Filed 2/10/22 Abusamra-Pixler v. U-Haul Internat. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Samantha P. Jessner and Yolanda Orozco, Judges. Affirmed.

Mardirossian Akaragian, Garo Mardirossian, Armen Akaragian and Adam Feit for Plaintiff and Appellant.

Consovoy McCarthy, Thomas R. McCarthy, Bryan K. Weir and Steven C. Begakis for Defendant and Respondent.

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Plaintiff and appellant Susan Abusamra-Pixler (Appellant or Mrs. Pixler)[1] appeals a judgment confirming an arbitration award in favor of defendant and respondent U-Haul International, Inc. (UHI).

Appellant contends that as a non-signatory to the arbitration agreement executed by her husband, she should not have been compelled to arbitrate her personal injury claims against UHI. She also argues that the trial court should have refused to order arbitration because of the risk of conflicting findings and that the arbitration award should have been vacated due to misconduct by UHI’s counsel. We conclude that Appellant’s contentions lack merit and affirm the judgment confirming the award.

FACTUAL AND PROCEDURAL BACKGROUND

A. The rental agreement providing for arbitration.

On October 27, 2014, Appellant’s husband, Charles Pixler, rented a trailer from U-Haul Moving & Storage of Oceanside, in Oceanside, California. The drop-off location was Montrose, Colorado.

1. The signature page of the rental

agreement (Signature Page).

The rental agreement, which bore Mr. Pixler’s signature, included the following language on the Signature Page: “I agree to submit all claims against U-Haul in accordance with the U-Haul Arbitration Agreement, incorporated by reference, and available at uhaul.com/arbitration or from your local U-Haul representative” (hereafter, the Website Notice).

2. The rental contract addendum.

At the time Mr. Pixler entered into the agreement, he also received a rental contract addendum/document holder (Rental Contract Addendum) as part of the same packet of papers. The Rental Contract Addendum stated in relevant part:

“U-HAUL ARBITRATION AGREEMENT

“Please read this carefully. This agreement affects your rights.

“By agreeing to purchase rental products or purchase or rent Equipment from U-Haul, You agree to the terms and conditions of this U-Haul Arbitration Agreement (‘Agreement’).

1. U-Haul and You agree that U-Haul’s sales and rentals have an effect on interstate commerce. Therefore, U-Haul and You agree that this Agreement shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. § 1 et seq.

2. U-Haul and You agree that any and all Claims (‘Claims’ as defined below) between U-Haul and You relating in any way to your rental or purchase from U-Haul shall be submitted to binding Arbitration before the American Arbitration Association (‘AAA’) in accordance with the AAA Commercial Arbitration Rules (www.adr.org/commercial) and Supplemental Procedures for Consumer-Related Disputes (www.adr.org/consumer) (‘AAA Rules’). [Illegible] are also available at www.uhaul.com/arbitration. Judgment may [illegible] the Arbitration award by a Court of competent jurisdiction. [Illegible] agree that Claims submitted to Arbitration shall be decided [illegible] arbitration before a single Arbitrator who must be on the AAA National Roster of Commercial Arbitrators and selected in accordance with the AAA Rules. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators have the authority to award the same damages and relief that a court can award.

3. U-HAUL AND YOU AGREE THAT CLAIMS MAY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. U-HAUL AND YOU AGREE THAT CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. FURTHERMORE, U-HAUL AND YOU AGREE THAT NEITHER YOU NOR U-HAUL MAY PURSUE THE CLAIMS IN ARBITRATION AS A CLASS ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION NOR MAY ANY SUCH CLAIMS BE PURSUED ON EITHER OF OUR BEHALF IN ANY COURT, INCLUDING ASSIGNED CLAIMS. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS.

4. You acknowledge and agree that You voluntarily and knowingly entered into this Arbitration Agreement and chose to rent or purchase from U-Haul rather than one of its competitors who may not have an arbitration agreement.

“This Agreement is between the Customer signing this Agreement (‘Customer’, ‘I’, ‘Me’ or ‘My’) and the local ‘U-Haul’ Marketing Company where the Agreement is entered into or an Independent U-Haul Marketing Company dealer (‘Company’). These terms and conditions, the terms and conditions of the individual rental contract signed by the Customer, including the above U-Haul Arbitration Agreement, together constitute the entire [illegible] (‘This Agreement’ or ‘Rental Agreement’ or ‘Rental Contract’) [illegible] of that equipment identified on the individual rental contract [illegible] and where necessary EQUIPMENT may be further specified [illegible] Rental Truck’, ‘Trailer’, ‘Auto Transport’, ‘Tow Dolly’, ‘Pick Up Truck’, ‘Van’ or ‘Dolly’), including all of its parts. I, the Customer, agree to all terms and conditions of this Agreement.”

3. The website notice.

The Website Notice, which was referenced on the Signature Page, was a three-page arbitration agreement. Among other things, it reiterated that the parties agreed the transaction had an effect on interstate commerce so as to implicate the Federal Arbitration Act (9 U.S.C. § 1 et seq.), and that claims could only be brought in an individual capacity and not as a class or representative action.

In addition, the Website Notice set forth the following definitions:

“ ‘U-Haul’ means U-Haul International, Inc. and its respective subsidiaries, insurers, parent, affiliates, agents, and dealers.

“ ‘You’ means You and Your respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, relatives, spouse, . . . as well as all authorized or unauthorized users of the U-Haul equipment rented or purchased from U-Haul.” (Italics added.)

B. The accident.

On October 28, 2014, Appellant’s friend, Carla Noble (Noble), was driving a Chrysler Jeep SUV that was towing the U-Haul trailer, while Appellant was a passenger. Noble lost control of the vehicle, resulting in a crash on the 215 freeway in Riverside County, California.

C. Pleadings.

On August 23, 2016, the Pixlers filed this action, naming as defendants UHI, as well as FCA US LLC (formerly Chrysler Group, LLC), the designer and manufacturer of the Jeep, and Government Employees Insurance Company and GEICO General Insurance Company (GEICO), which denied the Pixlers’ underinsured motorist claim.

As against UHI, the Pixlers pled causes of action for strict products liability and negligence.[2] Mrs. Pixler alleged personal injury and Mr. Pixler alleged a loss of consortium.

UHI filed an answer that denied the Pixlers’ allegations and asserted various affirmatives defense, including the Pixlers’ written agreement “to submit to binding arbitration all disputes with Defendants relating to the rental transaction referred to in the Complaint.”

D. UHI’s successful motion to compel arbitration.

1. UHI’s moving papers.

On February 3, 2017, UHI filed a motion to compel arbitration. It contended the rental contract signed by Mr. Pixler contains an arbitration clause requiring arbitration of the plaintiffs’ claims against UHI, the Federal Arbitration Act requires enforcement of the arbitration agreement, the arbitration agreement is valid and enforceable because it was properly incorporated by reference and is not unconscionable, Mrs. Pixler was bound by the agreement irrespective of the fact that she was not a signatory, and the claims against UHI should be stayed pending arbitration.

UHI submitted in support of the moving papers the declaration of Kevin T. Scofield (Scofield), vice president of U-Haul Co. of California (UHCA), which operated the rental center from which Mr. Pixler obtained the subject trailer. Attached to the Scofield declaration as exhibits were copies of the Signature Page as exhibit A, and the Rental Contract Addendum as exhibit B. In addition, the Website Notice was attached to the motion as exhibit 3.

2. The Pixlers’ opposition to the motion to

compel arbitration.

In opposition, the Pixlers contended the arbitration provision was unconscionable because there was no opportunity for meaningful negotiation, and even if the arbitration provision were enforceable, Mrs. Pixler was not a signatory to the agreement and therefore could not be compelled to arbitrate her claims. They further argued the court should deny arbitration because the litigation also involved other defendants who were not parties to the arbitration agreement, raising the possibility of conflicting rulings on common issues of fact or law. (Code Civ. Proc., § 1281.2, subd. (c).)[3] In addition, “Defendant has failed to provide any admissible evidence which demonstrates that any Plaintiff in this action signed an agreement and that any of the documents attached as Exhibit B to Mr. Scofield’s declaration were actually contained on Defendant's website in October of 2014.”

The Pixlers also filed extensive evidentiary objections to the Scofield declaration and to the exhibits submitted in support of the moving papers.

3. The trial court’s ruling granting the

motion to compel arbitration.

On March 6, 2017, the matter came on for hearing. The trial court granted UHI’s motion to compel arbitration and ordered the action stayed pending completion of the arbitration.

Among other things, the trial court overruled the Pixlers’ objection that exhibit 3, the Website Notice, had not been duly authenticated. It rejected their argument that the arbitration agreement is illegal because it was a predispute waiver of the right to a jury trial, finding that argument unsupported by any legal authority. The court also found meritless the Pixlers’ argument that the arbitration agreement was unenforceable as an unconscionable contract, concluding the agreement demonstrated only a minimum degree of procedural unconscionability and a total absence of substantive unconscionability.

With respect to the principal issue raised on appeal, the court rejected the Pixlers’ argument that Mrs. Pixler could not be compelled to arbitrate her claims because she was not a signatory. It ruled: “Charles Pixler expressly agreed to bind his spouse and all users of the trailer to arbitrate claims arising out of and relating to his rental from U-Haul. Additionally, Plaintiff Susan Pixler accepted the benefits of the U-Haul rental policy by using the trailer that was rented by her husband. The court finds that the arbitration agreement may be enforced against Plaintiff Susan Pixler notwithstanding the fact that she did not sign the agreement.”

The court also exercised its discretion to stay the balance of the action pending the outcome of the arbitration between the Pixlers and UHI.

E. The Pixlers’ petition for writ of mandate.

On April 3, 2017, the Pixlers filed a petition for writ of mandate in this court, seeking to overturn the March 6, 2017 order compelling arbitration. (No. B281654.) On June 2, 2017, the petition was summarily denied.[4]

F. The arbitration hearing and award.

The matter proceeded to arbitration before the American Arbitration Association (AAA). The evidentiary hearing occurred on July 29, 2019 through August 2, 2019, with an additional day of hearing on August 8, 2019. The parties subsequently submitted post-hearing briefs.

On October 24, 2019, the arbitrator issued a final award in favor of UHI. The arbitrator concluded “[t]he preponderance of the evidence shows that the trailer was properly loaded, and that it started whipping and went out of control due to driver inputs and wind.” The arbitrator awarded nothing to the Pixlers on their claims, and ordered the AAA’s administrative fees of $16,140 and the compensation and expenses of the arbitrator, amounting to $36,903.39, to be borne as incurred.

G. UHI’s motion to confirm the award and the

Pixlers’ motion to vacate the award.

On December 6, 2019, UHI filed a motion to confirm the award, requesting the trial court to enter judgment in conformity with the award.

Mrs. Pixler, in turn, filed a motion to vacate the award; Mr. Pixler filed a joinder in her motion. The moving papers asserted that the court should vacate the award pursuant to section 1286.2, subdivision (a)(1) [award procured by fraud, corruption or other undue means], because it had been procured by the misconduct of UHI’s counsel, who “poisoned the entire arbitration process by repeatedly making reference to statutorily inadmissible and highly prejudicial matters,” including evidence of settlement, liability insurance, assets, financial status, wealth, and findings of fault by the California Highway Patrol.

H. The trial court ruling.

On January 6, 2020, the matter came on for hearing. At the outset, the court noted that the joinder filed by Mr. Pixler was untimely because it was filed only three court days before the hearing, and therefore the court declined to consider the joinder.

The trial court denied Mrs. Pixler’s motion to vacate the award, concluding that she had failed to present sufficient evidence to support a finding that the award had been procured by undue means. The court noted that judicial review of an arbitration award is severely limited. “Plaintiff requests that the Court vacate the Arbitration Award because Defendant improperly presented evidence to the Arbitrator at various times during the arbitration process. While Plaintiff argues that such tactics rendered the arbitration proceedings unfair, caselaw holds otherwise. ‘In the absence of a showing that the arbitrator was improperly influenced or actually considered evidence outside the original arbitration proceedings such that appellants needed a further opportunity to be heard . . . appellants cannot demonstrate that the . . . award was procured by corruption, fraud, undue means, or misconduct of the arbitrator within the meaning of section 1286.2 . . . .’ (A.M. Classic Const., Inc. v. Tri-Build Development Co. (1999) 70 Cal.App.4th 1470, 1476.)” The court further stated “[t]he cases cited by Plaintiff to support her argument that the Arbitration Award was procured by undue means involve situations in which the party moving to vacate the award was not afforded an opportunity to be heard. Here, that is clearly not the case, as the Arbitrator specifically addressed and ruled on Plaintiff’s objections. Moreover, the cases Plaintiff cites to regarding misconduct involved jury trials, which presents a set of circumstances vastly different from those found in arbitration proceedings.”

The Court then addressed UHI’s motion to confirm the award. It found the motion complied with statutory requirements and granted the motion to confirm the award.

On February 6, 2020, the trial court entered judgment in conformity with the award. A judgment confirming an arbitration award is appealable pursuant to section 1294, subdivision (d). On April 9, 2020, Mrs. Pixler filed a timely notice of appeal from the judgment.

DISCUSSION

I. The trial court properly granted UHI’s motion to

compel arbitration as to Mrs. Pixler

Appellant contends that the trial court erred in granting UHI’s motion to compel arbitration because she was not a signatory to the arbitration agreement. We disagree. The trial court correctly compelled arbitration as Mrs. Pixler was an intended beneficiary of the agreement.

A. Principles of appellate review.

1. Appealability.

An order granting a motion to compel arbitration is not directly appealable but is reviewable on an appeal from the subsequent judgment confirming the award. (Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, 1121-1122; Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th 79, 94; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2021) ¶ 2:183.) Therefore, Appellant’s appellate challenge to the March 6, 2017 order granting UHI’s motion to compel arbitration is properly before us on the appeal from the judgment.

2. Standard of appellate review of order

compelling arbitration by a nonsignatory.

There is no dispute as to the standard of review. “Whether an arbitration agreement is binding on a third party (e.g., a nonsignatory) is a question of law subject to de novo review. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1512.)” (Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674, 680 (Daniels); see also Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707 [where no conflicting extrinsic evidence is introduced to aid the interpretation of an agreement to arbitrate, we review de novo a trial court’s ruling on a petition to compel arbitration].)

B. Appellant has waived her contention that the

trial court erred in overruling her objection

to exhibit 3, the Website Notice.

Appellant’s initial contention is that the trial court erred in overruling her objection that UHI had failed to authenticate exhibit 3, the Website Notice. Exhibit 3 contained the following definition: “ ‘You’ means You and Your . . . relatives, spouse, . . . as well as all authorized or unauthorized users of the U-Haul equipment rented or purchased from U-Haul.” (Italics added.) Thus, exhibit 3 is relevant to the analysis of whether Appellant, a nonsignatory spouse, was bound by the agreement requiring arbitration. Appellant asserts that because exhibit 3 was unauthenticated, the trial court erred in considering its terms and conditions, and this court should decline to consider exhibit 3 in conducting its de novo review.

The Appellant’s opening brief devotes five pages to this issue, but it fails to cite a single legal authority in support of the contention that the trial court erred in overruling her objection that the exhibit was unauthenticated.[5] “An appellant must provide an argument and legal authority to support [her] contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see Cal. Rules of Court, rule 8.204(a)(1)(B) [briefs must support each point by argument and, if possible, citation of authority].)

Further, an appellant cannot rely on incorporation of trial court papers, but must tender arguments in the appellate briefs. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 109.) Although Appellant did cite some legal authority below in support of her evidentiary objection to exhibit 3, she properly does not attempt to incorporate those papers on appeal. The papers that were filed below are not a substitute for proper appellate briefing of the claim of trial court error, which would ordinarily include a discussion of the appellate standard of review of the trial court’s evidentiary ruling and the requirements of the Evidence Code and case law relating to authentication. Appellant’s assertion of error does not include any of these basic elements.

We therefore conclude that Appellant has waived her contention that the trial court erred by failing to sustain her objection that exhibit 3 was unauthenticated. We consider exhibit 3 in our de novo review of whether Appellant was bound by the arbitration agreement.

C. The trial court properly held that Appellant was

bound by the agreement to arbitrate as an

intended beneficiary.

Because exhibit 3 is part of the parties’ agreement, Mr. Pixler expressly agreed to bind his spouse to arbitrate claims arising out of his rental of the trailer. The issue presented is whether his agreement to bind his spouse is enforceable.

In this regard, the trial court ruled: “The court in Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581 . . . noted that while a marital relationship standing alone cannot create an agency relationship, case law supports binding a spouse where ‘the spouse who was the patient bound the other spouse to arbitration of claims arising from the medical treatment, or a spouse who purchased insurance bound the other spouse who accepted the benefits of the policy.’ (Id. at 589 n.4.) Both of these scenarios are present here as Plaintiff Charles Pixler expressly agreed to bind his spouse and all users of the trailer to arbitrate claims arising out of and relating to his rental from U-Haul. Additionally, Plaintiff Susan Pixler accepted the benefits of the U-Haul rental policy by using the trailer that was rented by her husband. The court finds that the arbitration agreement may be enforced against Plaintiff Susan Pixler notwithstanding the fact that she did not sign the agreement.”

We agree. Under California law, a nonsignatory can be compelled to arbitrate “where the nonsignatory is a third party beneficiary of the contract containing the arbitration agreement.” (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008) 158 Cal.App.4th 1061, 1069; accord, County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237, 242.) It is not enough that the third party would incidentally have benefited from performance. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.) The test “ ‘for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract. [Citation.] If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person.’ ” (Ibid.)

Here, the terms of the contract reflect that Appellant was an intended beneficiary of the rental agreement. The contract’s provisions were addressed to “You and Your . . . spouse,” it identified the Pixlers’ 2005 Jeep as the vehicle for towing the U-Haul trailer, the trailer was hired to transport a load from California to Montrose, Colorado, where the Pixlers reside, and the Rental Contract Addendum provided for medical and life protection for the customer and passengers, as well as coverage protection for the customer’s cargo during transportation. These circumstances evince that the contract was made for Appellant’s benefit, as well as for the benefit of her husband.

Appellant’s reliance on Jensen v. U-Haul Co. of California (2017) 18 Cal.App.5th 295 (Jensen), is misplaced. Jensen involved an attempt by a U-Haul entity to enforce an arbitration clause in an equipment rental agreement against the nonsignatory employee of the party that rented the equipment. (Id. at p. 301.) Jensen held the employee was not a third-party beneficiary of the contract between his supervisor and U-Haul and rejected that theory as a basis for requiring the employee and his spouse to arbitrate their claims against U-Haul. (Id. at p. 803.) Jensen reasoned: “The rental agreement at issue contemplates the possibility that [the supervisor] might authorize someone other than himself to use the truck. Nothing in the terms of the agreement, however, demonstrates any express intent to benefit a third party—whether [the plaintiff] specifically, or [the supervisor’s] employees generally—on the part of either [the supervisor] or [U-Haul].” (Id. at p. 802.) Because Jensen involved an employee who was not an intended beneficiary of the agreement between his employer and U-Haul, it has no application to this fact situation.[6]

We conclude the trial court properly determined that UHI was entitled to enforce the arbitration agreement against Appellant because she was an intended third party beneficiary of the rental agreement.[7]

II. The trial court did not abuse its discretion under section 1281.2 in compelling arbitration.

Appellant next contends the trial court erred in refusing to deny arbitration under section 1281.2, subdivision (c). The statute provides in relevant part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy . . . the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] . . . [¶] (c) A party to the arbitration agreement is also a party to a pending court action . . . with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (§ 1281.2.) In such circumstances, “[t]he court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding.” (§ 1281.2.)

The statute “giv[es] the court discretion not to enforce the arbitration agreement under such circumstances—in order to avoid potential inconsistency in outcome as well as duplication of effort.” (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393.) The “ultimate determination whether to stay or deny arbitration based on the possibility of conflicting rulings on common questions of law or fact is reviewed for an abuse of discretion. [Citation.]” (Daniels, supra, 212 Cal.App.4th at p. 680.)

To establish an abuse of discretion, an appellant is required to show that the trial court’s decision fell outside the permissible range of options set by the legal criteria (Orange Catholic Foundation v. Arvizu (2018) 28 Cal.App.5th 283, 292-293), or that the trial court’s decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Olive v. General Nutrition Centers, Inc. (2018) 30 Cal.App.5th 804, 827.) Here, Appellant merely disagrees with the trial court’s decision and contends that the trial court, in ruling on the matter, should have reached a different conclusion. Accordingly, Appellant did not begin to meet her burden to show an abuse of discretion in the trial court’s decision under section 1281.2.

III. The trial court properly denied Appellant’s motion to vacate the award on the ground it was procured by

undue means.

Appellant argues that the trial court erred in refusing to vacate the award on the ground of misconduct by UHI’s counsel. Appellant’s argument lacks merit.

A. Governing principles.

Section 1286.2 states in relevant part: “(a) . . . the court shall vacate the award if the court determines any of the following: [¶] (1) The award was procured by corruption, fraud or other undue means.”

Section 1286.2 is an exception to the general rule precluding judicial review of arbitration awards. (SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1196.) We review de novo the trial court’s order concerning vacatur of the award; however, to the extent the trial court’s ruling rests upon a determination of disputed factual issues, the substantial evidence test applies to those issues. (Ibid.; Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55-56.)

B. Trial court properly rejected Appellant’s claim

that UHI procured the award by undue means.

“Undue means” within the meaning of section 1286.2 does not encompass merely unfair tactics or the assertion of meritless arguments. Section 1286.2, “[s]ubdivision (a)(1) states that the award is to be vacated if procured by ‘corruption, fraud or other undue means.’ . . . The principle of ejusdem generis instructs that ‘when a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope. [Citations.]’ [Citations.] . . . . [¶] This rule cautions against an overly broad interpretation of the term ‘undue means.’ If the Legislature intended to permit an arbitration award to be vacated whenever the prevailing party engages in tactics that might in any way seem unfair, it would not have used the specific examples of fraud and corruption to describe the type of ‘undue means’ it had in mind.” (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 826-827, italics in original.) Example of undue means include “a party’s intimidation of an arbitrator [citation] and bestowal of favors upon an arbitrator [citation]” (id. at p. 832), and ex parte contact between a party’s arbitrator and the neutral arbitrator while an award was pending. (Maaso v. Signer (2012) 203 Cal.App.4th 362, 366, 371-375.)

In contrast, “the mere assertion of facially meritless defenses is insufficient ground to overturn an arbitration award. Where meritless legal arguments are raised in an arbitration, the opposing party has a full and fair opportunity to contest them and mere legal error made by arbitration panels must be disregarded by the courts. (Moncharsh v. Heily & Blase [(1992) 3 Cal.4th 1, 11 (Moncharsh)].)” (Pour Le Bebe, Inc. v. Guess? Inc., supra, 112 Cal.App.4th at p. 832.) Here, Appellant’s claim that the award was procured by undue means is predicated on her assertion that defense counsel adduced inadmissible evidence and asserted improper arguments at the arbitration hearing. For example, Appellant contends that UHI’s counsel made statements in its opening arbitration brief that “would be obvious grounds for a mistrial if presented to a jury in a trial court.” Appellant argues that UHI’s opening brief advised the arbitrator that: Noble had $100,000 in liability insurance, which her insurer paid to the Pixlers to settle their case, indicating that Noble’s insurer determined that Noble caused the crash; the Pixlers chose not to sue Noble—even though the police and their insurer and Noble’s insurer all agreed that Noble was at fault—because she did not have any money, and instead they chose to sue every deep pocket defendant; and the police report, as well as the Pixlers’ and Noble’s insurer, all determined that Noble was solely responsible for the accident.

Appellant also argues that over her objections, throughout the arbitration hearing UHI’s counsel brought inadmissible and highly prejudicial evidence before the trier of fact, loading his questions with references to insurance, settlement negotiations, financial status, wealth, and inadmissible opinions in the traffic collision report as to fault. (Veh. Code, § 20013 [accident report shall not be used as evidence in any trial, civil or criminal, arising out of an accident].) Appellant also asserts that in the post-hearing brief, UHI’s counsel continued to rely on inadmissible evidence, relying on the police report to argue that Noble caused the accident.

Counsel’s conduct did not constitute “undue means” within the meaning of section 1286.2, subdivision (a)(1). Insofar as counsel advanced meritless arguments or sought to introduce inadmissible evidence, Appellant had the opportunity to object at the arbitration hearing. Even assuming the arbitrator erred in any of his evidentiary rulings or in his legal reasoning, the merits of the controversy are not subject to judicial review. (Moncharsh, supra, 3 Cal.4th at p. 11.) Appellant’s arguments about whether the evidence and argument were objectionable are not subject to scrutiny on Appellant’s motion to vacate the award.

Moreover, Appellant’s arguments fail to consider that in the underlying proceeding, the trier of fact was not a jury but an arbitrator, a retired appellate justice, who was capable of disregarding inadmissible evidence and improper arguments. Therefore, the cases on which Appellant relies for her claim of attorney misconduct, which involve jury trials, are inapposite. (See, e.g. Robinson v. Cable (1961) 55 Cal.2d 425, 429 [jury trial]; Balistreri v. Turner (1964) 227 Cal.App.2d 236, 242-243 [same]; Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 351-355 [same]; Love v. Wolf (1964) 226 Cal.App.2d 378, 392 [same].)

Accordingly, the trial court properly refused to vacate the award on the ground it had been procured by undue means.

DISPOSITION

The judgment confirming the arbitration award is affirmed. UHI shall recover its costs on appeal.

NOT TO BE PUBLISHED.

LIPNER, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

[1] We refer to Susan Abusamra-Pixler as Mrs. Pixler because that is how she refers to herself in her appellate briefing.

[2] The Pixlers’ claim involved “tongue weight,” which Appellant explains is the amount of downward weight the portion of the trailer that connects to the tow vehicle applies onto the tow vehicle at the point of connection. As set forth in the arbitration award, the Pixlers’ theory with respect to UHI was that “if a trailer is improperly loaded with the tongue weight too low, that renders the trailer unstable and subject to whipping, and that the only way to ensure proper loading is to take the tongue weight of the loaded trailer. Since customers are not instructed to weigh the tongue of the trailer with a scale, and since U-Haul does not include a tongue scale with each trailer rental, the trailers are defectively designed. Had U-Haul included a scale, [they] argue[d], [Mr. Pixler] would have used it when the trailer was loaded, the trailer would have had sufficient tongue weight, and the accident would not have occurred.”

[3] All statutory references are to the Code of Civil Procedure, unless otherwise specified.

[4] The summary denial of the writ petition did not establish law of the case. (Kowis v. Howard (1992) 3 Cal.4th 888, 891.)

[5] Appellant did not file a reply brief.

[6] The recently filed opinion in Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, addressed by the parties in supplemental briefing, is not on point. Sellers involves the Automatic Renewal Law (Bus. & Prof. Code, § 17600 et seq.), in which the Legislature addressed the issue of online consumers being unwittingly entered into automatically recurring memberships. Sellers does not involve a paper contract signed by a party that references terms in a website. Sellers also has no bearing on whether Appellant has waived her contention that exhibit 3 was unauthenticated, and no bearing on whether Appellant was an intended beneficiary of the rental agreement.

[7] Because the arbitration agreement is enforceable against Appellant as an intended third-party beneficiary of the rental agreement, it is unnecessary to address Appellant’s arguments that spousal agency and estoppel do not apply in this case.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.