Opinion
G040066
4-24-2009
THEE AGUILA, INC., et al., Plaintiffs and Respondents, v. STAVROS TSEHERIDIS, Defendant and Appellant.
OConnell & Rydstrom, Kevin OConnell and Richard I. Rydstrom for Defendant and Appellant. Cynthia Puertas for Plaintiffs and Respondents.
Not to be Published in Official Reports
INTRODUCTION
In December 2005, Thee Aguila, Inc., entered into a written agreement with Stavros Tseheridis to purchase a restaurant-nightclub owned by Tseheridis. After escrow failed to close, a dispute arose as to whether Tseheridis was entitled to retain Thee Aguila, Inc.s $50,000 deposit under the terms of the agreement. Tseheridis initiated binding arbitration with the American Arbitration Association, pursuant to an arbitration provision contained in the agreement.
A panel of three arbitrators concluded Tseheridis was not entitled to keep the deposit under the agreement and issued an award accordingly. Thee Aguila, Inc. and its assignee, Thee Aguila, LLC (collectively, the Aguila entities), filed a petition in Orange County Superior Court seeking confirmation of the arbitration award. Tseheridis filed a separate petition seeking to vacate the arbitration award on the grounds he had discovered that his signature and initials had been forged on the agreement (the same agreement he had relied on in his demand to arbitrate and the same initialed liquidated damages provision he relied upon in asserting his right to keep the deposit) and he had not agreed to arbitration. Following an evidentiary hearing on the petitions, the trial court concluded Tseheridiss signature and initials on the agreement were authentic, denied Tseheridiss petition to vacate, and confirmed the arbitration award.
We affirm. Contrary to Tseheridiss contention, the trial court did not refuse Tseheridiss handwriting expert the opportunity to examine the allegedly forged original agreement; Tseheridis never asked the trial court for such an opportunity. Furthermore, substantial evidence supported the finding Tseheridiss signature and initials on that agreement were authentic. Tseheridiss arguments that the arbitrators erroneously interpreted the agreement and failed to properly weigh evidence were not before the trial court. Even if they had been, his challenges to the arbitration award are not a proper basis for vacating the award.
BACKGROUND
In December 2005, Tseheridis and Thee Aguila, Inc., through its president Henry Aguila, entered into a written agreement entitled "Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate" (the agreement) providing that Thee Aguila, Inc., or its assignee (Thee Aguila, LLC) would purchase certain real property located in Rialto from Tseheridis. After escrow failed to close, a dispute arose as to whether Tseheridis was entitled to keep Thee Aguila, Inc.s $50,000 deposit as liquidated damages pursuant to paragraph 21 of the agreement.
Aguila testified that, although he intended Thee Aguila, Inc., to enter into the agreement, Thee Aguila, LLC (apparently as assignee), would ultimately own the property. The record is not clear why the transaction was set up in this way and does not explain the relationship between the Aguila entities.
Paragraph 21 of the agreement states: "LIQUIDATED DAMAGES. (This Liquidated Damages paragraph is applicable only if initialed by both Parties). [¶] THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX, PRIOR TO SIGNING THIS AGREEMENT, THE ACTUAL DAMAGES WHICH WOULD BE SUFFERED BY SELLER IF BUYER FAILS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT. THEREFORE, IF, AFTER THE SATISFACTION OR WAIVER OF ALL CONTINGENCIES PROVIDED FOR THE BUYERS BENEFIT, BUYER BREACHES THIS AGREEMENT, SELLER SHALL BE ENTITLED TO LIQUDATED DAMAGES IN THE AMOUNT OF $50,000.00. UPON PAYMENT OF SAID SUM TO SELLER, BUYER SHALL BE RELEASED FROM ANY FURTHER LIABILITY TO SELLER, AND ANY ESCROW CANCELLATION FEES AND TITLE COMPANY CHARGES SHALL BE PAID BY SELLER."
Tseheridis initiated arbitration through the American Arbitration Association pursuant to the arbitration provision contained in paragraph 22 of the agreement. He submitted with his demand for arbitration a copy of the agreement showing that he and Aguila each had signed the agreement and initialed both the arbitration and liquidated damages provisions of the agreement as required to trigger the applicability of those provisions.
Similar to the liquidated damages provision at paragraph 21 of the agreement, the arbitration provision of the agreement states, "[t]his Arbitration of Disputes paragraph is applicable only if initialed by both Parties."
An arbitration hearing before a three-arbitrator panel was held on June 26 and 27, 2007. On July 31, the arbitrators issued an arbitration award in which they stated their finding the Aguila entities did not breach the agreement and their conclusion Tseheridis was therefore not entitled to retain the deposit as liquidated damages. The arbitrators further stated Tseheridis was required to (1) release the deposit of $ 50,000 "together with any interest accrued thereon, being held in trust"; (2) pay Thee Aguila, LLCs attorney fees and costs in the amount of $57,030; and (3) reimburse Thee Aguila, LLC, its share of arbitration fees, compensation, and expenses in the amount of $15,973.75.
On September 6, 2007, the Aguila entities filed a petition to confirm the arbitration award in Orange County Superior Court. The petition to confirm attached a copy of the agreement which, like the copy of the agreement submitted by Tseheridis with his demand for arbitration, contained Aguilas and Tseheridis signatures and initials following, inter alia, the liquidated damages provision and the arbitration provision of the agreement.
On September 10, 2007, Tseheridis initiated a separate action in Orange County Superior Court by filing a petition to vacate the arbitration award on the ground the award was "obtained by corruption, fraud, or other unfair means" because his initials on the arbitration provision of the agreement he had submitted to the American Arbitration Association had been forged. He attached to the petition another copy of the agreement which contained his signature but did not show he initialed any portion of the agreement, including the liquidated damages and the arbitration provisions.
In an attachment to his petition, Tseheridis alleged: "In March of 2006, [Tseheridis] obtained a copy of the agreement between him and Thee Aguila, LLC, from the escrow holder, Ontario Escrow. [Tseheridis] did not otherwise have an executed copy of the agreement. The copy he received included what appeared to be an arbitration provision initialed by [Tseheridis]. [Tseheridis] did not at that time, nor does he subsequently, have any independent recollection of whether or not he initialed the arbitration provision. Based upon this, [Tseheridis] submitted a claim for arbitration to the American Arbitration Association to comply with the agreement. [¶] From March of 2006, until May of 2007, Respondent THEE AGUILA, LLC, through its agents and employees, including Albert Arana and Henry Aguila, despite knowing the true facts and despite knowing that [Tseheridis] would rely on their conduct and be defrauded as a result, concealed from [Tseheridis] and from the American Arbitration Association the fact that [Tseheridis] had not in fact initialed the arbitration provision, but rather that the initials on the agreement were a forgery. [¶] [Tseheridis] did not discover until May of 2007 that the agreement submitted by him to the American Arbitration Association was a forgery with respect to the arbitration provision. [¶] [Tseheridis] raised this issue with the American Arbitration Association on May 15, 2007, and, indicated that he no[] longer felt bound to arbitrate the dispute. Notwithstanding this, the arbitrators cho[]se to proceed with the arbitration. At the arbitration hearing, [Tseheridis] was not allowed to introduce evidence as to the allegations of forgery."
The trial court agreed to hear the petition to confirm and the petition to vacate together. Before the hearing, the parties submitted declarations telling two different stories as to the significance of the signed but not fully initialed version of the agreement and how it surfaced after Tseheridis had initiated arbitration of the parties dispute.
In support of his petition to vacate the arbitration award, Tseheridis submitted the declaration of Robert Albrecht, who served as Tseheridiss agent during the negotiations of the agreement. In his declaration, Albrecht stated that, in April 2007 during his deposition, he was shown a copy of the agreement that was different from the one in his records because the former contained Tseheridiss signature, but not his initials following the arbitration provision. In his own declaration, Tseheridis stated the signed but not fully initialed version of the agreement was the true agreement because he had only signed the agreement and had not initialed the arbitration provision. He explained that, after he had signed a different version of the agreement, it was "taken away" by Aguilas agent, Albert Arana of Remax Tri-City, to open escrow and Tseheridis was not provided a copy at that time. He further stated that, after the dispute over the deposit arose, he requested a copy of the executed agreement from escrow officer Bobbie Jackson of Ontario Escrow and was given a copy that appeared to contain his signature and initials following the arbitration provision. Tseheridis claimed, "[u]nbeknownst to me, the document I had received from Ms. Jackson was a copy which did not bear my true signature, but rather a forged signature; furthermore, the arbitration provision of this document was initialed, but this was also a forgery." He added, "I did not discover that the agreement I had received from Ms. Jackson was not the document I had signed until April of 2007, when I saw a copy of the true agreement in the possession of my broker, Rob Albrecht."
In his declaration filed in support of the petition to confirm the arbitration award, Aguila explained that two copies of the agreement were printed by Aguilas agent, Arana, and given to Aguila for review in formulating the offer to purchase Tseheridiss property. Aguila saw that there were some mistakes on the two documents. He corrected the mistakes on both copies, initialed the bottom of each page, and signed the documents. Arana took both documents to present to Tseheridis as Aguilas offer to purchase the restaurant-nightclub. Tseheridis signed the agreements, kept one copy, and returned the other copy to Aguila.
In his declaration, Aguila further stated that, on the following day, Aguila and Tseheridis did a "walk-thru" of the restaurant-nightclub. Tseheridis showed Aguila certain personal items Tseheridis intended to take with him after the sale. Using Aguilas copy of the agreement, Tseheridis and Aguila wrote in an additional provision in paragraph 26 of the agreement regarding the disposition of furniture and equipment as a result of the sale. Aguila stated, "[d]ue to the addition of the third provision in paragraph 26, Tseheridis and myself initialed paragraph 26 two times. Mr. Tseheridis and myself also went through the entire contract again and initialed paragraph 1 on page 1, and paragraph 3.1 on page 1 in two different locations. Mr. Tseheridis then initialed the bottom right of pages 1 through 6 of the purchase contract and initialed the arbitration and liquidated damages clause."
Finally, Aguila stated in his declaration that Arana took this latest version of the agreement, which had been signed and initialed by both parties, and submitted a copy of it to Tseheridiss escrow agent so that escrow could be opened. Escrow instructions, dated December 15, 2007, stated that both Tseheridis and Aguila had initialed the arbitration and liquidated damages paragraphs.
The trial court granted Tseheridiss request to present live testimony at the hearing on the petitions "solely on the issue of whether or not the initials were forged." Albrecht, Tseheridis, and Aguila testified at the hearing and generally reiterated the contents of their declarations.
At the hearing, the officer manager of Remax Tri-City, Aram Vardanyan, testified that he had been subpoenaed to appear at the hearing and to bring with him certain original documents in Remax Tri-Citys file. The file, he testified, contained what he understood to be the parties original agreement. That agreement contained both parties initials and signatures. Andrea McNichol, an examiner of questioned documents, testified that she had the opportunity to examine the original agreement contained in Remax Tri-Citys file, and, by evaluating "pressure patterns" of Tseheridiss initials and signature, she concluded the disputed signature and initials in that agreement were authentic.
A private forensic science consultant, Kurt Kuhn, testified at the hearing to rebut McNichols testimony. He testified it was physically impossible to make a conclusive determination as to the validity of Tseheridiss signature and initials based on an examination of a copy of the agreement. He testified that, while it is important to review the original document to make such determinations, he had not had the opportunity to review the original agreement in this case.
The trial court denied the petition to vacate the arbitration award and granted the petition to confirm the arbitration award. Judgment was entered, stating: "The award of the arbitrators . . . dated July 31, 2007, having been confirmed by order of this court on November 30, 2007, IT IS ADJUDGED that petitioners . . . recover from respondent Stavros Tseheridis . . . the sum of $95,308.75," which consisted of (1) $73,003.75 awarded by the arbitrators (consisting of $57,030 in attorney fees and costs, and $15,973.75 in American Arbitration Association fees); (2) $18,125 in postarbitration award and prejudgment attorney fees; and (3) $4,180 in postarbitration award and prejudgment interest.
Tseheridis appealed. He filed a motion to augment the record on appeal with portions of arbitration and deposition transcripts and "exhibit blowups." This court denied the motion, stating in part, "it is unclear from the motion whether the arbitration and deposition transcripts and the blow-ups were ever admitted into evidence or formally lodged with the trial court and thus properly part of the record." Tseheridis thereafter filed a request for judicial notice and the Aguila entities filed a motion for sanctions, both of which we address post.
DISCUSSION
I.
The Record Does Not Show the Trial Court Denied Tseheridis the Opportunity to Have His Expert Witness Examine the Original of the Signed and Fully Initialed Version of the Agreement.
Tseheridis contends the trial court abused its discretion at the hearing on the petition to confirm and the petition to vacate the arbitration award by "denying appellant the opportunity to have their expert review, examine, and test the alleged forged `original agreement . . . offered for the first time by respondents at trial." But the record does not show the trial court was ever asked to provide such an opportunity.
The record shows that the Aguila entities subpoenaed Vardanyan to appear at the hearing and bring with him Remax Tri-Citys original file regarding this matter. The record further shows the Aguila entities had learned shortly before the hearing that Remax Tri-City had the original of the version of the agreement containing both parties signatures and initials and Remax Tri-City permitted their expert, McNichol, to come to its office and examine that original before the hearing.
During Vardanyans testimony, Tseheridiss counsel stated: "During the initial arbitration, I subpoenaed from this agency a production of all documents. And the only document I received from them was the item that weve marked as No. 1 [a copy of the signed and fully initialed version of the agreement]. So I would like to be able to review the documents hes got. [¶] I mean, throughout this entire thing Ive asked them for an original that I could send out to a handwriting expert. If my client signed this thing or there was something else going on, we wouldnt be sitting here now. But theyve always said they never had an original to this."
Citing Aranas deposition testimony, counsel for the Aguila entities stated that Tseheridiss counsel had previously subpoenaed Remax Tri-City which yielded a copy of the signed and initialed version of the agreement. The Aguila entities counsel further stated, "I didnt know that Remax had the original until just recently. And [Tseheridiss counsel] subpoenaed the documents. He got them. He didnt follow up. He didnt pick up the phone and call Remax and say, `hey, do you have the originals? We did. So he cant stand here and say that we sandbagged him in any way."
The court responded to the parties argument, stating to Tseheridiss counsel, "[s]o you want to look at it? Is that what you want to do?" Tseheridiss counsel responded, "[y]es, please." The Aguila entities counsel stated she had "no objection showing it to [Tseheridiss counsel], but [she had] an objection to his expert examining it," adding, "[i]ts been around for a year and a half." The trial court asked whether they were going to have a hearing on whether Kuhn (Tseheridiss expert) "gets to see it" but received no answer. The record does not show the court ruled on whether Tseheridiss expert should be permitted to examine the original of the signed and fully initialed version of the agreement because the issue did not come up again at the hearing.
After Tseheridiss counsel had had the opportunity to look at the original of the signed and fully initialed version of the agreement, the following colloquy ensued:
"The Court: . . . [¶] Whats your issue now that youve looked at the document? Have you had time enough to examine that document?
"[Tseheridiss counsel]: Can I look at it and talk at the same time?
"The Court: Yes. Yes.
"[Tseheridiss counsel]: Your honor, there was a production of documents about a week ago and she had her handwriting expert there, I had mine there, that was going to sit through the proceedings. She started through—anyway, she didnt want him there. There was a big issue. I didnt want to have a hassle.
Tseheridiss counsel was apparently referring to a production of documents at the office of Ontario Escrow, which appears to be independent of the document production at Remax Tri-City.
"The Court: This is not discovery. Im not resolving discovery issues at this hearing.
"[Tseheridiss counsel]: No. No.
"The Court: Then whats your point? Where are you going with this?
"[Tseheridiss counsel]: My point is
"The Court: Are you looking at the document?
"[Tseheridiss counsel]: Im looking, Im looking, Your Honor.
"The Court: Sounds like youre asking me to do something.
"[Tseheridiss counsel]: My point is when her handwriting expert is in here since my expert—I just walked out of there avoiding confrontation. Theres an exclusion where Id like to have him in here while she testifies so he can be able to testify on her conclusions if thats acceptable with the court. I think it would shorten things.
"[The Aguila entities counsel]: I would object. The reason we went to the escrow office was to look at the original files. I took my expert. He took his expert. What I objected to was both of us being in there together at the same time. Theres only one file. The expert comes in and looks at it. I have no objection to him and his expert doing their thing looking at the file. We just wanted some time and privacy. His expert sitting in here as my expert testifies, I think that negates it. His expert is going to get the chance to listen to what our expert says; what she testifies to and hell have the advantage. He should come in here as an expert and give his expert opinion. Not based on what our expert testifies to.
"The Court: Objection sustained. [¶] Have you had enough time to look at that document?
"[Tseheridiss counsel]: Yes."
The court directed Vardanyan to retake the witness stand to resume direct examination.
At no time during the hearing did Tseheridiss counsel ask that Kuhn be permitted to see the original of the signed and fully initialed version of the agreement, much less request a continuance to provide the opportunity for Kuhn to conduct a full evaluation of that document. Thus, the record does not show the trial court erred.
In the opening brief, Tseheridis presents a series of meritless challenges to the trial courts handling of the hearing. First, Tseheridis argues the Aguila entities produced the original of the signed and fully initialed version of the agreement "for the first time at the hearing" and his counsel "objected to the sandbagging but the court refused to hear the matter, calling it a discovery matter." The record does not show the Aguila entities had the original signed and fully initialed version of the agreement in their possession. Vardanyan produced it at the hearing in response to the deposition subpoena for testimony and to produce records. The record shows the trial court refused to entertain argument over whether Remax Tri-City fully responded to a subpoena for production of documents served by Tseheridis before the arbitration hearing; the record does not show the court refused to address whether Kuhn had had the opportunity to examine the document. Significantly, Tseheridiss counsel did not ask for a continuance to provide him the opportunity to further review the document in question.
Second, citing section 2031.030 of the Code of Civil Procedure, Tseheridis argues that counsel for the Aguila entities "unilaterally contacted the Remax real estate agency and conducted an examination and testing of the originals . . . in the Re-Max files without notice or formal procedure . . . . Unilaterally contacting a third party witness is a highly questionable procedure but it is expressly not permitted for a party to conduct informal `testing or `sampling on `original documents without notice to their adversary." (Fn. omitted.) But Code of Civil Procedure section 2031.030 sets forth requirements for one party to propound demands for inspection on another party to the litigation. It does not apply to obtaining formal or informal discovery from a third party. Remax Tri-City is a third party. (See Pullin v. Superior Court (2000) 81 Cal.App.4th 1161, 1162 [holding demand for inspection not required to inspect premises open to the public, court stated, "there is nothing in the Civil Discovery Act [citation] to prevent a party from conducting a unilateral investigation without resort to any statutory discovery device, provided only that the investigation is lawful"].)
Third, Tseheridis argues the Aguila entities violated the requirements of Code of Civil Procedure section 2020.510 governing deposition subpoenas. But the record does not show the Aguila entities served Remax Tri-City with a deposition subpoena before they went to its office to inspect its file. It appears from the record that the Aguila entities obtained Remax Tri-Citys permission to review its file and have their expert examine the original of the signed and fully initialed version of the agreement. Tseheridis has not cited any legal authority showing that the Aguila entities were required to serve a deposition subpoena or otherwise notify his counsel first before conducting this portion of their investigation in preparation for the hearing.
Fourth, Tseheridis contends the law required the Aguila entities to notify him about their experts review of Remax Tri-Citys file to prevent potential destructive testing. He argues: "One of the reasons for this safeguard in the law is to avoid unfair prejudice by sandbagging and to avoid destructive testing. Destructive testing would be subject to stipulation or court case management order." Again, Tseheridis apparently relies on statutes governing inspection demands and deposition subpoenas which, as discussed ante, do not apply in this situation. Furthermore, notwithstanding Tseheridiss counsels opportunity to cross-examine McNichol regarding her examination of the original of the signed and fully initialed version of the agreement, there is no evidence the Aguila entities or McNichol conducted any destructive testing of that document.
Finally, Tseheridis contends the Aguila entities and their counsel lulled his counsel "into a false sense of security that an original did not exist." The record does not support this contention.
We find no error.
II.
Substantial Evidence Supported the Finding the Original of the Signed and Fully Initialed Version of the Agreement Contained Tseheridiss Authentic Signature and Initials.
Tseheridis contends the trial court "failed to exercise its discretion and mandate necessary to apply meaning to certain documents . . . that render the Courts findings and inferences impossible or highly improbable in finding which of the two contracts litigated at bar was the forgery. To uphold the Courts conclusion that [the signed and fully initialed version of the agreement] in the underlying trial was the operative contract, the Court could not give any meaning to certain documents or facts which reveal on its face, dates and terms that necessarily require the Court to find [the signed but not fully initialed version of the agreement] as the valid operative contract."
We apply the substantial evidence standard to review the trial courts finding of fact. (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461.) We do not second-guess the trial courts assessment of witness credibility. (White v. Inbound Aviation (1999) 69 Cal.App.4th 910, 927.) Here, substantial evidence supported the finding the signed and fully initialed version of the agreement contained Tseheridiss authentic signature and initials. That evidence included (1) Aguilas testimony Tseheridis signed and initialed the agreement in his presence, including the arbitration provision; (2) Aguilas testimony the version of the agreement containing only Tseheridiss signature and not his initials was not the parties final agreement; and (3) McNichols expert testimony that, based on her examination, the original of the signed and fully initialed agreement contained Tseheridiss authentic signature and initials.
III.
Because Tseheridis Challenged the Arbitration Award Solely on the Ground His Assent to Arbitrate Was Fraudulently Obtained, He May Not Challenge the Award on Other Grounds for the First Time on Appeal.
As discussed in detail ante, the only issue presented to the trial court in the parties petitions was whether Tseheridis had initialed the arbitration provision of the agreement or whether his initials had been forged. Following the hearing, the trial court concluded Tseheridis had agreed to the arbitration provision, his initials following the arbitration provision were authentic, and the arbitration award should be confirmed.
Notwithstanding the limited scope of the issue presented to the trial court, Tseheridis argues in the opening brief that the trial court "failed to exercise its discretion or mandate, and the arbitrators[] exceeded [their] authority, by failing to interpret the agreement consistent with the command of written provisions, including an actual calculation of the expected closing date to make a determination of when performance was due under the agreement, and when Buyer assumes the risk of losing his deposit monies by electing to move forward on the agreement, after a date certain, or after acknowledging the failed or likelihood of failed conditions, including the paragraph 26 conditions for approval to operate a nightclub from the city." Tseheridis further argues, "[t]he court as well as the arbitrators failed to give meaning to the written letter of Buyer (Henry Aguila) waiving the condition or requirement for approval to operate as a nightclub by the city."
We understand Tseheridiss argument to challenge the arbitrators factual findings and their interpretation of the agreement. But the record does not show Tseheridis raised these issues in the trial court. Theories that were not raised in the trial court ordinarily cannot be asserted for the first time on appeal. "Appellants are commonly held to an `implied waiver where the error urged on appeal was never asserted in the trial court. Appellate courts will not reverse for procedural defects or erroneous rulings that could have been, but were not, challenged below." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:265, p. 8-167, citing, inter alia, Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; Childrens Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776-777.) Furthermore, it does not appear the record of the arbitration proceedings was before the trial court when it ruled on the petition to confirm the arbitration award and the petition to vacate the arbitration award; thus, the court was not in a position to conduct such a review.
Even if Tseheridis had raised these issues in the trial court, the merits of the controversy are generally not reviewable by the court in the context of ruling on a petition to confirm or vacate an arbitration award. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) Courts will not review the sufficiency of the evidence or the validity of the arbitrators reasoning to support the award. (Morris v. Zuckerman (1968) 69 Cal.2d 686, 691.) Furthermore, the "[i]nterpretation of the underlying contract is ordinarily a question of law for the arbitrator, not the court: `It is the arbitrators construction which was bargained for; and so far as the arbitrators decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his." (Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2007) ¶ 5:448.1, p. 5-302.)
Code of Civil Procedure section 1286.2, subdivision (a) provides that the trial court shall vacate an arbitration award upon finding (1) the award was procured by corruption, fraud or other undue means; (2) there was corruption in any of the arbitrators; (3) the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator; (4) the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; (5) the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title; and (6) an arbitrator failed to comply with disclosure requirements. Section 1286.2, subdivision (a) does not include, as a basis for vacating the award, incorrectly interpreting an agreement or giving certain evidence too little weight as argued by Tseheridis.
We find no error.
IV.
REQUEST FOR JUDICIAL NOTICE
Tseheridis filed a request that this court take judicial notice of the following: (1) a revised commission authorization sheet dated January 11, 2006; (2) a notice from Tseheridiss trial counsel objecting to forgery; (3) a letter from Aguila Enterprises to Ontario Escrow dated January 10, 2006; (4) Thee Aguila, Inc., escrow instructions; and (5) the declaration of Henry Aguila dated March 7, 2007. Tseheridiss request is accompanied by counsels declaration which purports to authenticate these documents with the following statement: "Each document attached hereto, is a true and correct copy of the files I received from [Tseheridiss trial counsel] on the above entitled case." Counsels declaration failed to sufficiently identify the documents, establish they were before the trial court in this matter, and show the documents are the originals or true and correct copies of documents that had been before the trial court.
Our review of the record does not show that item Nos. (2), (3), and (5) were ever before the trial court. (See Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 ["It is an elementary rule of appellate procedure that, when reviewing the correctness of a trial courts judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered"].)
As to item Nos. (1) and (4), we understand from the Aguila entities opposition to Tseheridiss request for judicial notice, item Nos. (1) and (4) of the request are copies of exhibits in the underlying action. All exhibits in evidence are deemed part of the record. (Cal. Rules of Court, rule 8.122(a)(3).) Tseheridis, however, failed to comply with the requirements of rule 8.224 of the California Rules of Court, regarding the transmittal of the original exhibits to this court. Tseheridiss failure to comply with this rule is puzzling because this courts November 10, 2008 order cited rule 8.224(d) in denying Tseheridiss motion for a "special order," which this court construed as a motion for the early transmission of exhibits. In that order, we stated, "[i]t is unclear from the motion whether any of the depositions or exhibits referred to are exhibits that were ever admitted or formally lodged with the court."
Even if we were to take judicial notice of the documents requested by Tseheridis, none affects our analysis in this appeal.
V.
Motion for Sanctions
During the pendency of this appeal, the Aguila entities filed a motion for sanctions in this court against Tseheridis on the grounds the appeal is frivolous and pursued for improper purposes. Section 907 of the Code of Civil Procedure permits recovery of costs when an appeal is "frivolous or taken solely for delay" and rule 8.276(a)(1) of the California Rules of Court permits the imposition of sanctions including costs for "[t]aking a frivolous appeal or appealing solely to cause delay." In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, the California Supreme Court stated: "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (See DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 179.)
Although Tseheridiss appeal is meritless and comes close to being indisputably without merit, we do not find Tseheridiss prosecution of this appeal to rise to the level of sanctionable conduct. The Aguila entities motion for sanctions is therefore denied.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.