Opinion
B161297.
7-3-2003
BANK OF AMERICA, N.A., Plaintiff and Respondent, v. MICHAEL JAIDAR, Defendant and Appellant.
Law Offices of Cassity & Sommers and C. Fred Cassity for Defendant and Appellant. Barton, Klugman & Oetting and Charles J. Schufreider for Plaintiff and Respondent.
Michael Jaidar (Jaidar), as trustee of a Marital and Tax-Free Trust (the Trust), appeals from a judgment confirming an arbitration award in favor of respondent Bank of America, N.A. (BofA). The arbitration award set the amount of monthly rent due by BofA to Jaidar pursuant to the terms of a lease, which is part of the Trust. Jaidar contends that the arbitration award was rendered in error because (1) he was named individually, as opposed to
his capacity as trustee; (2) the rules of the American Arbitration Association (AAA) were not followed; and (3) as a nonattorney, he was not permitted to represent the Trust in either the trial court or arbitration proceedings.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On March 1, 1970, BofA entered into a lease agreement (the Lease) with Jaidars parents, Nicolas (now deceased) and Mountaha S. Jaidar (who suffers from Alzheimers disease and lives in a full time care facility). Jaidar is the successor in interest to his parents interest in the real property in his capacity as the sole trustee of the Trust, which currently holds the interest in the Lease.
The Lease had an initial term of 50 years. Under the terms of the Lease, the fair market rental value of the property is redetermined on each 10th anniversary of the Lease. "Six (6) months prior to the end of the first ten-year period of the term of this Lease, and six (6) months prior to the end of each ten-year period thereafter, the parties shall endeavor to agree upon the adjusted rent. In no event shall the adjusted rent be less than the rent payable pursuant to Section 2.1 hereof."
Section 2.1 of the Lease indicates that monthly lease payment was $ 1,100 for the first 10 years of the lease term.
The Lease also provides a procedure if the parties cannot agree upon an adjusted rent. "If Lessor and Lessee are not able to determine the fair market rental value within the first sixty (60) days of the six-month period, either party shall be entitled to submit the question of fair market rental value to arbitration." Each party shall designate an arbitrator to act on its behalf and then, "if the . . . two arbitrators shall not agree upon the decision to be made in such dispute," they shall appoint a third arbitrator to resolve the issues. "Except as otherwise provided in this Lease, the said arbitration shall be conducted in accordance with the rules then in effect of the American Arbitration Association."
March 1, 2000, was a 10th anniversary date at which time rent was to be adjusted. Accordingly, commencing in approximately November 1999, BofA negotiated with Jaidar, and sometimes with his attorney, in an attempt to establish the fair market value of the property. After a year of protracted negotiations, it became clear that the parties would be unable to agree upon a fair market value. Consequently, on March 15, 2001, BofA sent Jaidars counsel a letter demanding arbitration pursuant to the terms of the Lease and designating Harry Holzhauer (Holzhauer) as its arbitrator.
Jaidar responded on March 27, 2001. Apparently confused by the provision in the Lease providing for the appointment of arbitrators, Jaidar indicated that Holzhauer was "unacceptable" to him and proposed "Justice Richard Amerian (ret.) or another retired member of the bench."
In a letter dated April 13, 2001, BofA attempted to clear up Jaidars misinterpretation of BofAs designation of Holzhauer as an arbitrator. BofA pointed out that Holzhauer was not designated as the "single independent neutral to resolve this dispute"; rather, he was BofAs "designated arbitrator under the terms of the Lease." Nevertheless, recognizing "the cost effectiveness of proceeding with a single neutral arbitrator" instead of a panel of three arbitrators, BofA agreed to arbitrating the dispute before a neutral arbitrator. Moreover, given that the sole issue to be resolved was the fair market value of the property, BofA requested that the parties "use a real estate professional," not a retired jurist, to reduce costs and "facilitate the evidentiary presentation."
Jaidar did not respond or object to BofAs acceptance of his implicit suggestion that the parties utilize the services of one arbitrator, as opposed to three arbitrators.
One week later, BofA proposed John G. Ellis (Ellis) as the neutral arbitrator. However, Jaidar failed to respond, prompting BofA to send Jaidar another letter inquiring whether Ellis was acceptable. "If not . . . [BofA] will simply proceed to file a petition with the Superior Court to have an arbitrator appointed."
Again, Jaidar failed to respond. Apparently, on June 5, 2001, Jaidars then-attorney advised BofA that he no longer represented Jaidar and that BofA should deal directly with Jaidar regarding this matter.
Having reached no agreement with Jaidar, on June 19, 2001, BofA filed a petition to compel arbitration and for appointment of neutral arbitrator (petition). In the first paragraph of the petition, Jaidars parents were identified as the predecessors in interest of Jaidar with respect to the Lease. The second paragraph continues that Jaidar "is the successor-in-interest to all of the interest of [his parents] under the Lease."
Thereafter, on July 5, 2001, BofA filed a notice of motion and motion to compel arbitration and for appointment of arbitrator (the motion). BofA proposed five nominees for the trial court to consider as the neutral arbitrator. Jaidar did not respond to, or otherwise oppose, the motion. Instead, at the hearing, he, as trustee, submitted a list of four potential arbitrators. Ultimately, the trial court appointed the Honorable Gabriel A. Gutierrez, judge (retired), one of the nominees proposed by Jaidar.
The arbitration was held on September 27, 2001. After considering evidence presented by the parties, Judge Gutierrez "requested that he be allowed to retain the services of an independent appraiser to prepare and provide him with an independent appraisal concerning the fair market rental value of the subject property as of March 1, 2000." The parties agreed to his request, and agreed to share the costs of that independent appraisal. Accordingly, Judge Gutierrez engaged Mason & Mason to provide the independent appraisal, which was completed in February 2002. The parties were thereafter provided with copies of the independent appraisal, and on February 27, 2002, participated in a conference call with Judge Gutierrez to comment on said appraisal. On March 5, 2002, the arbitrator rendered his award, finding that the fair market rental value as of March 1, 2000, was $ 6,375 per month.
On April 23, 2002, BofA filed its petition to confirm arbitration award and notice of motion to confirm arbitration award. Jaidar, now represented by counsel, opposed the motion. He argued that the arbitration award should be vacated because BofA obtained a court order for arbitration against the wrong party, namely Jaidar individually as opposed to the Trust which owns the Lease that is the subject of the parties dispute. He further asserted that because Jaidar is not an attorney, he could not represent the Trust "either in the Lawsuit or at the July 27, 2001 hearing." In support of the opposition, Jaidar filed a declaration admitting that (1) he had "agreed to [BofAs] request that contrary to the provisions of the Lease that the dispute over the amount of rent to be paid under the Lease be submitted to one arbitrator rather than the three arbitrators," and (2) at all relevant times, he believed he was representing the Trust.
On May 15, 2002, the trial court granted BofAs petition to confirm arbitration award. The trial court rejected Jaidars arguments, reasoning that (1) Jaidar "waived any mechanical defect in the pleadings by failing to file a response as permitted under Section 1290.6 of the Code of Civil Procedure, and by affirmatively seeking the Court to order the appointment of retired Judge Gabriel Gutierrez"; and (2) there was no legal authority to substantiate Jaidars proposition that his "momentary appearance in Court to select an arbitrator was tantamount to the practice of law." "Moreover, as the Court appointed an arbitrator from [Jaidars] list, he cannot claim prejudice as a result of his appearance. There is no law that requires a trustee to retain counsel to privately arbitrate a dispute. It therefore stands to reason that counsel should not be required for the trustee to appear in court for the purpose of selecting the arbitrator."
Judgment was entered on June 13, 2001, confirming the arbitration award. Jaidars motions for reconsideration and for a new trial were denied. This timely appeal followed.
DISCUSSION
I. Standard of Review
"On appeal from an order confirming an arbitration award, we review the trial courts order (not the arbitration award) under a de novo standard. [Citations.] To the extent that the trial courts ruling rests upon a determination of disputed factual issues, we apply the substantial evidence test to those issues. [Citations.]" (Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892, fn. 7.)
II. The Trial Court Did Not Err
Judicial review of a private, binding arbitration award is generally limited to the statutory grounds for vacating or correcting an award (Code Civ. Proc., §§ 1286.2, 1286.6). (See Moshonov v. Walsh (2000) 22 Cal.4th 771, 775, 996 P.2d 699; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 33, 832 P.2d 899.) Nor may a court vacate or correct the award because of the arbitrators legal or factual error, even an error appearing on the face of the award. (Moshonov v. Walsh , supra, at p. 775; Moncharsh v. Heily & Blase, supra, at p. 33.)
Conceding that an arbitration award only may be vacated on the grounds set forth in Code of Civil Procedure section 1286.2, Jaidar argues that the arbitration award should have been vacated because it was procured as a result of "undue means" and/or because the arbitrator exceeded his powers. (Code Civ. Proc., § 1286.2, subds. (a)(1) & (4).) His contentions are not compelling.
A. Undue Means
While the parties did not direct us to any legal authority defining the phrase "undue means," we agree with the federal courts interpretation that it "connotes behavior that is immoral if not illegal." (A.G. Edwards & Sons, Inc. v. McCollough (9th Cir. 1992) 967 F.2d 1401, 1403.) Here, there is no indication that the arbitration award was reached as a result of undue means. Rather, as discussed at length, infra, the arbitrator held a hearing, considered evidence submitted by the parties as well as an independent appraisal, and then set the monthly rental amount due by BofA pursuant to the Lease. There is no evidence of any immoral or illegal conduct.
B. The Arbitrator Did Not Exceed His Powers
Similarly, an arbitration award may be vacated if the arbitrator exceeded his or her powers "and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted." (Code Civ. Proc., § 1286.2 , subd. (a)(4).) As noted in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, 885 P.2d 994: "Recent decisions . . . have employed two formulas to determine whether an arbitrators award exceeded his or her powers. The courts have asked whether the award rests on a completely irrational construction of the contract [citations] or whether it amounts to an arbitrary remaking of the contract [citations]. These tests were combined . . . into a single formula: Generally, a decision exceeds the arbitrators powers only if it is so utterly irrational that it amounts to an arbitrary remaking of the contract between the parties."
Nonetheless, "arbitrators do not exceed their power by erroneously interpreting a contract. . . . . Arbitrators . . . exceed[] their power . . . only where the arbitrators interpretation or application of a contract is completely outside [the contracts] scope." (Blue Cross of California v. Jones (1993) 19 Cal.App.4th 220, 229.) Stated otherwise, the arbitrators award must "draw[] its essence from [the parties] agreement." (Advanced Micro Devices, Inc. v. Intel Corp., supra, 9 Cal.4th at p. 378, italics omitted, quoting from Steelworkers v. Enterprise Corp. (1960) 363 U.S. 593, 597, 4 L. Ed. 2d 1424, 80 S. Ct. 1358.)
Moreover, an arbitrator does not exceed his or her powers within the meaning of the statutory provisions "merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators." (Moshonov v. Walsh, supra, 22 Cal.4th at p. 775.) An arbitrator is empowered to decide the law and facts of a case and to make an award accordingly. (Ibid .) When an award is expressly based on the arbitrators construction of the contract and analysis of the agreement is a matter submitted to arbitration, the interpretation could amount, at most, to an error of law on a submitted issue. An error of law is not in excess of an arbitrators power within the meaning of the statutes allowing a court to correct or vacate an award. (Id. at p. 779.)
To determine whether the arbitrator exceeded his powers in this case, we must examine the Lease and the arbitration award. We determine the meaning and effect of an arbitration award, like a judgment, according to the rules of construction generally governing writings. (People v. Landon White Bail Bonds (1991) 234 Cal. App. 3d 66, 76, 285 Cal. Rptr. 575.) We consider the document as a whole, rather than some small part or clause thereof, with an eye to effectuating its apparent intent. (Ibid.) If possible, we must construe the award in a fashion that sustains its validity. (Id. at p. 77.)
Here, the Lease provides that upon each 10th anniversary of the Lease, "the parties shall endeavor to agree upon the adjusted rent." If the parties cannot agree, then the issue may be submitted for arbitration and resolution. Here, that is exactly what occurred. For over a year and a half, the parties attempted to renegotiate the adjusted rent under the terms of the Lease. When those efforts failed, the matter was submitted to arbitration. After considering evidence from the parties, as well as an independent appraisal specifically requested by the arbitrator, the arbitrator set the fair market rental value of the property. In doing so, the arbitrator certainly did not exceed his powers. Our analysis could stop here.
C. Jaidars Arguments Fail
Nevertheless, squeezing Jaidars arguments into the statutory confinements of Code of Civil Procedure section 1286.2, he still cannot prevail. He asserts that the trial court erred in confirming the arbitration award because (1) the wrong party was identified in the petition and participated in the arbitration proceedings, (2) certain AAA rules were not followed, and (3) he is not an attorney and thus illegally practiced law to the extent he represented the Trust in the trial court and arbitration proceedings. We reject each argument in turn.
1. Wrong Party Defendant
Jaidar claims that the wrong party was named in BofAs petition and was ordered to participate in arbitration. He asserts that he was sued individually, not in his capacity as trustee of the Trust, thereby resulting in an invalid arbitration award and improper subsequent judgment. Jaidars contentions are not compelling.
Although the caption of BofAs petition fails to identify Jaidar as the trustee of the Trust, the remainder of the petition makes clear the capacity in which he was served. Specifically, the second paragraph provides that Jaidar "is the successor-in-interest to all of the interest of [his parents] under the Lease." Moreover, Jaidar obviously understood the capacity in which he was named in the petition. Instead of objecting to the petition, he responded to it by appearing in court and submitting a list of proposed arbitrators. One such nominee was a prior "appraiser/arbitrator agreed upon by Bank of America and myself in the 1990 rent adjustment." And, he signed the list of potential arbitrators as "Trustee." This language in Jaidars list evidences his understanding of the capacity in which BofA had named him in the petition, namely as trustee of the Trust to resolve the issue of rent adjustment.
In fact, Jaidar emphasizes throughout his appellate opening and reply briefs that at all relevant times he believed that he was representing the Trust. Under these circumstances, we conclude that the trial court did not err in finding that the arbitration proceeded between the proper parties.
Jaidar challenges the trial courts determination that to the extent there was an error in the pleadings, Jaidar "waived any mechanical defect . . . by failing to file a response as permitted under Section 1290.6 of the Code of Civil Procedure , and by affirmatively seeking the Court to order the appointment of" Judge Gutierrez. He alleges that he could not have waived this defect because it was not an "informed waiver." We reject this specious argument as well.
Jaidar chose not to retain counsel and to represent the Trust in an effort to resolve the issue of the adjusted rent due from BofA. By doing so, he was required to know all procedural rules, and he assumed the risks of self-representation. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985, 884 P.2d 126; Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal. App. 2d 206, 208-209, 289 P.2d 823.) We cannot, and will not, allow him to escape the consequences of his decision not to retain counsel solely because he believes he did not properly represent the Trust.
As discussed, infra, Jaidar, as trustee of the Trust, did not engage in the unauthorized practice of law and properly represented the Trust in the arbitration.
The cases cited by Jaidar in support of his contention on appeal easily are distinguishable. In re Walker (1969) 71 Cal.2d 54, 57, 77 Cal. Rptr. 16, 453 P.2d 456 considered whether a narcotic addicts waiver of a commitment hearing satisfied the requirements of Welfare and Institutions Code section 3107. Although the Supreme Court reiterated the general rule that "any waiver of statutory or constitutional rights" must be made "knowingly and intelligently," that rule simply does not apply herein because neither Jaidars nor the Trusts statutory or constitutional rights are at issue. (In re Walker, supra, at p. 57.)
Jones v. Brown (1970) 13 Cal. App. 3d 513, 516, 89 Cal. Rptr. 651 addressed whether a domestic employee was precluded from bringing a lawsuit in superior court because her claims were subject to the Workers Compensation Act. In reviewing that issue, the court analyzed the effects of Labor Code section 4154 and whether an employees failure to give the notice required by that statute results in the employees waiver of the right not to be subject to the Workmans Compensation Act. (Jones v. Brown, supra, at p. 519.) In that context, the court observed "that the valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived." (Ibid.) Here, the Trust did not "waive" any "right." The Trust did not have a right to counsel (People v. Madeyski (2001) 94 Cal.App.4th 659, 662), and, as set forth above, Jaidar was obligated to know the rules of procedure (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 984-985).
2. AAA Rules
Jaidar claims that the arbitration award should have been set aside because certain AAA rules were not followed. Specifically, Jaidar alleges that he was prejudiced because (1) the arbitration hearing was held in BofAs attorneys offices, (2) the arbitrator did not disclose any biases, (3) the payment of the arbitrators fees was discussed prior to the rendition of the arbitration award, and (4) the monthly rent ultimately awarded by the arbitrator was too low. Even stretching Jaidars contentions and assuming that AAA rules were violated, the inherent problem with each of these alleged rule violations is that Jaidar presents no evidence of prejudice. For example, other than speculating that he might have objected to the venue of the arbitration and to the discussion of fees prior to rendition of the arbitration award, Jaidar provides us with no evidence as to how those issues resulted in an unfair or improper arbitration award. Moreover, while Jaidar claims prejudice because Judge Gutierrez did not disclose any alleged biases, Jaidar ignores the obvious fact that he requested Judge Gutierrez be appointed as the parties neutral arbitrator. In any event, Jaidar fails to direct us to any instance of bias.
Finally, to the extent Jaidar challenges the ultimate award, including the monthly rent for the property, rendered by the arbitrator, (1) we cannot review the merits of the arbitrators decision (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 6, 11); and (2) even if we could review the arbitration award, substantial evidence supports the arbitrators findings and trial courts judgment entered thereon, including, predominantly, the independent appraisal prepared by Mason & Mason.
D. Jaidars Alleged Practice of Law
Relying in large part upon Ziegler v. Nickel (1998) 64 Cal.App.4th 545 (Ziegler), Jaidar argues that the arbitration award should not have been confirmed because, as trustee, he could not represent the Trust in the trial court or arbitration proceedings. Rather, the Trust could only appear through counsel. Thus, to the extent Jaidar represented the Trust in the legal proceedings, he engaged in the illegal practice of law, thereby depriving the Trust of proper legal counsel. We are not persuaded.
In Ziegler, the Court of Appeal considered whether a nonattorney trustee could represent a trust in a lawsuit commenced by the trust. (Ziegler, supra, 64 Cal.App.4th at p. 546.) Citing Business and Professions Code section 6125, the court first noted that "one who is not a licensed attorney cannot appear in court for another person." (Ziegler, at p. 547.) In other words, a nonattorney cannot represent the interests of others in court. Because of the nature of trusts, a trustee must act solely on behalf of the trusts beneficiaries. (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1134, 947 P.2d 279.) It follows that if a nonattorney trustee appears in court and presents legal argument on behalf of the trust, he or she necessarily represents the interests of others, which amounts to the unauthorized practice of law. (Ziegler , supra, at p. 548.) Consequently, the Court of Appeal held that "[a] nonattorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law." (Id. at p. 549.)
Significantly, Ziegler considered only whether a nonattorney trustee could appear in court on behalf of the trust; it did not consider whether a nonattorney trustee could represent a trust in other litigious proceedings. In that regard, BofA directs us to Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094 (Caressa Camille). In Caressa Camille, the Court of Appeal considered whether the general common law rule requiring corporations to be represented by counsel in proceedings before courts of record other than small claims courts extends to proceedings before administrative agencies and tribunals. (Id. at p. 1097.) The court first noted the general rule requiring that corporations be represented by counsel in court proceedings. (Id. at p. 1101.) Thereafter, it explained the purpose of the exception to that general rule, allowing corporations to be represented by nonattorneys in small claims court. "This exception to the general rule is consistent with the purpose of providing quick, impartial and inexpensive adjudication of disputes in small claims courts under rules of procedure and evidence that are less stringent and complicated than those that apply in more formal courts of record." (Id. at p. 1102.) Thereafter, the court extended that exception to apply to administrative tribunals, holding that administrative tribunals are not "courts of record as defined by article VI, section 1 of the California Constitution." (Id . at p. 1103.) While "courts of record are entitled to expect to be aided in resolution of contested issues by presentation of causes through qualified professionals rather than a layperson," such issues "are greatly minimized in the more informal setting of a proceeding in a court which is not of record." (Ibid.) Accordingly, the court held that "the general rule banning a nonattorney from representing a corporation in a court of record has no application" in proceedings before administrative tribunals. (Ibid.) Importantly, the court concluded that "even were we persuaded to the contrary (and we are not), a decision rendered by an administrative body following a hearing at which a corporation was not represented by counsel would be voidable at the option of the opposing party, rather than void for lack of jurisdiction." (Ibid .)
With respect to Jaidars appearance in court in response to BofAs petition and motion to select an arbitrator, we agree with the trial courts assessment that that "momentary appearance" was not "tantamount to the practice of law." Business and Professions Code section 6125 provides: "No person shall practice law in California unless the person is an active member of the State Bar." Its purpose is "to protect the public from those giving unauthorized legal advice and counsel." (Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 129, 949 P.2d 1 (Birbrower).) Consistent with that legislative intent, our Supreme Court has defined "practice law" as ""the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure."" (Id . at p. 128.) This definition includes "legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation." (Ibid .)
Jaidars brief appearance in superior court to respond to BofAs petition does not fall within this definition of the "practice [of] law." Pursuant to the terms of the Lease, if the parties could not agree upon an adjusted rent for a new 10-year term, they could arbitrate their dispute. Six months before the March 1, 2000, 10-year anniversary date, BofA attempted to negotiate with Jaidar regarding the new monthly rent. Unfortunately, its efforts were rebuked by Jaidar, and BofA was left with no alternative but to petition the court to appoint an arbitrator. Jaidar never opposed BofAs petition. Instead, when he appeared in court, he submitted a list of proposed arbitrators as well — essentially what he was supposed to do under the plain terms of the Lease. Under these circumstances, we conclude that Jaidar was not practicing law when he appeared in court on July 27, 2001. He simply was complying with the terms of the Lease in order for the parties to proceed to arbitration.
With respect to Jaidars representation of the Trust in the arbitration proceedings, the parties have cited no legal authority which holds that his conduct amounts to the unlawful practice of law. We are not persuaded by Jaidars comparison of his participation in the arbitration to the facts in Ziegler. Ziegler specifically holds that "[a] nonattorney trustee who represents the trust in court is . . . engaged in the unauthorized practice of law." (Ziegler, supra, 64 Cal.App.4th at p. 549, italics added.) Nothing in Ziegler suggests that the courts holding was intended to apply to noncourtroom proceedings.
Rather, we conclude that the reasoning in Caressa Camille is analogous to the facts in the instant case. Arbitration proceedings, like administrative hearings and small claims court actions, do not follow the "formal rules of procedure and evidence." (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 732, 147 Cal. Rptr. 631, 581 P.2d 636; see also Caressa Camille, supra, 99 Cal.App.4th at p. 1102; Sapp v. Barenfeld (1949) 34 Cal.2d 515, 520, 212 P.2d 233 [holding that arbitrations are not subject to the rules of judicial procedure and that the "essence of arbitration is its freedom from the formality of ordinary judicial procedure," so long as the hearing is conducted fairly].) ""Parties who stipulate in an agreement that controversies that may arise out of it shall be settled by arbitration, may expect not only to reap the advantages that flow from the use of that nontechnical, summary procedure, but also to find themselves bound by an award reached by paths neither marked nor traceable and not subject to judicial review." [Citation]." (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 11.) Arbitration is intended to be a "quick, inexpensive, and conclusive resolution of [the parties] disputes." (Id . at p. 11.)
These principles particularly apply in the instant case. The parties participated in the arbitration to resolve their dispute regarding one simple issue — the fair market monthly rental value of the property. The arbitrator was "aided in the resolution" of that issue by the parties evidence regarding the value of the property as well as the requested independent appraisal from Mason & Mason. (Merco Const. Engineers, Inc. v. Municipal Court, supra, 21 Cal.3d at p. 732; Caressa Camille, supra, 99 Cal.App.4th at p. 1102.) No legal counsel was required.
In defense of his position, Jaidar takes the Supreme Courts comment Moore v. Conliffe (1994) 7 Cal.4th 634, 645, 871 P.2d 204 that arbitration proceedings are "functionally equivalent to court proceedings" (and thus counsel was required to represent the Trust in arbitration) out of context. In Moore, our Supreme Court held that "in view of the purpose and history of the litigation privilege and the numerous California decisions interpreting and applying the relevant statutory provision, we conclude that statements made in the course of a private, contractual arbitration proceeding are protected by the litigation privilege." (Id. at p. 638.) In determining that the litigation privilege applies to arbitration proceedings, the Supreme Court considered the significant purposes furthered by the privilege ("encouraging witnesses to provide open and candid testimony, and preserving the integrity and finality of dispute resolution") as well as the legislative history of the statutory privilege. (Id. at p. 649.)
Considering the significant goals furthered by private arbitration as well as the purpose of Business and Professions Code section 6125, we see no harm in Jaidar having represented the Trust in the arbitration proceeding herein. The parties arbitrated a single, narrow issue — the fair market value of the property. Not only did the parties submit evidence on their own behalf, but they also agreed to an independent appraisal, upon which the arbitrator relied in reaching his decision. No complex legal issues or technicalities were raised, requiring the assistance of a professional.
Similarly, Jaidars reliance upon Birbrower is misplaced. The Birbrower court considered "whether an out-of-state law firm, not licensed to practice law in this state, violated [Business and Professions Code] section 6125 when it performed legal services in California for a California-based client under a fee agreement stipulating that California law would govern all maters in the representation." (Birbrower, supra, 17 Cal.4th at p. 124.) In concluding that the out-of-state law firm practiced law in California without a license and thus was not entitled to recover fees, the Supreme Court expressly distinguished the facts in that case to those in Williamson v. John D. Quinn Const. Corp. (S.D.N.Y. 1982) 537 F. Supp. 613, 616 (holding that an out-of-state attorney could recover fees for services rendered in an arbitration proceeding). (Birbrower, supra, at p. 133.) The Birbrower court reasoned that Williamson carried limited weight because the out-of-state attorneys in Birbrower had spent no time in arbitration, thereby intonating that had they participated in arbitration proceedings, the result might have been different. (Ibid.) Here, it is undisputed that all Jaidar did was participate in arbitration. This factual difference renders Jaidars reliance upon Birbrower flawed.
By concluding that Jaidar could represent the Trust in arbitration to resolve the sole issue of the amount of adjusted rent due by BofA under the terms of the Lease, it follows that we reject his argument that his claimed ineptitude prejudiced the Trust and its sole beneficiary, Jaidars ill mother. The Trust had no right to counsel in this civil, arbitration proceeding. (People v. Madeyski , supra, 94 Cal.App.4th at p. 662.) By representing the Trust, as its trustee, Jaidar was required to know all rules of practice and procedure, and he assumed the risks of self-representation. (Rappleyea v. Campbell, supra, 8 Cal.4th at pp. 984-985; Lombardi v. Citizens Nat. Trust etc. Bank, supra, 137 Cal. App. 2d at pp. 208-209.) "Procedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules." (Rappleyea v. Campbell, supra, at p. 979.)
DISPOSITION
The judgment of the trial court is affirmed. BofA is entitled to its costs on appeal.
We concur: NOTT, Acting P. J. DOI TODD, J.