Peters & Freedman, LLP v. Lowry CA4/2 ( 2021 )

Filed 3/4/21 Peters & Freedman, LLP v. Lowry CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PETERS & FREEDMAN, LLP,
Plaintiff and Respondent, E072390
v. (Super.Ct.No. PSC1402720)
PATRICK LOWRY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. James T. Latting, Judge.
Affirmed.
Patrick Lowry, in pro per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant Patrick Lowry appeals from a judgment confirming an arbitration
award in favor of plaintiffs Peters & Freedman, LLP in a dispute over unpaid legal fees.
Lowry argues the trial court erred by denying his petition to vacate the award. We
disagree and affirm. As we explain, Lowry has provided an inadequate record to
demonstrate trial court error, and in any event, his arguments for vacating the award fail
on their merits.
I
FACTS
In 2014, the law firm of Peters & Freedman, LLP (plaintiffs) filed a complaint
against Lowry alleging he owed them $51,025.38 in legal fees for litigation and general
counsel services. The record Lowry designated on appeal is limited. The register of
actions reflects that after several delays due to discovery disputes and a failure to reach a
settlement agreement, the parties agreed to submit the case to binding arbitration. After
additional discovery delays, as well as issues with Lowry’s health and his reluctance to
participate in arbitration, the arbitration hearing took place in August 2018. The arbitrator
heard testimony from Lowry and two of plaintiffs’ witnesses and admitted various
documents into evidence.
On September 21, 2018, the arbitrator issued a written award finding in favor of
plaintiffs and awarding them $46,735.38 in damages and $3,383.98 in costs. The
arbitrator found that plaintiffs had proved Lowry became their client in 2009 by signing a
written legal services agreement and then failed to pay for the services rendered.
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However, the arbitrator also found that Lowry had proved that plaintiffs had overbilled
him for 13.5 hours of a particular attorney’s time and therefore subtracted that amount
from the $51,025.38 plaintiffs demanded (resulting in the $46,735.38 figure).
The arbitrator rejected Lowry’s argument that because plaintiffs had provided
legal services to the companies he owned or controlled they had sued the wrong party (by
suing him in his personal capacity) and instead should have sued his companies. Finally,
the arbitrator found Lowry had failed to prove his cross-claims of breach of contract,
fraud, and elder abuse, for which he sought over $200,000 in damages.
On January 29, 2019, the trial court granted plaintiffs’ petition to confirm the
arbitration award and entered judgment against Lowry for a total of $50,119.36. Lowry
filed a petition to vacate the arbitration award, which plaintiffs opposed. Lowry’s petition
asserted the following grounds for vacating the award: the arbitrator substantially
prejudiced his rights by refusing to postpone the evidentiary hearing and allowing
plaintiffs to delay in producing evidence; the arbitrator’s award was contrary to the
weight of the evidence; and the trial court exceeded its jurisdiction by sending the case to
arbitration.
The trial court held a hearing on the petition on March 15, 2019. Lowry, who was
representing himself, as he is on appeal, presented oral argument and plaintiffs submitted
on their opposition brief. The trial court denied Lowry’s petition. It concluded he had not
demonstrated that his rights were prejudiced by any discovery delay or that he wasn’t
able to present a defense at the evidentiary hearing. The court also concluded that
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Lowry’s sufficiency of the evidence claim failed because courts must defer to an
arbitrator’s decision and will not review the sufficiency of the evidence supporting an
arbitration award. Finally, as to Lowry’s claim of trial court error in compelling the
parties to continue arbitration, the court found that was not a valid ground for vacating an
arbitration award under the governing statutory provision, Code of Civil Procedure
section 1286.2.
II
ANALYSIS
1
Lowry argues the trial court’s ruling was in error. His opening brief asserts the
same grounds for vacating the arbitration award as his petition before the trial court, but
also contains additional arguments for vacating the award not argued before the trial
court. For example, he argues that plaintiffs’ complaint failed to allege sufficient facts to
state a cause of action and that the law firm has since dissolved under suspicious
circumstances. As an initial matter, we will not consider arguments not raised in the trial
court. (See, e.g., In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481,
1 In his notice of appeal, Lowry identified the order denying his petition to vacate
the arbitration award as the trial court action he was appealing. Because such an order is
not appealable, and it’s reasonably clear he meant to appeal from the January 29, 2019
judgment in favor of plaintiffs, we have liberally construed his notice of appeal to be
taken from the judgment. (Luz v. Lopes (1960) 55 Cal.2d 54, 59 [courts should construe
notices of appeal liberally “if it is reasonably clear what appellant was trying to appeal
from”]; Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1454 [an appeal
lies from the judgment confirming the arbitration award, not from an order denying a
petition to vacate the arbitration award].)
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510 [as a matter of “‘common notions of fairness,’” parties “cannot argue theories on
appeal that they did not present in the trial court”].)2
Turning to the arguments Lowry did make in the trial court, we note two
fundamental principles of appellate review of significance here. First, we presume the
challenged judgment or order of the trial court is correct, and it is the appellant’s burden
to demonstrate otherwise. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The
appellant “has the burden of showing reversible error by an adequate record.” (Ballard v.
Uribe (1986) 41 Cal.3d 564, 574.) Second, and a necessary corollary to this rule, “‘is that
if the record is inadequate for meaningful review, the appellant defaults and the decision
of the trial court should be affirmed.’” (Gee v. American Realty & Construction, Inc.
(2002) 99 Cal.App.4th 1412, 1416.) Thus, where the appellant fails to provide an
adequate record on any issue they raise on appeal, we must presume the trial court’s
decision is correct and resolve the issue against them. (Maria P. v. Riles (1987) 43 Cal.3d
1281, 1295-1296.)
As we’ve noted, the record Lowry designated on appeal is rather limited. True,
this case has a long, tortured procedural history (or so we have gleaned from the register
of actions) and Lowry’s appeal pertains to one discrete aspect of the case. But even so,
Lowry did not include in the appellate record the documents essential to resolving that
discrete issue. The only relevant documents in the appellate record related to Lowry’s
2 For this reason, we also deny Lowry’s requests to submit new evidence on
appeal (dated November 6 and November 13, 2019). The evidence he seeks to submit
relates to his claims about plaintiffs’ postjudgment dissolution and is irrelevant to the
issue on appeal.
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petition to vacate the arbitration award are the petition itself and the transcript of the
hearing on the petition. Significantly, Lowry failed to designate plaintiffs’ opposition to
his petition to vacate the arbitration award for inclusion in the clerk’s transcript. Without
plaintiffs’ opposition, “we cannot review the basis of the court’s decision” and thus must
resolve the issue against him. (See Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502 [affirming challenged ruling because appellant failed to
include the relevant opposition papers in the appellate record].)
Lowry “is not exempt from the foregoing rules because he is representing himself
on appeal.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A party appearing
without counsel “‘is to be treated like any other party and is entitled to the same, but no
greater consideration than other litigants and attorneys.’” (Id. at p. 1247 [self-represented
litigants must follow the correct rules of procedure].) But in any event, the record we do
have reveals an appropriate basis for the trial court’s decision.
According to the register of actions, the parties stipulated to binding arbitration on
January 13, 2017, at a hearing before the trial court. “[I]t is the general rule that parties to
a private arbitration impliedly agree that the arbitrator’s decision will be both binding and
final,” and to further the parties’ intent, the courts should keep judicial intervention in the
arbitration process to a minimum. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9
(Moncharsh).) “The arbitrator’s decision should be the end, not the beginning, of the
dispute.” (Id. at p. 10.) As a result, the merits of arbitrated disputes generally are not
subject to judicial review. (Id. at p. 11.) Courts will not review an arbitrator’s decision for
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errors of fact or law, including any errors in the arbitrator’s reasoning and the sufficiency
of the evidence supporting the award. (Ibid.) 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.) By voluntarily submitting their dispute to arbitration, the parties
assume the risk the arbitrator may make a mistake. (Ibid.)
To guard against serious errors in the arbitration award and ensure overall fairness
in the arbitration process, the Legislature has authorized limited judicial review of
arbitration awards and the vacation of an award on the specific grounds enumerated in
Code of Civil Procedure section 1286.2. (Moncharsh, supra, 3 Cal.4th at p. 12; see also
Haworth v. Superior Court (2010) 50 Cal.4th 372, 387.) Those grounds are: (1) the
prevailing party procured the award by “corruption, fraud or other undue means”; (2) the
arbitrator engaged in “corruption”; (3) the arbitrator engaged in “misconduct” that
“substantially prejudiced” a party’s rights; (4) the arbitrator “exceeded their powers” and
the award cannot be corrected without affecting its merits; (5) the arbitrator “substantially
prejudiced” a party’s rights by refusing to postpone the hearing despite “sufficient cause”
or by refusing to hear “material” evidence; and (6) the arbitrator failed to make
mandatory disclosures or failed to disqualify himself or herself when required. (Code
Civ. Proc., § 1286.2, subd. (a).)
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Lowry has not shown that any of these grounds apply in this case. His claim that
the trial court erred in compelling the case to arbitration is neither a ground for vacating
the award nor is it borne out by the record, which reflects he agreed to submit to binding
arbitration. His claim that the award is contrary to the evidence presented at the hearing is
also not a ground for vacating the award, as it amounts to a request that we review the
arbitrator’s decision for errors of fact or law. (Moncharsh, supra, 3 Cal.4th at p. 11.)
Finally, his conclusory claims that his rights were “substantially prejudiced” by the
arbitrator’s discovery rulings and refusal to continue the hearing do not warrant vacating
the award. As the trial court reasoned, Lowry failed to demonstrate how either allegation,
even if true, affected his ability to present a defense to plaintiffs’ claim of unpaid legal
fees. And, even if he had been able to demonstrate prejudice, Code of Civil Procedure
section 1286.2 also requires that the arbitrator’s conduct rise to the level of “corruption”
or “misconduct” to warrant disturbing the award. Lowry has not demonstrated corruption
or misconduct on the part of the arbitrator.
We conclude Lowry has failed to carry his appellate burden of demonstrating error
in the trial court’s decision to deny his motion to vacate and enter judgment in favor of
plaintiffs.
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III
DISPOSITION
We affirm the judgment. Lowry shall bear his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
RAPHAEL
J.
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