NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN C. VERNILE, 

Petitioner-Appellee, 

 v. 

PACIFICA FOUNDATION, INC., a 

California nonprofit corporation, 

Respondent-Appellant.

No. 22-55938 

D.C. No. 

2:22-cv-02599-SVW-PVC 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted November 14, 2023

San Francisco, California

Before: S.R. THOMAS, FORREST, and MENDOZA, Circuit Judges.

Pacifica Foundation, Inc. appeals from the district court’s order confirming a

$300,000 arbitration award in favor of Pacifica’s former employee, John Vernile. 

We review de novo the district court’s decision regarding the arbitrability of 

claims, Brennan v. Opus Bank, 796 F.3d 1125, 1128 (9th Cir. 2015) (citation 

omitted), and its decision to confirm or vacate an arbitration award, HayDay

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

NOV 21 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Farms, Inc. v. FeeDx Holdings, Inc., 55 F.4th 1232, 1238 (9th Cir. 2022) (citation 

omitted). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district 

court. 

Pacifica raises three primary arguments on appeal; none are persuasive. 

First, Pacifica asserts that the arbitrator exceeded her authority under the parties’ 

arbitration agreement by adjudicating Vernile’s defamation claim because the 

claim did not “arise out of” or “concern” Vernile’s employment or termination. 

Although “there is a presumption that courts will decide which issues are 

arbitrable[,]” the question of arbitrability is properly submitted to the arbitrator 

where “clear and unmistakable evidence” establishes “that the parties to an 

agreement intended to arbitrate questions of arbitrability.” Oracle Am., Inc. v. 

Myriad Grp. A.G., 724 F.3d 1069, 1072, 1073 (9th Cir. 2013). Here, the parties’ 

agreement states that “arbitration will be held in accordance with AAA’s then 

applicable rules.” AAA Rule 6.a provides: “The arbitrator shall have the power to 

rule on his or her own jurisdiction, including any objections with respect to the 

existence, scope or validity of the arbitration agreement.” We have held “that, at 

least in a contract between sophisticated parties, incorporation of the AAA Rules 

constitutes clear and unmistakable evidence that contracting parties agreed to 

arbitrate arbitrability.” Shivkov v. Artex Risk Sols., Inc., 974 F.3d 1051, 1068 (9th 

Cir. 2020) (internal citation and quotation omitted). Accordingly, the district court 
3 

did not err in holding that it lacked a basis to disrupt the arbitrator’s determination 

that the defamation claim was arbitrable.

Moreover, even if Pacifica raised a valid challenge to the arbitrator’s

arbitrability determination, that argument was waived because Pacifica never 

challenged the arbitrability of the defamation claim before the arbitrator. See 

Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1279 (9th Cir. 2006) (construing

Ficek v. Southern Pacific Co., 338 F.2d 655, 656–57 (9th Cir. 1964), where a party 

“waived his right to contest arbitrability because he voluntarily participated in 

arbitration and waited until after an unfavorable decision had been handed down 

before challenging the authority of the arbitrators”). 

Second, Pacifica contends that the arbitration award must be vacated under

subsections (3), (4), and (5) of the California Arbitration Act (“CAA”).

1 The 

statutory grounds for vacatur set forth in the CAA “are the exclusive grounds for 

1 As relevant here, the CAA provides that a court reviewing an arbitration 

award shall vacate the award if the court determines:

(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.

Cal. Civ. Proc. Code § 1286.2(a).
4 

judicial review of arbitration awards.” Johnson v. Gruma Corp., 614 F.3d 1062, 

1066 (9th Cir. 2010) (citing Moncharsh v. Heily & Blase, 3 Cal. 4th 1, 11 (1992)). 

Pacifica argues that the arbitrator committed prejudicial misconduct by allowing 

Vernile to submit his evidence of defamation after the close of the hearing. But the 

arbitrator complied with Rule 30 of the AAA rules governing employment disputes 

in allowing Vernile to submit post-hearing evidence by affording Pacifica the 

opportunity to review and object to the evidence and allowing the parties to submit 

rebuttal briefs. The arbitrator’s management of the presentation of evidence in 

compliance with the AAA rules is not prejudicial misconduct. 

Pacifica also contends that the arbitrator violated the CAA by allowing 

Vernile to plead his defamation claim in a manner that fails to comport with due 

process, but Pacifica fails to cite any precedent in support of this assertion.

2

 

Notably, Pacifica was on notice of Vernile’s defamation claim for more than a

year-and-a-half before the hearing and was afforded the opportunity to respond to 

Vernile’s post-hearing evidence according to the AAA rules. We are therefore 

unpersuaded by Pacifica’s contention that it was denied due process.

Finally, Pacifica’s argument that the arbitration award violated Pacifica’s 

First Amendment rights and unwaivable statutory rights under California’s anti2 The case on which Pacifica primarily relies, McGarry v. University of San Diego, 

154 Cal. App. 4th 97 (2007), is inapposite, as it neither addresses arbitration nor 

mentions due process.
5 

SLAPP statute fails. The California Supreme Court has held that “[a]rbitrators 

may exceed their powers by issuing an award that violates a party’s unwaivable 

statutory rights or that contravenes an explicit legislative expression of public 

policy.” Richey v. AutoNation, Inc., 60 Cal. 4th 909, 916 (2015). Pacifica, 

however, has not established that the arbitrator’s award violates the terms of 

California’s anti-SLAPP statute or any express policy underlying it. 

AFFIRMED.