holding that party waived argument that judicial review of an arbitration award should be governed by the FAA by failing to raise the argument in the trial court or in its appellate brief
How later courts described this case
- holding that party waived argument that judicial review of an arbitration award should be governed by the FAA by failing to raise the argument in the trial court or in its appellate brief
- relying upon the foregoing passage in Hall Street and holding that California law permits a “more searching review” than is contemplated by the expedited federal court review for which 9 U.S.C. §§10 and 11 provide, specifically, that California state law allows parties to contract for judicial review of "errors of law or legal reasoning”; further holding that " ‘[njothing in the legislative reports and debates evidences a congressional intention that posta- *1286 ward and state court litigation rules be preempted so long as the basic policy upholding the enforceability of arbitration agreements remain[s] in full force and effect’ "
- holding on statutory and contractual grounds that parties may obtain judicial review on the merits by express agreement
- stating that the FAA's procedural provisions do not apply in state court proceedings
Written by the judges who cited it.
The opinion
BAXTER, J., Concurring.
I join fully in the majority opinion, including its principal holding that, under the California Arbitration Act (Code Civ. Proc., § 1280 et seq.), judicial review of the merits of an arbitration award is permissible where, as here, the contracting parties have expressly agreed that the arbitrators shall have no power to commit errors of law and that the award may be vacated or corrected on appeal for legal error.
I write separately, however, to highlight the majority’s point that “arbitration agreements are ‘as enforceable as other contracts, but not more so.’ [Citations.]” (Maj. opn., ante, at p. 1362, italics added.) The majority correctly observes that, just as the parties to any contract are limited in the constraints they may place on judicial review, parties to an arbitration agreement may not contractually secure an arbitrary method of review. (Ibid.) Similarly, just as parties to a court action may appeal only a final judgment and certain interlocutory judgments and orders (Code Civ. Proc., §§ 904, 904.1, 904.2), parties proceeding under the California Arbitration Act may obtain confirmation, correction, or vacation only of an arbitral decision that constitutes an “award” within the act’s contemplation (Code Civ. Proc., § 1285; see Code Civ. Proc., § 1283.4 [providing that an award shall include “a determination of all the questions submitted to the arbitrators the decision *1367 of which is necessary in order to determine the controversy”]). Thus, if parties litigating in court may not create premature appellate jurisdiction by mutual agreement (see, e.g., Hill v. City of Clovis (1998) 63 Cal.App.4th 434 [ 73 Cal.Rptr.2d 638 ]), it is questionable whether parties to an arbitration agreement may contract to obtain premature judicial merit review of arbitral decisions that are labeled as “awards,” but which in substance merely resolve one or more legal or factual issues pertaining to only a portion of the controversy submitted to the arbitrators for their determination. Our court has not addressed this issue, and it has not been raised or litigated in the instant case.
For the record, at least one Court of Appeal decision indicates that arbitrators have discretion to utilize multiple, incremental, or successive awards to finally decide an arbitrable controversy, and that parties may petition to confirm, correct, or vacate such incremental awards. (Roehl v. Ritchie (2007) 147 Cal.App.4th 338 [ 54 Cal.Rptr.3d 185 ] [merit review not implicated]; see generally 3 Oehmke, Commercial Arbitration (3d ed. 2004 & 2007 supp.) § 122:1.) Nonetheless, there may be limitations under the California Arbitration Act concerning the types of incremental or interim-type arbitral decisions that will validly support a petition for immediate judicial review. Indeed, access to merit review on an unlimited piecemeal basis may detract from the identified benefits of such review (see maj. opn., ante, at pp. 1362-1364), and also may saddle the judiciary with burdens that the drafters of our state act did not intend.
Accordingly, I generally agree that “[t]he California rule is that the parties may obtain judicial review of the merits by express agreement” (maj. opn., ante, at p. 1340), and that “[enforcing contract provisions for review of awards on the merits relieves pressure on congested trial court dockets” (id. at p. 1363). I reserve judgment, however, as to what if any limitations may exist with regard to such agreements, particularly when they purport to require fragmented review of the individual issues that are part and parcel of the arbitrable controversy.