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Court of Appeal, Second District, Division 4, California.

WHOOP, INC., Plaintiff and Respondent, v. DYNO PRODUCTIONS, INC., Defendant and Appellant.

No. B107774.

Decided: May 21, 1998

Richards, Watson & Gershon and Gary E. Gans, Los Angeles, for Defendant and Appellant. Edelstein, Laird & Sobel, O. Andrew Wheaton and Peter Laird, Los Angeles, for Plaintiff and Respondent.

Dyno Productions, Inc. (hereinafter Dyno), appeals from an order of the trial court confirming an award of $800,000 against it and in favor of respondent, Whoop, Inc. The case turns on whether Dyno, not originally a party to the litigation out of which the award arose, can be bound by the award.   We affirm.


Two lawsuits were initiated in the Los Angeles Superior Court involving actress Whoopi Goldberg (hereinafter Goldberg), and T. Rex Productions, Inc. (hereinafter TRPI) involving production of a movie to be titled T. Rex. The first action, No. BC 076392, was initiated by TRPI against Goldberg, and the second action, No. BC 076404, was initiated by Goldberg against TRPI. The actions were consolidated and assigned to Judge Stephen Lachs for all purposes.

The actions were jointly settled by means of three interrelated documents.   The first document, titled “Settlement Agreement,” provides that enforcement of the settlement will be through a court-ordered referee.   The purpose of the second document (the Acting Agreement) was to provide Goldberg's acting services for the movie T. Rex through respondent in the instant case (BS 033219), Whoop, Inc., a corporation wholly owned by Goldberg.   This document was expressly incorporated into the settlement agreement.   The third document is the stipulation and order for appointment of the referee signed by Judge Lachs.   As pertinent, the stipulation provides:

“1. To implement the settlement agreement made by the parties, the parties, by and through their respective counsel, hereby stipulate that Lester E. Olson, a retired judge of the Los Angeles Superior Court, may be appointed a referee pursuant to Code of Civil Procedure Section 638.

“2. The parties further stipulate that the referee shall hear and determine any and all 664.6 motions pursuant to all decisional and statutory law applicable thereto and said referee shall have all the jurisdiction and authority as if the referee were sitting as a Judge of the Superior Court.   The provisions of Code of Civil Procedure 644 shall apply, and the parties waive their right to make any motions for review of the referee's findings, decisions and orders by the Honorable Stephen Lachs, or such other judge of the Superior Court, and they further stipulate that the orders of the referee may be presented by the referee to the Superior Court for entry as an order of the court.   The parties further waive their right to make a motion for a new trial with respect to the proceedings before the referee.


“5. The parties recognize and affirm that the referee has spent many hours with the parties and their counsel, collectively and separately, during the period from September 9, 1993 to September 16, 1993 (hereafter the ‘mediation period’) as a mediator to assist the parties in reaching the foregoing stipulation for settlement, and that during the course of said mediation period the referee has had ex parte communications with the parties and their attorneys.   Any conflict or disqualification that might be raised by reason of said events is waived by the parties․

“5.1. The parties agree that the services of Lester E. Olson as mediator shall be deemed terminated and completed when this stipulation is entered on this record before the court.   The referee, upon the commencement of his status as referee, shall conduct all proceedings according to all applicable procedural rules and ethical considerations as if he were presiding as a judge of the Superior Court.   Without limiting the broad generality of the foregoing mandate in the preceding sentence, the referee shall have no further ex parte communications with the parties or their counsel.”  (Italics added.)

Appellant Dyno had not yet been formed and, of course, was not a party to either of the actions or any of the agreements effectuating the settlement.

During 1994, respondent instituted a proceeding before the referee, also known as the “Production Consultant,” contending that a term of the settlement agreement providing for a production budget of $32 million had been breached.   The referee concluded that the production budget had a shortfall of $800,000 and generated “Issue Determination Bulletin No. 12.”   As pertinent, the document provides as follows:

“6. The Production Consultant finds and determines that the movie theatrical production entitled T. Rex is not being produced by T. Rex Productions, Inc. and further finds that such movie production rights as were held by T. Rex Productions, Inc. were assigned by it to Dyno Productions, Inc. and possibly to other persons or entities.   The Production Consultant finds that Stefano Ferrari and Dyno Productions, Inc. have no right, title or interest in T. Rex Productions, Inc. The Production Consultant finds that the current production costs of the movie T. Rex (with the exception of compensation being paid to Whoop, Inc. and Whoopi Goldberg) are being paid for out of funds not within the control of or supplied by T. Rex Productions, Inc. By reason thereof, it is appropriate and necessary to determine that any order made herein be binding upon such assignees.

“7. The Production Consultant finds ․ a material breach of the Settlement Agreement and the Acting Agreement, as reasonably interpreted.   As a direct and proximate result thereof, Whoop, Inc. has been damaged in the sum of $800,000.00, and damages in the sum of $800,000.00 are assessed against T. Rex Productions, Dyno Productions, Inc. and all other assignees of T. Rex Productions, Inc. and in favor of Whoop, Inc. It is ordered that T. Rex Productions, Dyno Productions, Inc. and all other assignees of T. Rex Productions, Inc. pay the sum of $800,000.00 to Whoop, Inc. forthwith.”

Respondent filed a motion in the consolidated actions requesting entry of judgment based upon this Issue Determination Bulletin.   The motion was scheduled for hearing on February 10, 1995;  however, the consolidated actions were each dismissed with prejudice on March 17, 1995.

On March 19, 1995, respondent filed a “Petition to Confirm the Arbitration Award” in the Los Angeles County Superior Court.   The matter was assigned the instant case No. BS033219.   Named as respondents were TRPI and appellant.   The subject of the petition was to establish Issue Determination Bulletin No. 12 as a judgment.

Dyno filed a response to the petition seeking to dismiss the petition on the following grounds:  (1) there was no arbitration, but rather a referee proceeding in two prior actions, which had since been dismissed with prejudice;  (2) Dyno was not a party to and did not take part in the proceedings in which Issue Determination Bulletin No. 12 was rendered;  and (3) Dyno was not a party to any arbitration agreement with respondent.   In the alternative, Dyno requested that the “arbitration award” be vacated against it, or that its name be deleted, pursuant to Code of Civil Procedure section 1286.2 on grounds that Dyno was not a party to the proceeding and was not given notice and an opportunity to appear and take part in the proceeding.   TRPI defaulted and its default was entered.

On January 4, 1996, trial was set for June 17, 1996.

On March 13, 1996, Dyno filed a motion to dismiss the petition and set the matter for hearing on March 28, 1996.   The motion was continued to May 29, 1996.   Meanwhile, on May 13, 1996, Dyno sought an ex parte order vacating the trial date and to set a hearing on the original petition “by way of a summary proceeding, not by trial.”   The request was denied.

On May 14, 1996, Dyno filed a motion to vacate the award to the extent it named Dyno or, in the alternative, to correct the “arbitration award” by deleting any reference to Dyno.

The parties stipulated to continue the hearing on Dyno's motions to dismiss and vacate until the trial date on June 17, and the court so ordered.

Respondent filed opposition to Dyno's motions which included several declarations.   Peter Laird, one of the attorneys representing respondent during the various proceedings, set out the procedural and substantive history of the original actions;  the subject referee proceeding;  how the underlying cases were ultimately resolved by the referee;  why the new action seeking confirmation of the award was necessary;  and communications between counsel, the referee and the court.   Two declarations by the referee stated his understanding of the reference and his authority to act.   Finally, the declaration of Ralph Loeb, also an attorney for respondent, indicated that at a hearing before the referee in October 1994, Howard Behar, an attorney representing Dyno, had appeared before the referee and advised the referee that TRPI had assigned all of its rights in the acting agreement to Dyno.

Dyno filed objections to and moved to strike the referee's declarations on the basis of Evidence Code section 703.5 (see infra ).   The trial court overruled the objections and denied the motion to strike.   Dyno also objected to the declarations of Laird and Loeb, to which respondent filed its opposition.

At the beginning of trial on June 19, 1996, the court noted:  “We're going to have everything now.   Now is the time.   We're going to wrap it all up.  [¶] ․ [¶] I have received all your documents, have read the documents and declarations.   And I guess that's about it.   I've read-there are certain evidentiary objections that you have․  [¶] Okay. Let's decide what we're going to admit-well, we're going to let all the declarations in.   The question is what weight to be given the declarations.   All the declarations will be received.   It's a question of what weight.  [¶] And I know you have evidentiary objections, and so we'll start with-and I've read and gone over these.”

The court allowed Loeb to be sworn so that counsel for Dyno could cross-examine him.   Loeb stated that his testimony would be consistent with his declaration that at the hearing before the referee in October 1994, attorney Behar appeared and advised the referee that the acting agreement had been assigned to Dyno. Counsel for Dyno objected to this testimony on the basis that it was hearsay, but the court overruled the objection.

Counsel for Dyno also objected that portions of the Laird declaration relating to communications among the parties, the court, and the referee, and counsel's characterization of the proceedings constituted hearsay and were conclusions.   The court allowed Loeb to give testimony summarizing the Laird declaration.   Finally, the following exchange occurred:

“MR. GANS:  No further questions.   I don't know if Your Honor wants to get to the question of the objections at this point.

“THE COURT:  Okay. Make the objections.   I've received-make the objections in that regard, Peter Laird.   And what was the other?   I'm going to receive Mr. Loeb's declarations, subject to objections.   And that will be received.

“And any hearsay or any conclusions will be stricken.   I'm going to disregard that in his declaration.   The same, I can state that any conclusions or hearsay in the Laird declaration will be excluded.


“What I'm going to do, because of-the documents, I'm going to receive the documents.   And I'm going to strike any hearsay or conclusions, but I'll receive the rest and be governed by it.”  (Italics added.)

Further evidence and argument was then presented and the matter was submitted.   The court then announced its ruling from the bench, in part, as follows:

“THE COURT:  Let me give you my ruling.   The court finds the appointment of Judge Olson to act as production consultant conferred upon him the power to act as an arbitrator in this matter.

“The parties acknowledged a production consultant had been appointed by the parties for the purpose of resolving any and all disputes between the parties which may arise in connection with the agreement.   See exhibit 8, paragraph 29, of the motion to vacate the petition.   Also, see the Marriage of Assemi, A-s-s-e-m-i, 7 Cal. 4, [896].

“Further, the court finds respondent Dyno is estopped to deny that it was a party to the arbitration because it voluntarily participated in the arbitration proceedings.   See Lovret, L-o-v-r-e-t, vs.   Seyfarth, S-e-y-f-a-r-t-h, 22 Cal.App.3d. In that situation, we have all the-

“So I'm going to confirm the-it's really a hybrid arbitration.   Certain technicalities were not complied with.   But under an estoppel basis-although sections 1280, et seq., were not complied with, as defense counsel indicated-the court is going to find that it is sort of a hybrid arbitration, and sort of an estoppel position will prevail.

“I'll further find the arbitrator did not exceed its powers in binding Dyno. It found that Dyno-there was an assignment.   Dyno did participate in the purported arbitration.   That sort of gives rise to the estoppel.   And Stefano Ferrari was participating.   There was due process as to Dyno. The court finds the arbitrator did not exceed its powers, and I don't find any res judicata effect.

“Going to the declaration of Peter Laird, let's see.   There were a number of bulletins-I think 1 through 13-that were acted upon by the arbitrator.   It would be unconscionable to allow Dyno to escape liability after participating with the production consultant.

“That's my finding.


“One cannot accept the benefits, as Dyno did with Olson, in whole or in part, and then attack this arbitration.   The same would apply to challenging arbitration procedures in which one has benefited, and there's a benefit here.”

A minute order was entered with similar findings.   On September 19, 1996, a judgment was entered in favor of respondent and notice of entry of judgment was served on September 26, 1996.   Notice of appeal was timely filed on November 13, 1996.

Following appellate briefing, on February 25, 1998, Dyno filed a Motion to Strike Portions of Respondent's Brief, specifically those portions referencing facts supported by the Laird declaration filed by respondent in the trial court.   We ordered respondent to file written opposition to appellant's motion, and respondent complied with our order.


The parties list a total of 12 questions at issue on appeal.   The issues effectively boil down to whether the trial court erred in treating the referee proceeding as an arbitration, as compared to a reference, and if not, whether the award is binding against Dyno. Before addressing these issues, we must address two evidentiary issues:  (1) appellant's motion to strike portions of respondent's appellate brief relating to the Laird declaration;  and (2) objections to the use of information from the declarations of the referee.

 Motion to Strike Portions of the Respondent's Brief

 Dyno contends that the trial court upheld its objections to the declaration of Laird and that we should strike those portions of respondent's brief, specifically delineated in its motion, supported by reference to Laird's declaration.   In opposition, respondent contends that the trial court did not rule upon Dyno's objections and that Dyno's failure to obtain specific evidentiary rulings waived the issue for appeal, citing Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 123, 117 Cal.Rptr. 812, 528 P.2d 1148, Haskell v. Carli (1987) 195 Cal.App.3d 124, 129, 240 Cal.Rptr. 439, and Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 39 Cal.Rptr. 64.   We disagree with respondent's conclusion.

While it is true that the trial court did not rule specifically on each of the items for which objections were proffered, it did state that it would not consider any hearsay or conclusory statements contained within the declarations.   There is legal precedent for this type of ambiguous ruling:

“Plaintiffs filed voluminous evidentiary objections and a request that the court give written rulings on all objections.   Judge Pollak declined, however, explaining that while he found merit to some of the objections on both sides and would be disregarding all inadmissible or incompetent evidence in ruling, he saw little purpose in rendering formal rulings.   Plaintiffs contend that this was reversible error.   We disagree.

“Nothing in the statute or rules requires written or other formal ruling for the record, and the single case which plaintiffs cite for that proposition has no bearing on it.

“Plaintiffs urge that express rulings are needed for appellate review so that they, and we, can know what evidence was considered.   However, there is no use in such a procedure.   We review summary judgments de novo [citation], and the parties remain free to press their admissibility arguments on appeal, the same as they did in the trial court.   Also, being able to identify particular flaws in the lower court's reasoning has no value because, as appellants themselves note, summary judgment must be upheld if correct on any ground-regardless of wrong ‘reasons' which may have guided the courts.  [Citation.]   More generally, it is presumed on appeal that a judge has not relied on irrelevant or incompetent evidence.  [Citation.]   No error occurred.”  (Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419-1420, 267 Cal.Rptr. 819, fn. omitted.)

 We have some reservations about the holding in Biljac, but in any event the issue in that case was raised in the context of a motion for summary judgment, where generally the only determination which must be made is whether triable issues of fact exist.   Here, by contrast, the court was called upon to weigh the evidence and determine issues of credibility.   It did so and concluded that appellant should be estopped to challenge the ruling of the referee.   Our review of the issue of estoppel must rest on the substantial evidence standard.   Without a clean record, it is unclear what evidence the court considered.   As a result, the parties and the court of appeal are hampered in addressing the issue.   We conclude that where the trial court is presented with a situation where it must weigh evidence and determine credibility issues, the court must make specific evidentiary rulings on objections timely raised and place these rulings on the record.

Turning to the present situation, practically speaking, there is nothing more that Dyno could have done to obtain a ruling by the trial court.   The court advised that it would not consider hearsay or conclusory statements, and, because of the Biljac case, the court undoubtedly believed it had authority to justify its ambiguous ruling.   We perceive no advantage in returning the matter to the trial court at this time to afford it an opportunity to place its rulings in the record after the fact.

 We have reviewed the Laird declaration and the objections thereto, and it is clear that the portions of the declaration to which objections were proffered relate directly to evidence relevant to the issues on appeal:  the authority of the referee and whether or not Dyno took part in the underlying actions giving rise to an estoppel to challenge Issue Determination No. 12.

For example, contained within respondent's so-called statement of facts at pages 6-7, is the following relating to the authority of the referee:  “The language of paragraph 29 [of the Acting Agreement] was intended to expand upon Judge Olson's role and authority from that of being the person authorized ‘to implement the Settlement Agreement made by the parties', as recited in the Stipulation, to that of being the person who would be the one ‘resolving any and all dispute[s] between the parties which may arise in connection’ with the Acting Agreement.  (JA 347.)   Furthermore, because T. Rex Productions wanted to be able to obtain binding decisions on disputes that might arise during the filming of T. Rex without having to resort to lengthy procedural requirements, the Production Consultant was empowered by the parties to resolve all such disputes within forty-eight (48) hours.  (JA 347 and 480.)   The parties further empowered the Production Consultant to award costs and sanctions to a party if he ‘determines that any party is being unreasonably [sic ] with respect to any such disputes.’  (JA 480.)   This was yet another addition to Judge Olson's authority beyond that he had as a referee pursuant to the Stipulation.  (JA 347.)”   The reference to JA 480 is to the Acting Agreement, which we can read ourselves.   The characterization of the effect of the agreement and what the parties intended is conclusory.

Another example from page 7 is the following conclusion:  “The fact that Judge Olson's authority to resolve disputes under the Acting Agreement was intended to be separate and independent of his authority as a referee is further evidenced by the fact that pursuant to paragraph 4 of the Settlement Agreement, the parties agreed to dismiss the Consolidated Cases with prejudice upon execution of the Settlement Agreement, thereby terminating Judge Olson's authority as a referee.  (JA 347-348.)”   While the actual agreement referenced does state that the parties shall cause the legal proceedings to be dismissed, it does not state why, nor does it reference any additional authority to be granted to the referee;  these are conclusions of the declarant.

In addition, the Laird declaration references conversations among the parties, the referee, and the court to establish the truth of the matters asserted, for which respondent offers no exceptions to the hearsay rule.

Based upon our review of the record, we conclude that Dyno's motion to strike items 1 through 16, 18, 19, and 21 through 24 is well taken.   To the extent the purported statements of fact contained within those items are supported by reference to the Laird declaration, we will not consider the information.   Otherwise, the motion is denied.

 Admissibility of “Production Consultant's” Declarations

 Dyno contests the trial court's admission of the referee's original and supplemental declarations based on Evidence Code section 703.5.1  That section states:  “No person presiding at any judicial or quasi-judicial proceeding, and no arbitrator or mediator, shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings under paragraph (1) or (6) of subdivision (a) of Section 170.1 of the Code of Civil Procedure.[2 ]  However, this section does not apply to a mediator with regard to any mediation under Chapter 11 (commencing with Section 3160) of Part 2 of Division 8 of the Family Code.” (Italics added.)

Dyno argues that the referee's declarations do not fall within any of the exceptions to section 703.5 and therefore were inadmissible.   Respondent contends that by listing the referee as a possible witness at trial, Dyno “conceded that [the referee] was competent to testify at trial․”   In addition, respondent argues that the evidence was not admitted to explain the reasoning of the arbitrator, rather it “related to his role in the underlying action and the participation of Dyno in those proceedings.”   Neither party urges that the referee does not otherwise qualify as the type of hearing officer to which the section applies.

The issue of a judicial officer testifying in a subsequent civil proceeding was first addressed in Merritt v. Reserve Ins. Co. (1973) 34 Cal.App.3d 858, 110 Cal.Rptr. 511.   There, a judge who had presided over a settlement conference in a personal injury case was called to testify as an expert by the plaintiff in a subsequent insurance bad faith action arising from the personal injury action.   The Court of Appeal concluded that the trial court erred by allowing the judge to testify:

“We think it prejudicial to one party for a judge to testify as an expert witness on behalf of the other party with respect to matters that took place before him in his judicial capacity.   In such instance the judge appears to be throwing the weight of his position and authority behind one of two opposing litigants.   The Evidence Code absolutely prohibits the judge from presiding at the trial of an action to testify as a witness over the objection of a party.  (Evid.Code, § 703;  People v. Connors [ (1926) ] 77 Cal.App. 438, 453 [246 P. 1072].)  We think it only slightly less prejudicial when a judge expresses his opinion as a witness about events that occurred in an earlier trial over which he had presided.”  (Id. at p. 883, 110 Cal.Rptr. 511.)

Section 703.5 was enacted in 1979, effective January 1, 1980, to codify this concept as public policy.   In 1988, it was amended to include arbitrators within its scope.   While the section allows arbitrators to give evidence relating to their qualifications in response to a charge of bias, they cannot address “[t]he merits of the controversy, the manner in which evidence was weighed or the mental processes of the arbitrators in reaching their decision․”  (Betz v. Pankow (1993) 16 Cal.App.4th 919, 927, 20 Cal.Rptr.2d 834.)

A similar situation was addressed in Ng v. Superior Court (1997) 52 Cal.App.4th 1010, 61 Cal.Rptr.2d 49.   There, a writ was sought in the Court of Appeal challenging a trial court ruling.   The trial judge filed a return to the writ and a declaration explaining his reasoning to support the challenged order.   The Court of Appeal struck the return giving the following analysis:

“A judge's desire to explain and justify his or her decision to the appellate court is understandable.   Trial judges must bear the frustration of having appellants question their judgment and attack their learning in the law as well as the even greater frustration of reading inadequate briefs purporting to defend their decisions.   The duty of impartiality and neutrality seals their lips, dries the ink in their pens and denies them access to their word processors;  they may not set the record straight;  they may not come to the aid of the less than well-informed Court of Appeal.   This duty, and the silence it imposes, applies whether an issue is brought to the appellate court by way of appeal, petition for extraordinary writ, or otherwise.   Except under the unusual circumstances noted above, the requirement of neutrality prohibits judges from having a stake in the outcome of the appellate decision in ‘their’ cases.”  (Id. at p. 1020, 61 Cal.Rptr.2d 49.)

The court then addressed the declaration filed by the trial judge:

“The trial judge also submitted a declaration supporting his decision.   Petitioner moved to strike this declaration as well.   In the declaration, the judge, inter alia, describes his reasons for not reinstating prior counsel, including various matters not apparent from the record of the hearing.   The same considerations which compel us to strike his return to the petition, noted in the preceding section, also require us to strike this declaration.   The same prohibition on advocacy by a trial judge should preclude her or him from offering evidence in opposition to a petition for extraordinary writ not involving the procedures of the court.


“Finally, we are also mindful of the statutory prohibition which precludes judges from testifying.   With exceptions not applicable here, Evidence Code section 703.5 provides:  ‘No person presiding at any judicial ․ proceeding ․ shall be competent to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding, ․’ Although brought in the context of a criminal proceeding, this writ proceeding is a special proceeding of a civil nature [citations].   Therefore, we cannot consider the trial judge's declaration.   We grant petitioner's motion to strike the declaration and confine our review to the record made in the trial court.”  (Id. at p. 1021, 61 Cal.Rptr.2d 49.)

Compared to section 703, which allows a judge presiding at trial of an action to testify under limited circumstances, section 703.5 states that the judicial officer is not competent to testify, which suggests that a party cannot consent to introduction of such evidence.3  However, even under section 703, if a party objects to the judge testifying in the trial he or she is conducting, a mistrial must be granted.  (Section 703, subd. (b).)  Thus, we conclude that Dyno's act of listing the referee as a potential witness did not waive its objection to introduction of the evidence.

Here, the declarations of the referee were offered by respondent to support its position in connection with the two central issues at stake in this appeal:  the finding of the referee that Dyno had voluntarily inserted itself into the proceeding for purposes of estoppel;  and the authority of the referee to act on the issues presented.  Section 703.5 precludes evidence from the hearing officer of any “statement, conduct, decision, or ruling” from the underlying proceeding.   This language is sufficiently broad to encompass any statements or conduct upon which the referee based his understanding of his authority to act as well as statements and conduct evidencing Dyno's involvement in the underlying proceedings.4  Thus, we conclude the trial court erred in accepting and considering the declarations of the referee.

 Confirmation of Arbitration Award

 Appellant argues that there is a distinction between a private contractual arbitration and a private contractual reference and concludes that the trial court improperly confirmed Issue Determination No. 12, a “reference order,” as an “arbitration award.”   While technically there is a procedural difference between a contractual reference, authorized by Code of Civil Procedure section 638,5 and arbitration, which is addressed at sections 1280 et seq. of the Code of Civil Procedure, we believe that in this case it is a distinction without a difference.

Historically, in California, reference proceedings were considered a functional equivalent to arbitration proceedings at common law.  (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 16, 10 Cal.Rptr.2d 183, 832 P.2d 899.)

In Parker v. Twentieth Century-Fox Film Corp. (1981) 118 Cal.App.3d 895, 173 Cal.Rptr. 639, the court was confronted with an agreement which utilized an alternative dispute resolution clause which did not include the terms arbitration or arbitrator, yet the court concluded that the parties intended that the process be the equivalent of an arbitration.6

In In re Marriage of Assemi (1994) 7 Cal.4th 896, 907-908, 30 Cal.Rptr.2d 265, 872 P.2d 1190, the Supreme Court recognized that parties may contemplate the retention of a “hybrid” alternative dispute resolution decision-maker:  “[A]s reflected by the stipulation and order, the parties contemplated that [the retired judge] would serve in some hybrid capacity not clearly consistent with either the position of a temporary judge ․ or that of an arbitrator under the private arbitration statutes.”  (Id. at p. 909, 30 Cal.Rptr.2d 265, 872 P.2d 1190.)

The settlement documents in the instant case indicate that the parties intended for the referee to be the final arbiter of all disputes between the parties.

Paragraph 9.2 of the settlement agreement states:  “The parties have entered into a Stipulation for Appointment of Referee pursuant to Code of Civil Procedure §638 and Order of Court Appointing Referee.   Any proceedings to enforce any of the terms of this Settlement Agreement and the Acting Agreement will be conducted in accordance with the Stipulation for Appointment of Referee and Order of Court Appointing Referee.   The parties acknowledge and agree that the Production Consultant referred to in Paragraph 29 of the Acting Agreement is the Referee appointed by the Court pursuant to C.C.P. §638, as referred to in this Paragraph 9.2.”

Paragraph 29 of the “Acting Agreement” states:  “The parties acknowledge that a production consultant (‘Production Consultant’) has been appointed by the parties for the purpose of resolving any and all disputes between the parties which may arise in connection with this agreement.   In the event of any such dispute, either party may seek resolution of such dispute by the Production Consultant by serving written notice thereof to the other party and to the Production Consultant.”

The stipulation, upon which the order of reference was based, waived review of the “referee's findings, decision and orders” and authorized that “the orders of the referee may be presented by the referee to the Superior Court for entry as an order of the court.”

 We believe the titles used by the parties are inconsequential and, in substance, that the referee acted as an arbitrator, notwithstanding references to him as a “referee” or a “Production Consultant.”   Accordingly, we conclude that the trial court did not err when it utilized the arbitration statutes to effect the intent of the parties.7

 Evidence of Dyno's Participation

 Finally, Dyno argues that it should not be bound by the $800,000 arbitration award for respondent on the grounds that Dyno was not a party to any of the settlement agreements, was not a party to the proceedings, and received no formal notice of the proceedings.   We disagree.

 “ ‘Ordinarily a party cannot accept the benefits of a judgment, in whole or in part, and then attack it by appeal.’  [Citation.]   We think the same principle may be applied to one who would challenge arbitration procedures through which one has benefited.”  (Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 860, 101 Cal.Rptr. 143.)   Moreover, “one who voluntarily joins an arbitration becomes a party to it.  [Citations.]   One also may lose his right to a determination of whether he is a party to an arbitration by waiver or estoppel.  [Citation.]”  (Id. at p. 859, 101 Cal.Rptr. 143.)

Paragraph 9.5 of the settlement agreement provides as follows:  “This Settlement Agreement and Acting Agreement shall be binding upon and inure to the benefit of each of the parties, severally and not jointly, and each of their respective ․ successors, and assigns, severally and not jointly.”

 The declaration of Loeb describes attorney Behar as counsel for Dyno and establishes that at least some of the evidentiary proceedings before the referee involving Issue Determination No. 12 were held at Behar's offices.   In addition, he states, “Howard Behar stated in the presence of Judge Olson, myself, as well as William Sobel and Peter Laird who are also attorneys with our firm, that because of disputes that had arisen between Richard Abramson and Stefano Ferrari, (the executive producer and source of financing ‘T. Rex’ movie) an agreement had been made to assign all of T. Rex Productions, Inc.'s rights to the movie, including Whoopi Goldberg's agreement, to a company named Dyno Productions, Inc., that was to be formed and owned by Stefano Ferrari.”

During trial, Dyno's counsel unsuccessfully objected, on the basis of hearsay, to the above referenced statements attributed to Behar.   On appeal, citing section 1222, Dyno reasserts its objection to Loeb's statements attributed to Behar to establish Behar's authority to act on behalf of Dyno.

Section 1222 states:

“Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:

“(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement;  and

“(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence.”

Most of the evidence was presented by way of declarations and was before the court when objections were made to Loeb's evidence relating to Behar's statements.   In that regard, Loeb's declaration described and attached multiple documents and correspondence, and the record does not reflect any objection to these items.   Exhibit A consists of pages from the deposition of Richard Abramson which identify him as the president and 100 percent shareholder of TRPI. Exhibit B is a letter from Abramson to Laird about the Acting Agreement and it states:  “Howard Behar is handling all transactional matters and should be considered a replacement to Gregg Horner.   Don Zachary handles all litigation, including any hearings with Judge Olson, although, in most instances, Mr. Behar will be participation [sic ] in those as well.”   Exhibit C is Dyno's articles of incorporation which identify Howard Behar, Esq. as the “corporation's initial agent for service of process.”   We conclude that the foregoing evidence is sufficient independent corroborative evidence to establish Behar as agent for Dyno pursuant to subdivision (b) of section 1222.   Therefore, his statements may be accepted as admissions on behalf of Dyno. The trial court properly overruled the objections.

In addition to Behar's statements, additional documents attached to Loeb's declaration are sufficient to establish Dyno as the assignee of TRPI. These documents include:  an October 13, 1994 agreement between Dyno and TRPI, signed by Ferrari as President of Dyno and TRPI, indicating that Dyno was being delegated the movie production obligations;  an October 14, 1994 letter from Sue Baden-Powell on Dyno's stationery to Julie Silverman, one of Whoopi Goldberg's managers, discussing perquisites to be provided under the acting agreement;  a November 10, 1994 completion guaranty agreement for the T. Rex movie entered into between Film Finances, Inc., the completion guarantor, and Dyno;  a May 19, 1995 letter accompanied by a May 15, 1995 document indicating that Dyno was the insured for a monetary loss resulting from actress Goldberg's illness on November 17, 1994;  and multiple letters reflecting Dyno's involvement in the T. Rex project.

The November 10, 1994 completion guaranty agreement, entered prior to Issue Determination No. 12, contains the following clause referring to Dyno, TRPI and a third company, Talisma Gestao e Investimentos, Lda. collectively as “Producer”:  “Producer hereby represents and warrants as follows:  [¶] a. Producer hereby acknowledges that Guarantor has no obligation for the payment of any fees, including salary or other fees payable to Whoopi or Whoop, Inc. (collectively the ‘Goldberg Parties'), the same being the sole responsibility of Producer.   The Producer shall indemnify and hold Guarantor harmless from and against any liability, damage, costs, loss or expenses ․ arising out of any failure of the Goldberg Parties to be paid such sums as they are due in connection with the Film.” This agreement indicates that Dyno became obligated to pay respondent's fees and thus became obligated under the acting agreement prior to the date the referee issued his arbitration award.

The foregoing evidence supports the finding of the referee that Dyno was formed for the purpose of and took over production of the movie, and actively took part in the proceedings.   The trial court did not err in confirming the award against appellant.


The judgment is affirmed.   Costs on appeal are awarded to respondent.


1.   All further statutory references are to the Evidence Code unless otherwise noted.

2.   Paragraphs (1) and (6) of Code of Civil Procedure section 170.1, subdivision (a) require a judge's disqualification if “(1) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding” or if “(6) For any reason (A) the judge believes his or her recusal would further the interests of justice, (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”

3.   Section 703 states:  “(a) Before the judge presiding at the trial of an action may be called to testify in that trial as a witness, he shall, in proceedings held out of the presence and hearing of the jury, inform the parties of the information he has concerning any fact or matter about which he will be called to testify. [¶] (b) Against the objection of a party, the judge presiding at the trial of an action may not testify in that trial as a witness.   Upon such objection, the judge shall declare a mistrial and order the action assigned for trial before another judge. [¶] (c) The calling of the judge presiding at a trial to testify in that trial as a witness shall be deemed a consent to the granting of a motion for mistrial, and an objection to such calling of a judge shall be deemed a motion for mistrial. [¶] (d) In the absence of objection by a party, the judge presiding at the trial of an action may testify in that trial as a witness.”

4.   The case of Coblerv.Stanley, Barber, Southard, Brown & Associates (1990) 217 Cal.App.3d 518, 265 Cal.Rptr. 868 (questioned on another point in Hallv.Superior Court (1993) 18 Cal.App.4th 427, 434-435, 22 Cal.Rptr.2d 376), relied upon by respondent, allows the court to consider a declaration from an arbitrator when the arbitrator is challenged for bias, which is not the situation presented here.

5.   Code of Civil Procedure section 638 concerns contractual, as opposed to court-ordered, references.   It states:  “A reference may be ordered upon the agreement of the parties filed with the clerk, or judge, or entered in the minutes or in the docket, or upon the motion of a party to a written contract or lease which provides that any controversy arising therefrom shall be heard by a reference if the court finds a reference agreement exists between the parties:  [¶] 1. To try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision thereon;  [¶] 2. To ascertain a fact necessary to enable the court to determine an action or proceeding.”

6.   The clause reads:  “ ‘In case any controversy shall arise ․ with respect to the receipts and proceeds from the distribution of the [subject television] series or the expenses pertaining thereto, the questions in controversy shall be submitted for determination to certified public accountants in the City of Los Angeles ․ and if the parties cannot agree upon such accountants, then such Los Angeles firm of certified public accountants as shall be designated by the American Arbitration Association․’ ”  (Parkerv.Twentieth Century-Fox Film Corp., supra, 118 Cal.App.3d at p. 903, 173 Cal.Rptr. 639.)

7.   The settlement agreement also provides that TRPI and respondent agree to dismiss their actions against each other upon execution of the settlement agreement.   We conclude from this that the dismissal of the original actions had no res judicata effect upon the later filing of the petition to arbitrate.

HASTINGS, Associate Justice.

CHARLES S. VOGEL, P.J., and EPSTEIN, J., concur.

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