SingerLewak LLP v. Gantman

Filed 7/29/15; directed to be published by order of Supreme Court (S229081) (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
SINGERLEWAK LLP, B259722
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS145595)
v.
ANDREW GANTMAN,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County. Barbara M.
Scheper, Judge. Reversed and remanded with directions.
AlvaradoSmith, Theodore E. Bacon, William M. Hensley, and Timothy Matthew
Hansen, for Plaintiff and Appellant SingerLewak.
Wheeler & Associates and David C. Wheeler, for Defendant and Respondent.
___________________________________
SingerLewak LLP appeals from a trial court order denying its petition to confirm
an arbitration award. The arbitrator determined a non-compete agreement Andrew
Gantman signed as a partner in SingerLewak was enforceable. The trial court concluded
judicial review of the arbitration award was required and vacated the award. After a de
novo review, the trial court found the non-compete agreement was unenforceable under
California law. We conclude the general rule prohibiting review of an arbitration award
applied in this case. We therefore reverse the trial court order.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant underlying facts are largely undisputed. SingerLewak is an
accounting firm. In 2007, Gantman became a partner in the firm; he had previously
worked for the firm as an employee. In 2011, Gantman withdrew or was terminated from
the partnership. Upon admission to the partnership, Gantman had agreed to be bound by
the partnership agreement which contained the following provision (Paragraph 21A):
“In the event that a Withdrawing, Retired, Terminated, or Removed Partner
breaches any of the covenants contained herein or is terminated by reason of
default . . . or provides services at any time during a period of four (4) years from
withdrawal as an individual or as an employee, agent, consultant, officer, director,
member or shareholder of any entity and provides the same or similar type as that of the
partnership to any then current clients of the partnership, then in addition to any other
remedies the Partnership may have at law or in equity, the Partnership may, at its option,
reduce the liquidation payments payable to said . . . Partner pursuant to Paragraph 14,
above, by an amount equal to one hundred fifty percent (150%) of the greater of the gross
fees billed in the twelve (12) months preceding the Termination Date to any client of the
Partnership that the . . . Partner services within four (4) years after the Termination Date,
or the gross fees billed to any such client in that client’s last twelve months as a client of
the Partnership. In the case of any client who was a client of the Partnership for less than
a twelve month period, the gross fees billed to that client shall be annualized at the same
rate in order to estimate the amount of fees which the Partnership might have received for
a full twelve month period. . . . . [¶] Should the reduction in the liquidation payment,
2
pursuant to the above, exceed the amount paid to the Withdrawing, Retired, Terminated
or Removed Partner, said Partner shall pay the excess to the Partnership within sixty (60)
days after the amount of excess has been determined.”
After his departure from the firm, Gantman provided services to several
SingerLewak clients. SingerLewak demanded that Gantman pay the firm over $260,000,
pursuant to Paragraph 21A. Gantman did not make the payment.
The parties submitted the dispute to arbitration, as required under the partnership
agreement. Gantman argued Paragraph 21A was not enforceable under California law.
He asserted Business and Professions Code section 16602—providing an exception to the
general prohibition against restraints on competition for certain agreements made by
partners—did not apply because he was not a partner within the meaning of the
provision.1 He further argued Paragraph 21A was invalid under section 16602 because it
contained no geographic limitation.
The arbitrator concluded Gantman was a partner within the meaning of section
16602. The arbitrator also determined Paragraph 21A was enforceable. He agreed with
SingerLewak’s argument that the provision was not a covenant not to compete, but was
instead “a provision allowing competition but imposing a cost on departing partners who
service clients of the firm.” The arbitrator reasoned section 16602 was not directed at
such provisions. The arbitrator further found Paragraph 21A was not void for lack of an
“express geographical limitation” because it contained an “implicit geographical
limitation.” The decision noted the termination fee was imposed only when a departing
partner serviced clients of the firm. The arbitrator then reasoned: “Those clients do
business only in certain areas, and the firm and its former partners would necessarily
service their clients from locations accessible to the clients’ locations. A departing
SingerLewak partner who services clients of the firm is necessarily constrained to a
1 All further statutory references are to the Business and Professions Code unless
otherwise noted.
3
geographical area in which the clients operate and in which the firm has goodwill. Thus,
the provision does not conflict with the policies underlying section 16602.”
SingerLewak filed a petition to confirm the arbitration award in the superior court.
Gantman opposed the petition and filed a competing petition to vacate the award.
Gantman argued the arbitration award was illegal and violated public policy because it
enforced an illegal restraint on competition. Gantman asserted Paragraph 21A was void
because it lacked any geographical limitation. The trial court concluded de novo review
of the evidence was required; after review, the court determined Paragraph 21A was
invalid and unenforceable because it did not contain any geographic restrictions as
required by section 16602. The court further concluded reformation of the agreement
was not proper. The court therefore vacated the arbitration award. SingerLewak timely
appealed.
DISCUSSION
I. Judicial Review of the Arbitration Award was Not Appropriate
A. Judicial review and the statutory right/public policy exception to the general
rule
In general, judicial review of an arbitration award is extremely limited. As the
California Supreme Court explained in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 6
(Moncharsh), “an arbitrator’s decision is not generally reviewable for errors of fact or
law, whether or not such error appears on the face of the award and causes substantial
injustice to the parties.” This is because parties who enter into arbitration agreements are
presumed to know the arbitrator’s decision will be final and binding; “arbitral finality is a
core component of the parties’ agreement to submit to arbitration.” (Id. at p. 10.) Courts
do not review the validity of an arbitrator’s reasoning, and, while Code of Civil
Procedure sections 1286.2 and 1286.6 set forth grounds for vacating or correcting an
arbitration award, “ ‘[a]n error of law is not one of those grounds.’ [Citation.]”
(Moncharsh, at pp. 11, 14.) Code of Civil Procedure section 1286.2, subdivision (d)
allows a court to vacate an arbitration award when the arbitrator has exceeded his or her
powers “and the award cannot be corrected without affecting the merits of the decision
4
upon the controversy submitted.” But, “[i]t is well settled that ‘arbitrators do not exceed
their powers merely because they assign an erroneous reason for their decision.’
[Citation.]” (Moncharsh, at p. 28; Baize v. Eastridge Companies, LLC (2006) 142
Cal.App.4th 293, 301-302 [alleged improper application of California law not a basis for
judicial review]; Marsch v. Williams (1994) 23 Cal.App.4th 238, 245 [arbitrators did not
exceed their powers in failing to apply Corporations Code provision, even if it was
error].) The Moncharsh court further explained the contention that the parties’ contract
or transaction was illegal provides a ground for judicial review of the arbitration award
only where the party claims the entire contract or transaction is illegal, not just one
provision of the contract. (Moncharsh, at p. 32.)
Yet, the Moncharsh court noted “there may be some limited and exceptional
circumstances justifying judicial review of an arbitrator’s decision when a party claims
illegality affects only a portion of the underlying contract. Such cases would include
those in which granting finality to an arbitrator’s decision would be inconsistent with the
protection of a party’s statutory rights. . . . [¶] Without an explicit legislative expression
of public policy, however, courts should be reluctant to invalidate an arbitrator’s award
on this ground. The reason is clear: the Legislature has already expressed its strong
support for private arbitration and the finality of arbitral awards in title 9 of the Code of
Civil Procedure. (§ 1280 et seq.) Absent a clear expression of illegality or public policy
undermining this strong presumption in favor of private arbitration, an arbitral award
should ordinarily stand immune from judicial scrutiny.” (Moncharsh, at p. 32.) The
court summarized its conclusion: “[T]he normal rule of limited judicial review may not
be avoided by a claim that a provision of the contract, construed or applied by the
arbitrator, is ‘illegal,’ except in rare cases when according finality to the arbitrator’s
decision would be incompatible with the protection of a statutory right.” (Id. at p. 33.)
Our high court has subsequently applied this exception to review challenged
arbitration awards. In Board of Education v. Round Valley Teachers Assn. (1996) 13
Cal.4th 269 (Round Valley), the underlying dispute concerned whether a school board
could agree through collective bargaining to give probationary employees greater
5
procedural protections than those set forth in the Education Code. (Id. at p. 272.) When
a probationary teacher challenged his notice of non-renewal, arguing it did not comply
with provisions in the collective bargaining agreement between the teachers association
and the school district, the school district asserted the grievance was not arbitrable. The
superior court, however, granted a motion to compel arbitration. The arbitrator found the
school district had violated the collective bargaining agreement and ordered it to comply
with the agreement’s provisions. The school district challenged the validity of the
relevant collective bargaining agreement provisions, but the arbitrator “left that issue to
judicial determination.” (Id. at p. 273.) The district then filed a petition to vacate the
arbitration award. It argued the arbitrator exceeded his powers because provisions of the
Education Code preempted any contradictory provisions in the collective bargaining
agreement regarding procedures for reelection of probationary teachers. (Ibid.) Further,
according to the district, pursuant to provisions of the Government Code, the reelection
issue could not be the subject of collective bargaining. The district thus asserted the
entire subject of reelection of probationary teachers was never properly subject to the
arbitration provisions of the collective bargaining agreement. (Id. at p. 276.)
In its review, the court explained the threshold issue was whether it had authority
to review the arbitrator’s award, and this question was independent of the issue of
whether the award should be upheld. (Round Valley, at p. 276.) Judicial review was
justified because if the school district was correct concerning the scope of its statutory
rights under the Education and Government Codes, the case presented the “exceptional
circumstance” allowing for judicial review of the arbitrator’s decision. The court
reasoned: “Should District’s interpretation of the law prevail, we would be faced with an
‘explicit legislative expression of public policy’ that issues involving the reelection of
probationary teachers not be subject to arbitration. [Citation.] This expression of public
policy would thus conflict with the expressed legislative intent to limit private arbitration
awards to statutory grounds for judicial review. Thus, rigidly insisting on arbitral finality
here would be ‘inconsistent with the protection of a party’s [i.e., District’s] statutory
rights.’ [Citations.]” (Id. at p. 277.)
6
Our high court applied the exception again in Aguilar v. Lerner (2004) 32 Cal.4th
974 (Aguilar), to review an arbitration award in an attorney fee dispute. After losing in
arbitration, the plaintiff (client) moved to vacate the arbitration award, contending the
parties’ arbitration agreement was unenforceable because it was contrary to the
mandatory fee arbitration act, set forth in section 6200, et seq. The plaintiff contended
the arbitrator exceeded his powers in resolving the parties’ dispute because the agreement
to arbitrate “contravened both plaintiff’s statutory rights as set forth in the [mandatory fee
arbitration act] and the public policy underlying the statute.” (Aguilar, at pp. 982-983.)
The court agreed judicial review was appropriate because “enforcement of an arbitration
agreement that violates a plaintiff’s rights under the [mandatory fee arbitration act] would
exceed the arbitrator’s powers.” (Id. at p. 983.)
Round Valley and Aguilar both involved a party’s statutory rights that directly
affected the propriety of the arbitration itself. Recent California Supreme Court cases
have approached judicial review of an arbitration award in the context of mandatory
arbitration of statutory employment claims. For example, in Pearson Dental Supplies,
Inc. v. Superior Court (2010) 48 Cal.4th 665 (Pearson), our high court vacated an
arbitration award based on a legal error, explaining: “[C]onstruing the [California
Arbitration Act] in light of the Legislature’s intent that employees be able to enforce their
right to be free of unlawful discrimination under FEHA, an arbitrator whose legal error
has barred an employee subject to a mandatory arbitration agreement from obtaining a
hearing on the merits of a claim based on such right has exceeded his or her powers
within the meaning of Code of Civil Procedure section 1286.2, subdivision (a)(4), and the
arbitrator’s award may properly be vacated.” (Id. at p. 680.) Yet, in Richey v.
AutoNation, Inc. (2015) 60 Cal.4th 909 (Richey), the court characterized the Pearson
decision as creating only a “narrow rule,” and the case “emphasized that its legal error
standard did not mean that all legal errors are reviewable.”2 (Richey, at p. 918.)
2 In Richey, the trial court had reviewed and vacated an arbitration award in a
Family Medical Leave Act/California Family Rights Act matter. Although the trial court
7
Several courts of appeal have applied the statutory rights or public policy
exception to review an arbitration award, even when the statutory right or public policy at
issue was unrelated to the legitimacy of the arbitration itself. In City of Palo Alto v.
Service Employees Internat. Union (1999) 77 Cal.App.4th 327, 339-340 (City of Palo
Alto), the court reviewed and vacated an arbitration award that ordered the reinstatement
of an employee who was terminated after he made threats of violence against another
employee. The employer, the city of Palo Alto, had also secured an injunction
prohibiting the terminated employee from being near city work sites. The employee
challenged his termination in arbitration. The arbitrator concluded the termination
violated the employee’s procedural rights and was unsupportable on the merits. He
ordered the employee reinstated. (Id. at pp. 332-333.)
The city challenged the arbitration award, arguing in part the award violated the
public policy requiring employers to provide a safe workplace. (City of Palo Alto, at
p. 334.) Although the court agreed there was such an express public policy, it found the
arbitration award requiring reinstatement of an employee who had made violent threats
did not necessarily violate that policy. The court reasoned the city had not established the
public policy obligated the city to automatically fire any employee who makes a threat of
violence, regardless of the circumstances. Further, the arbitrator had implicitly concluded
the employee did not intend to carry out his threat. The court concluded reinstatement of
an employee who had no intention of carrying out his or her threat of violence was “not
necessarily precluded because there is no absolute public policy against employment of
persons who make threats of violence, which operates regardless whether there is an
confirmed the award, the court of appeal concluded the arbitrator erred in deciding the
case based on the federal “honest belief” defense, which was untested in California
courts, and the error was a basis to vacate the award. (Richey, at pp. 912-913.) Our high
court did not decide whether any error that occurred deprived the employee of an
unwaivable statutory right, justifying judicial review and vacation of the award. Instead,
the court concluded any error was not prejudicial because the arbitrator found the
employee was dismissed for another reason. The arbitrator “made no legal error that
deprived plaintiff of an unwaivable statutory right when it relied upon the substantial
evidence that plaintiff violated company policy.” (Id. at pp. 920-921.)
8
actual risk of violence.” (Id. at p. 337.) However, the court vacated the arbitration award
because it was irreconcilable with the public policy requiring obedience to court orders;
the employee could not return to work without violating the injunction. (Id. at pp. 339-
340.)
In Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431 (Jordan),
the court reviewed and vacated an arbitration award the court determined was an
unconstitutional gift of public funds. In that case, the Legislature had, by legislative
enactment, authorized a certain maximum amount of attorney fees for a separate
litigation. The arbitrator’s award exceeded the amount authorized by the Legislature.
Likewise, in Department of Personnel Administration v. California Correctional Peace
Officers Assn. (2007) 152 Cal.App.4th 1193, the court reviewed and vacated an
arbitration award reforming a memorandum of understanding between a state agency and
public employee union. The Legislature had already approved the terms of the
memorandum prior to the arbitration. The arbitrator’s award changing those terms
violated the public policy of legislative oversight of state employee contracts. (Id. at
pp. 1195, 1203.)
More recently, in Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21 (Ahdout), the
court concluded judicial review of an arbitration award was required because, if the
losing party was correct, the award would contravene the explicit legislative expression
of public policy embodied in section 7031 regarding unlicensed contractors. In the
underlying arbitration, the appellant sought, among other things, disgorgement of
construction costs, pursuant to section 7031, which mandates disgorgement of
compensation received by an unlicensed contractor. The arbitrators rejected the claim,
concluding the respondents were not required to disgorge the construction costs and,
essentially, that section 7031 did not apply. (Id. at p. 28.) The trial court rejected the
losing party’s petition to vacate the award, reasoning it did not have the power to review
the arbitrators’ decision for errors of fact or law. (Id. at p. 29.)
9
The court of appeal disagreed, reasoning that because “section 7031 constitutes an
explicit legislative expression of public policy regarding unlicensed contractors, the
general prohibition of judicial review of arbitration awards does not apply. . . . [W]here a
public policy is articulated explicitly by the Legislature, as with section 7031, courts are
vested with the final word on whether the provision applies.” (Ahdout, at pp. 38, 39.)
While in Moncharsh, the court concluded nothing in the Rules of Professional Conduct
suggested resolution by an arbitrator of what was “essentially an ordinary fee dispute
would be inappropriate or would improperly protect the public interest,” the Ahdout court
indicated the contractor licensing laws are intended to protect the general public from
shoddy construction work, “and thus judicial review of arbitration awards that allegedly
fail to enforce [the law] is appropriate.” (Ahdout, at p. 39; Moncharsh, at p. 33.) The
court reversed the judgment and remanded to the trial court with directions to conduct a
de novo review of the evidence to determine whether section 7031 was applicable. (Id. at
p. 40.)
However, courts have refused to apply the exception when no explicit legislative
expression of public policy is involved, or where the sole issue is merely an alleged error
in the interpretation or application of the law governing the claim properly subject to
arbitration. Thus, in Jones v. Humanscale Corp. (2005) 130 Cal.App.4th 401 (Jones), the
plaintiff’s employment agreement with the defendant contained noncompetition and
arbitration clauses. The agreement expressly declared that its provisions were to be
construed in accordance with New Jersey law. (Id. at pp. 405-406.) The arbitrator
rejected the plaintiff’s argument that under New Jersey choice of law analysis, the
noncompetition agreement should be interpreted under California law. (Id. at p. 406.)
The arbitrator concluded the noncompetition agreement could be enforced against the
plaintiff, and awarded the defendant damages for the plaintiff’s previous violation of the
agreement. (Id. at p. 407.) The plaintiff opposed the defendant’s petition to confirm the
award. He contended the award was based on an illegal contract that violated
California’s policy against covenants not to compete. (Ibid.)
10
The trial court reviewed and vacated the arbitration award. It concluded the
arbitrator erred in failing to apply California law and the covenant not to compete was
illegal on its face under section 16600. (Jones, at p. 407.) The Court of Appeal
disagreed. The court acknowledged Moncharsh allows for judicial review of an
arbitration award when granting finality to the arbitrator’s decision would be inconsistent
with the protection of a party’s statutory right. But the Jones court concluded the issue
before it was different because the parties’ agreement authorized the arbitrator to
determine the applicable law and the enforceability of the covenant not to compete.
(Jones, at p. 410.) The court further concluded the arbitrator’s findings were “not
palpably erroneous” because some limits on a former employee’s right to pursue his or
her occupation are permissible under California law. (Id. at p. 411.) Moreover, the
alleged illegality of the covenant not to compete did not render the dispute non-arbitrable.
Since the alleged illegality affected only a portion of the contract that did not include the
arbitration agreement, the arbitrator had the authority to determine whether the covenant
not to compete was enforceable. (Id. at p. 413.)
Likewise, in City of Richmond v. Service Employees Internat. Union Local 1021
(2010) 189 Cal.App.4th 663, the court rejected the public policy exception as a basis to
review an arbitration award. The underlying case involved an employee who was
terminated after being accused of sexual harassment and dishonesty. The employee
challenged the termination in arbitration. The arbitrator concluded the sexual harassment
claims were time-barred and the evidence did not support the dishonesty charges. The
arbitrator accordingly found no cause for termination and ordered the employee
reinstated. (Id. at pp. 667-668.) On appeal, the court concluded the arbitration award did
not violate public policy. Although there is a strong public policy against sexual
harassment in the workplace, the court concluded that policy did not preclude an
arbitrator from ordering an accused harasser reinstated where the accusations were time-
barred. (Id. at pp. 671-672.)
11
B. Judicial Review is Not Appropriate in this Case
As the California Supreme Court summarized in Richey: “Arbitrators may exceed
their powers by issuing an award that violates a party’s unwaivable statutory rights or that
contravenes an explicit legislative expression of public policy.”3 (Richey, at p. 916.)
Round Valley and Aguilar indicate that evaluating a challenge to an arbitration award is a
two-step process—first the court must determine whether the award is reviewable, and
only if review is appropriate does the court consider whether the award should be upheld.
(Round Valley, at p. 276; Aguilar, at p. 981.) The threshold question here, then, is
whether according the arbitration award finality would be inconsistent with protecting
Gantman’s statutory rights. We must consider whether, if Gantman is correct concerning
his rights under section 16600 and 16602, the award would contravene an explicit
legislative expression of public policy that undermines the strong presumption in favor of
private arbitration. We conclude it would not, and judicial review is therefore not
appropriate.
“Section 16600 states: ‘Except as provided in this chapter, every contract by
which anyone is restrained from engaging in a lawful profession, trade, or business of any
kind is to that extent void.’ . . . [It is well established that] section 16600 evinces a
settled legislative policy in favor of open competition and employee mobility. [Citation.]
The law protects Californians and ensures ‘that every citizen shall retain the right to
pursue any lawful employment and enterprise of their choice.’ [Citation.] It protects ‘the
important legal right of persons to engage in businesses and occupations of their
choosing.’ [Citation.]” (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 945-
946 (Edwards).) At least one court has indicated this is an unwaivable right. (Weber,
Lipshie & Co. v. Christian (1997) 52 Cal.App.4th 645, 659-660.)
3 Further, whether the arbitrator exceeded his or her powers is reviewed on appeal
de novo. (Richey, at p. 918, fn. 1.)
12
Yet, the policy embodied in section 16600 has exceptions, and this case concerned
one of those exceptions. Under section 16602, “Any partner may, upon or in anticipation
of [a dissolution of the partnership or dissociation of the partner from the partnership],
agree that he or she will not carry on a similar business within a specified geographic area
where the partnership business has been transacted, so long as any other member of the
partnership, or any person deriving title to the business or its goodwill from any such
other member of the partnership, carries on a like business therein.” (§ 16602, subds. (a)
& (b).)
Thus, when it comes to partners and a partnership, the public policy in favor of
open competition is not absolute. As the California Supreme Court explained in
Edwards, “ ‘[S]ection 16600 embodies the original, strict common law antipathy toward
restraints of trade, while the section 16601 and 16602 exceptions incorporated the later
common law “rule of reasonableness” in instances where those exceptions apply.’ ”
(Edwards, at p. 948.) In Howard v. Babcock (1993) 6 Cal.4th 409, our high court
explained: “Not every agreement between partners in restraint of competition is
permitted. We have held that the common law ‘rule of reason’ should apply to evaluate
the noncompetition agreement under Business and Professions Code section 16602.”
(Id. at p. 416.) Because section 16602 incorporates the common law “rule of
reasonableness,” courts have at times enforced partnership covenants not to compete to
the extent that such agreements are lawful under section 16602, even if the agreements
were facially invalid when taken as a whole. (Swenson v. File (1970) 3 Cal.3d 389, 395
(Swenson); Roberts v. Pfefer (1970) 13 Cal.App.3d 93, 98 [trial court directed to make
findings as to the reasonableness of a covenant’s restriction barring doctor from
practicing within a portion of the county; statute at the time allowed restriction only as to
city or town].)4
4 We do not reach the question of whether, under the guise of the rule of
reasonableness, a court or arbitrator may imply a geographic limitation in a partnership
covenant not to compete when the parties did not include one. Our only conclusion is
that in light of the lack of an absolute prohibition on restraints on competition for
13
In Swenson, for example, our high court explained the applicable version of
section 16602 “substantially restrict[ed] the scope and effect” of the covenant not to
compete at issue in the case. The covenant contained two provisions, a blanket
prohibition on servicing the firm’s current or former clients, and one restricting the
departing partner from servicing clients within a 20-mile radius of the partnership offices.
Neither provision appeared to fall within the section 16602 exception.5 Yet, despite the
infirmity of the provisions as written, section 16602 did not invalidate the covenant in its
entirety, “for under section 16600 a contract in restraint of trade is only ‘to that extent
void.’ Thus, the rule of severability may be invoked to uphold defendant’s covenant to
the extent that it falls within the limits permitted by section 16602.” (Swenson, at p. 395.)
The court noted the blanket prohibition on servicing the firm’s clients was facially invalid
due to the lack of any geographic restriction. Still, it reasoned both provisions could be
upheld “to the extent that serving such clients would also constitute, under former section
16602, ‘carrying on’ an accounting business within the Cities of Pasadena or Azusa,
where the partnership offices are located. But neither subsection may validly be
construed as enjoining defendant from serving clients, regardless of the location of their
offices, unless defendant ‘carries on’ business with those clients in Pasadena or Azusa.”
(Ibid, fn. omitted.) The analysis then turned to whether the departing partner had carried
on business with clients in Pasadena and Azusa. The court invoked the common law
concept of reasonableness to answer that question. (Id. at pp. 396-397.)
partners, and the latitude of courts to enforce agreements under section 16602 to the
extent they are valid, the arbitrator’s issuance of an award enforcing the partnership
agreement’s restraint on competition did not violate Gantman’s unwaivable statutory
rights or contravene an explicit legislative expression of public policy, as those terms
have been interpreted and applied by the courts in this state.
5 At the time the partnership agreement was executed, section 16602 allowed
partners to agree not to carry on a similar business “‘within the same city or town or a
specified part thereof, where the partnership business has been transacted.’” (Swenson, at
p. 392.) The agreement at issue in Swenson restricted a departing partner from providing
services to any partnership client, or to a non-partnership client which had its principal
office within a 20-mile radius of any partnership office. (Id. at p. 391.)
14
In light of this background, we do not find that the arbitration award, even if
incorrect in its interpretation and application of section 16602, contravened an explicit
legislative expression of public policy that undermined the presumption in favor of
private arbitration. (Ahdout, at p. 38.) While there is undeniably an explicit legislative
expression of public policy embodied in section 16600, section 16602 creates an
exception to this policy, and that provision governed this case. There is no absolute
public policy against the enforcement of a non-competition provision entered into by
partners, consistent with section 16602. And the issue of whether or to what extent
Paragraph 21A was enforceable under the section 16602 exception was the only question
submitted to the arbitrator for a decision. This case is distinguishable from Round Valley
or Aguilar, in that the arbitration award, even if legally erroneous, did not contravene a
public policy indicating that certain issues not be subject to resolution by the arbitrator.
(See Jones, at p. 410 [describing Round Valley and Aguilar as applying the exception “in
circumstances where the court concluded legislative enactments expressly or impliedly
created an impediment to the resolution of an issue by private contractual arbitration”].)
In addition, this case is unlike Pearson, in that the arbitrator’s error, if any, did not
deprive Gantman of a hearing on the merits of his claim. In contrast to Pearson, any
arbitrator error did not “[misconstrue] the procedural framework under which the parties
agreed the arbitration was to be conducted, rather than misinterpreting the law governing
the claim itself.” (Pearson, at pp. 679-680, fn. omitted.) Indeed, Gantman’s argument is
precisely that the arbitrator misinterpreted the law governing the claim itself.
This case is also unlike Jordan and California Correctional Peace Officers, in that
the award, even if based on errors of law, does not override or directly conflict with a
legislative action which set explicit boundaries on the subject matter of the arbitration or
the permissible scope of the award. Unlike the arbitration award in Jordan, even if
legally insupportable, the award itself—enforcing a non-compete among partners—was
not against public policy or unauthorized. (Jordan, at pp. 451, 453.)
15
This case is further unlike City of Palo Alto because the arbitration award, even if
incorrect, does not require the violation of a separate court order. But the court’s
reasoning in City of Palo Alto regarding the safe workplace public policy is applicable
here. In City of Palo Alto, the court reasoned that under some circumstances, a city might
reinstate an employee who had made threats of violence, without violating the public
policy requiring employers to provide a safe workplace. There was no absolute public
policy against reinstatement of an employee who had threatened violence. Similarly
here, there is no absolute public policy against the enforcement of a restraint on
competition agreed to among partners. The arbitrator’s award interpreting Paragraph
21A and finding it enforceable under section 16602 is not necessarily incompatible with
the public policy in favor of open competition.
In Ahdout, the court concluded the arbitrators’ refusal to apply the prohibition on
unlicensed contractor work mandated judicial review. The public policy intended to
protect the public from the “hazards of shoddy construction work” was explicitly
articulated by the Legislature, and courts had the final word on whether the provisions
regarding unlicensed contractors applied. But here, while section 16600 embodies a
similarly strict and well-established public policy, section 16602 is an exception to
section 16600, and it was the provision at issue in this case.
The case before us therefore bears a closer resemblance to Moncharsh. As was
the case in Moncharsh, we see nothing in section 16602 that suggests resolution by an
arbitrator of the dispute between a partner and the partnership would improperly protect
the public interest. As in Moncharsh, the validity and enforceability of Paragraph 21A
under California law were contested issues submitted to the arbitrator for decision. His
resolution of those issues is what the parties bargained for in the arbitration agreement.
(Moncharsh, at p. 28; Jones, at p. 40.) The arbitrator was within his powers in resolving
the questions presented to him. And, “[i]t is well settled that ‘arbitrators do not exceed
their powers merely because they assign an erroneous reason for their decision.”
(Moncharsh, at p. 28; Jones, supra, pp. 409-410.) The arbitrator may have erred in
16
interpreting or applying section 16602. But he did not exceed his powers by acting in a
manner “not authorized by the contract or by law.” (Jordan, at p. 443.)
DISPOSITION
The trial court order vacating the arbitration award is reversed. The matter is
remanded to the superior court with directions to enter an order confirming the award.
Appellant is awarded costs on appeal.
BIGELOW, P. J.
We concur:
FLIER, J.
GRIMES, J.
17
Filed 10/21/15
Court of Appeal, Second Appellate District, Division Eight - No. B259722
S229081
IN THE SUPREME COURT OF CALIFORNIA
En Banc
________________________________________________________________________
SINGERLEWAK LLP, Plaintiff and Appellant,
v.
ANDREW GANTMAN, Defendant and Respondent.
________________________________________________________________________
As recommended by the Court of Appeal pursuant to rule 8.1120(c) of the
California Rules of Court, the Reporter of Decisions is directed to publish the opinion in
the above-entitled matter in the Official Reports.
______________________________
Chief Justice