Filed 11/23/22 Bernett v. Rubin CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

BRAD BERNETT,

Plaintiff and Appellant,

v.

ADAM RUBIN,

Defendant and

Respondent.

 B313680

 (Los Angeles County

 Super. Ct.

No. 20STCV34577)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Rupert A. Byrdsong, Judge. Affirmed.

Law Firm of Harold Greenberg, Harold Greenberg, Jenifer 

Anisman; Law Offices of Robert L. Bastian, Jr., and Robert L. 

Bastian, Jr., for Plaintiff and Appellant.

McGarrigle, Kenney & Zampiello, Patrick C. McGarrigle 

and Michael J. Kenney for Defendant and Respondent.
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Plaintiff and appellant Brad Bernett (plaintiff) appeals 

from the judgment of dismissal entered favor of defendant and 

respondent Adam Rubin (defendant) in this action for breach of 

contract. The judgment was entered pursuant to previous court 

orders (1) confirming an arbitration award dismissing defendant 

from a binding arbitration concerning alleged breach of the same 

contract at issue in this action and (2) sustaining, without leave 

to amend, defendant’s demurrer to the complaint.

We affirm the judgment.

BACKGROUND

In June 2019, plaintiff filed a demand for arbitration 

against defendant and Andrew Shanfeld (Shanfield) pursuant an 

arbitration provision in a home improvement contract (the HIC) 

entered into by Shanfield and Snow Construction, Inc. (Snow). 

The arbitration provision states in relevant part:

“Any controversy or claim arising out of or related to 

this contract, or breach thereof, shall be settled by 

binding arbitration in accordance with the 

construction industry arbitration rules of the 

American Arbitration Association, and judgment 

upon the award rendered by the arbitrator(s) may be 

entered in any court having jurisdiction thereof. . . . 

[¶] NOTICE: By initialing in the space below you 

are agreeing to have any dispute arising out of the 

matters included in the ‘Arbitration of disputes’ 

provision decided by neutral Arbitration as provided 

by California law and you are giving up any rights 

you might possess to have the dispute litigated in a 

court or jury trial. . . .”

The arbitration provision was initialed by Snow and 

Shanfield. Plaintiff asserted rights under the HIC as the 
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assignee of Snow’s rights thereunder in a written assignment 

dated June 18, 2019.

The arbitration proceeded before American Arbitration 

Association arbitrator Wesley Davis. After a July 14, 2020 

arbitration hearing, the arbitrator issued an award dismissing 

defendant from plaintiff’s arbitration demand and claim. The 

July 21, 2020 arbitration award states in relevant part: “The 

Arbitrator has treated [defendant’s] Motion as a Motion for 

Judgment on the Pleadings. The Arbitrator explained that his 

authority comes from the contract terms. The Parties to the 

contract are stated in the contract and those are the parties that 

the Arbitrator has Jurisdiction over unless a party stipulated to 

be bound by the arbitration. [¶] . . . Adam Rubin was not a party 

to the contract and by this motion he is not stipulating to be 

bound by the arbitration . . . .

[1] Respondent Adam Rubin is 

hereby awarded a judgment of dismissal from Claimants’ 

Arbitration Demand and claim.” Plaintiff did not petition to 

vacate or correct the arbitration award.

On September 10, 2020, plaintiff commenced this action 

against defendant and Carolwood for breach of the HIC. 

Defendant demurred to the complaint and filed a motion to 

confirm the arbitration award entered in his favor. On February 

11, 2021, the trial court granted defendant’s motion to confirm 

the arbitration award. On March 22, 2021, the trial court 

1 The arbitrator also rejected plaintiff’s argument that 

defendant was bound by the terms of the HIC as the alter ego of 

Carolwood Hollywood III, LLC (Carolwood), an entity allegedly 

owned or controlled in part by defendant. The arbitrator found 

that there was no evidence of alter ego liability and that 

Carolwood was a nonparty to the HIC.
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granted, without leave to amend, defendant’s demurrer to the 

complaint. On April 21, 2021, the trial court entered a judgment 

of dismissal in defendant’s favor and against plaintiff and 

confirming the arbitration award in defendant’s favor against 

plaintiff.

This appeal followed.

DISCUSSION

I. Applicable law and standard of review

Judicial review of a judgment confirming an arbitration 

award is limited. “[A]rbitral finality is a core component of the 

parties’ agreement to submit to arbitration.” (Moncharsh v. Heily 

& Blase (1992) 3 Cal.4th 1, 10.) An arbitrator’s decision cannot be 

judicially reviewed for errors of fact or law even if the error is 

apparent and causes substantial injustice. (Id. at p. 11.) “‘As a 

consequence, arbitration awards are generally immune from 

judicial review.’” (Ibid.)

In an appeal from a judgment confirming an arbitration 

award, an appellate court may not “‘review the merits of the 

dispute, the sufficiency of the evidence, or the arbitrator’s 

reasoning, nor may we correct or review an award because of an 

arbitrator’s legal or factual error, even if it appears on the 

award’s face. Instead, we restrict our review to whether the 

award should be vacated under the grounds listed in [Code of 

Civil Procedure] section 1286.2.’”

2 (EHM Productions, Inc. v. 

Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 

1063-1064.)

2 All further statutory references are to the Code of Civil 

Procedure unless stated otherwise.
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Under section 1286.2 a reviewing court may vacate an 

arbitration award only on certain specified grounds. One ground 

allows a court to vacate an award if it was procured by fraud or 

improper means. (§ 1286.2, subd. (a)(1).) The remaining grounds 

allow vacation of an award for arbitrator wrongdoing. (§ 1286.2, 

subd. (a)(2)-(6); State Farm Mut. Auto. Ins. Co. v. Robinson (2022) 

76 Cal.App.5th 276, 282-283.)

II. No grounds for vacating the arbitration award or 

reversing the judgment confirming the award

Plaintiff cites none of the grounds set forth in section 

1286.2 as a basis for vacating the arbitration award or reversing 

the judgment confirming the award. Rather, he erroneously 

claims the award does not preclude him from suing defendant on 

the HIC because the arbitrator dismissed defendant from the 

arbitration for lack of jurisdiction. The record indicates, however, 

that defendant appeared and participated in the arbitration and 

that the arbitrator’s award of dismissal was an adjudication on 

the merits. In the words of the arbitrator, the award grants a 

motion for judgment on the pleadings. (See Pacific Legal 

Foundation v. Unemployment Ins. Appeals Bd. (1977) 74 

Cal.App.3d 150, 157 [granting motion for judgment on the 

pleadings is in essence a decision on the merits].) A confirmed 

arbitration award has “the same force and effect as, and is 

subject to all the provisions of law relating to, a judgment in a 

civil action of the same jurisdictional classification.” (§ 1287.4.) 

We therefore reject plaintiff’s arguments that the doctrines of res 

judicata or collateral estoppel do not apply to preclude him from 

litigating his breach of contract claim against defendant.

The arbitration award states that the arbitrator has 

jurisdiction to bind only parties to the HIC or those who stipulate 
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to be bound. The award further states that defendant was 

dismissed as a nonparty to the HIC who did not stipulate to be 

bound by the arbitration. Plaintiff, on the other hand, by 

demanding arbitration, asserted rights as a party to the HIC and 

stipulated to be bound by the arbitration. The arbitration award 

accordingly is binding against him.

DISPOSITION

The judgment is affirmed. Defendant shall recover his 

costs on appeal.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.