Singh v. U-Save Auto Rental

Filed 10/12/06 Singh v. U-Save Auto Rental CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

Plaintiff Raj Singh appeals from a judgment confirming an arbitration award in favor of U-Save Auto Rental of America, Inc. (U-Save). The dispute arose out of a franchise agreement between the parties. Singh filed suit against U-Save and others for breach of contract, business torts, fraud and negligence. After U-Save’s motion to compel arbitration, the matter was arbitrated through the American Arbitration Association. The trial court entered judgment confirming the arbitration award.

Singh, who is in propria persona and has been declared a vexatious litigant (see fn. 1), raises numerous arguments on appeal, attacking the order compelling arbitration, the judgment confirming the arbitration award, and certain post-judgment orders. We find no merit to any of his arguments, and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 1998 plaintiff Raj Singh entered into a franchise agreement with defendant U-Save Auto Rental of America. The franchise agreement provided that any claim arising out of or relating to the agreement would be submitted to arbitration in the state of Maryland. The agreement further provided in paragraph 24.1 that if either party was forced to seek an order from a court to compel the other to arbitrate, the party seeking such an order would be entitled to all costs, including attorney fees incurred in obtaining the order. The agreement provided in paragraph 24.3 that if Singh brought any action against U-Save and failed to obtain the relief he sought, or if U-Save brought a counterclaim that was granted in its favor, Singh would “pay us the actual attorney fees, court costs and all other expenses of suit we incur in defending your claim or prosecuting our counterclaim.”

On February 1, 2000, Singh filed a complaint for breach of contract against U-Save. Despite Singh’s agreement to stay the action pending arbitration, and without notice to U-Save, he obtained a default judgment from the trial court. The trial court granted U-Save’s motion for relief from default and default judgment on the grounds the court clerk lacked jurisdiction to enter a clerk’s judgment and the complaint failed to state a cause of action, and this court affirmed. (Singh v. U-Save Auto Rental (June 5, 2002, C038023 [nonpub.opn.].)

U-Save then moved to compel arbitration, requesting an award of reasonable attorney fees and expenses for bringing the motion, as provided in paragraph 24.1 of the franchise agreement. The trial court granted U-Save’s motion and awarded it $400.00 in attorney fees.

The arbitrator made its award in February 2004. The arbitrator ruled in favor of U-Save, awarding it $10,000.00 in fraud damages, $114,265.25 in attorney fees and costs, and $3,425.00 in arbitration fees.

Upon U-Save’s petition, the trial court confirmed the arbitration award, and the judgment confirming the award was entered on February 2, 2005.

Singh filed a petition for writ of mandate to disqualify the arbitrator and “get all the discovery in the arbitration proceedings managed by respondent American Arbitration Association . . . .” The petition listed the American Arbitration Association as the respondent, and U-Save as the real party in interest. Singh also filed a motion to “Confirm the Arbitration Award” and attached two exhibits. The first purported to be a half-page, three paragraph franchise agreement between Singh and U-Save, dated September 2004, seven months after the arbitration award had been issued. The second attachment purported to be an arbitration award against U-Save dated February 11, 2005, awarding Singh $10 million dollars. The award was purportedly signed by Thomas Smith, the arbitrator. U-Save had no notice of, nor did it participate in the arbitration described in Singh’s arbitration award. The American Arbitration Association did not have an arbitrator named Thomas Smith.

The trial court determined that both the petition for writ of mandate and motion to confirm arbitration award were new litigation in violation of a previous vexatious litigant order prohibiting Singh from filing any new litigation in propria persona in the courts of California without approval of the presiding judge of the court.^[1] The trial court dismissed both the petition and the motion.

DISCUSSION

We begin by pointing out that Singh’s opening brief is woefully inadequate. We recognize that he appears in propria persona. However, such a litigant is held to the same restrictive rules and procedures as an attorney. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.)

Singh lists no less than 23 “important legal issues” for our review. Many of the issues are redundant or unintelligible. The brief is disorganized, repetitive, largely incoherent, and lacking in adequate citations to the record or to pertinent authority. Despite the requirement that appellate briefs state each point under a separate heading summarizing the point, followed by argument and citation to authority, many of Singh’s headings contain multiple points, and his arguments are often unrelated to the point or points made in the heading. We may and do disregard any argument not properly presented under appropriate headings. (Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59.)

Singh’s notice of appeal, filed April 1, 2005, states that it is “from the judgement [sic] entered on or about February 8, 2005 . . . on the issue of attorney’s fees and costs, and all other orders of the trial court after February 1, 2002 . . . .” No judgment dated February 8, 2005, appears in the record. The judgment of the trial court confirming the arbitration award was entered February 2, 2005. We assume this is the judgment from which Singh appeals. Except as specified below, we do not give any consideration to Singh’s attempt to appeal from all the trial court’s other orders, as such language does not meet the requirement of rule 1 of the California Rules of Court, that the judgment or particular part thereof appealed from be identified. (Kronsberg v. Wershow (1965) 238 Cal.App.2d 170, 172, and fn. 1.)

We will consider those arguments which appear to be directed at the trial court’s order granting U-Save’s motion to compel arbitration. An order compelling arbitration is not itself appealable, but a party compelled to arbitrate is entitled to have the validity of the order reviewed on the appeal from a judgment confirming the award. (State Farm Fire & Casualty v. Hardin (1989) 211 Cal.App.3d 501, 506.) We will not consider Singh’s arguments directed at the trial court’s order dismissing Singh’s petition for writ of mandate and motion to confirm arbitration award. This order was entered after the judgment, and a post judgment order that does not affect the judgment or relate to its enforcement is not appealable. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652.) For the same reason, and because he provides no citation to the record or to authority, we do not consider Singh’s claim that U-Save’s assignee should not have been allowed to appear in the case after judgment was entered.

I

Order Compelling Arbitration

Singh argues the case should never have been arbitrated for four reasons, none of which has any discernible merit. His first argument, in full, is as follows:

“This case should not have been arbitrated because other parties can never be subject to the Franchise Agreement having the clause of arbitration. In this situation, the Courts do not allow arbitration. Otherwise, as in this case, arbitration results in injustice and exponential delay. This case is not even started against other defendants after 5 years from the date of filing. Therefore, the arbitration and the Arbitration Award are illegal.”

We are at a loss as to how to respond to this argument because it is incomprehensible. Additionally, Singh has not demonstrated any error because he has provided no meaningful legal analysis, no supporting authority, and no citation to facts in the record. We deem the argument to be without foundation. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)

Singh’s second argument is that his main “cause of damages” was for fraud, therefore the action was not subject to arbitration. Singh is incorrect. The franchise agreement provided for arbitration of “any controversy or claim arising out of or relating to this Franchise Agreement or its breach, including without limitation, any claim that this Franchise Agreement or any part of this Franchise Agreement is invalid, illegal or otherwise voidable or void . . . .” A broadly worded arbitration clause may extend the obligation to arbitrate to tort claims that arise under or from the contractual relationship. (Coast Plaza Doctors Hosp. v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.)

It is impossible to tell what Singh’s fraud cause of action involved. The complaint consisted of a Judicial Council Breach of Contract form on which Singh added the words, “Business Torts[,]Fraud[,] Negligence[.]” The only action complained of was that the parties had an agreement pursuant to which business and private telephone lines would be given exclusively to Singh, and U-Save did not provide such lines, but gave them to someone else without Singh’s knowledge or permission. Whatever possible fraud cause of action could be maintained on the basis of this pleading arose out of the contractual relationship, and was therefore subject to arbitration.

Singh’s third and fourth arguments regarding the order compelling arbitration are that arbitration was not mandatory because the franchise agreement had been terminated and the arbitration occurred beyond the statute of limitations. Singh forfeited these arguments by failing to raise them below. Appellate review is limited to issues raised in the trial court. (Glendale Federal Bank v. Hadden (1999) 73 Cal.App.4th 1150, 1158.) To permit a party to raise a new theory on appeal is unfair to the trial court and unjust to the opposing litigant. (In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418.)

Singh opposed the motion to compel arbitration on two grounds: (1) he was not properly served with the motion; and (2) he objected to conducting the arbitration in Maryland. At the hearing he stated he did not care if the matter went to arbitration. Singh raised other arguments in his motion for reconsideration of the order compelling arbitration, but he did not raise either of these arguments. We need not address arguments not previously raised in opposition to the motion to compel arbitration.

II

Judgment Confirming Arbitration Award

1. Scope of Review

Judicial review of arbitration awards is strictly limited. “Courts may not review the merits of the controversy, the validity of the arbitrator's reasoning, or the sufficiency of the evidence. [Citation.] Indeed, an arbitrator's decision is not generally reviewable for errors of fact or law, even if the error appears on the face of the award and causes substantial injustice. [Citation.] ‘[A]n award reached by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in [Code of Civil Procedure] sections 1286.2 (to vacate) and 1286.6 (for correction).’ [Citation.]” (Jordan v. California Dept. of Motor Vehicles (2002) 100 Cal.App.4th 431, 443.)

Section 1286.2 provides an arbitration award may be vacated on the following grounds:

“(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(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 controversy or by other conduct of the arbitrators contrary to the provisions of this title.”

Although Singh does not argue that the award should be corrected in some fashion, the grounds for correcting an award under Code of Civil Procedure section 1286.6 are:

“(a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;

(b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or

(c) The award is imperfect in a matter of form, not affecting the merits of the controversy.”

2. Arguments Outside Scope of Review

Most of Singh’s arguments on appeal do not fall within our limited scope of review. Accordingly, we do not consider his argument that the franchise agreement was not effective. This was a factual and legal issue determined by the arbitrator, and is not subject to judicial review. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23.) We also will not consider Singh’s argument that the arbitrator incorrectly interpreted the franchise agreement to allow attorney fees and to award damages for fraud in the inducement of the franchise agreement. For the same reason, we do not consider Singh’s argument that U-Save’s opposition to the petition to set aside the arbitration award should be stricken. We do not consider Singh’s argument that the trial court argued on behalf of U-Save both because it is not a valid reason to attack the arbitration award, and because Singh cites to no evidence in the record to support this claim.

3. Arguments Challenging Arbitrator’s Power and Neutrality

Singh claims the arbitrator argued on behalf of U-Save, advised U-Save what to do, and ignored many facts. He claims these are examples of misconduct of a neutral arbitrator and procurement of the award by corruption, fraud or other undue means. The arguments are meritless.

Singh claims, “[a]ll the grounds for the interpretation of section 25.9 of the Franchise Agreement as the arbitrator interpreted were given and argued by the arbitrator only[,]” and “[t]he arbitrator was very biased and argued on the behalf of U-Save.” Singh provides no citation to evidence in the record to support these claims. Other than claiming these are examples of misconduct and corruption, he offers no authority for his claims. Without more, he appears to be complaining because the arbitrator gave reasons to support his decision. This is a frivolous and unsupported argument. Singh has shown no misconduct.

Singh claims, “[d]uring the arbitration, U-Save asked some questions about other cases. Singh refused to discuss about [sic] other cases based on the following grounds: first, there is no relevancy between the present case and other cases; second, other cases are handled by other attorneys; and third, it is unethical to discuss other cases. U-Save presented no counter argument. But, the arbitrator advised U-Save’s attorney what to do against Singh if Singh does not discuss other cases.” Singh provides no citation to evidence in the record supporting this claim, nor does he cite to any authority holding that such behavior on the part of an arbitrator constitutes corruption or misconduct. The burden is on the party challenging the arbitration award to establish some error or impropriety, and Singh’s brief falls far short of meeting such burden. (Painters Dist. Council No. 33 v. Moen (1982) 128 Cal.App.3d 1032, 1041.)

Singh claims the arbitrator engaged in misconduct when he “knowingly ignored many facts.” The record cite Singh provides is to his own argument in a document entitled “Misconduct of Arbitrator and U-Save during Arbitration[.]” This does not constitute evidence. (Vasquez v. State (2006) 138 Cal.App.4th 550, 561, fn. 4.) Argument is insufficient; an appellant’s brief must contain factual underpinnings, record references, argument and authority. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) An unsupported assertion below does not become a fact by repetition on appeal. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) Other than the bare assertion that the arbitrator committed misconduct by ignoring many facts, Singh offers no legal analysis, and he provides no authority for his claim that such action constitutes misconduct. The argument is without foundation. (Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.)

Singh claims the arbitration award should be set aside because of the statute of limitations. He claims the incidents occurred in 1998, and U-Save’s counter-claim was filed after July 2003. This is apparently an argument that the arbitrator exceeded his power by awarding damages on a claim that was filed after the statute of limitations had run. Again, Singh provides no citations to the record. If Singh had a valid statute of limitations defense to the counter claim, an assertion we cannot verify because of Singh’s lack of citations to the record, failure to provide an adequate record, and failure to provide citations to authority, the defense was forfeited by failing to affirmatively invoke it in the arbitration. (See O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 156 [the statute of limitation is a defense which must be affirmatively invoked in the lower court by appropriate pleading]; Bohn v. Watson (1954) 130 Cal.App.2d 24, 36 [rule that statute of limitations is waived if not properly asserted applies to administrative proceedings]; Boys Club of San Fernando Valley, Inc. v. Fidelity & Deposit Co. of Maryland (1992) 6 Cal.App.4th 1266, 1276 [defense of statute of limitations is properly asserted at the arbitration].)

Singh argues the arbitrator exceeded his powers because he awarded U-Save attorney fees in excess of the attorney fees previously awarded by the trial court. He claims the prior award to U-Save of attorney fees in the amount of $400.00 for the order compelling arbitration was res judicata, prohibiting a subsequent award of attorney fees.

The franchise agreement contained two provisions relating to attorney fees and costs. The first provision, in paragraph 24.1, stated: “If you or U-Save is forced to seek an order from a court of law or equity to compel the other to proceed to arbitration, the party compelled will pay the party who obtained the order for all costs, including attorney fees, incurred in obtaining the order.” The other provision, in section 24.3, stated:

“If we institute any legal or equitable action against you other than arbitration proceedings brought under this Franchise Agreement, to secure or protect our rights hereunder, or to enforce the terms of this Franchise Agreement or any other agreements or obligations that are part of our franchise relationship, we will be entitled to recover from you the actual attorney fees we incur, together with court costs and expenses of suit, such as investigation, audit, professional fees and witness. If you bring any action against us and fail to obtain the relief you seek, or if in that action we bring a counterclaim that is granted or ordered in whole or in part in our favor, you will pay us the actual attorney fees, court costs and all other expenses of suit we incur in defending your claim or prosecuting our counterclaim.”

The arbitrator directly addressed this issue, stating, “Claimant [Singh] contends that the sums of $400.00 by way of attorneys’ fees and $663.76 by way of costs awarded to Respondent [U-Save] by the court by way of interim costs operated to bar Respondent’s entire counterclaim under the doctrine of res judicata. I find that Respondent’s claim to that court, and thus the court’s award, was expressly limited in scope.” Thus, the arbitrator determined the first award of fees and costs were for compelling the arbitration, and made the second award for the arbitration itself.

Res judicata gives conclusive effect to a former judgment in a subsequent litigation involving the same controversy. (7 Witkin, California Procedure (4th ed. 1997) Judgments, § 280, p. 820.) The second award of attorney fees and costs was not barred by res judicata because the awards are not in conflict, thus did not involve the same controversy. The initial award of attorney fees and costs for compelling arbitration was based on paragraph 24.1 of the agreement, and was separate and apart from the arbitration award granting U-Save $114,265.25 in attorney fees and costs for bringing the matter to arbitration.

Even if the awards had been for the same fees, res judicata would not operate in this case. An earlier ruling in the same action cannot be res judicata. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185.)

To the extent Singh claims the arbitrator misinterpreted the franchise agreement to allow attorney fees in connection with the arbitration itself, a review of the arbitrator’s interpretation of the franchise agreement is beyond the scope of our review.

4. Other Arguments

Singh makes two other arguments which are not technically within the scope of Code of Civil Procedure section 1286.2, but which we nonetheless briefly consider and reject. He claims U-Save’s second motion to confirm the arbitration award should have been treated as a motion for reconsideration because the trial court denied the first motion. Singh is incorrect. The trial court did not deny U-Save’s first motion. The motion was dropped for insufficient service. A motion for reconsideration requires a prior ruling on the motion, and where the prior motion is taken off calendar without a ruling, a subsequent motion is not a motion for reconsideration. (Andruss v. Superior Court (1996) 46 Cal.App.4th 1276, 1279, fn. 3.)

Singh also claims the trial court did not have jurisdiction to confirm the arbitration award because U-Save did not provide the claim and counter-claim to the court. Singh does not cite to any authority for his claim. He presents no meaningful legal analysis to support this claim of error. Such a claim is without foundation and requires no discussion by this court. (Atchley v. City of Fresno, supra, 151 Cal.App.3d at p. 647.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal. BLEASE , Acting P. J.

We concur:

MORRISON , J.

CANTIL-SAKAUYE , J.

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^[1] U-Save filed a motion to dismiss this appeal for failure to obtain the approval of the presiding justice, or in the alternative to require the vexatious litigant to post security. We denied the motion because “[t]he prefiling orders upon which the motion [was] based were filed after the underlying action was commenced. As such, the present appeal is not ‘new’ litigation under Code of Civil Procedure section 391.7, subdivision (a).”