimant has read and considered the Order on [the defendants’]
Motion for Summary Judgment and Claimant intends on
focusing at this arbitration on her claim of strict product liability
against Fexco, a California corporation.”
Brownlee’s arbitration brief argued that the propane
popper had a design defect under both the consumer expectation
test and the risk benefit test. She also argued that Fexco was not
subject to the arbitration agreement and should not have been
ordered to arbitration. In addition, she argued that the
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comparative fault provisions of Proposition 51 did not apply to
strict liability for injury caused by a defective product.
Under the heading “Claimant Has A Prima Facie Case
Establishing A Product Defect,” she explained the two tests to
establish strict liability for a design defect are the consumer
expectations test and the risk benefit test. A paragraph at the
end of the section stated, “Even using the negligence standard for
assessing design of a product requires balancing the likelihood
and gravity of potential harm from a given design against the
burden of the measures required to avoid the harm. If the
likelihood and gravity of the harm outweigh the design’s utility,
the manufacturer or distributor may be found negligent for
having placed the product on the market regardless of any
product warnings the manufacturer may have provided. Merrill
v. Navegar, Inc., (2001) 26 Cal.4th 465, 478–481, 483.”
Brownlee argued that the propane popper was a product
subject to strict product liability, not a service as had been
claimed by Fexco. In addition, liability disclaimers are not
enforceable as to strict product liability, and recovery was not
limited to the immediate purchaser of the product. In conclusion,
Brownlee stated, “Claimant expects to submit proof of a prima
facie case against Fexco under both the consumer expectation
test and risk benefit test and does not believe Fexco has a legal
defense.”
Prior to the start of the arbitration, Brownlee filed the
declaration of expert witness Morris Farkas. In relevant part,
Farkas declared that Fexco, as the distributor of a manufactured
product, failed to analyze the design or the safety of the product,
eliminate the design defect by adding a stabilizing base, or
provide written warnings or instructions regarding hazards from
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the use of the product. When Fexco placed the product on the
market, it was imperative to stabilize the base and provide
minimum warnings and instructions concerning dangers. It was
foreseeable that Brownlee could miss her mark and
unintentionally move into the zone of danger. In Farkas’s
opinion, the defective design of the product met both the
consumer expectation test and the risk benefit test.
Farkas opined that Fexco ignored safety fundamentals
when it distributed the product to the production company.
Fexco failed to provide the production company, the stunt
choreographer, Ceglia, or Brownlee with written warnings or
instruction on the product as to the dangers and necessary safety
precautions. Because the sole purpose of the corporation was to
provide special effects equipment to production companies for
which Ceglia provides pyrotechnic services, Fexco had to provide
specific warnings and instructions about the highly dangerous
and flammable nature of the product. Because Fexco was formed
to distribute pyrotechnic equipment including the propane
popper, it was Fexco’s responsibility to ensure the product were
safe to use and included readily visible written warnings and
instructions concerning the dangers and safety precautions
necessary. Fexco’s failure to distribute a manufactured
pyrotechnic product that was safe for its foreseeable use was the
proximate cause of the accident.
Five days of evidentiary hearings were held before the
arbitrator between June 10 and August 7, 2019, which included
excerpts of deposition testimony and examination of seven
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witnesses. The parties submitted simultaneous closing briefs on
August 14, 2019.1
The arbitrator issued an award on August 20, 2019. Under
the heading “The Pleadings,” the arbitrator noted that Brownlee’s
demand for arbitration had alleged general negligence, premises
liability, product liability, peculiar risk and ultrahazardous
activity. Fexco had denied the claims and stated 29 affirmative
defenses. The arbitrator added, “In her Arbitration Brief,
Brownlee stated that she would pursue only her strict liability
claim at the Hearing.”
The arbitrator summarized aspects of strict product
liability law. The arbitrator noted that the concept of res ipsa
loquitur requires a plaintiff to show that the type of accident that
occurred does not typically occur in the absence of negligence, the
instrumentality was within the defendant’s exclusive control, and
the plaintiff did not contribute to her harm, but the doctrine does
not apply to strict liability claims.
With respect to the testimony of witnesses, the arbitrator
noted that Farkas was the only witness offered as an expert. The
arbitrator found that Farkas qualified as a general workplace
safety expert, but not as an expert specific to propane poppers or
pyrotechnics. Prior to the present case, Farkas had never
examined a propane popper; he had merely read articles about
pyrotechnic accidents. Farkas never examined Fexco’s propane
popper. The arbitrator concluded that Farkas’s testimony was
either general or pertained to fireworks, and therefore, was not
1 No transcript of the arbitration hearings was provided to
the trial court or on appeal, and the closing briefs are not part of
the record either.
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specific to the instant action or was lacking in foundation due to
his unfamiliarity with the device or with film productions.
Under the heading “Analysis,” the arbitrator explained,
“[t]his analysis addressed on the critical issues and
determinations which the Arbitrator considers necessary to
decide the case. The core issue is whether Fexco is strictly liable
for Brownlee’s injuries due to the fireball produced by its propane
popper.” On the issue of liability, the arbitrator made the
following findings: “The evidence was inconclusive as to why the
propane popper appeared to generate a fireball that was greater
in size than at the rehearsal and that extended outward and
upward rather than just upward. Something seemed to go
wrong. It may well have been the case that one or more of the
Respondents, perhaps even Fexco, was negligent and that,
despite the unsettled evidence, the doctrine of res ipsa loquitur
could establish liability. However, such a finding cannot be made
in this case because Brownlee dismissed the other Respondents
and pursued only a strict products liability claim against the sole
remaining Respondent, Fexco.
“By his own admission, Ceglia confirmed that, through
Fexco, he rented the propane popper to [the production company].
This establishes a bailor-bailee relationship, which is subject to
product liability claims. However, neither Fexco [nor] Ceglia was
engaged in the business of distributing propane poppers to the
public in the stream of commerce. [Theirs] was not an organized
and continuing operation, but rather an all-purpose pyrotechnic
service provided to film production companies. Furthermore, the
popper was not a new product. Ceglia had been leasing it to
entertainment production companies for upwards of 30 years.
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“Fexco tried to show that Brownlee contributed to her own
injury, primarily in reliance on [one witness’s] exaggerated and
absurd testimony that she missed her mark by 8-10 feet. As
explained above, the Arbitrator found [that witness] not credible.
The evidence most strongly established that the incorrectly
positioned placement of the motorcycle forced Brownlee away
from the safety zone.”
The arbitrator concluded, “It is unknown why the popper
produced a big, unsafe fireball that engulfed and severely injured
Brownlee. Unfortunately for Brownlee, the evidence does not
support a finding that Fexco is liable for her injuries. The strict
products liability doctrine simply does not apply to Fexco’s
propane popper. [¶] For the reasons set forth above, the
Arbitrator makes the following findings and issues this Final
Award, as follows: [¶] 1. Brownlee failed to establish by a
preponderance of the evidence that Fexco was responsible for her
injuries. [¶] 2. Judgment shall be entered in favor of Fexco and
against Brownlee on Brownlee’s strict products liability claim.”
Petition to Vacate Arbitration Award
On November 6, 2019, Brownlee filed a petition to vacate
the arbitration award on the ground that the arbitrator failed to
make findings on all of the issues raised in the pleadings,
contrary to the statutory requirement to determine all of the
questions submitted for decision, and the award could not be
corrected without affecting the merits of the decision.
Specifically, she never dismissed her claims for product liability
based on theories of negligence and breach of warranty. As a
result, Brownlee argued, the trial court should vacate the
9
arbitration award and appoint a different arbitrator to hear the
matter.
Brownlee submitted the declaration of her attorney Roger
Gordon in support of the petition. Gordon declared he never told
the arbitrator that Brownlee was pursuing “only” her strict
liability claim at the hearing and the arbitrator never asked
whether Brownlee was waiving or dismissing her other causes of
action or claims against Fexco.
On November 15, 2019, Fexco filed a petition to confirm the
arbitration award. On November 25, 2019, Fexco filed an
opposition to the petition to vacate the arbitration award. Fexco
argued that Brownlee dismissed her negligence claim against the
other defendants and pursued only the strict product liability
cause of action against Fexco. Fexco noted that the arbitrator
considered the doctrine of res ipsa loquitur even though Brownlee
had not raised that theory. The arbitrator found Fexco was not
in the business of distributing propane poppers to the public or
placing them into the stream of commerce. In addition, the
propane popper was not a new product. Brownlee failed to satisfy
her burden of proof to establish strict product liability.
The trial court held a hearing on December 13, 2019.
Fexco argued that the arbitrator ruled on the issues, indirectly if
not directly, by finding that the propane popper was not a
product and was not placed in the stream of commerce. Although
the arbitrator did not use magic words, he addressed the issues
being asserted to the court. In response, attorney Gordon
asserted that Fexco could have requested a correction after the
ruling, but did not. Gordon noted, “I had no desire to have him
correct the award based upon the way he was construing the law
of product liability.” Gordon disagreed with the arbitrator’s
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finding that the propane popper was not a product, but he argued
that at a minimum, there was a bailment. The owner admitted
that he never did any testing and never made any determination
whether there should be a safety margin, which was negligent.
There was also an implied warranty of merchantability that the
propane popper was safe for its intended purpose, when it was
not. Fexco’s attorney replied that the arbitration award reflected
that the arbitrator decided the theories of product liability based
on negligence and breach of warranty. In the alternative, Fexco
requested that the trial court send the matter back to the
arbitrator to conform the award to the evidence. Gordon
mentioned that Fexco’s closing brief argued Brownlee waived her
theories of product liability based on negligence and breach of
warranty. He commented, “I don’t even think he read my brief.
He went straight to [Fexco’s closing brief].” The trial court took
the matter under submission.
Later that day, the trial court issued a minute order
granting the petition to vacate the arbitration award without
expressly ordering rehearing in arbitration. The court’s ruling
stated that it did not appear Brownlee ever dismissed or
abandoned her causes of action for product liability negligence
and product liability breach of warranty. Brownlee’s arbitration
brief stated that she was focusing on her claim of strict product
liability, but did not state that she was abandoning other causes
of action and pursuing strict product liability only. Brownlee’s
counsel never told the arbitrator that Brownlee was pursuing
strict product liability only. The court concluded that “the
arbitrator omitted findings on Plaintiff’s causes of action for
product liability negligence and for product liability breach of
warranty from the arbitration award through mistake or
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excusable neglect. The arbitrator mistakenly believed that
Plaintiff abandoned her negligence and breach of warranty
causes of action when Plaintiff only stated that she was focusing
on her strict products liability cause of action. The court also
finds that the arbitrator omitted findings on Plaintiff’s causes of
action through excusable neglect, as Plaintiff devoted almost the
entirety of her arbitration brief to her cause of action for strict
products liability. Plaintiff did not even mention her cause of
action for product liability breach of warranty and there was no
factual analysis on the negligence cause of action in Plaintiff’s
arbitration brief. These facts are sufficient to show that the
arbitrator’s omission was made through excusable neglect.” The
court found the arbitrator’s award must be vacated, because the
arbitrator violated the statutory requirement to decide all issues
necessary to determine the controversy. The court found Fexco’s
petition to confirm the award was moot. Fexco filed a timely
notice of appeal.
DISCUSSION
Standard of Review
“As a general rule, the merits of an arbitrator’s decision are
not subject to judicial review. (Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1, 11 [(Moncharsh)]; Jones v. Humanscale
Corp. (2005) 130 Cal.App.4th 401, 407–408.)” (SWAB Financial,
LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181,
1195 (SWAB Financial).) “More specifically, courts will not
review the validity of the arbitrator’s reasoning. [Citations.]
Further, a court may not review the sufficiency of the evidence
12
supporting an arbitrator’s award. [Citations.] [¶] Thus, it is the
general rule that, with narrow exceptions,
an arbitrator’s decision cannot be reviewed for errors of fact or
law.” (Moncharsh, supra, 3 Cal.4th at p. 11; Panoche Energy
Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68,
98.)
“We review the trial court’s order vacating the arbitration
award de novo. [Citations.] However, we apply the substantial
evidence test to the trial court’s ruling to the extent it rests upon
a determination of disputed factual issues. [Citation.]” (SWAB
Financial, supra, 150 Cal.App.4th at p. 1196.) “Substantial
evidence includes reasonable inferences drawn from the evidence
in favor of the judgment. [Citation.] An inference may be drawn
from a party’s failure to produce available evidence or to explain
evidence or facts in the case against him. [Citations.]” (Maaso v.
Signer (2012) 203 Cal.App.4th 362, 371.)
Issues Submitted for Decision
Fexco contends the arbitrator resolved all of the issues
submitted to him that were necessary to determine the
controversy, and therefore, the arbitration award cannot be
vacated for failing to determine a necessary question. We
conclude Brownlee did not meet her burden to show that the
arbitrator failed to decide an issue submitted for determination.
To the extent that the trial court found Brownlee submitted
issues that were not decided, the record does not support that
finding.
An arbitration award must include “a determination of all
the questions submitted to the arbitrators the decision of which is
13
necessary in order to determine the controversy.” (Code Civ.
Proc., § 1283.4.)2 The exclusive grounds for vacating an
arbitration award are contained in section 1286.2. (Mossman v.
City of Oakdale (2009) 170 Cal.App.4th 83, 88.) Under section
1286.2, subdivision (5), an arbitration award must be vacated if
the court determines the rights of a party were substantially
prejudiced by “conduct of the arbitrators contrary to the
provisions of this title.” (§ 1286.2, subd. (5); Rodrigues v. Keller
(1980) 113 Cal.App.3d 838, 840–841 (Rodrigues).) When the
record shows that an issue was submitted to the arbitrator to
decide and the arbitrator completely failed to consider the issue,
the arbitrator’s failure to decide all of the questions necessary
may justify vacating the award under section 1286.2, subdivision
(5). (Rodrigues, supra, 113 Cal.App.3d at p. 841 [record did not
demonstrate any issue was submitted to the arbitrator which he
totally failed to consider]; Banks v. Milwaukee Ins. Co. (1966) 247
Cal.App.2d 34, 38–39 [declaration from arbitrator that he
inadvertently neglected to award general damages, which was an
element of the claim submitted for decision, was sufficient to
support vacating the award].)
“It is for the arbitrators to determine which issues were
actually ‘necessary’ to the ultimate decision. [Citation.]” (Morris
v. Zuckerman (1968) 69 Cal.2d 686, 690 (Morris); Felner v.
Meritplan Ins. Co. (1970) 6 Cal.App.3d 540, 546 [“Under the rule
of broad construction an arbitrator is authorized to determine all
questions which he needs to determine in order to resolve the
controversy submitted to him, and the arbitrator himself decides
which questions need to be determined”].) The court may vacate
2All further statutory references are to the Code of Civil
Procedure unless otherwise stated.
14
an arbitration award if it determines that “[t]he arbitrators
exceeded their powers and the award cannot be corrected without
affecting the merits of the decision upon the controversy
submitted” (§ 1286.2, subd. (4), but the court may not substitute
its judgment for that of the arbitrator. (Morris, supra, 6 Cal.2d
at p. 691.)
“[E]very reasonable intendment must be indulged in favor
of the award.” (Lauria v. Soriano (1960) 180 Cal.App.2d 163,
168, disapproved on another ground in Posner v. Grunwald-Marx,
Inc. (1961) 56 Cal.2d 169, 183.) It is presumed that the
arbitrator considered and resolved all of the issues submitted for
decision; “the burden of proving otherwise is upon the party
challenging the award.” (Rodrigues, supra, 113 Cal.App.3d at p.
842.) “[To] discharge that burden, the party attacking the award
must demonstrate that a particular claim was expressly raised at
some time before the award [citation], and that the arbitrator
failed to consider it [citation].” (Ibid.) “[The] failure of an
arbitrator to make a finding on even an express claim does not
invalidate the award, so long as the award ‘serves to settle the
entire controversy’ [citation]. This is a corollary of the
proposition that arbitrators are not obliged to find facts or give
reasons for their award [citation].” (Id. at p. 843)
“A party who asserts a claim in an arbitration proceeding
must produce evidence in support of that claim; if he fails to do
so, he cannot attack the award on the ground that the claim was
not considered by the arbitrators.” (Sapp v. Barenfeld (1949) 34
Cal.2d 515, 524 [respondents failed to introduce evidence of lost
rental income and expressly asserted claim for the first time in
opposition to confirmation petition, so failure to consider these
damages did not invalidate arbitration award].)
15
In the arbitration award in this case, the arbitrator
identified all of the claims that Brownlee alleged in her demand
for arbitration and concluded that she had pursued only her strict
product liability claim against Fexco in the arbitration. To vacate
the arbitration award on the ground that the arbitrator failed to
consider an issue that was submitted for decision, Brownlee had
to show the issue was submitted and the arbitrator completely
failed to consider it. Brownlee did not meet this burden, because
she did not provide an adequate record to determine which issues
were presented and supported with evidence during the
arbitration proceedings, and which issues were conceded or
abandoned. Brownlee’s opening arbitration brief alluded to the
arbitrator’s summary judgment ruling, but she did not submit
the summary judgment pleadings or the arbitrator’s ruling from
which to determine whether issues were resolved prior to
arbitration. It was Brownlee’s burden to produce evidence during
the arbitration in support of each claim, but she did not provide a
reporter’s transcript of the arbitration hearings showing which
claims had been supported with evidence in the hearing. In
support of the motion to vacate, Brownlee submitted one expert
declaration that Brownlee had offered in the arbitration, but the
arbitrator expressly found that particular witness was not
qualified to testify as an expert on the subject of the propane
popper. Without a reporter’s transcript or an appropriate
substitute, the court was unable to review the evidence and
arguments presented at the arbitration, including any express or
implied concessions by Brownlee’s counsel about the issues being
submitted for decision. In addition, Brownlee did not provide to
the trial court the parties’ closing briefs from the arbitration.
The closing briefs could have clarified which issues were actually
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submitted for decision based on the evidence presented during
the arbitration. The record Brownlee presented to the trial court
was wholly inadequate to allow the court to review the
arbitrator’s finding that Brownlee pursued only her claim for
strict product liability in the arbitration proceedings.
Moreover, even if the record that Brownlee provided to the
court was adequate for review, the trial court’s finding that the
arbitrator wholly overlooked issues submitted for determination
is not supported by substantial evidence. The trial court was
required to draw every reasonable inference in favor of the
arbitrator’s award. Brownlee’s arbitration brief contained no
citation to legal authority and no argument for liability on any
theory other than strict product liability, other than a stray
citation to product liability negligence without context or
argument. The arbitrator ruled Brownlee’s expert witness
declaration was inadmissible with respect to the propane popper.
After reviewing the parties’ briefs, as well as the evidence and
argument presented during the arbitration, the arbitrator
concluded that Brownlee had pursued only the strict product
liability claim against Fexco. The award clearly reflects that the
arbitrator was aware of the issues alleged in the demand and
made a determination on procedural grounds that Brownlee
failed to pursue any claim against Fexco other than strict product
liability. This is not a case where an issue was submitted for
decision and the arbitrator completely overlooked or neglected to
make a ruling on it in the award. Conclusory references to other
theories in the demand for arbitration and a stray legal citation
in Brownlee’s opening brief, in the absence of any record that
Brownlee actually introduced evidence, legal authority, and
argument during the hearing in support of any cause of action
17
other than strict product liability, are not substantial evidence to
support finding that the arbitrator overlooked issues presented
for determination. We note that if Brownlee believed the
arbitrator omitted findings on issues that she submitted for
decision, she could have timely applied to the arbitrator for a
correction or supplemental award to address her additional
theories of liability, but she did not.
Trial Court Order Compelling Arbitration
In her respondent’s brief, Brownlee contends this appellate
court should vacate the trial court’s order that compelled
arbitration; however, Brownlee did not file a cross-appeal from
the order vacating the arbitration award. An order compelling
arbitration is not directly appealable, but it is reviewable on
appeal from the judgment entered after the arbitration is
completed. (Muao v. Grosvenor Properties, Ltd. (2002) 99
Cal.App.4th 1085, 1088–1089.) However, “[a]s a general matter,
‘“a respondent who has not appealed from the judgment may not
urge error on appeal.”’ [Citation.] ‘To obtain affirmative relief by
way of appeal, respondents must themselves file a notice of
appeal and become cross-appellants.’” (Preserve Poway v. City of
Poway (2016) 245 Cal.App.4th 560, 585.) Because Brownlee did
not file a cross-appeal, any issues concerning the order
compelling arbitration that would have been reviewable on
appeal from the order vacating the arbitration award without
rehearing have been forfeited.
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DISPOSITION
The order vacating the arbitration award and dismissing
the petition to confirm the arbitration award as moot is reversed.
The matter is remanded for further proceedings on the petition to
confirm the arbitration award. Appellant Fexco Corporation is
awarded its costs on appeal.
MOOR, J.
We concur:
BAKER, Acting P.J.
KIM, J.
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