Filed 3/2/16 Garcia v. Knysh CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



GABINO GARCIA,                                                      D067644

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. 37-2013-00033155-
                                                                    CU-OR-NC)
MICHAEL KNYSH,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline

M. Stern, Judge. Affirmed.



         Michael Knysh, in pro. per., for Defendant and Appellant.

         Law Offices of John M. Gerro and John M. Gerro for Plaintiff and Respondent.

         Michael Knysh appeals from a judgment entered after the superior court

confirmed an arbitration award against him and in favor of Gabino Garcia. Knysh

challenges both the order compelling arbitration and the order confirming the arbitration

award. We reject his challenges and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND

       Garcia signed a purchase agreement to buy a residence from Knysh for $250,000

(the July Agreement). A provision of the July Agreement, which was initialed by both

parties, required neutral, binding arbitration to resolve all disputes arising out of the

agreement. The following month, the parties signed a second purchase agreement (the

August Agreement); the August Agreement was virtually identical to its predecessor,

except that Knysh did not initial the arbitration section.

       To secure financing for the property, Garcia had to improve the property to

increase its value as collateral. Knysh authorized Garcia to make repairs and renovations

to the property. During the eight-month extended escrow, Garcia built a single family

residence on the property.

       After Garcia and Knysh signed a "cancellation" of escrow, Knysh refused to

transfer the property for the original purchase price of $250,000, but offered to sell the

property to Garcia for $360,000. Garcia responded by suing Knysh for specific

performance of the July Agreement. The parties' efforts to mediate their dispute, as

required by the July Agreement, were unsuccessful.

       The superior court thereafter granted Garcia's unopposed motion to compel

arbitration and appointed an arbitrator. Knysh, acting in propria persona, later sought

reconsideration, arguing that the escrow cancellation nullified the July Agreement and

that the August Agreement precluded arbitration. Knysh also asserted that Garcia waived

arbitration by participating in discovery. The superior court denied the motion for



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reconsideration as not based on new facts or new law as required by Code of Civil

Procedure section 10081 and the parties proceeded to arbitration.

       The arbitrator granted Garcia's request for specific performance. Knysh then filed

a motion to vacate the arbitrator's award. The court denied his motion, confirmed the

award and entered judgment in Garcia's favor. Knysh appeals.

                                       DISCUSSION2

                              I. Motion to Compel Arbitration

       Knysh asserts that the court lacked authority to grant the motion to compel

arbitration because he did not initial the arbitration provision in the August Agreement.

He also contends that in any event, Garcia waived the right to require arbitration of their

dispute by engaging in judicial discovery. We conclude that the superior court did not err

in either granting Garcia's unopposed motion to compel arbitration or denying Knysh's

motion for reconsideration, brought after the superior court granted the motion to compel

and raising for the first time the challenges he now attempts to pursue on appeal.

       Generally, a court must order arbitration where it determines an agreement to

arbitrate exists. (§ 1281.2.) Arbitration is a "highly favored . . . efficient alternative

1      All further statutory references are to the Code of Civil Procedure.

2      Knysh requests that we strike Garcia's brief because he failed to support his factual
assertions with record citations. An appellate court is limited to evaluating the facts
contained in the appellate record, and an appellant is not permitted to rely on or discuss
facts outside the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Kendall v. Barker
(1988) 197 Cal.App.3d 619, 625.) Garcia's brief violates these fundamental appellate
rules. However, in the interests of justice, we decline to strike the brief and shall reach
the merits of his appeal. Our factual review is based solely on the matters contained in
the appellate record. (See Kendall, at p. 625.)
                                               3
to . . . litigation" supported by the legislative " ' "strong public policy in favor of

arbitration . . . ." ' [Citations.] And given its favored status, courts 'indulge' every

'intendment' to implement and give effect to arbitration proceedings." (Saika v. Gold

(1996) 49 Cal.App.4th 1074, 1076.) Since no conflicting evidence was introduced to aid

the interpretation of the parties' agreement to arbitrate, we review de novo the trial court's

ruling on a motion to compel arbitration. (California Correctional Peace Officers Assn.

v. State of California (2006) 142 Cal.App.4th 198, 204.)

       Before the trial court granted the unopposed motion to compel arbitration, Garcia's

counsel and Knysh's former counsel conducted mediation as a prerequisite to arbitration

and agreed that if arbitration became necessary, it would be held in Orange County. The

parties engaged in limited written discovery in preparation for mediation and arbitration.

Garcia used the July Agreement, including the arbitration provision initialed by both

parties, to support his unopposed motion to compel arbitration. Based on this

uncontested evidence, the court granted the motion.

       Further, although Knysh moved for reconsideration based on his current

arguments, the law requires a motion for reconsideration to be based on "new or

different" facts or law that reasonably could not have been known at the time of the

original ruling by the party seeking reconsideration. (In re Marriage of Herr (2009) 174

Cal.App.4th 1463, 1468.) " '[T]he party seeking reconsideration must provide not only

new evidence but also a satisfactory explanation for the failure to produce that evidence

at an earlier time.' " (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, quoting

Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1013.)

                                                4
       Knysh based his motion for reconsideration upon his contention that the escrow

cancellation nullified the July Agreement and that his failure to initial the arbitration

provision in the August 2011 Agreement precluded arbitration. However, for self-

evident reasons, he made no showing that he could not have presented this evidence to

the trial court when it ruled on the motion to compel arbitration. Similarly, he did not

explain his inability to timely present evidence of waiver.3

       The court did not err in granting the motion to compel arbitration or in denying

Knysh's motion for reconsideration.

                         II. Motion to Confirm Arbitration Award

       On review of the trial court's judgment confirming the arbitration award, we apply

section 1286, which requires a court to " 'confirm the award as made . . . unless in

accordance with this chapter it corrects the award and confirms it as corrected, vacates

the award or dismisses the proceeding.' " (Ikerd v. Warren T. Merrill & Sons (1992) 9

Cal.App.4th 1833, 1841.) "Our review of an arbitration award requires us to extend to it

every intendment of validity and the party claiming error has the burden of supporting his

contention." (Ibid., citing Cobler v. Stanley, Barbert, Southard, Brown & Associates

(1990) 217 Cal.App.3d 518, 526; Evans v. Centerstone Development Co. (2005) 134

Cal.App.4th 151, 157 (Evans).) Unless one of the enumerated statutory grounds exists, a

court may not vacate an arbitration award even if it contains a legal or factual error on its




3       Knysh contends that Garcia waived his right to arbitrate "by participating in the
litigation and judicial discovery for one year."
                                              5
face that results in a substantial injustice. (Harris v. Sandro (2002) 96 Cal.App.4th 1310,

1313.)

         As best we can determine, Knysh contends that, based on the evidence at

arbitration, the arbitrator's award should be vacated under section 1286.2, subdivision

(a)(4) for lack of jurisdiction because the August Agreement, which did not contain

Knysh's initials indicating an agreement to arbitrate, somehow controlled. He also asserts

that the arbitrator failed to consider evidence that Garcia waived his right to arbitrate by

delaying his motion to compel and engaging in discovery.

         However, in determining whether an arbitrator exceeded his powers, we must give

substantial deference to the arbitrator's assessment of his contractual authority. (Kelly

Sutherlin McLeod Architecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 528;

Evans, supra, 134 Cal.App.4th at p. 157.) Moreover, the arbitrator considered Knysh's

arguments and rejected them based on the evidence. To the extent Knysh contends on

appeal that the arbitrator erroneously rejected his arguments, we cannot vacate an arbitral

award, even in the face of such an error because the arbitrator's resolution of these issues

is precisely what the parties bargained for in their arbitration agreement. (Gueyffier v.

Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1184.) Absent proof of one of the statutory

grounds for vacating an arbitration award, " ' . . . a court may not vacate an award, even if

the arbitrator commits legal or factual errors which appear on the face of the award and

which cause substantial injustice.' " (Roitz v. Coldwell Banker Residential Brokerage Co.

(1998) 62 Cal.App.4th 716, 722.)



                                              6
       The record does not support a conclusion that the arbitrator erred in determining

that there was a valid agreement to arbitrate and that Garcia did not waive his right to

arbitrate. The trial court did not err in confirming the arbitrator's decision, including his

order for specific performance of the July Agreement.

                                   III. Frivolous Appeal

       Garcia asserts that Knysh's appeal is frivolous.4 He requests that the court require

Knysh to pay attorney fees and punitive damages.

       Sanctions cannot be sought in a respondent's brief (Cowan v. Krayzman (2011)

196 Cal.App.4th 907, 919), but must be requested by a separate sanctions motion. (Cal.

Rules of Court, rule 8.276.) Garcia did not bring such a motion and, therefore, his

request is denied.




4       Garcia also asserts that Knysh's right to judicial appeal is precluded by the
arbitration provision. We disagree. The provision prevents judicial appeal of the
arbitrator's actual award, but it does not preclude the appeal of court orders to compel
arbitration or confirm an arbitration award.
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                                     DISPOSITION

      The judgment is affirmed. Garcia is awarded his costs on appeal.




                                                                               Prager, J.*

WE CONCUR:



HALLER, Acting P. J.



O'ROURKE, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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