Blum Collins v. Cooper CA2/1 ( 2024 )

Filed 9/25/24 Blum Collins v. Cooper CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
BLUM COLLINS, LLP, B324759
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 22STCP00957)
v.
ERIK COOPER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert S. Draper, Judge. Affirmed.
Erik Cooper, in pro. per., for Defendant and Appellant.
Blum Collins & Ho and Gary (Chia Heng) Ho for Plaintiff
and Respondent.
Defendant and appellant Erik Cooper, doing business as
Acuity Consulting Services (Acuity),1 appeals from a judgment
confirming an arbitration award against him and in favor of
plaintiff and respondent Blum Collins, LLP (Blum Collins),
a law firm. We affirm.
FACTS AND PROCEEDINGS BELOW
A. The Parties’ Agreement
The parties’ arbitration agreement is contained in a
January 22, 2019 letter from Cooper, on behalf of Acuity, to
Steve A. Blum and Craig M. Collins of Blum Collins, which is
countersigned by Blum and Collins, regarding “Woolsey Fire
Catastrophe . . . Proposal for Risk Management & Insurance
Consulting Services” (the letter agreement). (Boldface omitted.)
The letter agreement provides that it “shall serve to memorialize
our discussions of agreeable terms and conditions for risk
management and insurance consulting services to be provided
by Acuity . . . in and for the captioned matter.” The parties
apparently agreed on a $25,000 retainer deposit for “reasonable
and necessary out of pocket expenditures.”2
An addendum to the letter, entitled “proposal for risk
management [and] insurance consulting services,” identifies
1 The record reflects that Acuity is Cooper’s fictitious
business name, and thus not a separate legal entity. (See
Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342,
1348 [“[u]se of a fictitious business name does not create a
separate legal entity”].) Therefore, Cooper is the sole appellant.
2 No party contends on appeal that a $50,000 retainer was
paid (or should have been paid), as the language of the letter
agreement suggests.
2
the “proposed services” at issue as “exclusive marketing
and consulting for prospective clients” and outlines several
“conditions.” (Boldface & capitalization omitted.) Among
these conditions is the following, regarding “dispute resolution:
any disputes arising out of this agreement between the parties
will be resolved through binding arbitration with the American
Arbitration Association [(AAA)] in Los Angeles County,
California, using a single arbitrator.” (Capitalization omitted.)
B. Blum Collins Initiates Arbitration
On November 20, 2020, Blum Collins filed a demand
for arbitration with the AAA, seeking to recover the $25,000
retainer deposit it alleged it had paid pursuant to the letter
agreement. In response, Cooper filed with the arbitrator a
motion to “dismiss [the] arbitration for various reasons and
for a preliminary hearing” as well as an “answering statement
and counterclaim.”3 (Capitalization omitted.) The counterclaim
sought over $700,000 for services Cooper alleged he had provided
to Blum Collins.
C. Cooper’s Declaratory Relief Lawsuit Against
Blum Collins4
After arbitration had commenced, on April 26, 2021,
Cooper filed suit against Blum Collins seeking a judicial
3 Neither of these documents is contained in the record on
appeal. We base our summary of these facts on the description
of the arbitration proceedings contained in the arbitration award.
4 Respondent’s briefing references this lawsuit. On our
own motion, we take judicial notice of the fact of this lawsuit, as
well as the fact of various filings therein, and the judgment. (See
3
declaration that the letter agreement was “not legally valid,
binding or enforceable” as well as a permanent injunction of the
arbitration between Blum Collins and Cooper on this same basis.
Cooper also moved to stay the pending arbitration on the bases
that the arbitration agreement was unenforceable, procedurally
and substantively unconscionable, the product of coercion and
misrepresentations, and contained insufficiently definite terms.
Blum Collins moved the court to compel arbitration of
Cooper’s declaratory relief claim and dismiss Cooper’s lawsuit.
The court granted Blum Collins’s motion and denied Cooper’s
motions. The final judgment “ordered, adjudged, and decreed”
(boldface & capitalization omitted) that “[t]he arbitration clause
in the parties’ January 22, 2019 [a]greement is enforceable,” and
that Blum Collins’s arbitration claim against Cooper and Acuity
had been “properly initiated and prosecuted and shall proceed to
a final arbitration award.” Cooper did not appeal this judgment.
D. Final Arbitration Award and Court Order
Confirming It
In a December 28, 2021 “final award,” the arbitrator ruled
in Blum Collins’s favor on its claim for return of the retainer
deposit. (Boldface & capitalization omitted.) The award noted
that it had earlier “dismissed” Cooper’s counterclaim, and that
Evid. Code, § 452; id., subd. (d) [“[j]udicial notice may be taken
of ” “[r]ecords of . . . any court of this state”]; People v. Franklin
(2016) 63 Cal.4th 261, 280 [a court “ ‘ “may take judicial notice
of the existence of each document in a court file” ’ ”].)
4
the award “resolve[d] all claims and defenses in this case.”5
The arbitrator found that Cooper had not returned the retainer
funds when Blum Collins requested he do so, and that Cooper
“never used the retainer for any legitimate expenses for the
benefit of [Blum Collins] or its clients.” The award ordered
Cooper to pay Blum Collins a total of $33,381.25.6
On March 16, 2022, Blum Collins petitioned the
Los Angeles Superior Court to confirm the arbitrator’s award
and filed a proof of service on Cooper of that petition and the
associated summons. This petition instituted a new superior
court case distinct from Cooper’s declaratory relief action, which
the court assigned to a different judicial officer than the officer
who had presided over the declaratory relief lawsuit, which by
this time had concluded. Cooper did not file an opposition or
substantive response to the petition. Rather, he moved to quash
service of summons7 regarding the petition on the basis that he
had never received the petition and summons.
The court “found that Cooper had filed perjurious
declarations with the court and made perjurious statements to
the court” regarding the lack of service. (Capitalization omitted.)
5 The arbitrator’s order dismissing the counterclaim
states that it is doing so on Blum Collins’s motion and based
on Cooper’s failure to file the requisite arbitration fees.
6 The award includes: $25,000 deposit amount, plus
AAA administrative fees totaling $925.00 and the arbitrator’s
compensation of $7,906.25.
7 Cooper captioned this pleading “joint notice
of non[-]service of petition and summons.” (Boldface &
capitalization omitted.) The court deemed it to be a motion
to quash.
5
The court also found that Blum Collins had properly served
Cooper, denied Cooper’s motion to quash, and granted the
petition to confirm the arbitration award.
On June 28, 2022, Cooper filed three related documents:
(1) a motion for reconsideration of the June 10, 2022 order
claiming that the judicial officer was “biased against [Cooper]”
and had engaged in “misconduct” by, inter alia, preventing
Cooper from seeking legal representation and refusing to allow
him to file a pleading or present evidence in response to the
petition; (2) a “motion to recuse” the presiding judicial officer on
these same bases (boldface & capitalization omitted); and (3) an
opposition to Blum Collins’s proposed judgment implementing
the court’s June 10, 2022 order, in which Cooper argued the court
should not enter any judgment because Cooper’s concurrently-
filed motions, as well as “a federal court civil action involving
the same parties” were still pending, and that the proposed
judgment’s language “inaccurately represent[ed] the merits of
the arbitration award.” (Italics & underscoring omitted.)
The court struck Cooper’s “motion to recuse” on the bases
that the motion demonstrated on its face that no legal ground for
disqualification existed (see Code Civ. Proc., § 170.4, subd. (b))
and that Cooper had not served the judicial officer with the
motion. In striking the motion, the court issued a detailed
written ruling addressing Cooper’s allegations of misconduct,
accompanied by a verified answer of the judicial officer.
At Cooper’s request, the court continued the hearing on
the motion for reconsideration and, following the hearing, denied
Cooper’s motion. The court did so on the basis that Cooper’s
“perception of bias [of the bench officer] [did] not constitute
evidence or authority that would justify reconsideration.”
6
On August 12, 2022, apparently over Cooper’s objection,
the court entered a judgment that contained Blum Collins’s
proposed language confirming the arbitration award. The
judgment referenced an arbitral finding that Cooper had neither
provided services to Blum Collins, nor incurred any legitimate
expenses on the firm’s behalf. It awarded Blum Collins
$33,831.25 plus the costs of the suit, and awarded Cooper
nothing on his counterclaim. On October 10, 2022, Cooper
filed a notice of appeal from the judgment.8
DISCUSSION
On appeal, Cooper challenges the judgment on the
following bases: (1) The court denied him due process in various
ways, including by judicial misconduct, denying him time to
retain counsel, and denying him a disability accommodation;
(2) Blum Collins’s claim presented in arbitration was without
merit; and (3) The arbitrator lacked jurisdiction to decide
the dispute, because the dispute was outside the scope of the
arbitration agreement.
Cooper provides no record citations to support most of
his factual assertions related to due process. The few record
citations he does provide do not support the misconduct and
other improprieties for which they are cited. Thus, Cooper has
8 Cooper opted to proceed on appeal with a settled
statement. In a September 29, 2023 order, the court rejected the
parties’ proposed statements and filed its own settled statement.
Although Cooper’s briefing on appeal casts aspersions on the
accuracy of the settled statement, he does not offer any legal
argument as to why the court erred in adopting it. Accordingly,
we accept it as the record of the proceedings below.
7
forfeited these arguments and we do not consider their merits.9
(See City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266,
287 [“[r]ather than scour the record unguided, we may decide
that the appellant has waived a point urged on appeal when
it is not supported by accurate citations to the record”].)
Cooper’s argument regarding the merits of Blum
Collins’s claims—namely, that Blum Collins failed to present
sufficient evidence supporting those claims, and that the claims
are in any event barred by the litigation privilege and the
Noerr-Pennington doctrine10—are not among the bases on which
a court is empowered to vacate or correct an arbitration award.
(See Code Civ. Proc., § 1286.2 [exclusive bases for vacating
arbitral award]; id., § 1286.6 [exclusive bases for correcting
arbitral award].) “[A]n arbitrator’s legal, as well as factual,
determinations are final and not subject to judicial review.”
(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 31.)
Lastly, Cooper contends that the arbitration agreement
covered only disputes regarding marketing services, not
“consulting and litigation consulting services,” and thus
that “[t]he arbitration order incorporates matters the parties
did not agree to arbitrate and [that were therefore] beyond
the jurisdiction of [the] arbitrat[or].” But Cooper did not make
this argument to the trial court before the court confirmed the
9 We note, however, that in the course of preparing our
opinion and reviewing the record in connection with Cooper’s
numerous other arguments, we have seen nothing in the record
to support the misconduct and other improprieties Cooper
alleges.
10 See Eastern R. Conf. v. Noerr Motors (1961) 365 U.S. 127and Mine Workers v. Pennington (1965) 381 U.S. 657.
8
arbitration award. He did not file a motion to vacate the award
on this basis (see Code Civ. Proc., § 1286.2, subd. (a)(4); see also
§ 1286.6, subd. (b) [basis for correction or vacatur of award if
the arbitrator exceeded the scope of his powers in arbitration]),
nor did he raise the issue by opposing the petition to confirm
the award. (See Code Civ. Proc., § 1286.4 [contemplating vacatur
of arbitration award based on argument raised in a “petition or
response”].) Having failed to raise the issue with the trial court,
Cooper has forfeited the right to challenge the court’s judgment
on this ground. (See Woodward Park Homeowners Assn., Inc. v.
City of Fresno (2007) 150 Cal.App.4th 683, 712 [“[a]s a general
rule, an appellate court will not review an issue that was not
raised by some proper method by a party in the trial court”];
Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 395
(Knass) [argument that would have provided a ground for
vacating an arbitration award forfeited because appellant raised
it for the first time on appeal from judgment confirming award];
accord, Louise Gardens of Encino Homeowners’ Assn., Inc. v.
Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658.)
We acknowledge that Cooper challenged the arbitrability
of the dispute in his separate declaratory relief action—an action
that Cooper filed only after voluntarily beginning arbitration.
But even then, he did not raise his current argument that
the award resolves a dispute outside the scope of the letter
agreement’s arbitration provision. We thus need not decide
whether, if had Cooper raised in a separate lawsuit the argument
he now attempts to make on appeal, this would have been
sufficient to avoid forfeiting the argument for purposes of this
appeal.
9
In sum, Cooper appears to have willingly commenced
arbitration in response to the demand Blum Collins filed with
the AAA, willingly brought a counterclaim in that arbitration,
then failed to timely raise his argument that the parties’ dispute
was outside the scope of the arbitration agreement—despite
multiple opportunities to do so. Under such circumstances,
Cooper has forfeited the argument. (See Fagelbaum & Heller
LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1359 [appellant
can forfeit an argument by raising it “for the first time on
appeal from [a] judgment[ ] confirming [an arbitration] award[ ],
without having objected [on this basis] prior to submission or
having filed petitions to vacate within 100 days after the issuance
of the award”]; Knass, supra, 228 Cal.App.3d at p. 394 [where
parties had stipulated to arbitration, appellant “waived his
opportunity to challenge the [resulting arbitration] award
by” failing to file a timely motion to vacate; “[t]he fact the award
was reduced to a judgment does not resurrect his opportunity to
challenge it”].) The unfairness to both the court and the opposing
party from considering Cooper’s argument now is patent, given
that the court was never asked to consider the scope of the
arbitration agreement before ruling on the petition to confirm,
and Blum Collins was never afforded the opportunity to argue
or present evidence regarding that issue below. Application
of the forfeiture rule here thus serves “[t]he main purpose of
the forfeiture rule . . . to protect the trial court and the opposing
party from unfairness.” (Hartley v. Superior Court (2011) 196
Cal.App.4th 1249, 1260.)
10
DISPOSITION
The judgment is affirmed. Respondent Blum Collins shall
recover its costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
KLINE, J.*
* Retired Presiding Justice of the Court of Appeal, First
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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