Filed 12/30/14 Izhar v. The Permanente Federation CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
     publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
                               publication or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



MOHAMMED IZHAR,

         Plaintiff and Appellant,                                         E057903

v.                                                                        (Super.Ct.No. SCVSS113530)

THE PERMANENTE FEDERATION et                                              OPINION
al.,

         Defendants and Respondents.



         APPEAL from the Superior Court of San Bernardino County. Donald R.

Alvarez, Judge. Affirmed.

         Mohammed Izhar, in pro. per., for Plaintiff and Appellant.

         Dykema Gossett, John L. Viola; Reed Smith, Deborah Broyles and Christine

Kohler for Defendants and Respondents.

         Plaintiff and appellant Dr. Mohammed Izhar (Izhar) brought claims against

defendants and respondents Kaiser Foundation Health Plan (Kaiser) and Southern

California Permanente Medical Group (SCPMG) for (1) religious discrimination;



                                                              1
(2) national origin discrimination; (3) a hostile work environment; and (4) intentional

infliction of emotional distress. An arbitrator entered an award in favor of Kaiser and

SCPMG (collectively “defendants”). The trial court granted defendants’ petition to

confirm the arbitration award. (Code Civ. Proc., § 1285.)1 Subsequently, the trial court

denied Izhar’s (1) petition to vacate the arbitration award (§ 1286.2); and (2) motion to

set aside the order (§ 663). The trial court entered judgment in favor of defendants.

       Izhar contends the trial court erred by finding Izhar’s opposition to defendants’

petition to confirm the arbitration award was untimely. Next, Izhar asserts the trial

court erred by denying his petition to vacate the arbitration award. Izhar contends this

was error because: (1) the arbitrator was subject to disqualification due to a lack of

neutrality and failure to comply with ethical standards; (2) state law, as opposed to the

American Arbitration Association, controls arbitration procedures; (3) the arbitrator

exceeded his authority; (4) the arbitrator engaged in improper ex parte communication;

(5) the arbitrator was biased; and (6) the arbitrator improperly denied Izhar the

opportunity to cross-examine a defense witness. Lastly, Izhar requests this court

reconsider its ruling on his 2005 petition for writ of mandate. We affirm the judgment.




       1 All subsequent statutory references will be to the Code of Civil Procedure
unless otherwise indicated.


                                             2
                     FACTUAL AND PROCEDURAL HISTORY

       A.     BACKGROUND FACTS

       In 1989, Izhar became an employee of SCPMG, which is a medical group

providing physician services at Kaiser Foundation Hospitals.2 In 1991, Izhar was

elected to become a partner in SCPMG. Izhar worked as a radiologist in Kaiser’s

Fontana medical center. In 2003, Izhar stopped working at Kaiser, due to health issues,

but remained a partner in SCPMG until 2006.

       B.     PROCEDURAL HISTORY

       Izhar filed his lawsuit in 2004. Defendants moved to compel arbitration. The

trial court granted the motion. In 2005, this court denied Izhar’s petition for a writ of

mandate directing the trial court to vacate its order compelling arbitration.

       The arbitrator issued his award on March 28, 2012. On May 17, defendants filed

a petition to confirm the arbitration award, in the trial court. Izhar filed opposition to

the petition on June 4. In the opposition, Izhar explained that he planned to file a

petition to vacate the arbitration award. Izhar filed a petition to vacate the arbitration

award on June 15. At the hearing on defendants’ petition to confirm the arbitration

award, on June 18, the trial court found Izhar’s opposition to the petition was untimely

because Izhar missed the 10-day filing deadline; Izhar filed on the 19th day. The trial


       2  From the record, it appears there are four separate legal entities: (1) Kaiser
Health Plan, which has patients/members; (2) Kaiser Foundation Hospitals, which
operates Kaiser’s medical facilities; and (3) SCPMG, which is “a general partnership for
the practice of medicine,” i.e., it is a group of doctors that work at Kaiser Foundation
Hospitals.


                                              3
court noted that the lack of timely opposition means “the allegations of the petition are

deemed to be admitted.” As a result, the trial court granted defendants’ petition to

confirm the award.

       Another hearing was held on August 7. The hearing was scheduled to address

Izhar’s June 15 petition to vacate the arbitration award. The petition to vacate the award

was not explicitly ruled upon at the June 18 hearing; rather, that hearing expressly

addressed defendants’ petition to confirm the award. The trial court reaffirmed the

order granting defendants’ petition to confirm the award, and denied Izhar’s petition to

vacate the award.

       On August 24, Izhar filed a motion to set aside the order. (§ 663.) On November

15, the trial court held a hearing on the motion. The trial court listened to Izhar’s

arguments, and denied the motion.

                                      DISCUSSION

       A.     UNTIMELY OPPOSITION

              1.     CONTENTION

       Izhar contends the trial court erred by deeming untimely (a) his opposition to

defendants’ petition, and (b) his petition to vacate the arbitration award. Izhar asserts the

trial court erred because (1) the law provides for a 100-day deadline, not a 10-day

deadline; (2) a court can excuse a party from an arbitration related deadline if the party

demonstrates the existence of a mistake or a satisfactory excuse; (3) a court, via equity,

may relieve a party of a deadline if the party was deprived of a fair hearing due to




                                             4
extrinsic fraud or mistake; and/or (4) defendants would not have been prejudiced by the

trial court considering Izhar’s filings.

              2.      100-DAY DEADLINE

       The rules in this area of law, related to filing deadlines, are somewhat complex.

In this paragraph, we present the prevailing rules, then go on to discuss the conflict in

the statutes. A party may petition a trial court to confirm, correct, or vacate an

arbitration award. (§ 1285.) A party may also seek to have the award corrected or

vacated by filing an opposition to a petition to confirm an arbitration award. (§ 1285.2.)

A petition to confirm an arbitration award must be filed within four years of the date the

petitioner was served the arbitration award. (§ 1288.) A petition to vacate or correct an

arbitration award must be filed within 100 days of the petitioner being served with the

arbitration award. (§ 1288.) An opposition requesting an award be vacated or corrected

must be served and filed within 100 days of the respondent being served with the

arbitration award. (§ 1288.2, subd. (a).) However, the filing of a petition to confirm an

arbitration award changes this timeline. “When one side files a petition to confirm the

award, the other side must respond within 10 days”—even if the opposition seeks to

vacate or confirm the award. (Oaktree Capital Management, L.P. v. Bernard (2010)

182 Cal.App.4th 60, 66 (Oaktree); § 1290.6.)

       Thus, there are two statutes addressing responses/oppositions—a 100-day statute

and a 10-day statute. Section 1290.6 reads, “A response shall be served and filed within

10 days after service of the petition . . . .” Section 1288.2, subdivision (a), provides, “A

response requesting that an award be vacated or that an award be corrected shall be


                                             5
served and filed not later than 100 days after the date of service of a signed copy of the

award upon: [¶] (a) The respondent if he was a party to the arbitration.”

       For several decades, courts have interpreted these two statutes in the manner set

forth ante—if a petition to confirm the arbitration award is filed, then any opposition

(even one requesting the award be vacated) must be filed within 10 days. (Oaktree,

supra, 182 Cal.App.4th at pp. 66-67; DeMello v. Souza (1973) 36 Cal.App.3d 79, 83

(DeMello); Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 856; Coordinated Const., Inc.

v. J.M. Arnoff Co. (1965) 238 Cal.App.2d 313, 317-318.)

       In Oaktree, the appellate court wrote, “[C]ommentators have expressed that the

various deadlines [(100 day and 10 day)], overlapping as they are, create confusion and,

in some scenarios, mischief. [Citation.] We believe the time may have come for our

Supreme Court to provide definitive guidance on the time deadlines a party who seeks

to vacate an arbitration award faces when the prevailing party in the arbitration has filed

a petition to confirm the award.” (Oaktree, supra, 182 Cal.App.4th at pp. 67-68.)

       We agree with the conclusions that the statutory scheme is confusing, and could

lead to mischief, which is why we believe it is important to follow the case law that has

been in place for several decades, so that the case law remains consistent, despite the

ambiguities of the statutes. (See In re Myrtle Ave in City of San Diego (1961) 188

Cal.App.2d 833, 837 [statutes should be interpreted in a manner that does not create

mischief].) Accordingly, we follow the statutory interpretation that gives the 10-day

rule priority over the 100-day rule, because that rule of priority has been created by

consensus of the courts, although “that consensus emerges from decisions that


                                             6
seemingly struggle with explaining why that [10-day] rule prevails.” (Oaktree, supra,

182 Cal.App.4th at p. 67.)

       In the instant case, defendants filed their petition to confirm the arbitration award

before Izhar filed his petition to vacate and his response/opposition. Therefore,

defendant was subject to a 10-day deadline, triggered by the filing of the petition to

confirm the award. (§ 1290.6.) The petition to confirm was mailed to Izhar, from

within California, on May 16. Since service was by U.S. mail within California, five

calendar days are added, which would bring the date to May 21. (§ 1013, subd. (a).)

Izhar had 10 days from May 21 to file his opposition, which would be June 5, due to the

court holiday. Izhar filed his opposition to the petition on June 4, within the deadline.

       Thus, the trial court erred when it found Izhar’s opposition was untimely. The

trial court forgot to include the five extra mailing days. The trial court said, “Here, the

defendant[s] served their petition by mail on May 16, 2012. [Ten] days thereafter is

May 29. The actual 10th day is a Saturday and the following Monday was a holiday.

Here, plaintiff filed—served his response on June 4th, which is approximately 19 days

after service of the petition.”

       Although the trial court erred in finding the opposition to be untimely, we

conclude the error was harmless because the opposition had no substantive content.

Izhar’s opposition reflected only his plans to file a petition to vacate the award. Izhar

cited the statutes upon which he would base his petition, but offered no explanation as

to what reasons or evidence supported his reliance on those statutes; he merely cited

statutes. Izhar explained that he had 100 days to petition the court to vacate the award,


                                             7
and therefore the petition for confirmation of the award was moot and a “waste of this

Court’s time.” Izhar filed his petition to vacate the arbitration award on June 15. The

petition to vacate included Izhar’s substantive arguments.

       Izhar’s petition to vacate was untimely and not the proper means of seeking to

vacate the award. Since defendants had already filed a petition to confirm the award,

Izhar needed to request the award be vacated in his opposition to defendants’ petition.

(§ 1285.2.) In sum, the opposition that was timely filed had no substantive content, and

the petition to vacate that did have substantive content was untimely filed. Accordingly,

although the trial court erred in finding the opposition to be untimely, we find the error

to be harmless because a different result could not have occurred given the lack of

substantive arguments and lack of a request to vacate in the timely filed opposition.

(See Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal.App.4th

1041, 1048 [a civil state-law error will only be reversed if there is a reasonable

probability a result more favorable to the appellant would have occurred absent the

error].)

       Defendants contend the error was harmless because the trial court heard Izhar’s

motion to set aside the confirmation order, under section 663. We do not find this

argument to be persuasive because Izhar’s motion to set aside an order, under section

663, related to the trial court’s July 18th order confirming the arbitration award. Thus,

at the section 663 hearing, the issue concerned the propriety of the trial court’s order,

not the arbitrator’s award. The hearing addressed a different issue. Therefore, the fact

that the trial court had a hearing on the motion to set aside the court’s order (§ 663)


                                             8
would not make harmless the error of finding untimely Izhar’s opposition concerning

the arbitration award, when the opposition was actually timely. Nevertheless, as

explained ante, the error was harmless due to a lack of substantive argument and the

lack of a request to vacate in the timely filed opposition.

              3.      MISTAKE OR EXCUSE

       Izhar asserts the trial court should have excused Izhar from the 10-day deadline

due to the existence of a mistake or a satisfactory excuse. “It is blackletter law that an

unjust judgment or order by itself is not enough to grant relief under equitable

principles. In order to succeed, the aggrieved party in addition must show a satisfactory

excuse for not having made his claim or defense in the original action and diligence in

seeking relief after discovery of the facts [citations].” (DeMello, supra, 36 Cal.App.3d

at p. 85.)

       In Izhar’s briefs at this court, Izhar does not provide argument, so it is unclear

from his briefs if he is asserting the arbitrator’s award was unjust or the trial court’s

order was unjust. In other words, it is ambiguous as to whether Izhar believes equity

should have been invoked because the arbitration award was unfair or the trial court’s

reliance on the 10-day deadline was unfair. However, either way, Izhar’s briefs also do

not reflect why he did not file a substantive opposition within the 10-day deadline.

       At oral argument in this court, Izhar explained that he had not checked his U.S.

mailbox, where the petition was sent. Therefore, he received the petition late. Izhar

said he had been relying on documents being served via e-mailed, rather than only being

sent via U.S. mail. Thus, Izhar is asserting his excuse is that he expected the petition


                                              9
would have been e-mailed. Izhar did not cite to any document reflecting the parties

agreed to serve one another via e-mail. Rather, it seems the parties may have e-mailed

one another as a courtesy. Since there does not appear to be an agreement to serve one

another via e-mail, the trial court could reasonably conclude Izhar’s excuse was not

satisfactory. (See Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 293-294 [applying

the abuse of discretion standard].) As a result, equity would not apply. Moreover, as

explained ante, the issue is not the timeliness of Izhar’s filing, because it was timely.

The issue is the lack of substantive content in his response to the petition. Izhar’s e-

mail excuse does not address why he failed to provide substantive content.

        In Izhar’s opening brief, he also mentions the “interplay between the time

limitation of sections 1288.2 and 1290.6.” To the extent Izhar is asserting he was

confused by the two statutes, we find such an argument to be unpersuasive given that

the 10-day deadline has applied to oppositions to petitions to confirm awards since the

1960s. (Coordinated Const., Inc. v. J.M. Arnoff Co., supra, 238 Cal.App.2d at pp. 317-

318.)

               4.     EXTRINSIC FRAUD OR MISTAKE

        Izhar also cites a rule related to extrinsic fraud or mistake. We infer Izhar is

asserting the trial court should have relieved him from the 10-day deadline due to

extrinsic fraud or mistake. In DeMello, the court wrote, “[T]he court may grant relief

under its inherent equitable power only if, due to the fraud of the opponent or by his

own mistake, the aggrieved party was deprived of a fair adversary hearing and was




                                             10
prevented from presenting his claim or defense, or as the authorities put it, if the fraud

or mistake was ‘extrinsic.’ [Citations.]” (DeMello, supra, 36 Cal.App.3d at p. 85.)

       Again, Izhar’s briefs do not reflect what the extrinsic fraud or mistake may have

been. However, at oral argument in this court, Izhar explained he expected to be served

via e-mail, rather than solely via U.S. mail. Thus, the extrinsic fraud or mistake would

be defendants’ act of not e-mailing the petition to Izhar. Izhar has not provided a

citation reflecting an agreement between the parties to serve one another via e-mail.

Rather, it appears the parties e-mailed one another as a courtesy. Since there was no

agreement to serve one another via e-mail, the trial court could reasonably conclude

there was no fraud or extrinsic mistake because defendants had no obligation to e-mail

Izhar. Additionally, this alleged fraud or mistake goes more toward trying to explain

the timeliness aspect of the filing, but, as explained ante, the filing was timely. The

problem with the response is that it lacks substantive arguments. The e-mail excuse, if

it were accepted, does not explain why there is a lack of substantive content in the

response.

              5.     PREJUDICE

       Izhar asserts the trial court could have considered a late response if doing so

would not have prejudiced the other party. Izhar fails to explain how defendants would

not have been prejudiced. Izhar filed his substantive arguments, in his petition to vacate

the award, on Friday, June 15. The petition to vacate was served via U.S. mail and e-

mail. The hearing on defendants’ petition to confirm the award took place on the

morning of Monday, June 18. Thus, assuming defendants received the petition on


                                            11
Friday or Saturday, they had only one or two days to consider Izhar’s arguments and

develop responses. Given this procedural history, Izhar would need to provide

argument to explain how defendants would not have been prejudiced by his untimely

filing. Since Izhar does not provide such argument, we find his reliance on the

“prejudice” rule to be unpersuasive.

       B.     PETITION TO VACATE

       Izhar asserts the trial court erred by denying his petition to vacate the arbitration

award because: (1) the arbitrator was subject to disqualification due to a lack of

neutrality, and failure to comply with ethical standards; (2) state law, as opposed to the

American Arbitration Association, controls arbitration procedures; (3) the arbitrator

exceeded his authority; (4) the arbitrator engaged in improper ex parte communication;

(5) the arbitrator was biased; and (6) the arbitrator improperly denied Izhar the

opportunity to cross-examine a defense witness.

       As set forth ante, Izhar’s response/opposition to defendants’ petition to confirm

the award did not contain any substantive arguments. Rather, it reflected Izhar’s intent

to file a petition to vacate the arbitration award. If Izhar wanted the trial court to vacate

the arbitration award, then he needed to make the request in his opposition to

defendants’ petition to confirm the award. (§ 1285.2; see also Leadford v. Leadford

(1992) 6 Cal.App.4th 571, 574 [“A trial court has no discretion to allow [a] second

action to proceed if it finds the first involves substantially the same controversy between

the same parties”].) In other words, Izhar’s substantive arguments concerning a request




                                             12
to vacate the arbitration award should have been presented in his opposition, rather than

in a petition to vacate.

       Also, as explained ante, Izhar’s petition to vacate was untimely. Therefore, we

cannot treat his petition to vacate as though it were his opposition. Moreover, the trial

court denied Izhar’s petition to vacate due to the petition being untimely filed and the

petition to confirm already being granted (see Lucido v. Superior Court (1990) 51

Cal.3d 335, 361-362 [describing collateral estoppel]). Thus, the trial court did not pass

judgment on the substantive arguments in Izhar’s petition to vacate. As a result, the

arguments Izhar presents related to the petition to vacate are being raised for the first

time on appeal. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406 [“‘As a general

rule, failure to raise a point in the trial court constitutes . . . waiver and appellant is

estopped to raise that objection on appeal.’”].)

       We cannot consider arguments concerning how the arbitration award was

allegedly unjust for the first time on appeal. We conclude Izhar forfeited his arguments

concerning how the arbitration award was unjust, in relation to the petition to vacate, by

failing to raise the arguments in the trial court, i.e., failing to include the argument in his

timely filed opposition to the petition to confirm. (Mundy v. Lenc, supra, 203

Cal.App.4th at p. 1406.)

       We are unable to address the merits of Izhar’s contentions due to his forfeiture.

For example, on appeal, Izhar asserts the arbitrator was subject to disqualification due to

(1) a lack of neutrality, and (2) a failure to comply with ethical standards. In

defendants’ respondents’ brief, they assert Izhar’s disqualification argument is “but


                                               13
another example of Dr. Izhar’s twisting the facts to introduce irrelevant arguments.”

When facts are disputed, we must accept the trial court’s resolution of those disputed

facts when supported by substantial evidence. (United Health Centers of San Joaquin

Valley, Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 74.) Here, we do not have

the trial court’s resolution of the factual disputes, due to Izhar’s forfeiture, so we cannot

perform the review Izhar seeks. In sum, we do not address Izhar’s arguments related to

the trial court’s alleged error in denying his petition to vacate the arbitration award

because the arguments have been forfeited.

       C.     PETITION FOR WRIT OF MANDATE

              1.      CONTENTION

       Izhar requests this court reconsider its summary denial of Izhar’s 2005 petition

for writ of mandate.3 In 2005, Izhar petitioned this court for a writ of mandate directing

the trial court to vacate its order compelling Izhar to participate in arbitration. Izhar

asserts he should not have been compelled to participate in arbitration because (1) his

partnership contract with SCPMG is a contract of adhesion, and (2) he did not consent

to be bound by an arbitration clause.




       3 A summary denial of a writ petition does not preclude later review of the same
issue. (Kowis v. Howard (1992) 3 Cal.4th 888, 900.)


                                             14
              2.     CONSENT

       We examine the consent issue. “The right to arbitration depends on a contract.

[Citations.] Accordingly, a party can be compelled to submit a dispute to arbitration

only where he has agreed in writing to do so. [Citation.]” (Boys Club of San Fernando

Valley, Inc. v. Fidelity & Deposit Co. (1992) 6 Cal.App.4th 1266, 1271.)

       In Izhar’s declaration, which was submitted as an exhibit with his writ petition,

Izhar declared he was “voted on as a partner physician of SCPMG,” and afterward his

title changed; we presume it changed to “partner.” Izhar also declared he does “not

recall ever signing any partnership agreements with FMC or SCPMG.” In Izhar’s

appellant’s opening brief, he asserts he was “provided with a form asking for a response

to the question ‘Would you like to become a partner?’ followed by [two] box[es]

labeled yes [and] no.” Izhar does not indicate if he marked a box. However, the

SCPMG “Rules and Regulations” reflect that in order for a doctor to become a partner,

the doctor must “submit[]a written letter of acceptance,” after being voted into the

partnership by the board of directors. Thus, one can infer Izhar sent an acceptance letter

and/or marked a box accepting the partnership offer.

       The problem we encounter is the acceptance letter and/or “box form” does not

appear to be included in the record on appeal or in Izhar’s request for judicial notice.

On our own motion, we took judicial notice of the record in Izhar’s 2005 writ petition,




                                            15
but the letter and/or “box form” does not appear to be included in that record either.4

Without the acceptance letter or form, it is unclear to what terms Izhar may or may not

have agreed.

       The writ petition exhibits include SCPMG’s “Rules and Regulations,” which

includes an arbitration clause. It appears from the arguments that this is the arbitration

clause Izhar is disputing. Thus, we have been given an arbitration clause in the “Rules

and Regulations” without any context. In order to determine if Izhar consented to an

arbitration clause, we need all the relevant documents, i.e. the letter and/or form in

which Izhar agreed to be a SCPMG partner. (Civ. Code, § 1549 [“A contract is an

agreement to do or not to do a certain thing”].) Without the documents, we cannot

determine to what terms Izhar did or did not agree. For example, it is possible the “box

form” called attention to the arbitration clause in the Rules and Regulations and

incorporated the Rules and Regulations by reference. The point being, we cannot know

if Izhar did or did not agree to the arbitration clause since we are lacking the document

reflecting Izhar’s agreement.




       4 We have examined the table of contents or indexes of the three sources, as
opposed to combing through the sources, since combined the sources total over 2,000
pages. We looked at (1) the Table of Exhibits in the writ petition (the exhibits total 442
pages); (2) the list of documents in Izhar’s request for judicial notice (the request
includes 15 multi-page documents); and (3) the Master Index for the Clerk’s Transcript
on Appeal (the transcript is 1,698 pages). Within the writ exhibits, we examined the
attachments to (a) defendants’ motion to compel arbitration, and (b) Izhar’s opposition
to the motion to compel arbitration, specifically looking for an acceptance letter or “box
form,” but did not locate either.


                                            16
       Due to the seemingly inadequate record and lack of record citations to the letter

and/or form in Izhar’s appellant’s opening brief and appellant’s reply brief, we deem

this issue to be forfeited.5 (Cal. Rules of Court, rule 8.204(a)(1)(C) [record citations];

Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060 [“the

reviewing court presumes the judgment of the trial court is correct and indulges all

presumptions to support a judgment on matters as to which the record is silent”]; City of

Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [a lack of record citations in

an appellant’s brief forfeits the issue for appeal].)

               3.     CONTRACT OF ADHESION

       We now examine the contract of adhesion issue. A contract of adhesion is a

standardized contract drafted by a party with superior bargaining strength that involves

the weaker party being unable to negotiate the terms of the contract and being subject to

unconscionable clauses. (Madden v Kaiser Foundation Hospitals (1976) 17 Cal.3d 699,

710-711.) “[C]ourts will not enforce provisions in adhesion contracts which limit the

duties or liability of the stronger party unless such provisions are ‘conspicuous, plain

and clear’ [citation] and will not operate to defeat the reasonable expectations of the

parties [citation].” (Id. at p. 710.)

       5   In Izhar’s appellant’s reply brief, he cites a rule concerning the burden of proof
in the trial court. The rule reflects that, in the trial court, the party seeking to compel
arbitration bears the burden of establishing a valid agreement to arbitrate. To the extent
Izhar is asserting this same rule applies at the appellate level, he is incorrect. “An
appellate court ‘“must presume that the record contains evidence to support every
finding of fact . . . .”’ [Citations.] It is the appellant’s burden, not the court’s, to
identify and establish deficiencies in the [record].” (Huong Que, Inc. v. Luu (2007) 150
Cal.App.4th 400, 409.)


                                              17
       As explained ante, the record appears to be inadequate and Izhar’s briefing of the

issue lacks record citations to a contract—Izhar cites to the “Rules and Regulations,”

but not to an acceptance letter or “box form.” We cannot determine whether there is a

contract of adhesion because we do not have the document upon which Izhar agreed to

be a partner. (Civ. Code, § 1549 [“A contract is an agreement to do or not to do a

certain thing”].) It appears from his briefing that Izhar takes issue with the arbitration

clause in the “Rules and Regulations.” However, Izhar fails to explain how or why the

“Rules and Regulations” are a contract. He argues the grievance procedure is

unconscionable, but does not establish that there is a contract. We are required to guess

how the agreement was created, while keeping in mind that Izhar claims to have never

signed an agreement.

       In sum, the record and Izhar’s briefing have left us in quandary. Izhar asserts

there is no arbitration agreement, but there is a contract of adhesion involving an

arbitration clause; and fails to identify the agreement portion of the contract for the

court. We cannot reconcile Izhar’s conflicting assertions, and cannot use inference to

decipher his argument because it appears the record is missing critical documents, as

discussed ante. Therefore, due to the lack of record citations, lack of specific argument,

and seemingly inadequate record, we deem the issue to be forfeited. (Cal. Rules of

Court, rule 8.204(a)(1)(C) [record citations]; Baker v. Children’s Hospital Medical

Center, supra, 209 Cal.App.3d at p. 1060 [“the reviewing court presumes the judgment

of the trial court is correct and indulges all presumptions to support a judgment on

matters as to which the record is silent”]; City of Lincoln v. Barringer, supra, 102


                                             18
Cal.App.4th at p. 1239 [a lack of record citations in an appellant’s brief, forfeits the

issue for appeal].)6

                                        DISPOSITION

       The judgment is affirmed. Respondents are awarded their costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                         MILLER
                                                                                            J.


We concur:


RAMIREZ
                                P. J.


HOLLENHORST
                                   J.




       6  Izhar requests this court take judicial notice of 15 different documents. The
documents appear to be (1) filings that were made in the arbitration proceedings, (2) a
reporter’s transcript from the arbitration proceedings, (3) letters related to the arbitration
proceedings, and (4) a 2008 complaint for damages drafted by Izhar. The documents do
not bear stamps from the trial court reflecting they were filed or received at the court.
Izhar asserts this court should take judicial notice of the documents because they are
court records. (Evid. Code, § 452, subds. (c)&(d).) Izhar does not explain how
documents that lack court filing stamps are court records. Since the documents do not
appear to be court records (due to the lack of filing stamps), we deny Izhar’s request for
judicial notice.


                                             19
