Opinion
D075910
07-14-2020
RICHARD BLAKER et al., Plaintiffs and Respondents, v. CREDIT ONE BANK, N.A., Defendant and Appellant.
Snell & Wilmer, Rebecca J. Wahlquist; Sessions, Fishman, Nathan & Israel and James K. Schultz for Defendant and Appellant. Golden & Cardona-Loya and Jeremy S. Golden for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00009977-CU-NP-NC) APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed and remanded with directions. Snell & Wilmer, Rebecca J. Wahlquist; Sessions, Fishman, Nathan & Israel and James K. Schultz for Defendant and Appellant. Golden & Cardona-Loya and Jeremy S. Golden for Plaintiffs and Respondents.
I.
INTRODUCTION
Richard Blaker and his wife Samantha Blaker (the Blakers) filed a petition in the San Diego County Superior Court, pursuant to Code of Civil Procedure section 1285, a provision in the California Arbitration Act (CAA) (§ 1280 et seq.), to confirm an arbitration award (Award) entered in their favor against Credit One Bank, N.A. (Credit One). Credit One filed a partial opposition to the petition to confirm / partial motion to vacate the Award. The court entered a judgment in favor of the Blakers.
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
On appeal from the judgment, Credit One claims that the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), including sections 10 and 11 of the FAA pertaining to judicial review of arbitration awards, applied in the confirmation / vacatur proceedings in the superior court. Credit One further contends that under federal law common law interpreting the FAA, an arbitrator's "manifest disregard of the law" is a ground for vacatur of the award. (Citing Kyocera Corp. v. Prudential-Bache (9th Cir. 2003) 341 F.3d 987, 997.) Credit One maintains that the arbitrators in this case manifestly disregarded the law in several respects in rendering the Award in favor of the Blakers and that vacatur of the Award is therefore warranted.
Credit One also suggests in a footnote in its opening brief, without presenting a separately captioned full legal argument, that the superior court erred in awarding certain fees, costs, and interest. In its reply brief, Credit One presents this contention as a separately captioned argument with legal argument and authority.
Credit One's argument that the trial court erred in awarding costs and fees is forfeited. Credit One failed to properly present an adequate argument challenging the costs and fees award in its opening brief. (See, e.g., DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 674 [appellant forfeits argument "by failing to adequately support it with argument and relevant legal authority"]; Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201 ["[appellant] forfeited the argument by violating the rule that requires each point be presented in an appellate brief under a separate heading"].) Credit One also failed to offer any good cause for raising the argument by way of separate heading for the first time in reply. (See Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1064, fn. 2 ["argument is forfeited" where "it is raised for the first time in [appellant's] reply brief without a showing of good cause"].)
The Blakers contend that the Award was subject to judicial review pursuant to the CAA. The Blakers further maintain that under California law, "an arbitrator's decision cannot be reviewed for errors of fact or law" (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11 (Moncharsh)), and that Credit One has not presented any argument for vacatur under California law.
In the alternative, the Blakers contend that the arbitrators did not manifestly disregard the law, and thus, the judgment may be affirmed on this additional ground.
We agree with the Blakers that the Award is subject to judicial review under the CAA and that Credit One has not demonstrated that the Award may be vacated under California law. Thus, we agree with the Blakers that the judgment should be affirmed in its entirety.
In light of our conclusion, we need not consider the Blakers' alternative argument that the arbitrators did not manifestly disregard the law. In declining to reach this additional ground, we emphasize that we do not intend to suggest that Credit One's arguments under the manifest disregard standard have merit.
In their respondents' brief, the Blakers contend that they are entitled to attorney fees incurred on appeal. We remand the case to the superior court to consider the Blakers' request for attorney fees incurred on appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Agreement
In 2014, Samantha Blaker opened two credit card accounts with Credit One, one for herself and one on behalf of her husband. Together with their credit cards, the Blakers each received a document entitled "VISA/MASTERCARD CARDHOLDER AGREEMENT, DISCLOSURE STATEMENT AND ARBITRATION AGREEMENT" (Agreement). As discussed in greater detail in part III.A.3, post, the Agreement contained a set of provisions under the heading "ARBITRATION" (Arbitration Agreement). B. The parties' dispute
The parties became embroiled in a dispute that initially began over the question of whether Samantha Blaker had effectively cancelled the credit card accounts and the validity of certain fees that Credit One assessed to the Blakers' accounts after the attempted cancellations. After assessing the fees, Credit One began collection efforts and engaged in credit reporting activities that form the basis of the Blakers' legal claims. C. This action
In March 2016, the Blakers filed a complaint containing causes of action pursuant to the Rosenthal Act (Civ. Code, § 1788 et seq.) and the California Consumer Credit Reporting Agencies Act (Civ. Code, § 1785.1 et seq.) as well as for invasion of privacy.
Credit One filed a motion to compel arbitration. In a brief in support of its motion, Credit One sought to compel arbitration pursuant to a provision in the CAA (§ 1281.2), and argued that "[a]rbitration clauses are enforceable under both federal and state law." The superior court granted the motion. D. The arbitration
In August 2016, the Blakers filed an arbitration claim alleging the same causes of action as they had alleged in their complaint. A few months later, the Blakers filed a first amended arbitration claim in which they added a cause of action pursuant to the Telephone Consumer Protection Act (47 U.S.C. § 227) (TCPA).
An arbitrator held a hearing and rendered an award in favor of the Blakers. Pursuant to a provision in the Arbitration Agreement, Credit One requested, and received, a de novo arbitration before a panel of three arbitrators.
After conducting the de novo hearing, the panel rendered the Award in July 2018. The arbitrators awarded the Blakers a total of $411,757.45, including $342,000 pursuant to the TCPA. E. The postarbitration proceedings
The Award is more than 20 single-spaced pages and outlines the panel's factual findings and legal analysis.
Specifically, the Award awards the Blakers the following amounts: "1. For claimant Samantha Blaker on the Rosenthal Act violations in the amount of $1,000.00; "2. For claimant Richard Blaker on the Rosenthal Act violations in the amount of $1,000.00; "3. For claimant Richard Blaker on the Rosenthal Act violations and alternatively on the invasion of privacy claim in the amount of $2,500.00 in actual pain and suffering damages; "4. For claimant Samantha Blaker on the Rosenthal Act violations and alternatively on the invasion of privacy claim in the amount of $10,000.00 in actual pain and suffering damages; "5. For claimants jointly under the Rosenthal Act and the CCRAA, reasonable attorneys' fees in the amount of $24,151.30 and costs in the amount of $1,106.15; "6. For claimant Samantha Blaker on the CCRAA violations in the amount of $15,000; "7. For claimant Richard Blaker on the CCRRA violations in the amount of $15,000; "8. For claimants jointly on the TCPA violations as to calls placed to the telephone number 1300 in the amount of $342,000 . . . ."
The Blakers filed a petition to confirm the Award in the superior court in August 2018. With their petition, the Blakers filed a brief in which they argued that the court should confirm the Award pursuant to section 1285, a provision in the CAA.
In September 2018, Credit One filed a notice of removal, indicating that the matter had been removed to federal court. The federal court remanded the matter to state court in October 2018.
The Blakers requested that the superior court take judicial notice of a federal court order remanding the matter to state court, and they make reference to the federal court's order remanding the case back to state court in their respondents' brief. In their reply brief, Credit One cites to the federal court's remand order. Accordingly, although the record does not indicate whether the superior court ruled on the Blakers' request for judicial notice, it is undisputed that the federal court remanded the matter to state court.
After the case was remanded to state court, Credit One filed a brief in support of its partial opposition to the petition to confirm the Award and a cross-motion to vacate the TCPA portions of the Award. In the brief, Credit One argued that the "FAA Governs the Enforcement [o]f [t]he Parties' Arbitration Provision." (Boldface omitted.) Credit One further argued that the arbitrators "completely misinterpreted the current and binding law," regarding several issues, and had therefore exhibited a "manifest disregard of the law," justifying vacatur of the TCPA portions of the Award under case law interpreting the FAA.
The Blakers filed a second petition to confirm the Award pursuant to section 1285 in January 2019. In their petition, the Blakers requested that the court enter a judgment in their favor in the amount of $372,554.10 against Credit One. In their brief, the Blakers argued that the court should confirm the Award pursuant to the CAA, and argued that "[a]n error of law is not a ground for vacation of an arbitrator's award" under California law. The Blakers also argued that they were entitled to "$11,943.50 in attorneys' fees and $146.22 in costs since the [Award] was issued July 20, 2018," as well as $18,456.93 in postjudgment interest. The Blakers summarized the basis of their request for a judgment in the amount of $372,554.10 as follows:
In their brief in support of their initial petition, the Bakers had sought a judgment in the amount of $411,757.45, the amount awarded in the Award.
"The total amount awarded to the Blakers against Credit One was $411,757.45. On October 17, 2018[,] Credit One made a partial payment of $69,750 towards the award. Applying credit for the partial payment and adding the additional amounts for attorneys'
fees, costs and interest the total judgment amount to be awarded is $372,554.10."
After further briefing, the court issued a tentative ruling stating that it intended to confirm the Award in its entirety and enter a judgment in favor of the Blakers in the amount of $372,554.10.
The court held a hearing on February 1. After hearing argument from the parties, the court took the matter under submission and stated that it would issue a written ruling.
Approximately two weeks later, the court entered a judgment in favor of the Blakers in the amount of $372,554.10 on February 15, 2019. F. The appeal
The clerks' transcript does not contain a final order granting the petition; the record thus does not contain the court's reasoning in confirming the Award.
Credit One appeals from the judgment.
III.
DISCUSSION
A. The Award is subject to judicial review pursuant to the CAA
Credit One claims that "judicial review of any . . . award [between the parties] is governed only by the FAA." (Boldface omitted). Credit One claims that this is so because the Agreement "clearly and specifically incorporated each section of the FAA to govern the arbitration, including [s]ections 10 and 11 that pertain to judicial review." In other words, Credit One claims that the "FAA's standards for vacatur and confirmation," provide the exclusive method by which the Award may be judicially reviewed, and that "the different standard for judicial review of awards subject to the CAA," is inapplicable."
1. Governing law
a. Relevant principles of arbitration law
Both "the CAA and the FAA provide only limited grounds for judicial review of an arbitration award." (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1344 (Cable Connection); see § 1285 et seq. [California law]; 9 U.S.C. §§ 9, 10, 11 [federal law].) However, while some courts applying the FAA have concluded that an arbitrator's "manifest disregard of the law" is "a basis for challenging an arbitration award," (Mave Enterprises, Inc. v. Travelers Indemnity Co. (2013) 219 Cal.App.4th 1408, 1422 (Mave) it is absolutely clear, and undisputed by Credit One, that "an arbitrator's manifest disregard of the law is not a ground for vacatur under California law." (Comerica Bank, supra, 208 Cal.App.4th at p. 830, italics added.) The California Supreme Court has held that, under California law, even "an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review." (Moncharsh, supra, 3 Cal.4th at p. 33.)
Sections 1285 through 1285.6 pertain to confirmation of an arbitration award, sections 1286.2 and 1286.4 to vacatur, and sections 1286.6 and 1286.8 to correction. Section 1286 provides, "If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding."
Section 9 of the FAA pertains to confirmation of an arbitration award, section 10 to vacatur, and section 11 to modification or correction. (See 9 U.S.C. §§ 9, 10, 11.)
"The manifest disregard standard is a judicially created basis for reviewing an award under the FAA [citation] and is sometimes described as a judicial 'gloss' on the statutory grounds, specifically section 10(a) of the FAA [citation]." (Mave, supra, 219 Cal.App.4th at p. 1423, fn. 5.)
"[I]t is unclear whether the manifest disregard of the law ground remains as [a] basis for vacatur in federal court. [Citations.] The federal [c]ourts of [a]ppeals are divided as to whether the arbitrator's manifest disregard of the law remains a basis for vacatur in federal court." (Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, 830 (Comerica Bank).)
"[T]he FAA's procedural provisions generally do not apply to state court proceedings." (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1120 (Rodriguez); Valencia v. Smyth (2010) 185 Cal.App.4th 153, 174 (Valencia) ["the procedural provisions of the CAA apply in California courts by default"].) The FAA's "procedural provisions" (Rodriguez, supra, at p. 1120), include 9 U.S.C. sections 10 and 11 governing vacatur and correction, which Credit One claims apply in this case. (See Cable Connection, supra, 44 Cal.4th at p. 1351 [including sections 10 and 11 as among the FAA's "procedural provisions," and noting the text of "the provisions for judicial review of arbitration awards in sections 10 and 11 of the FAA are directed to 'the United States court in and for the district where the award was made' "].)
In Mave, supra, 219 Cal.App.4th at page 1429, the court summarized the law governing the determination of whether a state court applies state law (CAA) or federal law (FAA) in proceedings to confirm or vacate an arbitration award:
"[A] state court applies its own procedural law—here, the procedural provisions of the CAA—absent a choice-of-law provision expressly mandating the application of the procedural law of another jurisdiction. As we stated: '[I]f a contract involves interstate commerce, the FAA's substantive provision (9 U.S.C. § 2) applies to the arbitration. But the FAA's procedural provisions (9 U.S.C. §§ 3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them.' ([Valencia], supra, 185 Cal.App.4th at pp. 173-174; see id. at pp. 173-175, [discussing
cases]; Cable Connection[, supra,] 44 Cal.4th [at pp.] 1350-1352, 1354; [id.] at p. 1351 [FAA provisions governing judicial review do not apply in state court, in part because 'the provisions for judicial review of arbitration awards in sections 10 and 11 of the FAA are directed to "the United States court in and for the district wherein the award was made" ']; Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384, 388-389, 391, 394 [(Cronus)]; [id.] at p. 389 ['the United States Supreme Court does not read the FAA's procedural provisions to apply to state court proceedings'] . . . ." (Italics altered.)
As the Mave court recognized, in Cronus, the California Supreme Court held that "parties to an arbitration agreement [may] expressly designate that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law." (Cronus, supra, 35 Cal.4th at p. 394; see ibid. ["the language of the arbitration clause in this case, calling for the application of the FAA 'if it would be applicable,' should not be read to preclude the application of [California law]"].)
The Mave court applied Cronus and its progeny in considering whether a choice-of-law provision incorporated into a stipulation between the parties mandated the application of the FAA in state court judicial review proceedings. (Mave, supra, 219 Cal.App.4th at pp. 1417-1419, 1427-1430.) The provision stated, " 'Proceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the Federal Arbitration Act, 9 U.S.C. Sec[.] 1 et seq. or applicable state law." (Mave, supra, 219 Cal.App.4th at p. 1428, boldface omitted.) The Mave court concluded that this provision did not establish the FAA's standards for judicial review as the controlling law. (Mave, supra, at p. 1430.) The Mave court reasoned:
"[T]he procedural provisions of the FAA, including its provisions regarding judicial review of arbitration awards (9 U.S.C. §§ 10, 11), were not applicable because the parties' stipulations did not expressly adopt the FAA as the controlling law. [The choice of law provision]—to which both parties agreed—did not dictate the applicable procedural law because it refers to the FAA or 'applicable state law,' and the parties' stipulations did not 'expressly' incorporate the procedural provisions of the FAA. As a consequence, the procedural provisions of the CAA, including its provisions governing judicial review (Code Civ. Proc., §§ 1286.2, 1286.6), determine the validity of the award. (See [Valencia], supra, 185 Cal.App.4th at pp. 172-175.)" (Id. at pp. 1429-1430.)
In Williams v. Atria Las Posas (2018) 24 Cal.App.5th 1048, the Court similarly concluded that the parties had not manifested an intent that the FAA's procedural rules would apply to their arbitration. (Id. at p. 1054.) The Williams court reasoned:
"[H]ere, the parties agreed to arbitration 'as provided by' the FAA or California law 'in the event a court determines that the FAA does not apply.' Thus, this case is more like Cronus, which held that conditional language 'calling for the application of the FAA "if it would be applicable," should not be read to preclude the application of [California law].' (Cronus, supra, 35 Cal.4th at p. 394.)" (Ibid.)
In contrast, in Rodriguez, supra, 136 Cal.App.4th at page 1122, the Court of Appeal concluded that the parties had manifested an intent to adopt the procedural provisions of the FAA in their contract. The Rodriguez court reasoned:
"The contract specifies that claims shall be arbitrated 'pursuant to the FAA.' In common understanding, the phrase 'pursuant to' means 'in conformance to or agreement with' and 'according to.' (Webster's 3d New Internat. Dict. (2002) p. 1848.) Plainly, the language of the contract requires the parties to arbitrate 'in conformance to' and 'agreement with' the FAA. There is no other contract provision suggesting the parties intended to incorporate California arbitration law, nor is there any language suggesting the parties intended to arbitrate 'in conformance to' some provisions of the FAA but not others. The phrase 'pursuant to the FAA' is broad and unconditional, unlike the Cronus clause, which deferred to the contract's California
choice-of-law provision by invoking only 'applicable' provisions of the FAA. (Cronus, supra, 35 Cal.4th at p. 381.)" (Ibid.; see also Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346 [concluding that provision that stated, " 'Enforcement of this agreement to arbitrate shall be governed by the Federal Arbitration Act,' " evinced parties' intent to "incorporate the FAA with respect to compelling arbitration" (boldface omitted)].)
b. Relevant principles of contractual interpretation
" ' "The fundamental rules of contract interpretation are based on the premise that the interpretation of a contract must give effect to the 'mutual intention' of the parties." ' " (Minich v. Allstate Ins. Co. (2011) 193 Cal.App.4th 477, 485.) "Under the plain meaning rule, courts give the words of the contract . . . their usual and ordinary meaning. [Citation.] '[W]e interpret the words in their ordinary sense, according to the plain meaning a layperson would attach to them.' [Citation.]" (Valencia, supra, 185 Cal.App.4th at p. 162.) " 'We must view the language of a contract as a whole, avoiding a piecemeal, strict construction approach.' " (Jones v. Jacobson (2011) 195 Cal.App.4th 1, 18 (Jones).) Finally, we resolve ambiguities in contractual language against the drafting party, a rule that " ' "applies with peculiar force in the case of a contract of adhesion." ' " (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 248 (Sandquist).) The principle that we resolve ambiguities in contractual language against the drafter "applies equally to the construction of arbitration provisions." (Ibid.)
2. Standard of review
As outlined above, Credit One's claim that the Agreement mandated the application of the FAA's standards for vacatur and confirmation in the superior court raises a question of contractual interpretation. (See Cronus, supra, 35 Cal.4th at p. 394 [explaining that FAA's procedural provisions may apply pursuant to the parties' express designation].) We review such questions de novo. (See Thee Aguila, Inc. v. Century Law Group, LLP (2019) 37 Cal.App.5th 22, 27.
As noted in footnote 9, ante, the record does not contain a final written order explaining the superior court's reasoning for entering a judgment in favor of the Blakers. However, we conclude that the lack of a final written order in the record is immaterial in reviewing Credit One's claim, given our de novo standard of review.
3. Relevant provisions of the Agreement
The Agreement contains the following provisions:
"29. GOVERNING LAW: This Agreement is governed [illegible], interpreted in accordance with the laws applicable to national banks, and, where no such laws apply, by the laws of the State of Nevada, excluding the conflicts of law provisions thereof, regardless of your state of residence.
"30. ARBITRATION AGREEMENT: The Arbitration Agreement provided to you with this Agreement governs the enforcement by you and us of your and our legal rights under this Agreement."
The Arbitration Agreement states in relevant part:
" Agreement to Arbitrate :
"You and we agree that either you or we may, without the other's consent, require that any controversy or dispute between you and us (all of which are called 'Claims'), be submitted to mandatory, binding arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the "FAA"), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing this Agreement."
The Arbitration Agreement also states in relevant part as follows:
" Enforcement , Finality , Appeals : You or we may bring an action, including a summary or expedited motion, to compel arbitration of
Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction. . . . Within fifteen days after an award by the single arbitrator, any party may appeal the award by requesting in writing a new arbitration before a panel of three neutral arbitrators designated by the same arbitration administrator. The panel will consider all factual and legal issues anew, follow the same rules that apply to a proceeding using a single arbitrator, and make decisions based on the vote of the majority. . . . An award by a panel, or an award by a single arbitrator after fifteen days has passed, shall be final and binding on the parties, subject to judicial review that may be permitted under the FAA. An award in arbitration will be enforceable as provided by the FAA or other applicable law by any court having jurisdiction." (Italics added.)
4. Application
The italicized sentence of the enforcement provision in the Arbitration Agreement bears most directly on Credit One's claim. That provision states that an arbitration award may be enforceable as provided by the FAA "or [by] other applicable law by any court having jurisdiction." Thus, the plain language of the provision indicates that the parties did not intend for the FAA to constitute the exclusive procedural law governing the enforcement of an arbitration award. Rather, as in Mave, the Arbitration Agreement uses disjunctive wording, and thereby manifests an intent that an arbitration award entered pursuant to that Agreement be enforceable as provided by the FAA or by any other applicable law by a court having jurisdiction. (See Mave, supra, 219 Cal.App.4th at p. 1428 [concluding that provision stating " '[p]roceedings to enforce, confirm, modify or vacate an Award will be controlled by and conducted in conformity with the Federal Arbitration Act, 9 U.S.C. Sec[.] 1 et seq. or applicable state law,' " (boldface omitted) "did not dictate the applicable procedural law because it refer[red] to the FAA or 'applicable state law,' " (id. at p. 1430)].) The disjunctive wording of the provision supports the conclusion that, consistent with the "default" rule, the Award is enforceable under the CAA. (See Valencia, supra, 185 Cal.App.4th at p. 174 ["the procedural provisions of the CAA apply in California courts by default"].)
It is undisputed that the superior court had jurisdiction to enforce the award.
The conclusion that the Agreement does not "expressly designate that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law," (Cronus, supra, 35 Cal.4th at p. 394, italics altered), is reinforced by the fact that, unlike in Rodriguez, the Agreement repeatedly manifests an intent to incorporate the laws of jurisdictions other than the federal government. In addition to the disjunctive wording of the provision described above governing the enforcement of an arbitration award, the Arbitration Agreement provides that the "arbitration provision . . . shall be governed by, and enforceable under, the Federal Arbitration Act (the 'FAA'), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing this Agreement." (Italics added.) The choice-of-law provision in the Agreement, in turn, states, "This Agreement is governed [illegible], interpreted in accordance with the laws applicable to national banks, and, where no such laws apply, by the laws of the State of Nevada, excluding the conflicts of law provisions thereof, regardless of your state of residence. . . ." (Italics added.) The Arbitration Agreement also provides, "You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction," (italics added) without specifying that the FAA applies to such a motion. (Compare with Rodriguez, supra, 136 Cal.App.4th at p. 1122 [concluding that parties to an arbitration agreement intended for the FAA's procedural provisions to apply exclusively where "broad and unconditional" provision in arbitration agreement mandated that arbitration be held " 'pursuant to the FAA,' " and there were "no other contract provision[s] suggesting the parties intended to incorporate California arbitration law"].)
As indicated in the text, the Agreement's choice-of-law provision refers to Nevada state law. However, neither party suggests in their briefing that Nevada law applied to the confirmation / vacatur proceedings.
Sections 3 and 4 of the FAA (9 U.S.C. §§ 3, 4), which govern motions to stay litigation and compel arbitration, respectively, are among the procedural provisions of the FAA that do not generally apply in state courts. (Cronus, supra, 35 Cal.4th at p. 388.) As the Cronus court explained:
"Section 3 of the FAA concerns the enforcement of arbitration agreements in a pending lawsuit. It requires the 'courts of the United States' to grant a party's request for a stay of litigation on an arbitrable issue, pending completion of the arbitration. (9 U.S.C[.] § 3.) Section 4 of the FAA concerns petitions for enforcement of an arbitration agreement where one party refuses to arbitrate. It requires a 'United States district court' to entertain an application to compel arbitration. (9 U.S.C[.] § 4.)
"The language used in sections 3 and 4 and the legislative history of the FAA suggest that the sections were intended to apply only in federal court proceedings." (Ibid., fns. omitted.)
Finally, we are not persuaded by Credit One's argument that "the parties' [Arbitration] Agreement is clear that while an award can be enforceable 'as provided by the FAA or other applicable law by any court having jurisdiction', the judicial review of any such award is governed only by the FAA." (Boldface omitted.) In making this argument, Credit One is referring to the following two sentences of the " Enforcement , Finality , Appeals " paragraph in the Arbitration Agreement:
"An award by a panel, or an award by a single arbitrator after fifteen days has passed, shall be final and binding on the parties, subject to judicial review that may be permitted under the FAA. An award in arbitration will be enforceable as provided by the FAA or other applicable law by any court having jurisdiction."
We reject this argument for several reasons. To begin with, while Credit One's argument implicitly suggests that the parties intended to make an arbitration award "enforceable" in proceedings distinct from the those in which the award is subject to "judicial review" (such as the confirmation / vacatur proceedings in the superior court), Credit One offers no argument as to what such enforcement proceedings might be. In fact, Chapter 4 of Title 9 of Part 3 of the Code of Civil Procedure is entitled "Enforcement of the Award" (italics added) and contains provisions (§§ 1285-1288.8) pertaining to various forms of judicial review of an arbitration award, including confirmation, correction, and vacatur. (See, e.g., § 1285 ["Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award"].) More broadly, to enforce an arbitration award, commonly means to subject it to a judicial review proceeding such that it may be reduced to a judgment. (See, e.g., Ruiz v. California State Automoblie Assn. Inter-Insurance Bureau (2013) 222 Cal.App.4th 596, 604.) Further, any ambiguities in the Agreement must be interpreted against the drafter, Credit One. (Sandquist, supra, 1 Cal.5th at p. 248.)
In any event, to the extent that there is a distinction between the enforcement of an arbitration award and the judicial review of such award, the Arbitration Agreement does not state that the FAA will provide the exclusive method of judicial review. Rather, the Agreement provides that an award will be final "subject to judicial review that may be permitted under the FAA." (Italics added.) This permissive provision, which refers to when an award is final, subject to the possibility of the judicial review under the FAA, is not a "choice-of-law provision expressly mandating the application of the procedural law of another jurisdiction," distinct from the default rule of state law. (Mave, supra, 219 Cal.App.4th at p. 1429.) That is particularly so, given that the next sentence of the Arbitration Agreement expressly states that an arbitration award "will be enforceable as provided by the FAA or other applicable law by any court having jurisdiction." (Italics added.) (See Jones, supra, 195 Cal.App.4th at p. 18 [contract must be viewed as a whole].) We therefore reject Credit One's contention, raised in reply, that the court was required to apply the CAA because, while an award is enforceable under any " 'applicable law by any court having jurisdiction[,'] the judicial review of any such award is governed only by the FAA."
Accordingly, we conclude that the Award is subject to judicial review pursuant to the CAA. B. Credit One has not established any basis for vacating the Award under California law
As noted in part III.A, ante, Credit One claims that the superior court erred in failing to apply the federal manifest disregard standard to vacate the portions of the Award premised on the TCPA. However, we concluded in part III.A, ante, that the Award is subject to judicial review pursuant to the CAA. An arbitrator's manifest disregard of the law is not a basis for vacating an award under the CAA. (Comerica Bank, supra, 208 Cal.App.4th at p. 830.)
Specifically, Credit One contends that the arbitrators manifestly disregarded the law in finding that Credit One had acted willfully, such that it could be liable for treble damages under the TCPA. Credit One also argues that the arbitrators manifestly disregarded the law in determining that their agent had used an Automatic Telephone Dialing System such that it could be subject to any liability under the TCPA and that, in any event, the arbitrators manifestly disregarded the law in finding that Samantha Blaker could unilaterally revoke her consent to receive automated calls. We express no opinion as to the correctness of the arbitrators' legal conclusions.
On the contrary, under California law, "[g]enerally, courts cannot review arbitration awards for errors of fact or law, even when those errors appear on the face of the award or cause substantial injustice to the parties." (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916.) " '[B]y voluntarily submitting to arbitration, the parties have agreed to bear the risk [of uncorrectable legal or factual error] in return for a quick, inexpensive, and conclusive resolution to their dispute.' " (Heimlich v. Shivji (2019) 7 Cal.5th 350, 367, quoting Moncharsh, supra, 3 Cal.4th at p. 11, bracketed text added in Heimlich.)
Credit One presents no argument on appeal that the Award was subject to vacatur under California law. Accordingly, we conclude that Credit One has not established any basis for vacating the Award under California law. C. The case is remanded to the superior court for consideration of the Blakers' request for attorney fees incurred on appeal
The Blakers contend that they are entitled to an award of attorney fees incurred on appeal. " 'Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees.' " (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267.) Without determining that the Blakers are entitled to such fees or the amount thereof, we remand the case to the superior court with directions to determine whether the Blakers are entitled to attorney fees incurred on appeal, and if so, the amount of such fees. (See ibid. ["On remand, the trial court is to consider whether under the circumstances of this case the defendants are entitled to fees and, if so, the amount"].)
IV.
DISPOSITION
The judgment is affirmed. The matter is remanded with directions to the superior court to consider the Blakers' request for attorney fees incurred on appeal.
Credit One is to bear costs on appeal.
AARON, J. WE CONCUR: BENKE, Acting P. J. IRION, J.