Peters & Freedman, LLP v. Lowry CA4/2

• Court: California Court of Appeal
• Decided: March 4, 2021
• Docket: E072390
• Status: Unpublished

Opinion

Filed 3/4/21 Peters & Freedman, LLP v. Lowry CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

PETERS & FREEDMAN, LLP,

Plaintiff and Respondent, E072390

v. (Super.Ct.No. PSC1402720)

PATRICK LOWRY, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge.

Affirmed.

Patrick Lowry, in pro per., for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

1 Defendant Patrick Lowry appeals from a judgment confirming an arbitration

award in favor of plaintiffs Peters & Freedman, LLP in a dispute over unpaid legal fees.

Lowry argues the trial court erred by denying his petition to vacate the award. We

disagree and affirm. As we explain, Lowry has provided an inadequate record to

demonstrate trial court error, and in any event, his arguments for vacating the award fail

on their merits.

I

FACTS

In 2014, the law firm of Peters & Freedman, LLP (plaintiffs) filed a complaint

against Lowry alleging he owed them $51,025.38 in legal fees for litigation and general

counsel services. The record Lowry designated on appeal is limited. The register of

actions reflects that after several delays due to discovery disputes and a failure to reach a

settlement agreement, the parties agreed to submit the case to binding arbitration. After

additional discovery delays, as well as issues with Lowry’s health and his reluctance to

participate in arbitration, the arbitration hearing took place in August 2018. The arbitrator

heard testimony from Lowry and two of plaintiffs’ witnesses and admitted various

documents into evidence.

On September 21, 2018, the arbitrator issued a written award finding in favor of

plaintiffs and awarding them $46,735.38 in damages and $3,383.98 in costs. The

arbitrator found that plaintiffs had proved Lowry became their client in 2009 by signing a

written legal services agreement and then failed to pay for the services rendered.

2 However, the arbitrator also found that Lowry had proved that plaintiffs had overbilled

him for 13.5 hours of a particular attorney’s time and therefore subtracted that amount

from the $51,025.38 plaintiffs demanded (resulting in the $46,735.38 figure).

The arbitrator rejected Lowry’s argument that because plaintiffs had provided

legal services to the companies he owned or controlled they had sued the wrong party (by

suing him in his personal capacity) and instead should have sued his companies. Finally,

the arbitrator found Lowry had failed to prove his cross-claims of breach of contract,

fraud, and elder abuse, for which he sought over $200,000 in damages.

On January 29, 2019, the trial court granted plaintiffs’ petition to confirm the

arbitration award and entered judgment against Lowry for a total of $50,119.36. Lowry

filed a petition to vacate the arbitration award, which plaintiffs opposed. Lowry’s petition

asserted the following grounds for vacating the award: the arbitrator substantially

prejudiced his rights by refusing to postpone the evidentiary hearing and allowing

plaintiffs to delay in producing evidence; the arbitrator’s award was contrary to the

weight of the evidence; and the trial court exceeded its jurisdiction by sending the case to

arbitration.

The trial court held a hearing on the petition on March 15, 2019. Lowry, who was

representing himself, as he is on appeal, presented oral argument and plaintiffs submitted

on their opposition brief. The trial court denied Lowry’s petition. It concluded he had not

demonstrated that his rights were prejudiced by any discovery delay or that he wasn’t

able to present a defense at the evidentiary hearing. The court also concluded that

3 Lowry’s sufficiency of the evidence claim failed because courts must defer to an

arbitrator’s decision and will not review the sufficiency of the evidence supporting an

arbitration award. Finally, as to Lowry’s claim of trial court error in compelling the

parties to continue arbitration, the court found that was not a valid ground for vacating an

arbitration award under the governing statutory provision, Code of Civil Procedure

section 1286.2.

II

ANALYSIS 1 Lowry argues the trial court’s ruling was in error. His opening brief asserts the

same grounds for vacating the arbitration award as his petition before the trial court, but

also contains additional arguments for vacating the award not argued before the trial

court. For example, he argues that plaintiffs’ complaint failed to allege sufficient facts to

state a cause of action and that the law firm has since dissolved under suspicious

circumstances. As an initial matter, we will not consider arguments not raised in the trial

court. (See, e.g., In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481,

1 In his notice of appeal, Lowry identified the order denying his petition to vacate the arbitration award as the trial court action he was appealing. Because such an order is not appealable, and it’s reasonably clear he meant to appeal from the January 29, 2019 judgment in favor of plaintiffs, we have liberally construed his notice of appeal to be taken from the judgment. (Luz v. Lopes (1960) 55 Cal.2d 54, 59 [courts should construe notices of appeal liberally “if it is reasonably clear what appellant was trying to appeal from”]; Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450, 1454 [an appeal lies from the judgment confirming the arbitration award, not from an order denying a petition to vacate the arbitration award].) 4 510 [as a matter of “‘common notions of fairness,’” parties “cannot argue theories on

appeal that they did not present in the trial court”].)2

Turning to the arguments Lowry did make in the trial court, we note two

fundamental principles of appellate review of significance here. First, we presume the

challenged judgment or order of the trial court is correct, and it is the appellant’s burden

to demonstrate otherwise. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The

appellant “has the burden of showing reversible error by an adequate record.” (Ballard v.

Uribe (1986) 41 Cal.3d 564, 574.) Second, and a necessary corollary to this rule, “‘is that

if the record is inadequate for meaningful review, the appellant defaults and the decision

of the trial court should be affirmed.’” (Gee v. American Realty & Construction, Inc.

(2002) 99 Cal.App.4th 1412, 1416.) Thus, where the appellant fails to provide an

adequate record on any issue they raise on appeal, we must presume the trial court’s

decision is correct and resolve the issue against them. (Maria P. v. Riles (1987) 43 Cal.3d

1281, 1295-1296.)

As we’ve noted, the record Lowry designated on appeal is rather limited. True,

this case has a long, tortured procedural history (or so we have gleaned from the register

of actions) and Lowry’s appeal pertains to one discrete aspect of the case. But even so,

Lowry did not include in the appellate record the documents essential to resolving that

discrete issue. The only relevant documents in the appellate record related to Lowry’s

2 For this reason, we also deny Lowry’s requests to submit new evidence on appeal (dated November 6 and November 13, 2019). The evidence he seeks to submit relates to his claims about plaintiffs’ postjudgment dissolution and is irrelevant to the issue on appeal. 5 petition to vacate the arbitration award are the petition itself and the transcript of the

hearing on the petition. Significantly, Lowry failed to designate plaintiffs’ opposition to

his petition to vacate the arbitration award for inclusion in the clerk’s transcript. Without

plaintiffs’ opposition, “we cannot review the basis of the court’s decision” and thus must

resolve the issue against him. (See Hernandez v. California Hospital Medical Center

(2000) 78 Cal.App.4th 498, 502 [affirming challenged ruling because appellant failed to

include the relevant opposition papers in the appellate record].)

Lowry “is not exempt from the foregoing rules because he is representing himself

on appeal.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) A party appearing

without counsel “‘is to be treated like any other party and is entitled to the same, but no

greater consideration than other litigants and attorneys.’” (Id. at p. 1247 [self-represented

litigants must follow the correct rules of procedure].) But in any event, the record we do

have reveals an appropriate basis for the trial court’s decision.

According to the register of actions, the parties stipulated to binding arbitration on

January 13, 2017, at a hearing before the trial court. “[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,” and to further the parties’ intent, the courts should keep judicial intervention in the

arbitration process to a minimum. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9

(Moncharsh).) “The arbitrator’s decision should be the end, not the beginning, of the

dispute.” (Id. at p. 10.) As a result, the merits of arbitrated disputes generally are not

subject to judicial review. (Id. at p. 11.) Courts will not review an arbitrator’s decision for

6 errors of fact or law, including any errors in the arbitrator’s reasoning and the sufficiency

of the evidence supporting the award. (Ibid.) Even “an error of law apparent on the face

of the award that causes substantial injustice does not provide grounds for judicial

review.” (Id. at p. 33.) By voluntarily submitting their dispute to arbitration, the parties

assume the risk the arbitrator may make a mistake. (Ibid.)

To guard against serious errors in the arbitration award and ensure overall fairness

in the arbitration process, the Legislature has authorized limited judicial review of

arbitration awards and the vacation of an award on the specific grounds enumerated in

Code of Civil Procedure section 1286.2. (Moncharsh, supra, 3 Cal.4th at p. 12; see also

Haworth v. Superior Court (2010) 50 Cal.4th 372, 387.) Those grounds are: (1) the

prevailing party procured the award by “corruption, fraud or other undue means”; (2) the

arbitrator engaged in “corruption”; (3) the arbitrator engaged in “misconduct” that

“substantially prejudiced” a party’s rights; (4) the arbitrator “exceeded their powers” and

the award cannot be corrected without affecting its merits; (5) the arbitrator “substantially

prejudiced” a party’s rights by refusing to postpone the hearing despite “sufficient cause”

or by refusing to hear “material” evidence; and (6) the arbitrator failed to make

mandatory disclosures or failed to disqualify himself or herself when required. (Code

Civ. Proc., § 1286.2, subd. (a).)

7 Lowry has not shown that any of these grounds apply in this case. His claim that

the trial court erred in compelling the case to arbitration is neither a ground for vacating

the award nor is it borne out by the record, which reflects he agreed to submit to binding

arbitration. His claim that the award is contrary to the evidence presented at the hearing is

also not a ground for vacating the award, as it amounts to a request that we review the

arbitrator’s decision for errors of fact or law. (Moncharsh, supra, 3 Cal.4th at p. 11.)

Finally, his conclusory claims that his rights were “substantially prejudiced” by the

arbitrator’s discovery rulings and refusal to continue the hearing do not warrant vacating

the award. As the trial court reasoned, Lowry failed to demonstrate how either allegation,

even if true, affected his ability to present a defense to plaintiffs’ claim of unpaid legal

fees. And, even if he had been able to demonstrate prejudice, Code of Civil Procedure

section 1286.2 also requires that the arbitrator’s conduct rise to the level of “corruption”

or “misconduct” to warrant disturbing the award. Lowry has not demonstrated corruption

or misconduct on the part of the arbitrator.

We conclude Lowry has failed to carry his appellate burden of demonstrating error

in the trial court’s decision to deny his motion to vacate and enter judgment in favor of

plaintiffs.

8 III

DISPOSITION

We affirm the judgment. Lowry shall bear his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J.

We concur:

McKINSTER Acting P. J.

RAPHAEL J.