Cable Connection, Inc. v. DirecTV, Inc.

MORENO, J., Concurring and Dissenting.

agree with the majority to the extent it holds that parties may define the arbitrator’s powers in such a way as to broaden somewhat the scope of judicial review beyond the usual narrow grounds for such review set forth in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 [ 10 Cal.Rptr.2d 183 , 832 P.2d 899 ] (Moncharsh). But I disagree that parties may oblige courts to undertake full-scale judicial review of legal error in arbitration awards. Rather, the relevant statutes and the pertinent legislative history reveal a legislative intent to circumscribe the scope of judicial review and defer to the judgment of the arbitrator. As elaborated below, the statutes permit an arbitration agreement to be structured in such a *1368 way as to compel a court to vacate an award when the arbitrator, in addressing legal questions, has acted arbitrarily and unreasonably, such as departing from clearly defined contractual terms or from clear legal principles found in the body of law that the parties have agreed should be used to settle the dispute. On the other hand,- when an arbitrator’s answer to a legal question is not clearly erroneous, for example, when he or she reasonably answers a legal question in which there is no settled precedent, the statute does not authorize a court to vacate an arbitrator’s award merely because it disagrees with the arbitrator’s conclusions, no matter what the arbitration agreement provides. Because the arbitrators in this case acted reasonably in addressing a question of unsettled law, I would affirm the judgment of the Court of Appeal.

I.

I begin the analysis by stating the obvious, although the point may be obscured by the majority’s rhetoric regarding freedom of contract. Although arbitration is created by contract, and the terms of the arbitration are dictated by contractual provisions, courts are not parties to arbitration agreements, and they are not bound by their terms. Parties can agree that a legal dispute arising from their arbitration will be settled by the California Supreme Court, but this court is not bound by that agreement. The judicial acts of confirming, correcting or vacating arbitration awards are governed by statute, and the parties have no power to alter the circumstances under which such acts occur except to the extent that the relevant statutes permit such alteration. I therefore turn to an analysis of the governing statutes.

Code of Civil Procedure section 1286 1 provides that if a petition to confirm an arbitration award under the California Arbitration Act (CAA) is duly served and 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.” (Italics added.) Section 1286.2 provides that a court petitioned to confirm an arbitration award “shall vacate the award if the court determines any of the following: [f] (1) The award was procured by corruption, fraud or other undue means, [f] (2) There was corruption in any of the arbitrators. [<J[] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [][] (4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. [|] (5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the *1369 controversy or by other conduct of the arbitrators contrary to the provisions of this title, [f] (6) An arbitrator making the award [failed to make certain required disclosures or to disqualify himself or herself after properly requested to do so by the parties].” Section 1286.6 provides grounds for correction when there is evidence of miscalculation or mistake in the award, or the arbitrator committed errors that go to form rather than substance. Section 1287.2 provides for dismissal if a court determines that any person named as a respondent was in fact not a party to the arbitration or bound by the arbitration award.

The United States Supreme Court recently rejected the notion that similarly worded provisions in the Federal Arbitration Act (FAA) were merely intended to be default provisions, to be used when the parties had not agreed otherwise. “On application for an order confirming the arbitration award, the court ‘must grant’ the order ‘unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title.’ There is nothing malleable about ‘must grant,’ which unequivocally tells courts to grant confirmation in all cases, except when one of the ‘prescribed’ exceptions applies. This does not sound remotely like a provision meant to tell a court what to do just in case the parties say nothing else.” (Hall Street Associates, L.L.C. v. Mattel, Inc. (2008) 552 U.S. 576 [ 170 L.Ed.2d 254 , 128 S.Ct. 1396, 1405 ] (Hall Street).) Similarly, I see nothing malleable about the language of section 1286 that “the court shall confirm the award as made . . . unless in accordance with this chapter” it corrects or vacates the award or dismisses the proceedings (italics added).

The United States Supreme Court also considered whether the FAA “has textual features at odds with enforcing a contract to expand judicial review following the arbitration.” (Hall Street, supra, 552 U.S. at p._[ 128 S.Ct. at p. 1404 ].) “To that particular question we think the answer is yes, that the text compels a reading of the §§ 10 and 11 categories as exclusive. To begin with, even if we assumed §§10 and 11 could be supplemented to some extent, it would stretch basic interpretive principles to expand the stated grounds to the point of evidentiary and legal review generally. Sections 10 and 11, after all, address egregious departures from the parties’ agreed-upon arbitration: ‘corruption,’ ‘fraud,’ ‘evident partiality,’ ‘misconduct,’ ‘misbehavior,’ ‘exceeding] . . . powers,’ ‘evident material miscalculation,’ ‘evident material mistake,’ ‘award[s] upon a matter not submitted;’ the only ground with any softer focus is ‘imperfections],’ and a court may correct those only if they go to ‘[a] matter of form not affecting the merits.’ Given this emphasis on extreme arbitral conduct, the old rule of ejusdem generis has an implicit lesson to teach here. Under that rule, when a statute sets out a series of specific items ending with a general term, that general term is confined to covering subjects comparable to the specifics it follows. Since a general term included in the text is normally so limited, then surely a statute with no textual hook for *1370 expansion cannot authorize contracting parties to supplement review for specific instances of outrageous conduct with review for just any legal error. ‘Fraud’ and a mistake of law are not cut from the same cloth.” (Hall Street, supra, 552 U.S. at pp. _-_ [128 S.Ct. at pp. 1404-1405].)

Applying the same principle of ejusdem generis here, the grounds for vacatur under section 1286.2 also involve “egregious departures from the parties’ agreed-upon arbitration” (Hall Street, supra, 552 U.S. at p._[ 128 S.Ct. at p. 1404 ]): “corruption,” “fraud,” “misconduct,” refusal to make statutorily required disclosures or comply with statutory disqualification procedures, and prejudicial refusal to allow reasonable postponement requests or admission of material evidence. As explained at greater length below, ordinary errors of law do not fall within the above class.

The single “textual hook” on which the majority seeks to hang its expansion of judicial review is the statutory provision that the award may be vacated when “[t]he arbitrators exceeded their powers.” (§ 1286.2, subd. (a)(4).) It is well established that arbitrators do not exceed their powers merely by committing legal error. (Moncharsh, supra, 3 Cal.4th at p. 28 .) As one Court of Appeal summarized the case law: “An arbitrator exceeds his powers when he acts without subject matter jurisdiction [citation], decides an issue that was not submitted to arbitration [citations], arbitrarily remakes the contract [citation], upholds an illegal contract [citation], issues an award that violates a well-defined public policy [citation], issues an award that violates a statutory right [citation], fashions a remedy that is not rationally related to the contract [citation], or selects a remedy not authorized by law [citations]. In other words, an arbitrator exceeds his powers when he acts in a manner not authorized by the contract or by law.” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443 [ 123 Cal.Rptr.2d 122 ].) In reviewing an arbitration award, a court “must give substantial deference to the arbitrator’s own assessment of his contractual authority.” (Id. at pp. 443-444; see Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 372 [ 36 Cal.Rptr.2d 581 , 885 P.2d 994 ] (Advanced Micro Devices) [courts must be properly deferential to an arbitrator’s choice of remedies].)

The majority faults the Hall Street court for failing to consider “whether the FAA provision for vacatur ‘where the arbitrators exceeded their powers’ ( 9 U.S.C. § 10 (a)(4)) is applicable when the agreement specifically limits the arbitrators’ powers by providing for an award governed by law and reviewable for legal error.” (Maj. opn., ante, at p. 1358.) Yet the majority does not itself analyze whether this excess of powers clause provides textual support for full judicial review of legal error. Had it done so, it would have run up against the noscitur a sociis rule of construction, a close cousin of the ejusdem generis rule invoked by the Hall Street court. Noscitur a sociis (it is *1371 known by its associates) is the principle that “a word takes meaning from the company it keeps.” (People v. Drennan (2000) 84 Cal.App.4th 1349, 1355 [ 101 Cal.Rptr.2d 584 ].) “ ‘In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would . . . make the item markedly dissimilar to the other items in the list.’ ” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 307 [ 58 Cal.Rptr.2d 855 , 926 P.2d 1042 ].)

In the case of section 1286.2, the enumerated grounds for vacating an arbitration award involve either some type of misconduct by the arbitrator, or some type of arbitrary action by the arbitrator that deprives a party of basic procedural fairness, such as the failure to postpone a hearing on sufficient cause, denial of the right to put on material evidence, or the failure to make statutorily required disclosures regarding conflicts of interest. The types of conduct falling within the excess of powers clause, as interpreted by case law discussed above, fit the mold of section 1286.2, inasmuch as this statute is primarily designed to guard against arbitrary extension of the arbitrator’s jurisdiction to decide questions or fashion remedies beyond the scope of the arbitration agreement. Judicial review of these types of objectionable conduct keeps courts at a distance from the merits of the controversy, and confines judicial scrutiny instead to basic questions of procedural fairness and jurisdictional propriety, while giving considerable although not unlimited deference to the arbitrator’s judgment calls. (See Advanced Micro Devices, supra, 9 Cal.4th at p. 372; Oakland-Alameda County Coliseum Authority v. CC Partners (2002) 101 Cal.App.4th 635, 641-642 [ 124 Cal.Rptr.2d 363 ].) It is arguably the case that an arbitrator’s refusal to follow well-settled legal principles arising from a body of law that the parties have agreed to follow, when the parties have explicitly constrained the arbitrator to follow that body of law, is that kind of arbitrary behavior that belongs within the scope of section 1286.2. As discussed below, the legislative history of that section supports this interpretation.

But it is difficult to imagine that the Legislature intended to apply this excess of powers provision to a situation in which an arbitrator reasonably answers an unsettled question of law, which answer is not clearly wrong at the time the arbitrator made his or her award. It seems barely conceivable, especially in light of the surrounding provisions of section 1286.2 involving arbitral misconduct, or arbitrary action, that the Legislature intended the phrase “arbitrators exceeded their powers” to include a situation in which neither has occurred, and in which the arbitrator has merely given to a question of law an answer with which a reviewing court may disagree.

The majority quotes from the California Law Revision Commission (Commission) study that preceded the adoption of the CAA in support of its *1372 expansive interpretation of the excess of powers clause. As the study stated: “Arbitrators may base their decision on broad principles of justice and equity, but if the submission agreement specifically requires an arbitrator to act in conformity with rules of law, the arbitrator exceeds his authority if his decision is not based on rules of law.” (Recommendation and Study Relating to Arbitration (Dec. 1960) 3 Cal. Law Revision Com. Rep. (1961) p. G-56, fns. omitted (Arbitration Study).) Yet all that this sentence suggests is that the Commission, and inferentially the Legislature, contemplated that an arbitrator’s blatantly departing from “rules of law” by which the parties had agreed to be bound, and instead following his or her own idea of justice and equity, constitutes an excess of powers and grounds for vacatur. The above does not suggest that the parties could opt for full-blown judicial review of an arbitrator’s reasonable determination of unsettled legal questions based on that agreed-upon body of law. Such an arbitral decision would still be “based on rules of law.”

The majority’s reliance on other portions of legislative history is similarly unavailing. The majority quotes the rule in Crofoot v. Blair Holdings Corp. (1953) 119 Cal.App.2d 156, 186 [ 260 P.2d 156 ] (Crofoot), which, after discussing case law pertaining to judicial review of legal error in arbitration awards under the 1927 predecessor to the CAA, stated: “Under these cases it must be held that in the absence of some limiting clause in the arbitration agreement, the merits of the award, either on questions of fact or of law, may not be reviewed except as provided in the statute.” The majority cites to a portion of the Arbitration Study quoting this principle with approval as evidence that the Commission and the Legislature intended to incorporate this rule in the 1961 CAA.

Assuming this to be so, the Crofoot rule must be placed in context. As the court stated in the discussion leading up to its formulation of the rule: “Under the 1927 statute, it is well settled that both before the superior and appellate courts every intendment of validity must be given the award and that the burden is upon the one claiming error to support his contention. [Citation.] It has been held that the arbitrator need not make findings or give reasons for his conclusions. (Sapp v. Barenfeld [(1949)] 34 Cal.2d 515 [ 212 P.2d 233 ].) Certainly it is settled that the courts have no power to review the sufficiency of the evidence. [Citations.] The law is not quite so clear as to a court’s powers of review over questions of law. The earlier cases held that the court had the power to review errors of law, at least where they appeared upon the face of the award. (In re Frick [(1933)] 130 Cal.App. 290 [ 19 P.2d 836 ]; Utah Const. Co. v. Western Pac. Ry. Co. [(1916)] 174 Cal. 156 [ 162 P. 631 ].) The later cases have gone much farther in granting finality to the award even as to questions of law. In Pacific Vegetable Oil Corp. v. C.S.T., Ltd. [(1946)] 29 Cal.2d 228, 233 [ 174 P.2d 441 ], it was bluntly held that ‘The merits of the controversy between the parties are not subject to judicial review.’ In Sapp v. *1373 Barenfeld[, supra,] 34 Cal.2d 515 , 523 . . . , the court held: ‘Even though a party expressly asserts a lawful claim in the submission or raises it by the presentation of evidence to the arbitrators, the law does not guarantee that the claim will be allowed. Arbitrators, unless specifically required to act in conformity with rules of law, may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.’ [Citations.] In United States v. Moorman [(1950)] 338 U.S. 457 [ 94 L.Ed. 256 , 70 S.Ct. 288 ] the United States Supreme Court, in upholding as final the arbitrator’s determination, held that, whether the problem raised was one of law or of fact, the courts should not fritter away the arbitrator’s powers under the guise of interpretation.” ( Crofoot, supra, 119 Cal.App.2d at pp. 185-186, italics added, fn. omitted.)

Thus, the Crofoot rule, rather than being robust support for the majority’s principle that an arbitration agreement may give rise to full judicial review of an arbitrator’s legal determinations, is in context rather an undeveloped suggestion that parties have some limited capacity to qualify the strong rule against judicial review of legal error. The nature of that capacity is suggested by the court’s quotation from Sapp v. Barenfeld that arbitrators do not even have to follow the law, but can follow instead broad principles of equity and justice, unless the arbitration agreement provides otherwise. Crofoot and, as discussed above, the Arbitration Study, suggest that the parties can, by agreement, bind the arbitrator to follow California law or some other established body of legal rules, and can vacate arbitration awards that clearly depart from such rules and revert to the arbitrator’s notion of equitable principles, because in such departure the arbitrator exceeds his or her powers as defined by the parties to the agreement. Neither Crofoot nor the Arbitration Study suggests that an arbitration award by an arbitrator who reasonably follows agreed-upon legal principles can be vacated. And the Arbitration Study, like the passage from Crofoot cited above, reaffirms that “[e]very presumption favors an award by arbitrators.” (Arbitration Study, supra, 3 Cal. Law Revision Com. Rep. at p. G-53.)

The Arbitration Study cites several cases interpreting the 1927 statute in support of the proposition that the “[mjerits of an arbitration award either on questions of fact or of law may not be reviewed except as provided for in the statute in the absence of some limiting clause in the arbitration agreement.” (Arbitration Study, supra, 3 Cal. Law Revision Com. Rep. at p. G-53; see id., fn. 142.) None of these cases comes close to supporting a broad mandate for parties to contract for full-scale judicial review. Of all the cases cited in the pertinent footnote, only Flores v. Barman (1955) 130 Cal.App.2d 282 [ 279 P.2d 81 ] reverses the arbitrator’s legal determinations, concluding that the arbitrator had misconstrued the plain terms of a collective bargaining agreement by interpreting that agreement to remain in effect when it had in fact *1374 terminated, and when the arbitration agreement expressly provided that the arbitrator was without authority to change the contract. (Id. at pp. 287-290.) This case is in harmony with the basic principles set forth in the pre-1961 decisions that while “ ‘every presumption is in favor of the [arbitration] award [citation] and mere unsound reasoning by an arbitrator in reaching a conclusion within the scope of proper arbitration will not invalidate the result [citation] . . ” (Firestone Tire & Rubber Co. v. United Rubber Workers (1959) 168 Cal.App.2d 444, 449 [ 335 P.2d 990 ]), arbitrators exceed their powers when they ignore “clear and unambiguous” contractual language (id. at pp. 448-449; see also Drake v. Stein (1953) 116 Cal.App.2d 779, 785 [ 254 P.2d 613 ]). These principles are a far cry from the majority’s holding that parties may structure their arbitration agreements in such a way as to require courts to review de novo an arbitrator’s legal determinations, without any deference to the arbitrator, even when the arbitrator reasonably addresses novel legal questions. 2

Arbitration was intended to be a relatively quick and inexpensive means of resolving disputes, in part by making the arbitrator’s resolution binding and final. (Moncharsh, supra, 3 Cal.4th at p. 9 .) Although it is arguably the case that the court went too far in emphasizing arbitral finality at the expense of obtaining a just and reasonable result (see Moncharsh, supra, 3 Cal.4th at p. 33 (conc. & dis. opn. of Kennard, J.)), the majority goes too far in the opposite direction. The majority decision would allow parties to fundamentally refashion arbitration from being a means of binding dispute resolution to being essentially a preliminary factfinding procedure, with trial and appellate courts required to settle decisive legal questions. The majority believes this change to be for the good. (Maj. opn., ante, at pp. 1362-1364.) Whether or not this is so is open to question. Arguably this rule will burden the courts with the minutiae of arbitration disputes, thereby negating whatever benefits *1375 arbitration may have had in conserving judicial resources. Nor is it clear that this refashioning will stop at reviewing for legal error—will parties be able to bind courts to review mixed questions of law and fact, or to review whether the arbitration award is based on substantial evidence? But one thing seems certain: the majority holding recreates arbitration in a way the Legislature could not have envisioned. Because arbitration in this state has long ago ceased to be governed by common law and is now wholly a creature of statute (see Moncharsh, supra, 3 Cal.4th at pp. 17-20), it is for the Legislature, not this court, to inaugurate such a fundamental change in the nature of arbitration.

It is understandable that parties resorting to arbitration would not wish to entirely relinquish judicial review and would seek protection from wholly arbitrary arbitrators. As discussed, the CAA permits parties to clearly define the limits to an arbitrator’s powers, and in so doing to obtain some measure of judicial review. Certainly such agreements would require courts to vacate clear errors appearing on the face of an arbitration award that cause substantial prejudice. (Cf. Moncharsh, supra, 3 Cal.4th at p. 33 (conc. & dis. opn. of Kennard, J.).) Moreover, nothing prevents parties from contracting to engage in nonbinding factfinding/dispute resolution proceedings outside the scope of the CAA designed to facilitate settlement of litigation. Nor are parties prevented from agreeing to have arbitration awards reviewed by appellate arbitration panels. But it seems quite clear the statute does not permit review of ordinary legal error, when an arbitrator has acted reasonably in addressing the legal questions before him or her. The object of an agreement requiring de novo judicial review is not to constrain the unreasonable exercise of the arbitrator’s power, as is permitted by statute, but to conscript courts to serve as appellate arbitration tribunals, with all the attendant costs and burdens. The parties are without power under the statute to do so. 3

II.

Turning to the present case, in reviewing the present award, “every intendment of validity must be given the award and ... the burden is upon the one claiming error to support his contention.” (Crofoot, supra, 119 Cal.App.2d at p. 185 .) Here, DIRECTV fails to carry its burden. A majority of the arbitrators below came to essentially two conclusions. First, that the arbitration agreement was silent on whether classwide arbitration was permitted. Second, that under California law, an arbitration agreement silent on classwide arbitration permits such arbitration. As to the first question, given *1376 the lack of a specific provision concerning classwide arbitration, the arbitrators’ conclusion is reasonable.

The second question of whether an arbitration agreement silent on class-wide arbitration permits such arbitration has not been squarely addressed by this court or other appellate courts of this state. To be sure, classwide arbitration is available when to deny it would be unconscionable (Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 163 [ 30 Cal.Rptr.3d 76 , 113 P.3d 1100 ]) or contrary to public policy (Gentry v. Superior Court (2007) 42 Cal.4th 443, 463 [ 64 Cal.Rptr.3d 773 , 165 P.3d 556 ]; see also Keating v. Superior Court (1982) 31 Cal.3d 584, 613 [ 183 Cal.Rptr. 360 , 645 P.2d 1192 ] [classwide arbitration must be granted when to deny it in the context of an arbitration contract of adhesion would result in “gross unfairness”]). The parties here have not claimed unconscionability or violation of public policy. Even so, without deciding questions not before us, the rule that a contract silent on classwide arbitration will be interpreted to allow such arbitration is not contrary to any settled law or legal principle in the state, nor to any settled rule of the FAA. In fact, California contract law is replete with interpretive presumptions grounded in public policy that permit certain contractual outcomes only when they are clearly expressed. (See, e.g., Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, 552-553 [ 79 Cal.Rptr.3d 721 , 187 P.3d 424 ] [noninsurance indemnity agreements construed strictly against party seeking to be indemnified against its own negligence]; MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 648 [ 3 Cal.Rptr.3d 228 , 73 P.3d 1205 ] [exclusionary clauses in insurance contracts interpreted narrowly against the insurer]; Nunes Turfgrass, Inc. v. Vaughan-Jacklin Seed Co. (1988) 200 Cal.App.3d 1518, 1538 [ 246 Cal.Rptr. 823 ] [contractual clauses in nonadhesion contract that seek to limit liability will be strictly construed].) Indeed, in the present case the majority opinion proposes a rule that an agreement regarding expanded judicial review of arbitration awards must be clear on its face. (See maj. opn., ante, at p. 1360.) Whether there should be a rule that, even when it would not be unconscionable to prohibit class arbitration, such arbitration would be prohibited only if the prohibition is clearly expressed is an unresolved question, and the arbitral majority’s answer in the affirmative is reasonable.

The majority does not conclude otherwise. It does not hold that the arbitrators’ judgment that classwide arbitration is potentially available under this agreement is incorrect. 4 Rather, it finds fault with some of the arbitrators’ reasoning regarding their reading of the American Arbitration Association rules and with their interpretation of case law. Yet “[i]t is well settled that *1377 ‘arbitrators do not exceed their powers merely because they assign an erroneous reason for their decision.’ ” (Moncharsh, supra, 3 Cal.4th at p. 28 .) Moreover, even if full-blown judicial review were available, akin to appellate review of trial court decisions, “[t]here is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion.” (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568 [ 253 Cal.Rptr. 693 , 764 P.2d 1070 ].) That rule must apply with equal or greater force to judicial review, to the extent it is available, of arbitration awards. Whether or not the arbitrators’ decision contained faulty legal reasoning, the conclusion that the agreement is silent on class arbitration and that a silent agreement will permit such arbitration if otherwise appropriate is not clearly erroneous under California law or the FAA. I would therefore affirm the judgment of the Court of Appeal directing the trial court to confirm the arbitration award.

George, C. J., concurred.

All statutory references are to this code unless otherwise indicated.

The Arbitration Study also cites Utah Const. Co. v. Western Pac. Ry. Co. (1916) 174 Cal. 156 [ 162 P. 631 ] (Utah Construction) for the proposition that “Arbitrators may base their decision on broad principles of justice and equity, but if the submission agreement specifically requires an arbitrator to act in conformity with rules of law, the arbitrator exceeds his authority if his decision is not based on rules of law.” (Arbitration Study, supra, 3 Cal. Law Revision Com. Rep. at p. G-56, fns. omitted; see id., fn. 168.) Utah Construction, which predated the modernization of arbitration with the 1927 statute, contemplates a more expansive notion of judicial review that most post-1927 cases have rejected. (See Moncharsh, supra, 3 Cal.4th at pp. 19-23.) In any case, even Utah Construction did not decide if the error of law in the case before it was grounds for vacating the arbitration award, merely assuming that it would be and then finding no error. (Utah Construction, supra, 174 Cal. at p. 163 .) In the 90-plus years since this case was decided, my research could find no court that has embraced Utah Construction’s dictum and overturned an arbitration award after undertaking full-scale de novo judicial review, even when the error was not clear from the face of the award. There is no indication the Commission or the Legislature intended to incorporate this expansive reading of Utah Construction or to extend it to include situations in which arbitrators reasonably decide unsettled questions of law.

I note that this is not a case in which more rigorous judicial review is necessary to enable a party to vindicate an unwaivable statutory right. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 106-107 [ 99 Cal.Rptr.2d 745 , 6 P.3d 669 ].)

Of course, the arbitrators decided only that classwide arbitration is potentially available under the agreement, and have not yet decided whether such arbitration is appropriate in the present case.