JOHNSON, J., Dissenting.— I
The majority asks, “[c]an a court treat an arbitration award as binding and hence unreviewable solely on the grounds that the arbitrator both ruled it is binding and had authority to rule on that issue!” (Maj. opn., ante, at p. 437.) As this division held in Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413 [111 Cal.Rptr.3d 468] (Greenspan), the parties may submit to arbitration issues they were not contractually compelled to submit to arbitration, and the arbitrator’s ruling on such issues is not reviewable by any court. Yet, ignoring Greenspan and the very limited exclusive statutory grounds for review of Code of Civil Procedure section 1286.2, subdivision (a), the majority holds otherwise.
In their briefs, appellants George and Esther Goff (the Goffs) concede they submitted the question to the arbitrators: “The Goffs do not contend that the [448]panel did not have the authority to make a ruling on the issue of whether the arbitration was binding.”1 (Capitalization & boldface omitted.) The majority asserts that while the arbitrators could decide that question, their decision on this was nonetheless reviewable, and is reviewable as a matter of law in every case. However, pursuant to Code of Civil Procedure section 1286.2, subdivision (a), the grounds for review of an arbitrator’s ruling are exclusively limited to causes or events that are extrinsic to the process itself. These include bias; corruption; fraud; misconduct of an arbitrator; lack of a continuance; failure to disclose grounds for disqualification of an arbitrator; the arbitrators exceeded their powers; the arbitrators refused to hear evidence material to the controversy. (Code Civ. Proc., § 1286.2, subd. (a)(1)—(6).) These grants of judicial review are necessary to prevent structural error in the process and to preserve the integrity of the process and protect the rights of the parties to the benefit of their bargain, namely, a fair and neutral arbitration.
However, as here, where the parties have voluntarily submitted the issue to the arbitrator and there is no evidence of factors extrinsic to the process that have corrupted it, the courts have no role in overturning that award. In distinguishing Greenspan, supra, 185 Cal.App.4th 1413 and relying on the inapposite precedent of Trabuco Highlands Community Assn. v. Head (2002) 96 Cal.App.4th 1183 [117 Cal.Rptr.2d 842] (Trabuco), the majority strains to announce a new rule of law devoid of jurisprudential basis, and which as a result has no utility within the framework of California law. The majority’s new rule makes a mockery of the arbitration process, undermines the basic principles of severely limited judicial review of matters parties have agreed to submit to arbitration, and ignores countless decades of California jurisprudence that the rulings of arbitrators are reviewable only in very limited circumstances.
A.
The determination of the proper standard of review of the panel’s decision is key to understanding the limits of our power. In determining whether arbitrators have exceeded their powers, a court must give “substantial deference to the arbitrators’ own assessments of their contractual authority . . . .” [449](Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 373 [36 Cal.Rptr.2d 581, 885 P.2d 994].) However, except where “the parties ‘have conferred upon the arbiter the unusual power of determining his own jurisdiction’ [citation], the courts retain the ultimate authority to overturn awards as beyond the arbitrator’s powers, whether for an unauthorized remedy or decision on an unsubmitted issue.” (Id. at p. 375.) Thus, in determining whether an arbitrator exceeded his powers, we review the trial court’s decision de novo, yet we give substantial deference to the arbitrator’s own assessment of his contractual authority. (Id. at p. 376, fn. 9.) We accept the trial court’s findings of fact if substantial evidence supports them, and we must draw every reasonable inference to support the arbitrator’s ruling. (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1344-1345 [19 Cal.Rptr.2d 215].)
The backbone of arbitration law in California is the concept of contract. Once parties agree to arbitrate an issue, it is insulated from review except in very rare instances where a court will intervene to prevent structural errors in the process. In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 [10 Cal.Rptr.2d 183, 832 P.2d 899] (Moncharsh), our Supreme Court made it clear that the grounds for judicial review of a contractual arbitration award are extremely limited. Under Moncharsh, we cannot review the merits of the controversy, the arbitrator’s reasoning, or the sufficiency of the evidence supporting the award. (Id. at p. 11.) Even “an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review.” (Id. at p. 33.)
Code of Civil Procedure sections 1286.2 and 1286.6 provide the only grounds for challenging an arbitration award. (Moncharsh, supra, 3 Cal.4th at p. 33.) Code of Civil Procedure section 1286.2, subdivision (a)(4) provides that an arbitration award may be vacated where the arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision.2 The rationale is that the arbitrators’ powers derive from and are limited by the agreement to arbitrate, and awards in excess of those powers may be corrected by the court. (Bak v. MCL Financial Group, Inc. (2009) 170 Cal.App.4th 1118, 1124 [88 Cal.Rptr.3d 800].)
[450]Moncharsh explained: “Because the decision to arbitrate grievances evinces the parties’ intent to bypass the judicial system and thus avoid potential delays at the trial and appellate levels, arbitral finality is a core component of the parties’ agreement to submit to arbitration. Thus, an arbitration decision is final and conclusive because the parties have agreed that it be so. By ensuring that an arbitrator’s decision is final and binding, courts simply assure that the parties receive the benefit of their bargain.” (Moncharsh, supra, 3 Cal.4th at p. 10.) Further, because arbitrators are often not bound by the same rules of law and evidence as the trial court, judicial review is of questionable value. “Parties who stipulate in an agreement that controversies that may arise out of it shall be settled by arbitration, may expect not only to reap the advantages that flow from the use of that nontechnical, summary procedure, but also to find themselves bound by an award reached by paths neither marked nor traceable and not subject to judicial review.” (Case v. Alperson (1960) 181 Cal.App.2d 757, 759 [5 Cal.Rptr. 635].)
In addition, where the parties have contracted to resolve their dispute by arbitration, their agreement contemplates that the arbitrator will have the power to decide any question of historical fact, contract interpretation, or general law, in the arbitrator’s understanding of the case, to reach a decision. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1360-1361 [82 Cal.Rptr.3d 229, 190 P.3d 586] (Cable Connection).) “ ‘Inherent in that power is the possibility the arbitrator may err in deciding some aspect of the case. Arbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact....’” (Ibid.) Indeed, “[a] contrary holding would permit the exception to swallow the rule of limited judicial review; a litigant could always contend the arbitrator erred and thus exceeded his powers.” (Moncharsh, supra, 3 Cal.4th at p. 28; accord, Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 676 [108 Cal.Rptr.3d 171, 229 P.3d 83].) To take themselves out of the general rule that the merits of the award are not subject to judicial review, the parties must clearly agree that legal errors are an excess of arbitral authority and are reviewable by the courts. In such case, the parties may so deprive the arbitrator of the power to commit legal error. (Cable Connection, supra, 44 Cal.4th at p. 1361.)
On the other hand, “the deference due an arbitrator’s decision on the merits of the controversy requires a court to refrain from substituting its judgment for the arbitrator’s in determining the contractual scope of those powers. [Citations.] [ft] Giving substantial deference to the arbitrators’ own assessments of their contractual authority is consistent with the general rule of arbitral finality . . . .” (Advanced Micro Devices Inc. v. Intel Corp., supra, 9 Cal.4th at pp. 372-373.) Thus, “[a]ny doubts about the arbitrator’s power to decide . . . issues must be resolved in his favor. [Citation.]” (Roehl v. Ritchie [451](2007) 147 Cal.App.4th 338, 347-348 [54 Cal.Rptr.3d 185].) In sum, “in the absence of more specific restrictions in the arbitration agreement, the submission or the rules of arbitration, the remedy an arbitrator fashions does not exceed his or her powers if it bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly, by the arbitrator.” (Advanced Micro Devices, at p. 367.)
The narrower question of whether the parties here agreed to binding arbitration is similarly decided under principles of contract law. There must be a voluntary agreement to arbitrate the dispute (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 569 [73 Cal.Rptr.3d 17]), and the existence of such an agreement is determined under standard rules of contract interpretation (Mitchell v. American Fair Credit Assn. (2002) 99 Cal.App.4th 1345, 1355-1356 [122 Cal.Rptr.2d 193]). An agreement to arbitrate may be implied by conduct, and even in the absence of a party’s agreement to arbitrate, a party who voluntarily submits to arbitration and pursues the matter to an award cannot switch course and contend the award exceeds the arbitrator’s authority. (Environmental Barrier Co. v. Slurry Systems, Inc. (7th Cir. 2008) 540 F.3d 598, 606-607.)
Unless the parties unambiguously provide otherwise, the question of whether they agreed to arbitrate a dispute is to be decided by the court, not the arbitrator. (Bouton v. USAA Casualty Ins. Co. (2008) 43 Cal.4th 1190, 1199 [78 Cal.Rptr.3d 519, 186 P.3d 1]; Code Civ. Proc., § 1281.2.) However, the parties may confer by agreement such power upon the arbitrator. (Patchett v. Bergamot Station, Ltd. (2006) 143 Cal.App.4th 1390, 1392-1393 [49 Cal.Rptr.3d 941]; Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 83 [154 L.Ed. 491, 123 S.Ct. 588].) If the parties agreed the arbitrator would decide such questions, the court must defer to the arbitrator’s decision in that regard. (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 946-947 [131 L.Ed.2d 985, 115 S.Ct. 1920].) If, however, the parties did not submit the arbitrability issue to the arbitrator, courts may decide the question de novo in proceedings to vacate the award. (Ibid.)
As we previously held in Greenspan, the parties may submit to the arbitrator issues they were not contractually compelled to submit, and in such event, we look to the contract and the scope of submissions to determine the arbitrator’s authority. (Greenspan, supra, 185 Cal.App.4th at p. 1438.) Arbitration submissions are generally broadly construed, and an arbitrator is authorized to determine all questions which he needs to determine in order to resolve the controversy submitted to him, and the arbitrator decides which questions need to be determined. (Ibid) The question of whether the parties have submitted a particular issue to the arbitrator is an issue for judicial [452]determination unless the parties otherwise agree. (Id. at p. 1440.) We will not assume the parties agreed to arbitrate unless there is clear and unmistakable evidence they did so. (Ibid.)
In determining the scope of the parties’ agreement, such agreement may include the rules under which the parties agreed to arbitrate. (Greenspan, supra, 185 Cal.App.4th at pp. 1441-1442.) Thus, where the parties’ arbitration agreement incorporated American Arbitration Association (AAA) rules, and such rules provided the arbitrator would have the power to rule on his or her jurisdiction, such parties “clearly evidenced their intention to accord the arbitrator the authority to determine issues of arbitrability.” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1123 [39 Cal.Rptr.3d 437].)
The Mandatory Fee Arbitration Act (MFAA) (Bus. & Prof. Code, § 6200 et seq.), under which the parties arbitrated the dispute here, is a distinct arbitration scheme governing client/attomey fee disputes. In contrast with the California Arbitration Act (CAA), the MFAA has its own rules and limitations. The MFAA is a “closed system” and the arbitration is conducted by a local bar association under the MFAA, not a private alternative dispute resolution service provided in another forum. (Alternative Systems, Inc. v. Carey (1998) 67 Cal.App.4th 1034, 1042-1043 [79 Cal.Rptr.2d 567].) The MFAA applies only to disputes concerning legal fees, costs or both and is inapplicable to other claims for affirmative relief. (Bus. & Prof. Code, § 6200, subds. (a), (b)(2).) In contrast, any other type of civil dispute may be resolved by the CAA. (Code Civ. Proc., § 1281.)
As explained in Aguilar v. Lemer (2004) 32 Cal.4th 974 [12 Cal.Rptr.3d 287, 88 P.3d 24], “[t]he nature of the obligation to arbitrate under the MFAA differs from that under standard arbitration in two important ways. First, the obligation to arbitrate under the MFAA is based upon a statutory directive and not the parties’ agreement. Thus, a client may invoke the MFAA and proceed to arbitration despite the absence of any prior agreement to do so. By contrast, standard arbitration requires that both parties to a dispute agree to arbitrate.” (32 Cal.4th at p. 984.) Further, pursuant to the MFAA, arbitration is voluntary for the client but mandatory for an attorney if the client commences the arbitration. (Bus. & Prof. Code, § 6200, subd. (c).) “In other words, whereas a client cannot be forced under the MFAA to arbitrate a dispute concerning legal fees, at the client’s election an unwilling attorney can be forced to do so.” (Aguilar, at p. 984.)
There is no dispute the Goffs consented to the panel’s authority to rule on the issue whether the arbitration would be binding. In selecting Los Angeles County Bar Association’s (LACBA) Dispute Resolution Services, Inc. (DRS), [453]as the forum for the MFAA arbitration—a selection the Goffs had the unilateral right to impose on respondent (the Firm) pursuant to the MFAA— the Goffs consented to be bound by its rules of procedure. These rules of procedure became part of the agreement to arbitrate, and defined the scope of the panel’s power. Pursuant to the LACBA Rules for Conduct of Arbitration of Fee Disputes and Other Related Matters, rule 11(c) (LACBA rule 11(c)),3 the panel had the power to determine its own jurisdiction, and it was pursuant to that power that the panel decided the arbitration would in fact be binding. Thus, because the parties agreed to incorporate this rule into their agreement, there is unmistakable evidence they agreed to submit the binding issue to the panel. (See, e.g., Patchett v. Bergamot Station, Ltd.., supra, 143 Cal.App.4th at pp. 1396-1397 [trial court properly confirmed arbitration award notwithstanding contention arbitrator exceeded his powers where arbitration clause authorized arbitrator to determine “ ‘arbitrability of any claim’ ”].) We must accord great deference to this finding within the scope of the panel’s authority.4
Thus, to the extent the Goffs argue they never agreed to binding arbitration under principles of basic hornbook contract law, this argument becomes irrelevant where, as here, they consented to the panel’s authority on this issue. First, the issue of deciding whether they in fact consented to binding arbitration was submitted to the arbitrators, who applied principles of contract law and the DRS rules in concluding the arbitration would be binding. The panel found the Goffs’ original election of binding arbitration was an offer that was accepted by the Firm.
The fact the panel’s ruling may have been contrary to hornbook contract law, pursuant to which the Firm’s election of nonbinding arbitration had the effect of rejecting the Goffs’ initial offer of binding arbitration, does not permit or mandate our interference. We are without the power to review the panel’s ruling. As a result, the Goffs’ argument is nothing more than an attack on the “arbitrator[s’] reasoning” or, at best, an assertion of an error of law apparent on the face of the award. (Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal.App.4th 1662, 1665 [24 Cal.Rptr.2d 216].) Therefore, although the Goffs attempt to characterize the panel’s actions as in [454]excess of its “powers,” they are incorrect. There is no question the arbitrators had the power to decide the binding nature of the arbitration, because the parties expressly granted the panel that power.
Nonetheless, the majority relies on Trabuco for the proposition that the arbitration award is subject to judicial review because the panel’s legally erroneous ruling represents a type of “structural error” going to the integrity of the arbitration process itself. In Trabuco, the court stated, “Independent judicial review of whether an arbitration is binding is necessary to preserve the integrity of the arbitration process and the judicial system.” (Trabuco, supra, 96 Cal.App.4th at p. 1190.) A- true statement of the law, but the majority applies Trabuco to a factual situation where it simply does not apply.
In Trabuco, the defendants owned a home in a subdivision subject to the conditions, covenants and restrictions in favor of the plaintiff homeowners association. A dispute arose over amounts due the homeowners association, and the parties agreed in writing they would submit the dispute to nonbinding arbitration. After the arbitration, the arbitrator issued a “ ‘Binding Arbitration Award and Decision’ ” in the homeowners association’s favor. (Trabuco, supra, 96 Cal.App.4th at p. 1186.)
Approximately two months later, the defendant homeowners attended an association meeting where they took the position the award was nonbinding; the association asserted the award was binding, and a month later, filed a petition to confirm the award. (Trabuco, supra, 96 Cal.App.4th at p. 1187.) The petition alleged that the homeowners contacted the arbitrator for clarification, and the arbitrator asked for input from the parties. The association submitted a letter to the arbitrator in which it asserted at the outset of the arbitration the parties agreed to binding arbitration. The defendants did not respond. The arbitrator issued a letter indicating his notes of the arbitration proceedings conformed to the association’s view, and that the parties had “ ‘agreed ... to seek a final resolution of [the] dispute.’ ” The arbitrator ruled the proceeding was binding. (Ibid.)
In response to the petition, the defendants requested the court to vacate the award on the grounds it was procured by fraud and exceeded the arbitrator’s authority. One of the homeowners asserted that although she had “ ‘expressed [her] desire to put [the] whole ugly dispute behind [her] and . . . would be . . . relieved when the dispute was finally resolved,’ ” she never agreed to make the arbitration binding. The association replied with the arbitrator’s letter, and a declaration from its attorney in which he stated he was present at the arbitration and the defendants agreed to make the arbitration binding. (Trabuco, supra, 96 Cal.App.4th at p. 1187.)
[455]At the hearing on the petition, the court did not take any testimony, stating, “ ‘[i]t’s done by declaration.’ ” The defendants pointed out it was a letter, not a declaration, but the court replied that “ ‘I’m accepting it for what it says to the court, and for you, that he’s the arbitrator, and it is binding .... HD Your client [(defendants)] sat on it. Did nothing. Let the time go by. If it were not binding, and she didn’t like the award, she still had her remedies. Didn’t do anything.’ ” The trial court confirmed the award. (Trabuco, supra, 96 Cal.App.4th at pp. 1187-1188.)
Trabuco held that “although the trial court might properly have found the arbitration was binding, it reached its result by an impermissible means and the case must be reversed and remanded to properly determine whether the [defendants] agreed to binding arbitration.” (Trabuco, supra, 96 Cal.App.4th at p. 1188.) Because it relied on the letter of the arbitrator, the “trial court abdicated its function to determine whether the arbitrator exceeded his powers in a most fundamental way: by issuing a binding award after the parties agreed only to nonbinding arbitration.” (Id. at p. 1190.)
Contrary to the majority’s reasoning, Trabuco does not stand for the proposition that we may correct every error of law in an arbitrator’s determination of whether an arbitration is binding. Rather, it stands for the proposition that if an arbitrator exceeds his or her authority (the scope of the parties’ contractual agreement) by determining the arbitration was binding, the arbitrator’s decision is subject to judicial review. If the arbitrator has exceeded his or her authority in deciding that issue, the error is indeed structural.
Trabuco is factually distinguishable from the case before us and illustrates the flaw in the majority’s reasoning. Neither party in Trabuco consented to the arbitrator deciding whether the arbitration was binding. Rather, the arbitrator unilaterally and without the parties’ agreement decided this issue at the conclusion of the arbitration. As such, the arbitrator’s actions were in excess of the authority conferred upon him by the parties’ agreement and was therefore subject to vacation pursuant to Code of Civil Procedure section 1286.2, subdivision (a)(4). Here, the panel’s binding/nonbinding decision was part of the arbitral process itself (a premerit decision), consented to by the parties, and thus was not extrinsic to the process. (Code Civ. Proc., § 1286.2, subd. (a).) On the central issue of decision, the facts in this case could not be farther from those in Trabuco.
The majority, in broadly reading Trabuco for a proposition it did not decide and ignoring the statutory basis of Trabuco in Code of Civil Procedure section 1286.2, subdivision (a), has created a new rule of law. In the absence of fraud, bias, or other extrinsic error, there are no grounds for judicial review [456]for issues the parties consented to submit to an arbitrator. Such is the case here, therefore, we are squarely within the strictures of Code of Civil Procedure section 1286.2, subdivision (a) and Greenspan, supra, 185 Cal.App.4th 1413, and easily distinguishable from Trabuco.
B.
Finally, the majority engages in a logical fallacy of circular reasoning. According to the majority although the Goffs submitted the issue to the arbitrators, because the arbitration was nonbinding, the arbitrators could not issue a binding ruling that it was binding. This conclusion diminishes the arbitration process itself. The majority strips the process—as properly defined by the agreement of the parties—of any meaning by concluding an authorized decision nonetheless has no effect. The result is a new rule of law creating a loophole in statutorily defined judicial review of arbitration that is based upon an idle act.
Whether the arbitration was to be binding was precisely the issue to be decided, and in consenting to submit the issue to the arbitrators, the parties ceded the authority to the arbitrators to change the nature of the proceedings, putting this case squarely within Greenspan, supra, 185 Cal.App.4th 1413:
(1) The majority finds my conclusion the panel’s decision on the issue of whether the arbitration was binding constitutes impermissible bootstrapping because it means that “the arbitrators’ determination is binding because the parties agreed to be bound by it, and we know the parties agreed to be bound by it because the arbitrators determined that the parties agreed to be bound by it, and that determination is binding because . . . .” (Maj. opn., ante, at p. 435.)
The majority’s reasoning illustrates how the majority mischaracterizes Greenspan. We do not ascribe cause and effect in the fashion the majority argues; rather, we conclude the parties are bound by the arbitrators’ decision on whether they had agreed to binding arbitration not because that was what the arbitrators found after the fact, but because they submitted the issue to the arbitrators in the first instance and before the arbitrators made any finding on the issue. Why have a nonbinding determination that the arbitration is binding or nonbinding when it is already nonbinding? The submission of the issue to the arbitrators would be an idle act.
(2) The majority states, “Although the issue of bindingness is undisputedly within the scope of the issues that the arbitrators were authorized to' decide, it does not follow that the arbitrators had authority to bind the parties (or equivalently, to make unreviewable rulings) on that issue or any other. [457]Even in a nonbinding arbitration, the parties are free to authorize the arbitrators to rule on any issue the parties choose, including bindingness or other jurisdictional issues. . . . Rather, the parties may agree that the arbitrators’ ruling on bindingness (and every other issue within the scope of their authority) shall be nonbinding.” (Maj. opn., ante, at p. 435.)
This logical non sequitur violates our prior decision in Greenspan because if the arbitration panel had the authority to decide whether the award was binding, then its determination on that issue is not reviewable by a court unless the parties also explicitly and unambiguously agreed that such a ruling could be reviewed for errors of law. (See Greenspan, supra, 185 Cal.App.4th at pp. 1436-1443, 1450-1455.)
(3) The majority further states, “Arbitrators in a nonbinding arbitration exceed their powers by purporting to issue a binding award. (Trabuco, supra, 96 Cal.App.4th at p. 1189, fn. 8; see also id. at p. 1190 [‘the arbitrator exceed[s] his powers in a most fundamental way ... by issuing a binding award after the parties agreed only to nonbinding arbitration’].) Therefore, if a party seeks to vacate (or opposes confirmation of) an arbitration award on the ground that the parties never agreed to make the arbitration binding, then, in order to determine whether the arbitrators exceeded their powers under subdivision (a)(4) of Code of Civil Procedure section 1286.2, the court hearing the petition must independently review whether the parties agreed to be bound.” (Maj. opn., ante, at p. 436.)
Again, the majority assumes its conclusion: that because the arbitration was nonbinding, the arbitrator’s conclusion was reviewable (“ ‘the arbitrator exceed^] his powers in a most fundamental way ... by issuing a binding award after the parties agreed only to nonbinding arbitration’ ”). But whether the arbitration would be binding was the precise question to be addressed by the panel—whether the parties had agreed to binding or nonbinding arbitration.
(4) The majority continues, “if the parties have not agreed to binding arbitration, then there is no justification for channeling their dispute into the system of extremely limited judicial review that is applicable to parties who have agreed to it.” (Maj. opn., ante, at p. 437.)
The majority engages again in faulty reasoning by assuming the conclusion. The predicate of the majority’s argument, namely, “if the parties have not agreed to binding arbitration,” is precisely the issue the parties sought to have decided by the arbitrators. Thus, the conclusion the majority draws from this premise, namely judicial review is appropriate, is not valid. (Maj. opn., ante, at p. 437.)
In summary, the majority’s attempt to distinguish Greenspan is futile. We agree MFAA arbitrations may be nonbinding at the request of a party and do [458]not involve a predispute arbitration agreement, but rather proceed under a statutory scheme. However, here the parties acquiesced to the arbitrators deciding the issue of whether the arbitration should proceed as binding or nonbinding based upon the sequence of events leading up to the panel’s decision in that regard. As Greenspan held, the scope of the arbitrator’s power derives from the parties’ agreement, and may include not only a predispute agreement to arbitrate (or, in the case of an MFAA arbitration, the statutory scheme and LACEA rules) but any other matters the parties agree to submit to the arbitrator. (Greenspan, supra, 185 Cal.App.4th at p. 1438.) Here, the Goffs do not contest, and the majority concedes, that the arbitrators had the authority to determine whether the arbitration would be binding. As a consequence, this dispute remains squarely within Greenspan.
II.
I would also affirm the trial court’s finding the Goffs waived any contention they did not agree to binding arbitration. Waiver is the relinquishment of a known right, but can also refer to “loss of a right as a result of a party’s failure to perform an act it is required to perform.” (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195, fin. 4 [8 Cal.Rptr.3d 517, 82 P.3d 727] (St. Agnes).) There is no singular determinative test of waiver, which may be express or implied from conduct that indicates an intent to relinquish the right. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31 [44 Cal.Rptr.2d 370, 900 P.2d 619].) A party to an arbitration who has knowledge of irregularity in the proceedings cannot sit by and take part in the proceedings and later object on the basis of the irregularity; such party “ ‘waives any objection on account of such irregularity for he cannot thus take the chance of a favorable [outcome].’ ” (Blatt v. Farley (1990) 226 Cal.App.3d 621, 629 [276 Cal.Rptr. 612].)
“[T]he question of waiver is one of fact, and an appellate court’s function is to review a trial court’s findings regarding waiver to determine whether these are supported by substantial evidence.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 983 [64 Cal.Rptr.2d 843, 938 P.2d 903].) Where, however, the facts are undisputed and there is only one inference which may reasonably be drawn, the question is one of law. (St. Agnes, supra, 31 Cal.4th at p. 1196.) The appellate court may not reverse the trial court’s finding of waiver unless the record as a matter of law compels finding nonwaiver. (Burton v. Cruise (2010) 190 Cal.App.4th 939, 946 [118 Cal.Rptr.3d 613]; Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 211 [69 Cal.Rptr.2d 79].)
The course of this fee dispute demonstrates the Goffs have waived at numerous junctures any right to contest the panel’s finding. [459]First, at the outset of the process, the Goffs did not object to the Firm’s request to the panel to determine whether the parties had agreed to binding arbitration, nor did they contest the panel’s finding in this regard during the three months between Reuben’s December 11, 2008 letter and the commencement of the arbitration on March 25, 2009.5 Instead, the Goffs proceeded in the arbitration. If the Goffs believed the arbitration should have been nonbinding, they had numerous grounds on which to object. As the clients, they had the right to control the initiation of an MFAA arbitration, which provided them a statutory right to nonbinding arbitration, unless all parties agreed otherwise; and they could have objected to the panel’s December 11, 2008 finding on the grounds of LACEA Rules for Conduct of Fee Disputes and Other Related Matters, rule 39(d) and pursuant to State Bar arbitration advisory No. 08-01 and withdrawn from the arbitration. This they did not do. Instead, they continued with the fee arbitration.
Second, after the award was rendered, if the Goffs believed in spite of the panel’s ruling the arbitration was nonetheless nonbinding, they should have proceeded to apply, within 30 days after the panel’s conclusion, for a trial de novo under LACBA Rules for Conduct of Fee Disputes and Other Related Matters, rule 40. (See also Bus. & Prof. Code, § 6203, subd. (b).)6 We reject any claim that moving under DRS rule 40 to seek a trial de novo would have been a futile act. Not only would moving promptly to assert their claim have avoided needless time and additional expense, their failure to seek review is evidence of waiver.
The majority asserts that because the award mistakenly purported to be binding, the parties could not have challenged it under Business and Professions Code sections 6203, subdivision (b) and 6204, subdivision (a) because those rules apply to nonbinding awards, and the award stated it was binding; hence, the Goffs would have assumed they were powerless to challenge the award, rendering any attempt to set aside the award or request a trial de novo futile. However, these rales apply “if the parties to the arbitration have not agreed in writing to be bound” and “[i]n the absence of ... an agreement” to be bound. (Bus. & Prof. Code, §§ 6203, subd. (b), [460620]4, subd (a).) But that was precisely the Goffs’ position (though disingenuous, it appears): they had never agreed to be bound, and were in a similar position as the parties in Trabuco, supra, 96 Cal.App.4th 1183, who had never agreed to be bound. As we have discussed, Trabuco simply does not apply because the arbitrators here made no post hoc determination that the arbitration was binding.
Trabuco does not compel a different result on the issue of waiver by failing to request a trial de novo. Trabuco found the defendant homeowners, who had not moved for a trial de novo, had not waived the right to object to the arbitrator’s actions in excess of his authority. After noting that parties must raise certain issues at arbitration or waive later review, the court stated: “[Ojne cannot raise an issue about which one is not and cannot be aware. The [homeowners] could not be expected to raise with the arbitrator the arbitrator’s after-the-fact characterization of the arbitration as binding.” (Trabuco, supra, 96 Cal.App.4th at p. 1192.) Here, in contrast, the Goffs cannot claim they were unaware of the right to nonbinding arbitration they initially asserted. On the contrary, there was nothing “after the fact.” They did not enter the arbitration believing both parties had agreed to nonbinding arbitration; rather, they were aware the panel had ruled, over the Goffs’ assertions to the contrary, the arbitration was binding.
Third, the trial court found the Goffs assented to the arbitration proceeding as binding by their conduct during the arbitration when they turned down the panel’s offer to make the arbitration nonbinding in exchange for agreeing to a continuance of the matter. Although under the statute the Goffs had the right to nonbinding arbitration, their conduct up to this point had been consistent that they understood, accepted, and believed the arbitration to be binding. Thus, the arbitrators’ request that the Goffs consent to nonbinding arbitration in exchange for proceeding immediately did not extract a concession from them in derogation of their nonbinding arbitration rights. Furthermore, because a finding of waiver (not merely the underlying facts constituting the waiver) is a fact question for the trial court, we will uphold the trial court’s determination of waiver if, as it is here, it is supported by substantial evidence. (See St. Agnes, supra, 31 Cal.4th at p. 1196.)
Finally, to permit the Goffs to change course at whim would frustrate the Firm’s right timely to assert their claim for fees in court, a right they do not have under the MFAA because the right to arbitrate there belongs solely to the client. The client can delay court proceedings to collect fees by selecting arbitration and then repudiating the results of nonbinding arbitration. By blowing “hot and cold” here, the Goffs left the Firm in a state of uncertainty whether it would be able to enforce a binding MFAA arbitration award, or whether the Goffs would proceed by trial de novo after an unsatisfactory [461]nonbinding award. (See Burton v. Cruise, supra, 190 Cal.App.4th at p. 945 [finding waiver of right to arbitrate where party changed strategy about enforcing arbitration agreement at last minute after having resorted to litigation].) Therefore, the Goffs were required to challenge the panel’s contrary decision at the earliest opportunity—by treating it as nonbinding and seeking trial de novo within the statutory time limit, instead of waiting until the Firm petitioned the court for confirmation of the award. Here, the Goffs sometimes treated the award as binding, and at other times as nonbinding, misleading the Firm and the panel. The entire arbitration proceeding, the subsequent petition to confirm the award, and three court hearings could have been avoided if the Goffs had raised the issue in a timely fashion.
m.
In summary, the Goffs never opposed the arbitrators’ conclusion the arbitration was binding, and participated in the arbitration knowing it had been ruled to be binding. The unavoidable inference is that if the Goffs had prevailed in the arbitration, their conduct would have put them in a position to contend they had agreed to it being binding. On the other hand, the Firm could not contend that the arbitration was nonbinding because it was the party that actually asked the panel to decide the issue. The Goffs should not be permitted to play the dealer’s hand and the gamer’s hand as they have done in this case.
I would affirm the judgment of the superior court.
A petition for a rehearing was denied May 6, 2011, and the opinion was modified to read as printed above. Respondent’s petition for review by the Supreme Court was denied July 27, 2011, S193247. Werdegar, J., did not participate therein.
This concession in the Goffs’ reply brief lies at the heart of my view that the arbitration decision is not reviewable. Unlike the majority, I do not think it is proper to relieve the Goffs from a position they have freely taken in this appeal. (See Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1097-1098 [51 Cal.Rptr.2d 272, 912 P.2d 1220] [concessions made in brief may be taken as admissions against a party]; see also Franklin v. Appel (1992) 8 Cal.App.4th 875, 893, fn. 11 [10 Cal.Rptr.2d 759] [“While briefs and argument are outside the record, they are reliable indications of a party’s position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.”].)
The complete grounds for vacation of an award are set forth in Code of Civil Procedure section 1286.2, and include corruption in the arbitrators, procurement of the award by fraud, misconduct of an arbitrator, lack of a continuance, and failure to disclose grounds for disqualification of an arbitrator. Arbitrators exceed their powers by acting without subject matter jurisdiction, deciding an issue that was not submitted to arbitration, arbitrarily remaking the contract, upholding an illegal contract, issuing an award that violates a well-defined public policy or a statutory right, fashioning a remedy that is not rationally related to the contract, or selecting a remedy not authorized by law. (Code Civ. Proc, § 1286.2, subd. (a)(4); Moncharsh, supra, 3 Cal.4th at pp. 31-33.)
DRS rule 11(c), provides: “Each sole arbitrator or panel shall have the authority to determine jurisdiction and shall decline to act if it determines that it lacks jurisdiction.”
We do not unequivocally assert that the Panel had unilateral authority to determine its own jurisdiction based on the LACBA rules. If the parties here had not requested or acquiesced in such determination, the arbitration would have been nonbinding by default; only because of the Goffs’ tacit agreement to the Firm’s request, and their failure to withdraw before merit evidence presentation, did the panel have authority to exercise its decisionmaking authority as to whether it would proceed as binding or nonbinding. (See Environmental Barrier Co. v. Slurry Systems, Inc., supra, 540 F.3d at pp. 606-607 [party who voluntarily submits to arbitration and pursues the matter to an award cannot switch course and contend the award exceeds the arbitrator’s authority].)
At oral argument, the Goffs’ counsel suggested that a letter existed evidencing their objection to a binding arbitration subsequent to the panel’s December 11, 2008 ruling; however, on further review, they concede the only letter voicing objection to the arbitration being binding was an October 1, 2008 e-mail excluded by the trial court at the October 2, 2009 hearing.
Business and Professions Code section 6203 of the MFAA provides: “Even if the parties to the arbitration have not agreed in writing to be bound, the arbitration award shall become binding upon the passage of 30 days after service of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration pursuant to Section 6204.” (Bus. & Prof. Code, § 6203, subd. (b).)