WINSTON LAMBERT v. CHRIS CARNEGHI

Filed 1/11/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellants Winston and Elaine Lambert sued respondents Chris Carneghi and Robert Dailey for negligence over their alleged failure to adequately advance their position in a fire insurance appraisal proceeding pursuant to Insurance Code section 2071 (section 2071). The trial court sustained respondents demurrers, and appellants appealed from the subsequent judgments. We conclude that an appraisal proceeding pursuant to section 2071 is an arbitration, and that respondent Carneghi was immune from suit over his role as an appraiser. However, we find that the litigation privilege (Civ. Code,  47, subd. (b)) does not protect respondent Dailey from suit over his role as an expert hired by appellants. We therefore affirm the trial courts order sustaining respondent Carneghis demurrer, but reverse the trial courts order sustaining Daileys demurrer.

I.
Factual and Procedural
Background[1]

The appeal in this case is from a judgment of dismissal entered after the sustaining of a general demurrer. Accordingly, in setting forth the relevant facts for purposes of our review, we are guided by the familiar rules applicable in this setting. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] [Citation.] (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) We cannot, and do not, consider the declaration of respondent Dailey that was submitted to the trial court in connection with his demurrer, because the limited role of the demurrer is to test the legal sufficiency of the complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Appellants owned a home in Los Altos Hills that was totally destroyed by an accidental fire in March 1995. The residence was insured by a policy issued by Fire Insurance Exchange (FIE), which determined that the policy fully covered the fire damage. Appellants policy provided guaranteed replacement cost coverage, as well as a  building ordinance or law coverage endorsement, which provided that FIE would also pay the full replacement cost to replace or repair the Lamberts residence in conformity with applicable laws, processes and regulations respecting the premises. (Italics omitted.) FIE hired two appraisers, and provided appellants with checks based on the appraisers reports. Appellants accepted the checks with the understanding that they represented a deposit until a determination of the full replacement cost of their residence.

It took approximately four years for appellants to obtain the necessary permits to replace their home. During this time, appellants incurred a very substantial amount of rent and other soft costs in architectural, legal, surveying, engineering consulting fees, town fees and interest expenses, etc. FIE and appellants were unable to agree on the replacement cost value to rebuild appellants entire home. Appellants therefore invoked their right to appraisal in accordance with the terms of their insurance policy.

Appellants did not attach a copy of their FIE insurance policy to their complaint; however, the parties agree that FIE was required under Californias Insurance Code to include the following provision in its fire policy regarding appraisals:[2] In case the insured and this company shall fail to agree as to the actual cash value or the amount of loss, then, on the written request of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within 20 days of the request. Where the request is accepted, the appraisers shall first select a competent and disinterested umpire; and failing for 15 days to agree upon the umpire, then, on request of the insured or this company, the umpire shall be selected by a judge of a court of record in the state in which the property covered is located. Appraisal proceedings are informal unless the insured and this company mutually agree otherwise. For purposes of this section, informal means that no formal discovery shall be conducted, including depositions, interrogatories, requests for admission, or other forms of formal civil discovery, no formal rules of evidence shall be applied, and no court reporter shall be used for the proceedings. The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of any two when filed with this company shall determine the amount of actual cash value and loss. Each appraiser shall be paid by the party selecting him or her and the expenses of appraisal and umpire shall be paid by the parties equally. (Italics omitted.) (Ins. Code,  2071, 2070.)

Appellants hired attorneys to represent them in the appraisal process. One of the attorneys hired respondent Dailey as an expert to define, describe and estimate the replacement cost of appellants home for the appraisal process. (Original italics.) Appellants also hired respondent Carneghi as their appraiser, to provide appraisal services in connection with the appraisal at issue, essentially to determine replacement cost and to be their advocate in the appraisal process and to make sure those relevant to the appraisal understood the meaning and application of the term replacement cost and to convince those involved in the appraisal of the correctness of his valuation by supporting it with facts and logic. (Original italics.)

Appellants attorneys selected a retired judge who had never conducted a replacement cost appraisal as an umpire. According to appellants, the umpire demonstrated a fundamental misunderstanding of replacement costs at the beginning of the hearing on the appraisal. According to appellants complaint, none of the people hired by appellants changed, or even adequately tried to change, the umpires understanding, even though they had been hired to do so. They likewise failed throughout the appraisal hearing to clarify the meaning of the term replacement cost. Because the people who appellants hired failed to adequately define the correct standard of replacement cost for the appraisal, appellants were not awarded proper replacement costs. Appellants allege they were damaged by at least $1.8 million.

Appellants sued respondents Carneghi and Dailey in connection with the allegedly flawed appraisal process.[3] As amended, their complaint alleged a single cause of action for negligence against respondents. Respondents both demurred to the complaint. The trial court sustained both demurrers without leave to amend, and judgments were entered for respondents.[4] This timely appeal followed.

II.
Discussion

A.     Standard of Review.

Our standard of review is well established.  When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.  (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

B.     No Error To Sustain Carneghis Demurrer Without Leave to Amend.

1.      Appraisal procedure is an arbitration.

In arguing that the trial court should sustain his demurrer without leave to amend, Carneghi argued below that the appraisal process mandated by the Insurance Code and described in appellants complaint constituted an arbitration, and that he was entitled to arbitral immunity because his role as an appraiser was analogous to that of an arbitrator. In their opposition, appellants essentially conceded that the appraisal process in this case was a form of arbitration, referring to Carneghi as a party appraiser, or arbitrator. Appellants argued that because Carneghi was alleged to have played a role as a party-appointed advocate, he was not subject to arbitral immunity. The trial court stated at the hearing on the demurrer that Carneghi had prevailed, but left open the question whether it would grant appellants leave to amend. The court ultimately sustained the demurrer without leave to amend.

Appellants opening brief to this court raises a single argument, not raised below, that the appraisal process set forth in section 2071 is not an arbitration. Having failed to raise this issue below, they have arguably waived it. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46 [as a general rule, issues not raised in trial court cannot be raised for first time on appeal].)

Even assuming the argument was not waived, it clearly lacks merit. It is well settled that [a]n agreement to conduct an appraisal contained in a policy of insurance constitutes an agreement within the meaning of [Code of Civil Procedure] section 1280, subdivision (a), and therefore is considered to be an arbitration agreement subject to the statutory contractual arbitration law. [Citation.] (Louise Gardens of Encino Homeowners Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658 [considering award issued after appraisal pursuant to section 2071]; see also Appalachian Insurance Co. v. Rivcom Corp. (1982) 130 Cal.App.3d 818, 824 (Appalachian) [As used in the Code of Civil Procedure, an agreement providing for an appraisal [pursuant to section 2071] is included within the concept of agreements to arbitrate.]; 3 Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2006)  15:356, p. 15-53 [appraisal proceedings are form of arbitration and are subject to rules governing arbitrations].) As this court recognized more than a decade ago, the appraisal process set forth in section 2071 is akin to arbitration. (Gebers v. State Farm General Ins. Co. (1995) 38 Cal.App.4th 1648, 1650.) Although it is true, as appellants argue, that this court did not specifically state that an appraisal is identical to an arbitration, appellants present no compelling argument that the appraisal process in section 2071 is not, in fact, an arbitration.

Appellants acknowledge that under Californias Arbitration Act, the term  [a]greement includes but is not limited to agreements providing for . . . appraisals . . . . (Code Civ. Proc.,  1280, subd. (a), italics added.) The term  appraisals  was added to the Arbitration Act in 1961 to expressly extend the coverage of the statute to appraisal proceedings. (Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 397-398.) Appellants argue that although an appraisal is an agreement, it is not an agreement to submit to arbitration, which is referenced elsewhere in the Arbitration Act. (Code Civ. Proc.,  1281 [A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable . . . .].) What this argument fails to acknowledge is that the term  arbitration  is not itself defined in the Arbitration Act. (Cheng-Canindin v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 684.) In determining whether an internal employee review committee procedure was an agreement to arbitrate, our colleagues in Division Two concluded that although arbitration can take many procedural forms, a dispute resolution procedure is not an arbitration unless there is a third party decision maker, a final and binding decision, and a mechanism to assure a minimum level of impartiality with respect to the rendering of that decision. (Id. at pp. 687-688.) In reaching its conclusion, the court pointed to section 2071 and acknowledged that California case law recognizes that this appraisal provision is an arbitration agreement. (Cheng-Canindin, supra, at p. 685.) Although it may be true, as appellants argue, that the Insurance Code does not specifically define an appraisal as an arbitration, appellants simply ignore the fact that a decision from this district has concluded that the appraisal process is an  arbitration.  (Ibid.)

Appellants argue that an insurance appraisal is vastly different from an arbitration. They point to the fact that the appraisal clause mandated by section 2071 does not specify how an umpire and two appointed appraisers will decide issues where the appraisers fail to reach an agreement, and does not provide for the discovery, testimony, briefing, or any of the other accouterments that we associate with litigation or with arbitration. Although it is true that arbitration can take many procedural forms (Cheng-Canindin v. Renaissance Hotel Associates, supra, 50 Cal.App.4th at p. 687), it does not follow that a fire insurance appraisal is not an arbitration simply because it does not have the accouterments that appellants claim are required in order for a procedure to be considered an arbitration. (Original italics.) This is especially true in light of the fact that California law does not automatically guarantee the right to discovery in arbitration proceedings, except in certain types of cases or unless the parties agree. (Code Civ. Proc.,  1283.05, 1283.1, 1282.2, subd. (a)(2); 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial,  513, p. 952.) Moreover, in general, appraisal proceedings are subject to the rules governing contractual arbitration proceedings. (3 Croskey et al., Cal. Practice Guide: Insurance Litigation, supra,  15:360, p. 15-54.)

We likewise reject appellants argument, based on Jefferson Ins. Co. v. Superior Court (1970) 3 Cal.3d 398 and Safeco Ins. Co. v. Sharma (1984) 160 Cal.App.3d 1060 (Safeco), that because appraisers powers are somewhat different from those of arbitrators in other contexts, that means an appraisal pursuant to section 2071 is not an arbitration. The Supreme Court held in Jefferson that the trial court had properly vacated an appraisal award pursuant to section 2071, because the appraisers had based the appraisal award on a misconception of the law. (Jefferson, supra, at pp. 400, 403.) The court noted that appraisers generally have more limited powers than those of arbitrators, and the appraisers in Jefferson had exceeded those powers when they did more than simply determine the actual cash value of an insured building. (Id. at p. 403.) Safeco likewise held that appraisers had exceeded their powers by doing more than simply determine the amount of loss. (Safeco, supra, at p. 1065.) Just because the role of appraisers may be more limited than that of arbitratorswhose powers may of course always be limited by contract (Bonshire v. Thompson (1997) 52 Cal.App.4th 803, 810)that does not make an appraisal any less of an arbitration. In fact, both Jefferson and Safeco acknowledged the similarities between appraisals and arbitrations. (Jefferson, supra, at p. 401, fn. 4 [enforcement procedures respecting arbitration are applicable to appraisals]; Safeco, supra, at p. 1063 [because of similarity between arbitration and appraisal enforcement proceedings, court applied standard of review applicable to arbitration awards],[5])

We also reject appellants unsupported assertion that because appraisers are not permitted to determine issues of law or coverage, decisions of fire insurance appraisers lack the finality of an arbitrators award. This claim of lack of finality is directly contradicted by section 2071, which provides that when an award is submitted to the insurance company, it shall determine the amount of actual cash value and loss. The parties are then free to confirm the award issued by the panel in the same manner in which an arbitration award is enforced. (E.g. Jefferson Ins. Co. v. Superior Court, supra, 3 Cal.3d at p. 401, fn. 4; Louise Gardens of Encino Homeowners Assn. Inc. v. Truck Ins. Exchange, Inc., supra, 82 Cal.App.4th at p. 651.) A confirmed award of appraisers and umpire is treated as a confirmed arbitration award, which has the  same force and effect as . . . a judgment in a civil action.  (Klubnikin v. California Fair Plan Assn., supra, 84 Cal.App.3d at p. 398.) Although it is true that a party to a fire insurance contract retains jury trial rights as to other issues, the party simply has no jury trial right as regards the setting of the dollar amount of the loss under the policy. (Appalachian, supra, 130 Cal.App.3d at p. 825.)

Appellants do not dispute the fact that several published appellate decisions have held that an appraisal pursuant to section 2071 is an arbitration, but argue that none of the cases includes the close reading of the plain words of the [Arbitration Act] statute that appellants advocate. For example, appellants attempt to distinguish Klubnikin v. California Fair Plan Assn., supra, 84 Cal.App.3d at page 398, which held that a confirmed award of appraisers and an umpire in a fire insurance appraisal shall be treated as a confirmed award in arbitration under Californias arbitration statute, by arguing that the court likened an appraisal to arbitration for that limited purpose. But Klubnikins holding that a judgment confirming an appraisal award is not subject to collateral attack except for grounds that would be available to attack any other civil judgment is directly relevant to this appeal. Having apparently failed to petition the trial court to vacate the appraisal award, appellants may not now collaterally attack the award by suing their appraiser. (Ibid.)

Appellants also criticize Appalachian, supra, 130 Cal.App.3d 818, which reversed the denial of a petition to compel an appraisal pursuant to section 2071. (Id. at pp. 822, 830.) In considering whether an appraisal clause deprives an insured of the right to a jury trial, the court concluded that an agreement providing for an appraisal is included within the concept of agreements to arbitrate (Code Civ. Proc.,  1280, subd. (a)), and noted that the appraisal clauses in fire insurance policies had been enforced for almost 100 years. (Appalachian, supra, at p. 824, citing Saucelito L. & D. D. Co. v. C. U. A. Co. (1884) 66 Cal. 253.) It cited a 1937 Ninth Circuit case that referred to the appraisal process as a  quasi judicial process of arbitration.  (Appalachian, supra, at pp. 824-825, quoting Hyland v. Millers Nat. Ins. Co. (9th Cir. 1937) 91 F.2d 735, 737.) Appellants criticize Appalachian for relying on Saucelito, which predated the statutory procedure at issue, but fail to acknowledge that the predecessor to section 2071 was adopted in 1909, and was referred to as a  quasi judicial process of arbitration  as early as 70 years ago. (Appalachian, supra, at pp. 824-825.)

We reject appellants argument that other cases simply cite Appalachian, supra, 130 Cal.App.3d with a dearth of reasoning or analysis as to whether the appraisal process in section 2071 is an arbitration. Appellants argument rests on the mistaken assumption that Appalachian reached an erroneous conclusion, and that Appalachian should have analyzed the difference between an  agreement[]  and an  agreement[] to submit to arbitration.  As appellants acknowledge, no case supports the interpretation of section 2071 that they advocate. They note that several opinions from the Second District holding that a fire insurance appraisal is an arbitration are not binding on this court. However, given that this court already has stated that the appraisal process pursuant to section 2071 is akin to arbitration (Gebers v. State Farm General Ins. Co., supra, 38 Cal.App.4th at p. 1650), we find no compelling reason to reject well-established case law holding that a fire insurance appraisal pursuant to section 2071 is an arbitration.

2. Carneghi is protected by arbitral immunity.

Appellants argue generally that the Legislature has not provided a shield to those who are hired to do a job for a party to a fire insurance appraisal and through their negligence fail to do it and thereby cause injury to the party employing them. Although they acknowledge that Carneghi argued below that he had arbitral immunity, they do not specifically address this issue in their opening brief, other than to say that [t]he arbitral immunity [Carneghi] argued was based on the notion that [appellants] suit against them, based upon their misconduct in the appraisal process, was really complaining about their actions in an arbitration. . . . Since an appraisal does not constitute an arbitration, [Carneghi is] not immune to suit. Having failed to address the issue of arbitral immunity in their opening brief, they have arguably waived it. (In re Marriage of Sheldon (1981) 124 Cal.App.3d 371, 381 [well settled that appellate court may consider as waived any issue not raised in appellants opening brief].)

Even assuming the issue was not waived, it clearly lacks merit. It long has been recognized that, in private arbitration proceedings, an arbitrator enjoys the benefit of an arbitral privilege because the role that he or she exercises is analogous to that of a judge. . . . This ruleimmunizing arbitrators in private contractual arbitration proceedings from tort liabilityis well established in California. [Citation.] (Moore v. Conliffe, supra, 7 Cal.4th at p. 650 [witness who testifies at deposition in private, contractual arbitration proceeding protected by litigation privilege].)   Arbitrators are judges chosen by the parties to decide the matters submitted to them . . . . . . . Arbitrators have been extended the protection of judicial immunity, because they perform  the function of resolving disputes between parties, or of authoritatively adjudicating private rights.    (Stasz v. Schwab (2004) 121 Cal.App.4th 420, 430.) Although we agree with appellants that no case has specifically extended arbitral immunity to appraisers, we disagree with appellants assertion that any analysis of arbitral immunity is wide of the mark, given the similarities between arbitrations and appraisals pursuant to section 2071.

Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524 (Coopers) is not to the contrary, as appellants argue. Coopers considered whether the trial court erred in overruling defendants demurrer, based on the fact that the auditor in a binding audit had arbitral immunity. (Id. at p. 527.) The court interpreted former Code of Civil Procedure section 1280.1[6] as conferring full arbitral immunity upon arbitrators in appraisals, valuations and similar proceedings, such as audits, irrespective of the arbitrators particular role in a given situation. (Coopers, supra, at p. 536, italics added.) The court rejected the argument that an arbitrators misconduct or fraud cuts off arbitral immunity, holding that [t]he remedy for arbitrator misconduct lies in vacation of the award under [Code of Civil Procedure] section 1286.2. (Ibid.) The court nonetheless held that the specific agreement for a binding valuation at issue was not per se an agreement for arbitration, and that something more was required to show that it was an arbitration. (Id. at pp. 537, 540.) Here, by contrast, it is well settled that an appraisal pursuant to section 2071 is an arbitration as a matter of law. (Cf. Coopers, supra, at pp. 537, 540.)

Appellants argue for the first time in their reply brief that the duties of party appraisers are analogous to those of lawyers, and that appraisers therefore should not be subject to arbitral immunity. Appellants cite no authority for their claims that, for example, appraisers advocate their appraisals to the umpire just as lawyers advocate their clients positions before a judge, or that it is their duty to write appraisals and present them to the other sides appraiser, argue his or her positions and, failing to convince the other party-appraiser and reach agreement on them, to argue those positions on those appraisals as to which there is disagreement to the umpire who makes the decision. The comparison of appraisers to lawyers is contrary to the holding in Klubnikin v. California Fair Plan Assn., supra, 84 Cal.App.3d at page 395, that  appraisers empowered by the terms of a policy of fire insurance to determine the cash value and loss utilized to ascertain the amount payable on the policy are arbitrators within the meaning of Code of Civil Procedure section 1280.

In fact, this courts opinion in Gebers v. State Farm General Ins. Co., supra, 38 Cal.App.4th 1648, analogized the role of an appraiser to that of an arbitrator. The court held that an insurance company was not permitted to alter a fire insurance policy to describe appraisers as  independent  (and therefore potentially biased toward a party) in light of the requirement in section 2071 that an appraiser be  disinterested.  (Gebers, supra, at pp. 1649-1650.) The court noted that the entire appraisal panel (the umpire and both party-selected appraisers) are held to a higher standard of impartiality than are arbitrators generally, because the Legislature has mandated appraiser impartiality. (Id. at pp. 1652-1653.) Because the appraiser selected by the insurance company in Gebers had a direct pecuniary interest in ongoing litigation work with the company and was therefore presumably biased, the court vacated the underlying award issued by the arbitration panel. (Id. at pp. 1650, 1652-1653, citing Code Civ. Proc.,  1286.2 [award must be vacated if there was corruption in any of the arbitrators].) Given the fact that this court has held that the Legislature has made appraiser impartiality a statutory requirement (Gebers, supra, at p. 1653), we disagree with appellants unsupported assertion that the party appraisers duties are more like the duties of an attorney.

Appellants also argue, again for the first time in their reply brief, that even if Carneghi was considered an arbitrator, the vast differences in both the ethics and duties of a party-arbitrator and a true neutral arbitrator compel a finding that Carneghi was not subject to arbitral immunity. Appellants rely on a Seventh Circuit case interpreting the Federal Arbitration Act, a New York appellate court case, and a provision in the American Arbitration Associations Code of Ethics for Arbitrators in Commercial Disputes, Canon X (eff. Mar. 1, 2004). (Sphere Drake Ins. v. All American Life Ins. (7th Cir. 2002) 307 F.3d 617, 620 [party-appointed arbitrator on a tripartite panel is supposed to be an advocate]; Astoria Medical Group v. Health Ins. Plan of Gr. N.Y. (N.Y. App. 1962) 182 N.E.2d 85, 87 [party-designated arbitrators are not neutral in the sense that neutral arbitrator or judge is]; Am. Arb. Assn., supra, canon X [ethical standards for party-appointed arbitrators].) Having failed to raise this argument with the trial court or in their opening brief, appellants have doubly waived the argument. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351.) We note that appraisers appointed under the statutory scheme at issue here must make the same disclosures to the parties as are required of neutral arbitrators generally. (3 Croskey et al., Cal. Practice Guide: Insurance Litigation, supra,  15:364, p. 15-55, italics added.) In any event, we disagree that it would be nonsense to provide arbitral immunity to party-appointed appraisers, because of whatever difference exists in the role played by a party-appointed appraiser (as opposed to an umpire). We see no reason why an appraiser who is required by statute to be disinterested ( 2071) should be subject to tort liability in connection with his role as an appraiser, given this states preference to provide immunity to those who perform the function of resolving disputes between parties. (Stasz v. Schwab, supra, 121 Cal.App.4th at p. 430.)

Story continues as Part II

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[1] Appellants filed their complaint on March 29, 2005. Before any responses to the complaint were filed, appellants filed their first amended complaint on June 13, 2005. The following facts are taken from appellants first amended complaint.

[2] Appellants opening brief purports to quote from their contract with FIE, even though the contract at issue appears nowhere in the record. (Cf. Cal. Rules of Court, rule 8.204(a)(1)(C) [reference must be supported to citation to record].) The appraisal clause they purport to quote is identical to the one mandated by the Insurance Code.

[3] Appellants also sued their attorneys and another expert they had hired. Those defendants are not parties to this appeal.

[4] The trial courts orders sustaining respondents demurrers did not include statements of the specific grounds upon which the orders were based, as required by Code of Civil Procedure section 472d. Appellants argue in passing that the trial courts failure to state reasons for its decisions is reversible error. We disagree. The failure to state the courts reasons  must be considered harmless error . . . absent a demonstration of prejudice to plaintiff. [Citation.] The requirement of stated grounds is very useful as a guide when plaintiff wishes and is able to amend the complaint, but on appeal its importance is minimal since the ruling will be upheld on any sufficient ground, whether relied on by the court below or not. [Citation.]  (Brown v. State of California (1993) 21 Cal.App.4th 1500, 1506, disapproved on another ground in Massingill v. Department of Food & Agriculture (2002) 102 Cal.App.4th 498, 506-507.) Moreover, because nothing in the record indicates that appellants notified the trial court of its failure to state reasons (indeed, they did not object at the hearing on the demurrers when Carneghis counsel asked the court whether his proposed order should be silent as to the grounds for granting the demurrer), appellants waived this requirement. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 962-963.)

[5] Appellants claim that Safeco applied a scope of review to the arbitration award that differed significantly from the scope of review of an arbitration. To the contrary, the court stated: In view of the similarity between arbitration and appraisal enforcement proceedings [citation], we apply to the appraisal proceedings at issue herein the general standard of review applicable to arbitration. (Safeco, supra, 160 Cal.App.3d at p. 1063, italics added.) The court examined the record to determine whether the appraisers had exceeded their powers (id. at pp. 1063-1064), something the court of course does when determining whether arbitrators have exceeded their powers. (Bonshire v. Thompson, supra, 52 Cal.App.4th at p. 810.)

[6] This statute, which provided arbitral immunity to judicial officers when acting in the capacity of arbitrator under any statute or contract, was repealed by its own terms on January 1, 1997. (Stats. 1985, ch. 709,  1, p. 2341; Stats. 1995, ch. 209,  2, p. 749.) The repeal did not affect common law, which recognizes arbitral immunity. (Stasz v. Schwab, supra, 121 Cal.App.4th at pp. 434-436.)