Here's another rarity. It's very rare that the judiciary refuses to confirm an arbitration award due to the arbitrator's findings on the merits. But, arguably, that's precisely what happens here.
The parties enter into a contract with an arbitration clause. The substantive provisions of the contract also contain a notice and cure clause; e.g., that require a party to tell the other party about an alleged breach and allow them to cure it before the injured party can sue for breach. Fairly standard. One party thinks the other side breaches and files an arbitration claim. Respondent defends on, among other bases, the ground that it was never given notice and an opportunity to cure. The arbitrator finds for the petitioner, holding that there was indeed a breach and that there was no need to provide notice since it couldn't have been cured anyway.
Again, pretty standard. And -- as usual -- the prevailing party moves to confirm the abitration award, the losing party opposes the request, and the trial court confirms, holding that court can't refuse to enforce an arbitration award merely because we disagree with the resolution of the merits.
But Justice Turner reverses. Holding that the arbitrator "exceeded his power" when he "excused" performance of the notice and cure clause.
Justice Turner's opinion is 35 pages (with an additional two-page concurrence by Justice Mosk), and is both well-written and fairly expansive. I nonetheless tend to come out the other way on this one, and wouldn't at all be surprised to see this one reviewed (or at least depublished). It seems to me that what the arbitrator did with respect to the notice and cure clause involved an adjudication of the merits, and that allegedly "ignoring" a contractual provision doesn't automatically equate to acting in excess of one's jurisdiction. I think that the defense here goes to the merits, not jurisdiction. So -- and I am admittedly am spouting off the cuff here (per se usual) -- I probably agree with the trial court that the award should have been confirmed, and disagree with Justice Turner.
Not that Justice Turner doesn't have a point, and not that the law couldn't reasonably be contrued that way. I just don't think that's how doctrine -- properly interpreted -- is in fact contrued. We confirm large numbers of erroneous arbitration awards. I don't see that the alleged error here is qualitatively any different. Given the scope of contemporary doctrine, and with all due respect to Justice Turner (and the rest of the panel), I'd have affirmed.
