Weisburd v. Blank Rome LLP CA2/7 ( 2024 )

Filed 1/16/24 Weisburd v. Blank Rome LLP CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
STEVEN WEISBURD et al., B321285
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC721631)
v.
BLANK ROME LLP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly J. Fujie, Judge. Affirmed.
Kellner Law Group and Richard L. Kellner for Plaintiffs
and Appellants.
Latham & Watkins, Daniel Scott Schecter, Gregory W.
Swartz and Alice R. Hoesterey for Defendant and Respondent.
________________________
INTRODUCTION
Plaintiffs are a group of 15 former equity partners of
Dickstein Shapiro LLP (Dickstein) and appeal from the judgment
confirming an arbitration award in favor of defendant Blank
Rome LLP (Blank Rome).1 They contend the arbitrator exceeded
his authority by not following a summary judgment procedural
framework purportedly agreed to by the parties and ruling for
Blank Rome notwithstanding the existence of disputed issues of
fact. We conclude the arbitrator did not exceed his authority, and
that any arbitral errors in deciding the dispute did not provide a
basis for the trial court to vacate the award. Accordingly, we
affirm the judgment confirming the arbitration award.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and Their Dispute
Before closing its doors in 2016, Dickstein was a national
law firm with offices in New York City, Washington, D.C.,
Stamford, Connecticut, and Los Angeles and Menlo Park,
California. Its partners were bound by a written partnership
agreement, several provisions of which are relevant to this action.
1 Plaintiffs are Steven Weisburd, Robert Dickerson, Jr.,
Larry Eisenstat, David Elkind, Arnold Gulkowitz, Leslie Jacobs,
Richard LaCava, Lawrence LaPorte, Robert Mangas, Bernard
Nash, David Randall, John Schryber, Diane Smoyer, Edward
Tessler and Andrew Zausner. Two other former Dickstein
Shapiro partners, Neil Lefkowitz and Patrick Lynch, dismissed
their claims against Blank Rome after the court’s order
confirming the arbitration award and are not parties to this
appeal.
2
First, paragraph 9(b)(1) of the agreement provided that
withdrawing partners would be repaid the positive balance of
their capital account in four annual installments, with 6 percent
simple interest added to the final three annual installments.
That paragraph further provided that in the event “the
partnership is in liquidation at the time any installment payment
of a capital account would otherwise be payable, such payment
shall not be made except at the time of repayment of the capital
accounts of non-withdrawing equity partners and shall then be
subject to pro-rata reduction, as to unpaid installments only, on
the same proportional basis as the capital accounts of the non-
withdrawing equity partners.” (Capitalization and emphasis
omitted.)
Second, paragraph 9(b)(2) provided that for retired
partners, the capital account balance would be paid in full within
60 days of retirement. Third, paragraph 15 of the partnership
agreement provided for arbitration of any disputes arising from
the partnership agreement.2 As relevant here, the arbitration
clause provided as follows:
In the event of any dispute with regard to the
interpretation or application of this Agreement . . . the
matter shall be determined by a confidential arbitration
before an arbitrator designated by the disputants . . . .
2 Nash withdrew from the partnership on terms set out in an
“Agreement and General Release” dated April 30, 2015.
Paragraph 4 of that agreement provides for arbitration
“conducted in accordance with the procedures and provisions of
paragraph 15 of the Partnership Agreement.” Plaintiffs do not
contend the arbitrator’s powers differ in the two agreements;
thus, we limit our discussion to the partnership agreement.
3
Failing such designation, the matter shall be put before a
single arbitrator designated by the American Arbitration
Association who shall have served as the managing partner
or in an equivalent position of a law firm which, at the time
of such service, was listed in the American Lawyer
AmLaw200. The arbitrator shall determine the procedures
to be employed in such arbitration, and his/her decision on
procedural and substantive matters shall be final and
binding upon the parties, their heirs and legal
representatives.
The partnership agreement’s choice of law provision provided
that, “All questions arising under this Agreement shall be
governed by the law of the District of Columbia.”
Dickstein began suffering significant financial problems
exacerbated by the departures of attorneys. After a potential
merger with another law firm fell through in late 2015, Dickstein
and Blank Rome began negotiations that resulted in an asset
purchase agreement dated February 1, 2016. While the parties
here dispute certain terms of the agreement, in substance Blank
Rome agreed to acquire some, but not all, of Dickstein’s assets
and liabilities. Blank Rome did not assume certain service
contracts or the lease for Dickstein’s New York office, and it did
not offer permanent employment to all of Dickstein’s employees.
Most important for purposes of this action, Dickstein did not pay
plaintiffs the outstanding balances of their respective capital
accounts, and Blank Rome did not assume that obligation.
In September of 2018, plaintiffs filed suit against Blank
Rome. Their first amended complaint alleged two causes of
action. First, it sought a declaration the February 1, 2016 asset
purchase agreement was a de facto merger of Dickstein and
Blank Rome, thereby making Blank Rome responsible for
4
plaintiffs’ unpaid capital accounts. The second cause of action
was for breach of the partnership agreement with Dickstein for
failing to pay the capital accounts. Plaintiffs sought money
damages equal to the value of their unpaid capital account
balances, including interest, in an amount plaintiffs calculated to
be over $4 million.
B. The Arbitration, the Award, and the Judgment
On November 18, 2018 Blank Rome moved to compel
arbitration of plaintiffs’ claims. Blank Rome relied on the
arbitration clause in the partnership agreement, and argued
plaintiffs could not enforce those provisions of the partnership
agreement providing for repayment of their capital account
balances without also being bound by the arbitration clause.
Plaintiffs opposed, arguing Blank Rome could not deny liability
for plaintiffs’ capital accounts while insisting it could enforce the
arbitration clause, and that the declaratory relief cause of action
was unrelated to the partnership agreement and thus non-
arbitrable. Rather than compel arbitration, plaintiffs urged the
court to deny Blank Rome’s motion and instead stay proceedings
on their cause of action for breach of contract, while proceeding to
trial on the declaratory relief cause of action.
The court granted Blank Rome’s motion in part and
ordered the parties to arbitrate the breach of contract claim. But
the court agreed with plaintiffs their declaratory relief claim was
not arbitrable because it “simply seeks a declaration as to
whether there was a de facto merger or asset sale” between
Dickstein and Blank Rome, a question “not premised on or
intertwined with” the partnership agreement. The court denied
plaintiffs’ request to stay arbitration of the contract claim while
5
proceeding to trial on the claim for declaratory relief, “because
the Court believes the first cause of action was artfully pled to
avoid arbitration and that [a] stay in this instance would be
contrary to the strong policy in favor of arbitration.”
In the months that followed, the parties met and conferred
and agreed to hire Roger E. Warin, a former chair of Steptoe &
Johnson LLP, to serve as the arbitrator. Plaintiffs agreed to
submit their declaratory relief cause of action to binding
arbitration before Warin, giving him “full jurisdiction to
determine the cause of action.”
At the arbitrator’s request, the parties submitted proposals
for the procedures to be used in arbitration. The record does not
reflect the parties mutually agreed on the procedures for the
arbitration. Instead, each party submitted its own separate
proposal. Blank Rome’s submission is not in the record, but
plaintiffs’ submission indicates Blank Rome filed its submission
first and that Blank Rome suggested it would file a summary
judgment motion. Plaintiffs’ proposal was for each party to have
the opportunity to file a summary judgment motion, preceded by
“‘narrowly tailored’” discovery. According to plaintiffs, their
proposal “addresses the rights of both parties, and provides an
expedited method for the potential full adjudication of both
causes of action.”
On October 19, 2019 the arbitrator issued a “Decision
Regarding Proposed Phasing of Arbitration” that provided as
follows:
The Arbitrator previously requested that Claimants and
Respondent submit proposals addressing the phasing of
this case, and the parties did so on September 18, 2019 and
September 20, 2019.
6
The proposals disclose that both sides believe this dispute
may be resolved through summary judgment motions. The
Arbitrator believes it is in both sides’ interest to conclude
this matter via such motions. Resolution through summary
judgment has the potential to save the parties considerable
time and money. If summary judgment is not feasible,
however, the Arbitrator is prepared to utilize other
methods to decide this dispute, including through a
possible evidentiary hearing.
The arbitrator directed the parties to prepare “a list of material
facts that are not in dispute” and “a separate list of the arguably
material facts, if any, as to which they do not agree, together with
the reasons why such facts are disputed. The Arbitrator
anticipates that there will be few, if any, disputed material facts.”
The arbitrator’s order did not reference or incorporate the
summary judgment procedures of any jurisdiction.
After engaging in discovery authorized by the arbitrator,
the parties filed their respective cross-motions and responses
thereto. The parties submitted an 11-page list of “stipulated
undisputed facts,” and each party also submitted additional
evidence attached to attorney declarations. The record before us
does not reflect the parties submitted a list of “disputed material
facts” to the arbitrator. The parties’ cross-motions contained pro
forma recitations of federal and/or California summary judgment
standards, but did not argue disputed factual issues existed or
otherwise precluded a ruling. Instead, each party argued it was
entitled to a ruling in its favor based on the evidence before the
arbitrator. The cross-motions were argued to the arbitrator on
May 4, 2021.
7
On September 2, 2021 the arbitrator issued his award in
Blank Rome’s favor, captioned “Decision Regarding the Parties’
Cross-Motions for Summary Adjudication.” The award “grants
Respondent’s motion for summary judgment, dismisses the
claims brought against Respondents by Claimants, and denies
Claimants’ summary judgment motion.”
In summary, the arbitrator first determined that applying
the de facto merger doctrine would be inequitable, because doing
so would put plaintiffs in a better position than they would have
been but for the agreement between Dickstein and Blank Rome,
and that it would give plaintiffs an advantage over the Dickstein
partners who did not leave the firm prior to its dissolution, none
of whom were reimbursed for their capital accounts. The
arbitrator examined the four factors generally used to determine
whether a de fact merger has occurred. He ruled that two of
those four factors—continuity of enterprise (including continuity
of management) and assumption of Dickstein’s liabilities—“weigh
heavily against application of the [de facto merger] doctrine.” As
to the remaining two factors, while “the dissolution of the seller
factor substantially favors the doctrine’s application,” “the
continuity of ownership factor does so only slightly.” Weighing
these factors, the arbitrator ultimately concluded that “under
these circumstances, and even apart from equitable
considerations, the de facto merger doctrine should not be
applied.”
Blank Rome filed a timely motion to confirm the award,
and plaintiffs moved to vacate the award on the ground the
arbitrator exceeded his powers. In support of their motion to
vacate, plaintiffs argued the motions for summary judgment were
just “the first phase” of the case, and that the arbitrator “‘pulled
8
the rug’ from under Plaintiffs by treating the summary judgment
submissions as a ‘trial on the merits.’” Following a hearing on
February 15, 2022 the trial court denied plaintiff’s motion to
vacate and granted Blank Rome’s motion to confirm the award.
The trial court specifically rejected plaintiffs’ contention the
arbitrator exceeded his authority by granting Blank Rome’s
summary judgment motion: “The Arbitrator set forth how the
arbitration would proceed based on his evaluation of the Parties’
submissions. The Arbitrator did not circumscribe the Arbitration
Agreement or otherwise alter the scope of his authority. Whether
the Arbitrator properly applied the analytical framework for
summary judgment proceedings is therefore a distinct issue from
whether he exceeded the scope of the authority conferred upon
him by the Arbitration Agreement. Because the Court interprets
CCP section 1286.2 narrowly, the Court finds that the Arbitrator
did not exceed his authority pursuant to the Arbitration
Agreement. For this reason, the Court need not consider whether
the Arbitration Award is based on an improper evaluation of the
Parties’ MSJs.”
The court entered judgment on April 7, 2022, and plaintiffs
timely appealed.
DISCUSSION
A. Appealability and Standard of Review
A judgment confirming an arbitration award is appealable.
(See Code Civ. Proc., § 1294, subd. (d).) On appeal from the
judgment, we may also review the order denying plaintiffs’
motion to vacate the award. (See § 1294.2; accord, Cinel v.
Christopher (2012) 203 Cal.App.4th 759, 766; Mid-Wilshire
9
Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1454.) We
review de novo “whether the arbitrator exceeded his powers and
thus whether we should vacate his award on that basis.”
(Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 918, fn. 1.)
While our review of the trial court’s decision is de novo, we defer
to the arbitrator’s assessment of his powers. “Although
section 1286.2 permits the court to vacate an award that exceeds
the arbitrator’s powers, the deference due an arbitrator’s decision
on the merits of the controversy requires a court to refrain from
substituting its judgment for the arbitrator’s in determining the
contractual scope of those powers.” (Advanced Micro Devices,
Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 372 (Advanced Micro
Devices).) We are also required to make “every reasonable
inference to support the award.” (Pierotti v. Torian (2000)
81 Cal.App.4th 17, 24.)
B. The Scope of Our Review of the Arbitrator’s Award Is
Limited
Petitions to confirm or vacate arbitration awards are
governed by sections 1286 and 1286.2 of the Code of Civil
Procedure.3 Section 1286 provides that, “the court shall confirm
the award as made . . . unless . . . it corrects the award and
confirms it as corrected, vacates the award or dismisses the
proceedings.” Section 1286.2 sets out the grounds on which a
court “shall vacate” an award, including the ground relied on by
plaintiffs: “[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. (a)(4).)
3 Undesignated statutory references are to the Code of Civil
Procedure.
10
These statutes limit the scope of our review of the award.
The California Supreme Court expressly held that “an award
reached by an arbitrator pursuant to a contractual agreement to
arbitrate is not subject to judicial review except on the grounds
set forth in sections 1286.2 (to vacate) and 1286.6 (for
correction).” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33
(Moncharsh).) Accordingly, “[w]e do not review the merits of the
dispute, the sufficiency of the evidence, or the arbitrator’s
reasoning, nor may we correct or review an award because of an
arbitrator’s legal or factual error, even if it appears on the
award’s face. Instead, we restrict our review to whether the
award should be vacated under the grounds listed in
section 1286.2.” (Roehl v. Ritchie (2007) 147 Cal.App.4th 338,
347.)
“[I]t is within the power of the arbitrator to make a mistake
either legally or factually. When parties opt for the forum of
arbitration they agree to be bound by the decision of that forum
knowing that arbitrators, like judges, are fallible.” (That Way
Production Co. v. Directors Guild of America, Inc. (1979)
96 Cal.App.3d 960, 965.) Just as we do not directly review the
award for legal or factual error, we do not directly review the
award under the guise of ensuring that the arbitrator did not
exceed his powers. “It is well settled that ‘arbitrators do not
exceed their powers merely because they assign an erroneous
reason for their decision.’ [Citations.] A contrary holding would
permit the exception to swallow the rule of limited judicial
review; a litigant could always contend the arbitrator erred and
thus exceeded his powers.” (Moncharsh, at p. 28.)
11
C. The Arbitrator Did Not Exceed His Authority
Plaintiffs argue, as they did in the trial court, the award
must be vacated because the arbitrator exceeded his powers due
to his “failure to follow the procedural framework under which
the arbitration was to be conducted.” It is plaintiffs’ burden to
show the arbitrator exceeded his powers. (See Lopes v. Millsap
(1992) 6 Cal.App.4th 1679, 1685; Rosenquist v. Haralambides
(1987) 192 Cal.App.3d 62, 67; see also Betz v. Pankow (1993)
16 Cal.App.4th 919, 923 [“There is a presumption favoring the
validity of the award, and appellant bears the burden of
establishing [a] claim of invalidity.”].) Plaintiffs characterize the
arbitrator exceeding his authority as follows: “Under the
procedural framework established for the arbitration[] [i]n the
first phase . . . the Arbitrator was to determine whether the
parties’ claims were amenable to summary judgment. If the case
was not amenable to summary judgment disposition, the next
phase would be a potential evidentiary trial. In disregard of the
procedural framework established for adjudication of the case,
the Arbitrator treated first-phase summary judgment
submissions as a trial on the merits.” Plaintiffs’ contention is
unpersuasive.
Generally, “[a]rbitrators may exceed their powers when
they act in a manner that is not authorized by the arbitration
agreement.” (California Union Square L.P. v. Saks & Co. LLC
(2020) 50 Cal.App.5th 340, 348.) “In determining whether an
arbitrator exceeded his or her powers, we look to the parties’
arbitration agreement to see if and how it limited the arbitrator’s
authority because arbitrators have no powers beyond those
conferred upon them by the arbitration agreement; their powers
“‘“derive from, and are limited by, the agreement to arbitrate.”’”
12
(Id. at p. 349; accord, Greenspan v. LADT LLC (2010)
185 Cal.App.4th 1413, 1437; see Moncharsh, supra, 3 Cal.4th at
pp. 8, 10.)
Accordingly, we first examine the partnership agreement
and the arbitration clause to see if these writings placed any
limitations on the arbitrator’s authority, including the use of a
summary judgment procedure. The partnership agreement and
the arbitration clause did not place any limitations on the
arbitrator’s authority over procedural matters. Instead, the
arbitration clause expressly gave the arbitrator broad powers to
“determine the procedures to be employed in such arbitration,”
and further provided that “his/her decision on procedural and
substantive matters shall be final and binding upon the parties.”
In accordance with his authority, the arbitrator asked the
parties to submit procedural frameworks for the arbitration, and
each party separately suggested summary judgment motions.
But plaintiffs do not persuasively demonstrate these separate
submissions somehow constrained the arbitrator’s authority over
procedural matters. (See Advanced Micro Devices, supra,9 Cal.4th at p. 389 [“the parties to an arbitration have the
freedom to determine the rules by which their dispute will be
resolved”].) While we will enforce an “express and unambiguous”
contractual limitation on the arbitrator’s powers, we cannot infer
such a limitation when the parties failed to impose one.
(Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1182
[“Absent an express and unambiguous limitation in the contract
or the submission to arbitration, an arbitrator has the authority
to find the facts, interpret the contract, and award any relief
rationally related to his or her factual findings and contractual
interpretation.”].)
13
Instead, plaintiffs maintain the arbitrator’s October 18,
2019 order set forth the procedural framework for the arbitration
and thereby narrowed the scope of the arbitrator’s authority. But
the arbitrator’s order merely recognized that “both sides believe
this dispute may be resolved through summary judgment
motions” and that “[t]he Arbitrator believes that it is in both
sides’ interest to conclude this matter via such motions.” The
arbitrator’s order did not define what it meant by summary
judgment, nor did it incorporate any specific procedural
framework for ruling on such motions. For example, the order
did not tether itself to the framework applicable to the parties’
choice of law provision (District of Columbia Rule of Civil
Procedure 56), that of the forum where the underlying litigation
was filed (§ 437c), or any other such standard.
The arbitrator’s order reflected he retained his broad
authority over procedural matters and further provided that: “If
summary judgment is not feasible, however, the Arbitrator is
prepared to utilize other methods to decide this dispute, including
through a possible evidentiary hearing.” (Italics added.) Again,
this language does not obligate the arbitrator to follow any
particular procedure in adjudicating the parties’ claims,
highlights the arbitrator had authority “to utilize other methods
to decide this dispute,” and makes clear that any “evidentiary
hearing” was not guaranteed but, instead, was merely “possible.”
We agree with the trial court this language does not
support plaintiffs’ contention the arbitrator “pull[ed] the rug”
from under them when he “unilaterally abandoned the agreed-
upon procedural framework for the first phase of the
arbitration—the adjudication of submissions to determine
whether the case was amenable to summary judgment.” Both
14
sides stated they would submit summary judgment motions, but
did not define what that meant with any particularity, let alone
expressly limit the arbitrator’s authority over procedural matters
in the arbitration. In that context, exercising his powers to
determine procedural matters the arbitrator apparently
determined it was “feasible” to resolve the dispute based on the
parties’ cross-motions and without an “evidentiary hearing.”
Plaintiffs have not pointed to any language in the partnership
agreement, the arbitration clause, or elsewhere that prevented
the arbitrator from adopting a “summary judgment” procedure he
determined was best suited to resolve the parties’ dispute.4 In
short, the arbitrator’s determination was not inconsistent with
the arbitration clause or the October 18, 2019 order.5
4 In other contexts, summary judgment merely refers to a
summary procedure for adjudicating claims, rather than one
where the adjudicator’s resolution of the merits of the parties’
claims is precluded by material factual disputes. (See, e.g.,
People v. Financial Casualty & Surety, Inc. (2021) 73 Cal.App.5th
33, 37 [“‘[s]ummary judgment following a declaration of forfeiture
is a consent judgment entered without a hearing pursuant to the
terms of the bail bond’”]; see Pen. Code, § 1306, subd. (a).)
5 Although not dispositive, the record does not reflect the
parties presented the arbitrator with a list of disputed material
facts, notwithstanding his order requesting it. Further, as noted
above, the parties’ “summary judgment” motions, while citing
federal and California summary judgment standards, in essence
each argued why the respective party was entitled to a ruling in
its favor rather than that material factual disputes precluded a
ruling in the other party’s favor.
15
At bottom, plaintiffs’ argument for vacating the award is
that the arbitrator ignored or resolved disputes of material fact.6
Division One of this district expressly held this is not a basis on
which to vacate an arbitrator’s award. In Schlessinger v.
Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, the
plaintiff appealed from a judgment confirming an arbitration
award in a dispute over the amount owed to him following his
resignation from his law firm. As in this case, the arbitrator
decided the dispute on cross-motions for summary judgment.
Schlessinger moved to vacate the award, arguing the arbitrator
had no authority to grant summary judgment, and that even if he
did the existence of disputed issues of fact prevented the
arbitrator’s granting of summary judgment against him. After
first concluding summary judgment was a permissible remedy
because it was not excluded by the parties’ agreement,
Schlessinger held that any error in granting summary judgment
was not reviewable. Schlessinger reasoned that “even if the
6 For example, plaintiffs argue the following statements in
the arbitrator’s decision reflect he “determined the full merits of
the case”: “There is substantial evidence that Dickstein was
facing serious difficulties at the time it entered into the Subject
Transaction. Had Dickstein not completed the Subject
Transaction, the evidence strongly suggests that Dickstein would
have faced the prospects of bankruptcy. Alternatively, given its
financial difficulties, Dickstein partners may have voted to
dissolve the firm. Under either of these scenarios, it is highly
unlikely that Claimants would have recovered any part of their
capital accounts. . . . [¶] Blank Rome has provided persuasive
evidence that, as of late December 2015, Dickstein was unlikely
to survive much longer absent the deal with Blank Rome. . . . [¶]
The weight of the evidence also establishes that Blank Rome paid
a fair price for Dickstein’s assets.” (Emphasis omitted.)
16
arbitrator erred in concluding that there were no disputed issues
of material fact, the trial court properly refused to vacate the
award on that basis.” (Id. at p. 1109, citing Moncharsh, supra,3 Cal.4th at p. 33 [“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”].) Plaintiffs have not offered
a persuasive reason to depart from Schlessinger or Moncharsh.7
Plaintiffs’ legal authorities are distinguishable. The
common thread in those cases is that each involved an
arbitration agreement that—unlike the arbitration clause here—
clearly and unambiguously limited the scope of the arbitrator’s
authority. For example, in California Union Square L.P. v. Saks
& Co. LLC, supra, 50 Cal.App.5th at pages 349 to 350, the
arbitration agreement stated the arbitrator “could ‘consult
experts and competent authorities with factual information or
evidence’ only if he did so ‘in the presence of both parties with full
right on their part to cross-examine.’” The court properly found
the arbitrator exceeded his authority when he traveled on his
own to New York to personally investigate the lease terms of a
retail store and relied on that investigation to prepare his award.
7 Plaintiffs distinguish Schlessinger on the basis the plaintiff
there challenged the arbitrator’s ruling that there were no factual
disputes, whereas here, “the Arbitrator failed to make any
determination regarding the existence (or non-existence) of
material facts.” (Emphasis omitted.) This is a distinction
without a difference because the arbitrator here did not adopt
any particular summary judgment framework and, even if he did,
the resulting arbitration decision suggests the arbitrator
determined no factual disputes precluded him from ruling or that
he committed legal error. Moncharsh precludes us from
reviewing either contention.
17
(See id. at p. 350 [“the parties took pains to define the narrow
scope of the arbitrator’s duties”].)
In O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1049,
the arbitration clause barred the arbitrator from awarding “any
remedy which is either prohibited by the terms of this
Agreement . . . or not available in a court of law.” There, the
arbitrator exceeded his powers when he issued an award calling
for forfeiture of partners’ capital accounts, in violation of both the
partnership agreement and California law.8 Finally, under the
agreement at issue in California Faculty Assn. v. Superior Court
(1998) 63 Cal.App.4th 935, 946, “the arbitrator’s limited task is to
review the [tenure] decision-making process, under certain
specific standards.” The court of appeal held that the limiting
language in the arbitration clause prevented the arbitrator from
second-guessing the university president and awarding tenure to
a faculty member.
In sum, the trial court correctly denied plaintiffs’ motion to
vacate the arbitration award in favor of Blank Rome. (See
Darby v. Sisyphian, LLC (2023) 87 Cal.App.5th 1100, 1113 [“if an
award cannot be vacated or corrected, it must be confirmed”]
disapproved on another ground in Law Finance Group, LLC v.
Key (2023) 14 Cal.5th 932, 952, fn. 3; Louise Gardens of Encino
Homeowners’ Association, Inc. v. Truck Insurance Exchange, Inc.
(2000) 82 Cal.App.4th 648, 660.)
8 Although the arbitrator ruled against plaintiffs here, they
advance no argument such ruling constituted a forfeiture of their
capital accounts prohibited by the partnership agreement.
18
DISPOSITION
The judgment confirming the arbitration award is affirmed.
Blank Rome shall recover its costs on appeal.
MARTINEZ, J.
We concur:
FEUER, Acting P. J.
EVENSON, J.*
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
19