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Court of Appeal, First District, Division 3, California.

Jan HALL et al., Petitioners, v. The SUPERIOR COURT of Contra Costa County, Respondent; Steven A. TROMPAS, Real Party in Interest.

No. A059468.

Decided: June 17, 1993

Daniel R. Martinez, West Sacramento, for petitioners. No appearance for respondent. Jeff Gorelick, Gorelick & Gorelick, Alamo, for real party in interest.

In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10 Cal.Rptr.2d 183, 832 P.2d 899, the California Supreme Court stated in no uncertain terms that, with limited exceptions, an arbitrator's decision is not reviewable for errors of fact or law.   Purporting to apply two statutory exceptions, the superior court here has vacated an award because (1) the arbitrator relied upon partnership principles, when the original complaint alleged agency, but not a partnership, and (2) the arbitrator denied a request to reopen to present additional evidence.   We conclude that the superior court has misapplied the arbitration statutes.   We direct issuance of a writ of mandate.

Practical difficulties arise when superior courts or appellate courts review arbitral proceedings, which are not designed for full judicial review.   Instead of a transcript of the arbitration, the parties presented to the superior court and have lodged with us declarations describing the arbitral events.   These declarations do not fully explain the arbitration proceedings.   Although the opposing parties do not disagree about what happened during arbitration, real party in interest has provided only a sketchy description.   Petitioners fill in many details about the arbitration and the events leading up to it, details important in evaluating the arbitration and the superior court order.

From the declarations and from other exhibits we learn the following.   On August 26, 1991, petitioners Jan and Martha Hall filed a complaint against Tom Proell, the real estate brokerage of Burgess Colon Robinson & Co., Inc. (BCRC), and real party in interest Steven A. Trompas, also known as Aly Trompas.   The complaint sought damages because the defendants, listing brokers and agents for the Halls' property, withheld information about financial problems of the buyers, who defaulted after purchasing the Halls' residence.   Although the complaint did not directly allege a partnership between Trompas and Proell, it alleged that each acted as an agent for the other.

All three defendants, represented by the same law office, filed an answer in which they denied the allegations and invoked the arbitration clause in the listing agreement.   During the discovery phase of the case, the Halls' attorney spoke with Trompas's attorney.   The Halls' attorney explained the Halls' theory that Trompas was vicariously liable for Proell's omissions because Trompas, a neighbor of the Halls and a commercial property agent with BCRC, procured the listing and shared the sales commission with Proell, the listing agent in the BCRC office.   Before the arbitration began, the Halls' attorney explained personally to Trompas, who had substituted himself in propria persona, that the Halls considered him a co-agent and partner of Proell and therefore responsible for Proell's conduct.   Trompas's declaration did not deny that this conversation took place, but did state that he understood from the pleadings that the issue, as far as he was concerned, was whether he engaged in any wrongful conduct that injured the Halls.

During a status conference, the parties agreed that all issues would be decided by binding arbitration.   Pursuant to stipulation by all parties, the matter was sent to binding arbitration before Stuart Safine.1

On the first day of the arbitration hearing, at which Trompas appeared in propria persona, Safine advised Trompas that one issue was whether Trompas was a fiduciary of the Halls and was a co-agent and partner of Proell for this transaction because of his involvement and because of evidence he and Proell split the commission.   Safine explained that Trompas might be vicariously liable for Proell's conduct by virtue of an agency or partnership relationship.   At the conclusion of that day's hearing, Safine urged Trompas to hire counsel for the second day of the hearing.

When the participants reconvened, Trompas appeared without an attorney.   During the hearing, the Halls testified about Trompas's involvement in the marketing of their home.   They had known Trompas a long time before hiring him as their agent, and he was the one who solicited them for the listing.   He mailed them a listing agreement, which they signed and returned.   Both Trompas and Proell held open houses and showed the property to prospective purchasers.   After the offer came in, Trompas monitored the transaction and was involved in related telephone conversations with the various parties.   At the end of the day the matter was submitted.

After the case was closed, Safine granted Trompas's request to have an attorney file a closing brief on his behalf.   Trompas retained an attorney, who requested an extension of time to file the brief and asked Safine to reopen the hearing to present evidence on the partnership issue.   Safine denied the request to reopen, but granted the extension of time.

After briefing and argument, Safine rendered an award in the Halls' favor against Trompas and Proell.  (Proell then filed for bankruptcy.   BCRC filed for bankruptcy before the award, and the matter was stayed against it.)   The arbitrator's written award identified several acts of misconduct by Proell and assessed $139,488.87 in damages.   It rejected Trompas's contention that he was neither an agent nor partner of Proell, finding as a matter of law that his participation in marketing the home and his sharing the commission with Proell made him a partner who must share the liabilities.

The Halls sought to confirm the award, and Trompas sought to vacate it.   After hearing, the court confirmed the award as to Proell and vacated it as to Trompas, finding that the arbitrator exceeded his jurisdiction by attempting to determine the partnership issue, which was not raised by the pleadings.   The court found that this excess of jurisdiction was compounded by the arbitrator's refusal to reopen the arbitration to permit presentation of evidence against the partnership theory.   This petition followed.

Arbitration Generally

“In cases involving private arbitration, ‘[t]he scope of arbitration is ․ a matter of agreement between the parties' [citation], and ‘ “[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.” ’  [Citations.]  [¶] Title 9 of the Code of Civil Procedure, as enacted and periodically amended by the Legislature, represents a comprehensive statutory scheme regulating private arbitration in this state.  ( [Code Civ.Proc.] § 1280 et seq.)   Through this detailed statutory scheme, the Legislature has expressed a ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’  [Citations.]   Consequently, courts will ‘ “indulge every intendment to give effect to such proceedings.” ’  [Citations.]   Indeed, more than 70 years ago [the California Supreme Court] explained:  ‘The policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement is to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing.’  [Citation.]  ‘Typically, those who enter into arbitration agreements expect that their dispute will be resolved without necessity for any contact with the courts.’  [Citation.]”  (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 8–9, 10 Cal.Rptr.2d 183, 832 P.2d 899.)

 Where, as here, contact with the court does take place, the court's role is strictly limited by Code of Civil Procedure section 1286 et seq.2  On a petition to confirm, correct, or vacate an arbitrator's award, the court has the option of (1) confirming the award as made, (2) correcting the award and confirming it as corrected, (3) vacating the award, or (4) dismissing the proceeding.  (§ 1286.)   The court may vacate the award on any of five grounds, stated in section 1286.2:  “(a) The award was procured by corruption, fraud or other undue means;  [¶] (b) There was corruption in any of the arbitrators;  [¶] (c) The rights of such party were substantially prejudiced by misconduct of a neutral arbitrator;  [¶] (d) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted;  or [¶] (e) The rights of such 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.”

In reviewing the pertinent authorities, Moncharsh found “no shortage of proclamations” of an additional ground for vacating an arbitrator's decision:  “when (i) an error of law appears on the face of the decision, and (ii) the error causes substantial injustice.  [Citation.]”  (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 13, 10 Cal.Rptr.2d 183, 832 P.2d 899.)   Moncharsh also found authorities holding error need only appear on the face of the award, with no mention of resulting injustice.  (Id., at pp. 13–14, 10 Cal.Rptr.2d 183, 832 P.2d 899.)  Moncharsh examined the genesis and development of the additional ground and disapproved the decisions embracing it (id., at pp. 14–28, 10 Cal.Rptr.2d 183, 832 P.2d 899), finding they had “perpetuated a point of view that is inconsistent with the modern view of private arbitration․”  (Id., at p. 28, 10 Cal.Rptr.2d 183, 832 P.2d 899.)

Grounds for Vacating This Award

In this case, the superior court cited subdivision (d) of section 1286.2 as its primary ground for vacating the award in favor of the Halls, explaining:  “The law is now clear under Moncharsh v. Heily & Blase that a mere error in law appearing on the face of the arbitrator's award does not defeat the award.   However, it is also clear that an award must be based on issues raised by the pleadings.  Cobler v. Stanley Barber, et al. 217 Cal.App.3d 518 [265 Cal.Rptr. 868]  In that case, it was held that where the arbitrator acted in excess of his jurisdiction, by attempting to determine matters not submitted, the award should be set aside.   Further, the case held that a[n] arbitrator may not create and decide a new cause of action.  [¶] I have reviewed the complaint and take judicial notice thereof.   The complaint does not state a cause of action based on partnership between Trompas and Proell.   Further, in the award the arbitrator delineated the issues.   The arbitrator stated, as far as Trompas, is concerned, ‘The issue is strictly one of a partnership as a matter of law between Trompas and Proell.’   Further, the award states on page 6, ‘It is of no moment or consequence that plaintiffs failed to use the word partnership [in the complaint!] in an attempt to hold Trompas liable.’ ”

The court added that “[t]he excess of jurisdiction is further compounded by the attempt of Trompas to reopen the arbitration to be allowed to present evidence against the partnership which was disallowed in apparent violation of CCP 1286.2(e).  [Citation.]”

Cobler v. Stanley, Barber, Southard, Brown & Associates

In Cobler v. Stanley, Barber, Southard, Brown & Associates (1990) 217 Cal.App.3d 518, 265 Cal.Rptr. 868, (hereafter Cobler), the defendant, a career consulting agency, invoked an arbitration clause to recover the balance due under a contract.   Client Ed Cobler, who was dissatisfied with the agency's performance under the contract, filed a counterdemand.   The counterdemand stated the nature of the dispute as breach of contract and was amended by letter to add a claim for punitive damages on unspecified grounds.   The arbitrator made an award which included $7,500 for emotional distress, and the superior court confirmed the award.

On appeal, the Cobler court struck the emotional distress damages because the arbitrator lacked jurisdiction to award them.   The court first considered the scope of the arbitration clause, which was limited to disputes “ ‘arising from’ ” the agreement.  (Cobler, supra, 217 Cal.App.3d at p. 530, 265 Cal.Rptr. 868.)   It then noted that the demand and cross-demand for arbitration originally raised only contract issues and that even the added demand for punitive damages did not identify an alleged tort.   The arbitration briefs and oral argument first raised and purported to submit Cobler's theories of fraud and emotional distress, but the arbitrator expressly made no decision on the fraud issues.  (Id., at p. 531, 265 Cal.Rptr. 868.)

The Cobler court concluded that the arbitrator treated the matter as one of professional negligence although there was no authority extending malpractice doctrines to a professional career consulting agency.   Because emotional distress damages generally do not arise from breach of contract, and the arbitrator did not decide the only tort issue submitted (fraud), the Cobler court found no jurisdiction to award emotional distress damages.  (Cobler, supra, 217 Cal.App.3d at pp. 531–532, 265 Cal.Rptr. 868.)   Relying on a questionable pre-Moncharsh statement of law, the court concluded:  “Where an arbitrator has made an error of law, the courts will not intervene unless the error is based on a completely irrational construction of the contractual provisions in dispute.  (Ray Wilson Co. v. Anaheim Memorial Hospital Assn. [1985] 166 Cal.App.3d 1081, 1091 [213 Cal.Rptr. 62].)  In light of the limited scope of the arbitration agreement at issue here, the arbitrator had the duty to keep these proceedings confined to the contract issues pled despite the excursions of the parties outside them, since no effective amendments to bring legally cognizable negligence issues before the arbitrator were made.”   (Cobler, supra, 217 Cal.App.3d at p. 532, 265 Cal.Rptr. 868.)

The Halls contend the superior court's reliance on Cobler was erroneous for several reasons.   We agree.  Cobler was decided before Moncharsh and relied heavily on Ray Wilson Co. v. Anaheim Memorial Hospital Assn. (1985) 166 Cal.App.3d 1081, 213 Cal.Rptr. 62, a decision disapproved by Moncharsh.  (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 27–28, 10 Cal.Rptr.2d 183, 832 P.2d 899.)   Consequently, Cobler devoted attention to the legal question of whether professional negligence principles could be used to support an award against a career consulting business.   Arguably, Cobler was treading in a region closed off by Moncharsh.

Even if Cobler is not inconsistent with Moncharsh, it is distinguishable here because the arbitration clause in Cobler covered only disputes “ ‘arising from’ ” the agreement (Cobler, supra, 217 Cal.App.3d at p. 530, 265 Cal.Rptr. 868), whereas the arbitration clause here governs “[a]ny dispute or claim in law or equity arising out of this contract or any resulting transaction․”

More significantly, Cobler did not address the central question here:  whether the Halls' civil complaint, not the arbitration clause or submission by the parties, defines the scope of arbitration.   Indeed, in Cobler there was no civil complaint, and the Cobler court turned first to the arbitration clause and then to the demand and cross-demand for arbitration to determine the scope of the arbitration.  (Cobler, supra, 217 Cal.App.3d at pp. 523, 530–531, 265 Cal.Rptr. 868.)

The Role of the Halls' Civil Complaint

 In the proceedings in superior court, Trompas cited Delta Lines, Inc. v. International Brotherhood of Teamsters (1977) 66 Cal.App.3d 960, 966, 136 Cal.Rptr. 345, for the proposition that because “ ‘partnership’ ” was not pled in the complaint, and Trompas was not a signatory to the arbitration clause in the listing agreement, the issue was beyond the scope of the arbitration.   Neither Delta nor any other decision we have examined supports the view that the scope of private arbitration is limited by a civil complaint filed before invocation of the arbitration requirement.   In fact, Delta stated the universally accepted rule that “[a]n arbitrator ․ derives his power solely from the arbitration agreement and he cannot exceed his derived powers.”  (Ibid.)

If the Halls, who joined the defendants in submitting the matter to arbitration, had realized and accepted at the outset that their dispute was governed by the arbitration clause in the listing agreement, they might never have filed a civil complaint.   The complaint may have been merely a procedural misstep in the process of resolving the dispute.   Unless the parties stipulated to arbitrate only the issues raised in the complaint, the complaint should have played no role in the arbitration.

Trompas reminds us that he did not sign the arbitration agreement, suggesting that the complaint, not the arbitration clause, should govern his arbitration.   However, as an agent of BCRC, he was entitled to the benefits of the arbitration clause.  (Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418, 220 Cal.Rptr. 807, 709 P.2d 826;  Keller Construction Co. v. Kashani (1990) 220 Cal.App.3d 222, 227, 269 Cal.Rptr. 259;  Thomas v. Perry (1988) 200 Cal.App.3d 510, 516, 246 Cal.Rptr. 156.)   He sought its benefits when he invoked the arbitration clause in his answer.   In court he then stipulated to arbitrate the controversy.   He cannot renounce the arbitration clause here because he now finds it burdensome.

From the record before us, we cannot determine with precision whether the parties stipulated to arbitrate (1) all issues arising out of the listing agreement “or any resulting transaction,” as stated in the agreement, or (2) only the issues stated in the complaint.   The only evidence presented below about the stipulation was the declaration by the Halls' attorney, which stated, somewhat ambiguously, that they stipulated to arbitrate “all issues.”  Reading the declaration most favorably to the superior court's order, and taking into account (1) that the demand for arbitration came in response to the Halls' complaint, and (2) that the same superior court judge both sent the case to arbitration and vacated the arbitration award, we accept the possibility that “all issues” may actually mean all issues raised by the complaint.

We conclude nevertheless that the superior court overstepped its authority when it vacated the award.   The arbitrator properly concluded that partnership was among the issues raised by the complaint.   The court both usurped the arbitrator's primary role in interpreting the complaint and overrode the arbitrator's interpretation in the face of uncontradicted evidence Trompas waived any objection to the arbitrator's interpretation during the hearing.

As explained in Felner v. Meritplan Ins. Co. (1970) 6 Cal.App.3d 540, 543–544, 86 Cal.Rptr. 178, “ ‘[i]t is for the arbitrators to determine which issues were actually “necessary” to the ultimate decision.  [Citation.]   Likewise, any doubts as to the meaning or extent of an arbitration agreement are for the arbitrators and not for the court to resolve.  [Citation.]’  [Citations.]   Since the issue ․ was properly before the arbitrator for decision, the only questions for the superior court to consider in confirming or vacating the arbitration award were whether there had been corruption or misconduct by the arbitrator and whether the arbitrator had improperly conducted the hearing or exceeded his powers in making his award.  [Citation.]”

There was no corruption, misconduct, or other impropriety here.   The arbitrator simply reached the reasonable conclusion that partnership was among the issues submitted by the parties, as he was entitled to do.   The arbitrator could have reached that conclusion by reading the agency allegations of the complaint broadly to include partnership, or he could have determined that by submitting all issues in the complaint, which incorporated the listing agreement, the parties agreed to submit all issues between them, whether or not specifically raised in the complaint.

Felner also instructs on the issue of waiver, a doctrine applicable to the facts here:  “Even if the [stipulation] should be construed as one which did not authorize arbitration of the issue ․, once [Trompas] submitted the dispute to the arbitrator for decision, [he] waived any defect in the arbitrator's authority to decide this issue․  [Citations.]   A party cannot gamble on a favorable outcome of a submitted issue and, having lost the gamble, then attack the validity of his submission․  [Citations.]”   (Felner v. Meritplan Ins. Co., supra, 6 Cal.App.3d at p. 544, 86 Cal.Rptr. 178.)

 Both the Halls' attorney and the arbitrator advised Trompas that he might be held responsible for Proell's conduct.   In this court Trompas seeks special consideration because he was proceeding in propria persona during the arbitration.   However, the arbitrator urged him to retain counsel before the second day of the hearing.   Instead, Trompas completed the hearing before he retained counsel.   The arbitrator was not required to give Trompas special consideration after Trompas failed to heed the arbitrator's warning.   Neither must we do so in our review of the proceedings below.

Trompas's counsel's telephone and letter requests to reopen did not accuse the arbitrator of exceeding the scope of the submission;  they only advised him that Trompas had not “understood” partnership to be an issue until the arbitrator mentioned it during the hearing.   In his closing arbitration brief, after the arbitrator denied the request to reopen, Trompas objected for the first time to the arbitrator's interpretation of the scope of the submission.   We conclude that the arbitrator did not exceed his powers within the meaning of section 1286.2, subdivision (e), and that Trompas waived his objection to the arbitrator's interpretation of the scope of the submission.   The superior court erred in ruling otherwise.

Denial of the Request to Reopen

The superior court mentioned, as a secondary reason for vacating the award, the arbitrator's refusal to reopen the arbitration, and found that the refusal “compounded” the excess of jurisdiction.   Although we have found no excess of jurisdiction, we now consider whether the arbitrator's refusal to reopen was itself a sufficient basis for vacating the award.

Section 1286.2, subdivision (e), states that the court shall vacate the award if it determines that “[t]he rights of such 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.”  (Emphasis added.)

Trompas contends he was substantially prejudiced by the arbitrator's refusal to reopen to permit him to present evidence showing that, under custom and practice in the real estate industry, an oral agreement between brokers to share fees does not create a partnership.   He asserts he was “taken entirely off-guard” by the arbitrator's suggestion during the hearing that his agreement to share fees might make him liable for Proell's wrongdoing.   He argues that the arbitrator abused his discretion in not permitting a reopening of evidence to refute a new theory added to the case.

Initially, we note that the only evidence presented by declaration to the superior court contradicts Trompas's assertions to this court.   It shows the Halls' counsel advised both Trompas and his former attorney before the arbitration began that the Halls considered Trompas and Proell partners and sought to hold Trompas liable for Proell's conduct.   Trompas's declaration below stated that he “understood from the pleadings that the issues of the case, as far as [he] was concerned, related to whether [he] engaged in any wrongful conduct which injured the plaintiffs” and that he did not understand “ ‘partnership’ ” to be an issue in the case.   He did not deny, however, that the Halls' attorney advised both him and his former attorney otherwise.

Even if Trompas could be excused for not proffering the partnership evidence earlier, the arbitrator's decision would be sustained if the evidence was not material or if Trompas was not substantially prejudiced by the arbitrator's failure to hear it.   To evaluate properly the issues of materiality and prejudice, we must abate the inherent tension between subdivision (e) of section 1286.2 and the principles explained in Moncharsh.

Under Moncharsh, a court may not review an arbitrator's award for errors of law.   Does subdivision (e) of section 1286.2 permit a court to second-guess an arbitrator's legal theory when materiality hinges in part on the arbitrator's view of the law?   That is, when an arbitrator excludes evidence he or she finds not material, may a reviewing superior court examine the arbitrator's theory of the case through the back door of analyzing the materiality of evidence the arbitrator refused?   Or does subdivision (e) of section 1286.2 limit a court to vacating an award only when excluded evidence is material under the arbitrator's view of substantive law?   As we will explain, we conclude neither approach is appropriate.

The issue is focused here because the arbitrator may have accepted the Halls' position that, even if, from the brokers' standpoint, no partnership was created by a splitting of fees, from the Halls' standpoint there was a partnership.   After denying the request to reopen, the arbitrator rendered an award stating that “[t]he issue is strictly one of a partnership as a matter of law between Trompas and Proell․   A partnership is defined in California Corporation[s] Code section 15006.   See also [Corp.Code, §] 15007 [subd.] (4);  48 Cal.Jur.3d [§ 152, p.] 673․   It is of no moment or consequence that plaintiffs failed to use the word partnership in an attempt to hold defendant Trompas liable.   The partnership arises as a matter of law regardless of what is pled in the pleadings, and evidence thereof was produced at trial.   Defendant Trompas shared in the profits, and must therefore share in the liabilities.”   If this theory is correct, evidence about a custom in the real estate industry was not material to the dispute.

 We do not accept the suggestion, implied by Trompas's discussion of partnership law in the superior court and in this court, that subdivision (e) of section 1286.2 creates a back door to Moncharsh through which parties may routinely test the validity of legal theories adopted by arbitrators.   Nor should a court go to the other extreme and always permit an arbitrator to reject evidence on the grounds of materiality when a party's theory of the case differs from the arbitrator's.   Instead, we take the middle ground and interpret subdivision (e) of section 1286.2 as a safety valve in private arbitration which permits a court to intercede when an arbitrator has prevented a party from fairly presenting to the arbitrator its side of the story.

This case illustrates the problem with an expansive reading of section 1286.2, subdivision (e).   In the typical arbitration, an arbitrator will be asked many times to decide about admission of evidence and may sometimes refuse to hear material evidence.   No doubt an aggrieved party will often believe he or she has been “substantially prejudiced.”   Decisions about materiality and prejudice cannot be made without familiarity with the issues and evidence in the arbitration.   If the superior court must, with or without a transcript of the arbitration, routinely review the arbitrator's decision on materiality, the legislative goal of arbitral finality will be unattainable.   Instead of saving time and money, the arbitration will be supplemented by lengthy and costly judicial second-guessing of the arbitrator.

The final 44 words of section 1286.2, subdivision (e), read alone, might suggest broad superior court authority to examine whether a party has been 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.”   However, this broad authority is severely curtailed by the two preceding words, which state the crucial requirement that a party's rights must be “substantially prejudiced.”

Consistent with the Legislature's intent to foster arbitral finality, we conclude the superior court's main focus must be upon whether a party has been substantially prejudiced, not upon whether the arbitrator may have erroneously denied a postponement or rejected evidence or may have otherwise violated the arbitration act.   The superior court must first be convinced that substantial prejudice occurred before even considering whether the arbitrator may have erred in its ruling.   Where, as here, a party complains of excluded evidence, the court must be convinced that the arbitrator might well have made a different award had the evidence been allowed.

 Read in the light shed by Moncharsh, subdivision (e) of section 1286.2 does not cover the arbitrator's actions here.   Trompas failed to show substantial prejudice.   The arbitrator received an offer of proof, determined that even if presented the evidence would not persuade him against the Halls, and denied Trompas the opportunity to replace his offer of proof with actual testimony.   The arbitrator did not prevent Trompas from fairly presenting his defense.   Instead, the arbitrator concluded that Trompas's defense, even with the proffered evidence, lacked merit.   The superior court erred in applying subdivision (e) of section 1286.2 to vacate the arbitrator's award.

Let a peremptory writ of mandate issue, directing the Contra Costa County Superior Court to set aside its order vacating the arbitration award and to enter a new order confirming the award.


1.   Trompas admits that, although he did not sign the listing agreement, he consented to arbitration.   He notes that he objected to selection of Stuart Safine as arbitrator and that his objections were overridden by counsel, but he does not explain the significance of that fact.   Trompas also asserts that the court “ordered the matter to binding arbitration,” that this was “binding judicial arbitration,” and that the arbitration was “extra-contractual.”   Elsewhere, Trompas calls it “ ‘hybrid’ ” arbitration as described in Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 401–402 & fn. 5, 212 Cal.Rptr. 151, 696 P.2d 645.Trompas misreads Blanton.   Because the arbitration here stemmed from contract, it was neither “judicial arbitration” nor a “ ‘hybrid.’ ”   It was private arbitration, by its terms binding and governed by the general arbitration statute (Code Civ.Proc., § 1280 et seq.).   We reject Trompas's suggestion that the superior court had a greater measure of control over this arbitration than it would any other private arbitration.

2.   All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

CHIN, Associate Justice.

MERRILL, Acting P.J., and WERDEGAR, J., concur.