Powell v. Public Storage CA2/1

Filed 4/27/23 Powell v. Public Storage 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SOLOMON NATHANIEL B321126
POWELL,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 20NWCV00524)
v.
PUBLIC STORAGE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Margaret Miller Bernal, Judge. Affirmed.
Solomon Nathaniel Powell, in pro. per., for Plaintiff and
Appellant.
Sacro & Walker, John Walker, William Walker and Lisa M.
Burnett for Defendant and Respondent.
_________________________
INTRODUCTION
Plaintiff Solomon Nathaniel Powell claims that some of his
property was stolen from a storage unit he rented at a Public
Storage facility. He sued Public Storage in superior court for
negligence. Public Storage successfully moved to compel
arbitration pursuant to the parties’ rental agreement, and at the
conclusion of the arbitration hearing the arbitrator ruled in favor
of Public Storage. The superior court then denied Powell’s
petition to vacate the arbitration award and entered a judgment
confirming the award.
Powell now appeals from the judgment confirming the
award. Judicial review of an arbitration award is limited, and we
do not find any merit to Powell’s challenges to the award in this
case. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Powell Rents a Storage Unit from Public Storage and
Agrees to Arbitrate any Disputes
On March 14, 2020, Powell rented a storage unit at a
Public Storage facility in Huntington Park, California. Powell
signed Public Storage’s standard rental agreement. The rental
agreement released Public Storage from any liability to Powell
for losses caused by its “negligence, unless the Loss is directly
caused by our intentional or reckless conduct,” and required
Powell to “have some form of insurance covering the property” in
the rented storage space. The agreement further contained a
provision for mandatory arbitration of any disputes between the
parties, with the arbitration “governed and administered by the
Streamlined Arbitration Rules and Procedures of Judicial
Arbitration and Mediation Services, Inc. (‘JAMS’) then in effect
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and as modified by this Rental Agreement, by one commercial
arbitrator with substantial experience in resolving commercial
contract disputes.” The arbitration provision further specified
that “[a]ll disputes concerning the arbitrability of a claim
(including disputes about the interpretation, breach,
applicability, enforceability, revocability or validity of this Rental
Agreement . . . ) shall be decided by the arbitrator.”
B. The Parties’ Dispute and Powell’s Negligence Action
Powell claims that items were stolen from his storage unit
in April 2020. He reported the theft to the Huntington Park
Police Department.
On September 28, 2020, Powell sued Public Storage in
superior court, claiming the company was liable for his theft loss.
Powell alleged that, on April 16, 2020, he discovered that
someone had broken into his unit and his “backpack, various
personal items, laptop, hard drive, etc.” were missing. Powell
alleged that there had been multiple other break-ins at the
facility. He alleged that Public Storage was negligent because
“[it] knew beforehand that the flimsy wire mesh coverings above
the locker units accessible by ladder could be easily cut, unbolted,
or pried open with tools, scissors or hands.” Powell claimed that
Public Storage “knew beforehand that customers may enter the
premises before the 9 pm lockout and stay longer without
tripping any alarms within the building.”
As an additional ground for his negligence claim, Powell
asserted Public Storage failed to communicate to him about other
break-ins at the facility. He also asserted Public Storage staff
refused to allow police into the facility to investigate; he alleged
that “[t]he basis for their refusal was that any police presence at
the property would make Public Storage look ‘bad[.’] ” Powell
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alleged that he had suffered mental harm as a result of the loss of
his property and Public Storage’s refusal to allow police into the
facility. Powell’s complaint sought compensatory and punitive
damages of $1 million.
On November 20, 2020, Public Storage moved to compel
arbitration. After a hearing, the court granted Public Storage’s
motion and stayed the superior court action pending the
arbitration.
C. The Arbitration
Powell filed a demand for arbitration with JAMS on
April 1, 2021, asserting claims for both negligence and gross
negligence. He alleged that there was a break-in at his storage
unit between April 10 and April 18, 2020, that Public Storage
“acted with ‘extreme negligence by not adequately maintaining
the security of the personal lockers, by not communicating with
[Powell] and by refusing to allow the Huntington Park police onto
the premises.’ ” He alleged that various items of personal
property were taken. In its response, Public Storage denied any
negligence and stated that Powell had failed to establish that his
unit had in fact been burglarized.
On May 11, 2021, JAMS appointed Adrienne Publicover,
Esq. as the arbitrator. After holding a preliminary hearing and
scheduling conference, a discovery management conference, and a
hearing regarding a discovery dispute, the arbitrator held a one-
day evidentiary hearing on November 9, 2021, at which the
parties participated remotely. The parties submitted arbitration
briefs and 54 joint exhibits, all of which the arbitrator received
into evidence. Powell testified on his own behalf. Public Storage
called two witnesses, a district manager and an insurance claims
manager. The arbitrator set a deadline of November 23, 2021, for
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post-hearing briefs; both parties submitted briefs by the deadline,
and Powell submitted an additional, “amended” brief with
exhibits past the deadline, on November 30, 2021.
On December 10, 2021, the arbitrator issued her final
award denying Powell’s claim. The arbitrator concluded that
Powell’s negligence claim failed because Public Storage did not
owe Powell a duty of care. The arbitrator relied on the parties’
rental agreement, which provided that Public Storage did not
make any “implied or express warranties, guarantees, or
representations of the nature, condition, safety, or security of”
Powell’s unit, and limited Public Storage’s liability to losses
caused by its intentional or reckless conduct. The arbitrator also
relied on the requirement in the parties’ agreement that Powell
purchase insurance covering his property. Powell did purchase
$3,000 in insurance through Public Storage, and his insurance
claim was pending.
The arbitrator rejected Powell’s res ipsa loquitur theory of
liability, in part by concluding that Powell had not met his
burden to establish either that someone had broken into Powell’s
storage unit or that Public Storage was negligent. The arbitrator
found that “[Public Storage]’s witness, [facility manager Ashley]
Reyes, credibly testified as to the various security measures
employed by the facility, including entrance codes, security
cameras and lock checks.” The arbitrator found Powell did not
establish that someone broke into his unit because “only [Powell]
had the combination and key to the two locks that secured his
unit,” and his theory that someone entered his unit through the
mesh covering at the top failed because he relied on photos which
“show[ed] only a slight bend in the mesh, insufficient to establish
that there was a break in.”
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The arbitrator rejected Powell’s gross negligence claim,
finding he had provided no evidence to support the basis of that
claim which was that a Public Storage employee had stolen his
items. The arbitrator observed that “[Powell] testified that he
had heard rumors from ‘Jason,’ another tenant, who allegedly
witnessed a male employee climbing a ladder and taking some
property. He acknowledged that ‘Jason’ did not know if the other
male went inside the lockers to enforce a lien or seize property
(both of which would have been legitimate reasons to enter a
unit). [Powell] acknowledged these were ‘rumors’ and his
‘theoretical beliefs[’;] he does not have any actual proof.”
The arbitrator’s decision addressed Powell’s responses to
questions during the arbitration hearing about whether he was
the defendant in several prior criminal cases. Powell denied that
he was the person involved in some of the cases; as to the others,
he asserted his Fifth Amendment right not to incriminate himself
and refused to answer. The arbitrator observed that “It is
unclear how an answer by [Powell] confirming or denying that he
was the defendant in these prior cases would be incriminating,
especially given the amount of time that has passed and in the
face of instances where [Powell] specifically responded ‘no’ to
such questions.” However, the arbitrator indicated she did not
need to make any “specific findings with regard to [Powell]’s
credibility,” including his Fifth Amendment invocation, because
“such findings [we]re not necessary to [her] conclusions,”
including that “[e]ven if the theft alleged occurred, [Public
Storage] is not liable for the damages claimed.”
The arbitrator indicated she did not consider Powell’s
untimely post-hearing brief and exhibits but that “nothing
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additional provided therein would change [her] conclusions in
this matter.”
D. Powell’s Petition to Vacate the Arbitration Award
and Public Storage’s Petition to Confirm the Award
On March 18, 2022, Powell served a petition to vacate the
arbitration award on Public Storage.1 In his petition, Powell
sought vacatur under Code of Civil Procedure2 section 1286.2,
subdivision (a)(3) and (5), on the grounds the arbitrator
committed misconduct and refused to hear material evidence.
Powell claimed that the arbitrator “acted with misconduct by
threatening to dismiss the case or exclude [Powell’s] testimony if
[Powell] refused to participate in a deposition hearing held by . . .
Public Storage. This forced [Powell] to participate in a deposition
he clearly did not want to participate in, especially a videotaped
one.” At the deposition, Powell invoked his Fifth Amendment
right to not incriminate himself and he claimed in his petition
that the arbitrator improperly allowed Public Storage to use this
as character evidence against him.
Powell also claimed that his rights were “substantially
prejudiced” because the arbitrator “refused to hear deposition
testimony from the witnesses (police officers, employees of Public
Storage present during the incident) requested to be subpoenaed
1 Powell e-mailed a copy of the petition to Public Storage on
March 10, 2022, but apparently did not include some
attachments. He e-mailed the attachments on March 18, 2022,
and that is the date listed on his proof of service. Powell did not
file his petition until March 24, 2022.
2Unspecified statutory references are to the Code of Civil
Procedure.
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by” Powell for deposition. Powell claimed that the arbitrator
“refused to consider additional evidence submitted by [Powell]” in
an “amended” brief he filed after the briefing deadline. Powell
asserted that “Failure to consider this additional
evidence/argument material to the controversy (police call log
records, etc.) was prejudicial” to him. Powell submitted with his
petition copies of several orders issued by the arbitrator prior to
her final award.
On March 18, 2022, Public Storage filed a petition to
confirm the arbitration award.
On April 19, 2022, the court held a hearing on the parties’
dueling petitions. Powell did not appear, and Public Storage
submitted on the tentative ruling posted by the court. The court
denied Powell’s petition to vacate the arbitration award and
granted Public Storage’s petition to confirm the award. The court
rejected Powell’s claim that the arbitrator acted inappropriately
in requiring Powell to appear for a deposition, noting that the
arbitrator did not preclude Powell from invoking the Fifth
Amendment in response to specific questions and did not make
any findings regarding Powell’s credibility. The court rejected
Powell’s argument that the arbitrator unfairly limited his ability
to conduct depositions because (1) the Federal Arbitration Act
(FAA; 9 U.S.C. § 1 et seq.), which applied under the terms of the
parties’ arbitration agreement, “does not provide for prehearing
discovery or depositions at all, and does not give arbitrators the
right to compel discovery from third parties,” and (2) the
applicable JAMS rules did not require depositions. Furthermore,
the court noted, the arbitrator gave each party the right to take
one four-hour deposition, and Powell did not show up at the
deposition he had requested of Public Storage.
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That same day the court entered a judgment confirming the
final arbitration award. Powell timely appealed three days later.
DISCUSSION
Powell contends that the trial court erred in confirming the
arbitration award for three reasons. The first is a new argument
not presented to the trial court—that the arbitrator improperly
enforced the provision in the parties’ agreement limiting Public
Storage’s liability to gross negligence. Second, he asserts the
arbitrator failed to hear certain evidence. Finally, he argues the
arbitrator committed misconduct by improperly drawing adverse
inferences against him based on his assertion of the Fifth
Amendment.
A. Legal Principles and Standard of Review
“California law favors alternative dispute resolution as a
viable means of resolving legal conflicts.” (Richey v. AutoNation,
Inc. (2015) 60 Cal.4th 909, 916.) “[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.” (Moncharsh
v. Heily & Blase (1992) 3 Cal.4th 1, 9, fn. omitted (Moncharsh).)
“Because the decision to arbitrate grievances evinces the parties’
intent to bypass the judicial system and thus avoid potential
delays at the trial and appellate levels, arbitral finality is a core
component of the parties’ agreement to submit to arbitration.”
(Id. at p. 10.)
While the parties agreed in the rental contract that the
arbitration would be governed by the FAA, the procedural rules
of the California Arbitration Act (CAA; § 1280 et seq.) regarding
judicial review of an arbitration award govern in this case. (See
Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334,
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1340, fn. 2 [“Because the parties proceeded in state court under
the CAA, we conclude that judicial review of the award is
governed by state law, though the arbitration proceedings are
governed by federal procedural law”] (Cable Connection); SWAB
Financial, LLC v. E*Trade Securities, LLC (2007) 150
Cal.App.4th 1181, 1195 [“California courts are not required to
apply” the FAA provisions governing vacatur of arbitration
awards].)3
“[A]n 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.”
(Moncharsh, supra, 3 Cal.4th at p. 6.) Instead, “judicial review of
private, binding arbitration awards is generally limited to the
statutory grounds for vacating (§ 1286.2) or correcting (§ 1286.6)
an award.” (Moshonov v. Walsh (2000) 22 Cal.4th 771, 775, citing
Moncharsh, at pp. 8-28.) Thus, there are three types of petitions
available—to vacate, correct or confirm an award. (§ 1285.)
3 The arbitration clause in Cable Connection provided, in
language very similar to that used in the parties’ arbitration
agreement here, that “ ‘any arbitration conducted hereunder
shall be governed by the [FAA].’ ” (Cable Connection, supra, 44
Cal.4th at p. 1342, fn. 3.) The court rejected the plaintiffs’
argument that the arbitration clause required application of FAA
rules governing judicial review of the arbitration award because
the FAA provisions referred to review in a federal court, “[t]he
parties’ contract did not specify whether enforcement proceedings
were to be brought in state or federal court,” the petition to
vacate was filed in state court, and both parties initially
proceeded as though the CAA procedures controlled. (Cable
Connection, supra, at p. 1351, fn. 12.) Similarly here, both
parties have proceeded as though the CAA procedures control.
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When any type of petition is filed, “the court shall confirm the
award as made . . . unless in accordance with this chapter it
corrects the award and confirms it as corrected, vacates the
award or dismisses the proceeding.” (§ 1286.) Pursuant to
section 1287.4, “If an award is confirmed, judgment shall be
entered in conformity therewith. . . .”
Powell seeks to vacate the arbitration award under section
1286.2, subdivision (a)(3) and (5). Subdivision (a)(3) requires
vacatur where “The rights of the party were substantially
prejudiced by misconduct of a neutral arbitrator.” (Id., subd.
(a)(3).) As relevant here, subdivision (a)(5) requires vacatur
where “The rights of the party were substantially prejudiced . . .
by the refusal of the arbitrators to hear evidence material to the
controversy or by other conduct of the arbitrators contrary to the
provisions of this title.” (Id., subd. (a)(5).)
“To determine whether an arbitration award should be
vacated under . . . section 1286.2, we review the trial court’s
decision de novo.” (Bacall v. Shumway (2021) 61 Cal.App.5th
950, 957.) However, when the court’s decision turns on disputed
evidentiary matters, the substantial evidence test applies.
(SWAB Financial, LLC v. E*Trade Securities, LLC, supra, 150
Cal.App.4th at p. 1198.)
B. Powell’s Claim that the Arbitrator Improperly
Enforced the Contract’s Limitation of Liability Fails
In rejecting Powell’s general negligence claim, the
arbitrator relied in part on a provision in the parties’ agreement
limiting Public Storage’s liability to losses caused by its
intentional or reckless conduct (i.e., its gross negligence). Powell
contends the arbitrator erred because this damage limitation was
unenforceable under Civil Code section 1668. That section
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provides that, “All contracts which have for their object, directly
or indirectly, to exempt any one from responsibility for his own
fraud, or willful injury to the person or property of another, or
violation of law, whether willful or negligent, are against the
policy of the law.” (Civ. Code, § 1668.)
Powell did not present this issue to the trial court when
seeking vacatur, which precludes him from raising it on appeal.
(Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.)
Even if we were to address Powell’s argument, we would reject it
because the arbitrator’s decision on the application of Civil Code
section 1668 is not subject to court review. The arbitration clause
in the parties’ agreement did not limit the issues the arbitrator
could address when resolving disputes. It instead broadly
provided for arbitration of “any and all disputes or claims arising
out of, in connection with, or in any way relating to the
relationship between” Powell and Public Storage, and that “All
disputes concerning the arbitrability of a claim (including
disputes about the interpretation, breach, applicability,
enforceability, revocability or validity of this Rental Agreement
. . .) shall be decided by the arbitrator.” Thus, the enforceability
of the provision limiting Public Storage’s liability was within the
scope of the arbitration and for the arbitrator to determine. (See
Moncharsh, supra, 3 Cal.4th at p. 30 [“when . . . the alleged
illegality goes to only a portion of the contract (that does not
include the arbitration agreement), the entire controversy,
including the issue of illegality, remains arbitrable”].) As a
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result, the arbitrator’s determination of that issue is not
“reviewable for errors of fact or law” by this court. (Id. at p. 6.)4
C. Powell’s Challenge to the Arbitration Award Under
Section 1286.2, Subdivision (a)(5) Fails
Relying on section 1286.2, subdivision (a)(5), which
requires vacatur where “[t]he rights of the party were
substantially prejudiced . . . by the refusal of the arbitrators to
hear evidence material to the controversy,” Powell contends he
was substantially prejudiced by a “lack of witness testimony
and/or documents procured from those witnesses.” Section
1286.2, subdivision (a)(5) “was designed as a ‘safety valve in
private arbitration that permits a court to intercede when an
arbitrator has prevented a party from fairly presenting its case.’
[Citation.] It comes into play, for example, when an arbitrator,
without justification, permits only one side to present evidence on
a disputed material issue.” (Heimlich v. Shivji (2019) 7 Cal.5th
350, 368.) “To find substantial prejudice the court must accept,
for purposes of analysis, the arbitrator’s legal theory and
4 We further note the arbitrator’s decision makes clear she
rejected Powell’s negligence claim on other grounds including
that he had not established factually that Public Storage was
negligent or that there was a break-in at his unit such that Civil
Code section 1668 was not dispositive in any event. Moreover,
the policy expressed in Civil Code section 1668 “is not enforced in
every context, and contractual releases of future liability for
ordinary negligence, as well as contractual indemnity provisions,
insurance contracts, and other limitations on liability are
generally enforceable.” (Farnham v. Superior Court (1997) 60
Cal.App.4th 69, 71.) This includes contracts regarding the rental
of storage space. (Cregg v. Ministor Ventures (1983) 148
Cal.App.3d 1107, 1111.)
13
conclude that the arbitrator might well have made a different
award had the evidence been allowed.” (Hall v. Superior Court
(1993) 18 Cal.App.4th 427, 439.)
At the outset of the arbitration, the arbitrator held a
preliminary hearing and then issued a scheduling order allowing
each party to conduct one deposition—namely, a four-hour
deposition of the opposing party. The order stated, “If either
party wants to conduct additional fact discovery, they shall
promptly notify JAMS and a conference will be scheduled.” The
arbitrator further ordered the parties to exchange “all non-
privileged documents and information (including surveillance
videos if they exist) relevant to the dispute,” and allowed each
party to serve up to 20 requests for production of documents.
At a later discovery management conference, Powell
requested permission to depose “[Public Storage]’s district
manager; three (3) of [Public Storage]’s employees who allegedly
were present when [Powell] reported the incident; and the police
investigator who provided a police report.” The arbitrator
reiterated that Powell could depose one “employee/manager of
[Public Storage].” The arbitrator later directed Public Storage to
make available for that deposition its “employee/manager . . . who
is most knowledgeable about the events alleged by” Powell.
When the deposition was scheduled, Powell did not appear to
question the witness. Powell did not make any further request to
depose additional witnesses, or to reschedule the deposition he
failed to attend.
Powell fails to demonstrate substantial prejudice with
regard to his claims concerning the requested depositions of
additional Public Storage employees. An arbitrator’s decision on
a discovery issue falls within “the general rule that, with narrow
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exceptions, an arbitrator’s decision cannot be reviewed for errors
of fact or law.” (Moncharsh, supra, 3 Cal.4th at p. 11; see Evans
v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 164
[court concluded it could not review the merits of the arbitrator’s
ruling on a discovery matter]; Alexander v. Blue Cross of
California (2001) 88 Cal.App.4th 1082, 1089 [arbitrator does not
exceed their powers by ruling on a discovery issue within the
scope of the arbitration even if the ruling is erroneous].)
To the extent we have authority to review this discovery
ruling, we perceive no substantial prejudice to Powell. The facts
in this matter were not particularly complex. Putting aside
whether Powell was entitled in the first place to party depositions
at all under the applicable arbitration rules, the arbitrator here
ordered Public Storage to produce a person most knowledgeable
for a four-hour deposition, at which Powell then failed to appear.
The arbitrator also ordered the parties to exchange documents
and permitted Powell to propound document discovery requests.
Under these circumstances, Powell cannot demonstrate that the
facts he asserts he might have elicited at deposition of other
Public Storage employees would not have been elicited during the
person most knowledgeable deposition that he failed to attend.
With regard to the police investigator, the arbitrator did
not have authority to compel a third party to attend a pre-
hearing deposition given the arbitration agreement here.
(Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th
360, 395-404.) The arbitrator thus did not commit error
warranting vacatur by refusing to mandate a deposition which
she lacked the authority to order. While the arbitrator was
authorized to issue a subpoena for a nonparty to testify at the
arbitration itself as well as to produce records (id. at p. 393),
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nothing in the record shows Powell ever requested such a
subpoena for the investigator, much less that the court refused to
issue the subpoena. Given the lack of any requested subpoena for
testimony at the hearing, it is not the case that the arbitrator
refused to hear testimony from the investigator in violation of
section 1286.2, subdivision (a)(5). (E.g., Schlessinger v.
Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1105
[“arbitrator’s obligation ‘to hear evidence’ ” under § 1286.2 refers
to admitting evidence at the hearing].)
D. Powell’s Challenge to the Arbitration Award Under
Section 1286.2, Subdivision (a)(3) Fails
At both his deposition and the arbitration hearing, Powell
asserted his Fifth Amendment right against self-incrimination in
response to questions from Public Storage’s counsel about
whether Powell was a defendant in several criminal cases. Public
Storage’s counsel referred to Powell’s invocation of his right
against self-incrimination in its post-arbitration brief. Powell
contends that Public Storage’s reference to his Fifth Amendment
assertions was improper under Evidence Code section 913,
subdivision (a), which provides that “neither the presiding officer
nor counsel may comment” on the exercise of an evidentiary
privilege and “no presumption shall arise because of the exercise
of the privilege, and the trier of fact may not draw any inference
therefrom as to the credibility of the witness or as to any matter
at issue in the proceeding.” Based on this, Powell argues that the
arbitration award should be vacated pursuant to section 1286.2,
subdivision (a)(3), which applies when “The rights of the party
were substantially prejudiced by misconduct of a neutral
arbitrator.” (Ibid.)
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First, it is unclear whether any statement in Public
Storage’s post-arbitration brief was in fact contrary to Evidence
Code section 913, subdivision (a); the brief is not in the record
and the parties disagree about what exactly Public Storage stated
in the brief. For its part, Public Storage contends it “merely
made the point that asking about prior felony convictions does
not violate the privilege against self-incrimination”; if true, such
an argument would likely not contradict Evidence Code section
913, subdivision (a) if those prior cases were final.
Second, regardless of the dispute over what Public Storage
actually said, the “rules of evidence . . . need not be observed” in
an arbitration. (§ 1282.2, subd. (d) [CAA]; see also Farkas v.
Receivable Financing Corp. (E.D.Va. 1992) 806 F.Supp. 84, 87
[FAA similarly permits an arbitrator to consider evidence
inadmissible in court].) Thus, Powell has not shown that Public
Storage was required to observe Evidence Code section 913 when
presenting its case.
Third and most importantly, section 1286.2, subdivision
(a)(3) only applies when there is “misconduct of a neutral
arbitrator,” and Powell does not complain about anything the
arbitrator did.5 (§ 1286.2, subd. (a)(3).) The arbitrator indicated
5 In his appellate brief, Powell argued that the arbitrator
engaged in misconduct by indicating she would exclude his
testimony or dismiss his case if he refused to appear for a
deposition based on his concerns about having to invoke his right
against self-incrimination. However, after the close of briefing,
Powell filed a motion in which he conceded that this argument
lacked merit. In that same motion, Powell also sought to add a
brief argument and a citation to a 1974 case in support of his
argument about Evidence Code section 913. We deny this
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in the final award that she did not make any findings related to
Powell’s credibility or his invocation of his right against self-
incrimination. Powell acknowledges this but suggests that “the
harm had already been done—the award could have been easily
influenced by this improper, prejudicial and illegal statement.”
This unsupported argument is entirely speculative. Nothing in
the record suggests that the arbitrator made any adverse
inference based on Powell’s invocation of his right against self-
incrimination. Instead, she expressly stated to the contrary and
articulated several reasons for her decision finding against
Powell, all of which were unrelated to Powell’s criminal history
and assertion of his Fifth Amendment rights.
DISPOSITION
The trial court’s judgment is affirmed. Public Storage is
awarded its costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
request because Powell provides no justification for failing to
present the argument and case citation in his opening brief, and
he chose not to file a reply brief. (See Cal. Rules of Court, rule
8.200(a)(4).) In any event, as noted above the Evidence Code did
not control the presentation of evidence in this arbitration so
Powell’s new case citation and related argument do not aid him.
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