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Full Opinion
PHILIP I. MONCHARSH, Plaintiff and Appellant,
v.
HEILY & BLASE et al., Defendants and Respondents.
Supreme Court of California.
*5 COUNSEL
Philip I. Moncharsh, in pro. per., Townsend & Townsend, Paul W. Vapnek and Mark L. Pettinari for Plaintiff and Appellant.
DeWitt F. Blase, in pro. per., Heily & Blase and John R. Johnson for Defendants and Respondents.
*6 OPINION
LUCAS, C.J.
We granted review in this case to decide, inter alia, the extent to which a trial court may review an arbitrator's decision for errors of law. For the reasons discussed below, we conclude an arbitrator's decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties. There are, however, limited exceptions to this general rule, which we also discuss below.
FACTS
On June 16, 1986, appellant Philip Moncharsh, an attorney, was hired by respondent Heily & Blase, a law firm. As a condition of employment as an associate attorney in the firm, Moncharsh signed an agreement containing a number of provisions governing various aspects of his employment. One provision (hereafter referred to as paragraph X-C) stated: "X C. EMPLOYEE-ATTORNEY agrees not to do anything to cause, encourage, induce, entice, recommend, suggest, mention or otherwise cause or contribute to any of FIRM'S clients terminating the attorney-client relationship with FIRM, and/or substituting FIRM and retaining or associating EMPLOYEE-ATTORNEY or any other attorney or firm as their legal counsel. In the event that any FIRM client should terminate the attorney-client relationship with FIRM and substitute EMPLOYEE-ATTORNEY or another attorney or law firm who[m] EMPLOYEE-ATTORNEY suggested, recommended or directed as client's successor attorney, then, in addition to any costs which client owes FIRM up to the time of such substitution, as to all fees which EMPLOYEE-ATTORNEY may actually receive from that client or that client's succcessor attorney on any such cases, BLASE will receive eighty percent (80%) of said fee and EMPLOYEE-ATTORNEY will receive twenty percent (20%) of said fee."
Moncharsh terminated his employment with Heily & Blase on February 29, 1988. DeWitt Blase, the senior partner at Heily & Blase, contacted 25 or 30 of Moncharsh's clients, noted that they had signed retainer agreements with his firm, and explained that he would now be handling their cases. Five clients, whose representation by Moncharsh predated his association with Heily & Blase, chose to have Moncharsh continue to represent them. A sixth client, Ringhof, retained Moncharsh less than two weeks before he left the firm. Moncharsh continued to represent all six clients after he left the firm.
When Blase learned Moncharsh had received fees at the conclusion of these six cases, he sought a quantum meruit share of the fees as well as a percentage of the fees pursuant to paragraph X-C of the employment agreement. Blase rejected Moncharsh's offer to settle the matter for only a *7 quantum meruit share of the fees. The parties then invoked the arbitration clause of the employment agreement[1] and submitted the matter to an arbitrator.
The arbitrator heard two days of testimony[2] and the matter was submitted on the briefs and exhibits. In his brief, Moncharsh argued (1) Heily & Blase was entitled to only a quantum meruit share of the fees, (2) Moncharsh and Blase had an oral agreement to treat differently the cases Moncharsh brought with him to Heily & Blase, (3) the employment agreement had terminated and was therefore inapplicable, (4) the agreement was one of adhesion and therefore unenforceable, and (5) paragraph X-C is unenforceable because it violates public policy, the Rules of Professional Conduct of the State Bar, and because it is inconsistent with Fracasse v. Brent (1972) 6 Cal.3d 784 [100 Cal. Rptr. 385, 494 P.2d 9], and Champion v. Superior Court (1988) 201 Cal. App.3d 777 [247 Cal. Rptr. 624].
In its brief, Heily & Blase contended paragraph X-C (1) is clear and unequivocal, (2) is not unconscionable, and (3) represented a reasonable attempt to avoid litigation and was thus akin to a liquidated damages provision. In addition, "To the extent it becomes important to the Arbitrator's decision," Heily & Blase alleged that Moncharsh solicited the six clients to remain with him, and further suggested that Moncharsh retained those six because it was probable that financial settlements would soon be forthcoming in all six matters. Heily & Blase contrasted these six matters with the other cases Moncharsh left with the firm, all of which allegedly required a significant amount of additional legal work.
The arbitrator ruled in Heily & Blase's favor, concluding that any oral side agreement between Moncharsh and Blase was never documented and that Moncharsh was thus bound by the written employee agreement. Further, the arbitrator ruled that, "except for client Ringhof, [paragraph X-C] is not unconscionable, and it does not violate the rules of professional conduct. At the time MR. MONCHARSH agreed to the employment contract, he was a mature, experienced attorney, with employable skills. Had he not been willing to agree to the eighty/twenty (80/20) split on termination, he could simply have refused to sign the document, negotiated something different, or if negotiations were unsuccessful, his choice was to leave his employment. *8 ... [¶] ... The Arbitrator excludes the Ringhof client from the eighty/twenty (80/20) split because that client was obtained at the twilight of MR. MONCHARSH'S relationship with HEILY & BLASE, and an eighty/twenty (80/20) split with respect to that client would be unconscionable."
Moncharsh petitioned the superior court to vacate and modify the arbitration award. (Code Civ. Proc., § 1286.2; all subsequent statutory references are to this code unless otherwise stated.) Heily & Blase responded by petitioning the court to confirm the award. (§ 1285.) The court ruled that, "The arbitrator's findings on questions of both law and fact are conclusive. A court cannot set aside an arbitrator's error of law no matter how egregious." The court allowed an exception to this rule, however, "where the error appears on the face of the award." Finding no such error, the trial court denied Moncharsh's petition to vacate and granted Heily & Blase's petition to confirm the arbitrator's award.
On appeal, the Court of Appeal also recognized the rule, announced in previous cases, generally prohibiting review of the merits of the arbitrator's award. It noted, however, that an exception exists when "an error of law appears on the face of the ruling and then only if the error would result in substantial injustice." Although Moncharsh claimed paragraph X-C violated law, public policy, and the State Bar Rules of Professional Conduct, the appellate court disagreed and affirmed the trial court judgment.
We granted review and directed the parties to address the limited issue of whether, and under what conditions, a trial court may review an arbitrator's decision.
DISCUSSION
1. The General Rule of Arbitral Finality
The parties in this case submitted their dispute to an arbitrator pursuant to their written agreement. This case thus involves private, or nonjudicial, arbitration. (See Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 401-402 & fn. 5 [212 Cal. Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109] [discussing the differences between judicial and nonjudicial arbitration].) (1) In cases involving private arbitration, "[t]he scope of arbitration is ... a matter of agreement between the parties" (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323 [197 Cal. Rptr. 581, 673 P.2d 251] [hereafter Ericksen]), and "`[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.'" (O'Malley v. Petroleum Maintenance Co. (1957) 48 Cal.2d 107, 110 [308 *9 P.2d 9] [hereafter O'Malley], quoting Pac. Fire etc. Bureau v. Bookbinders' Union (1952) 115 Cal. App.2d 111, 114 [251 P.2d 694].)
(2) Title 9 of the Code of Civil Procedure, as enacted and periodically amended by the Legislature, represents a comprehensive statutory scheme regulating private arbitration in this state. (§ 1280 et seq.) Through this detailed statutory scheme, the Legislature has expressed a "strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution." (Ericksen, supra, 35 Cal.3d at p. 322; Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706-707 [131 Cal. Rptr. 882, 552 P.2d 1178]; Victoria v. Superior Court (1985) 40 Cal.3d 734, 750 [222 Cal. Rptr. 1, 710 P.2d 833] [dis. opn. of Lucas, J.]; City of Oakland v. United Public Employees (1986) 179 Cal. App.3d 356, 363 [224 Cal. Rptr. 523]; see also Shearson/American Express Inc. v. McMahon (1987) 482 U.S. 220, 226 [96 L.Ed.2d 185, 193, 107 S.Ct. 2332] [Federal Arbitration Act, 9 U.S.C. § 1 et seq., establishes federal policy in favor of arbitration].) Consequently, courts will "`indulge every intendment to give effect to such proceedings.'" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 189 [151 Cal. Rptr. 837, 588 P.2d 1261], quoting Pacific Inv. Co. v. Townsend (1976) 58 Cal. App.3d 1, 9 [129 Cal. Rptr. 489].) Indeed, more than 70 years ago this court explained: "The policy of the law in recognizing arbitration agreements and in providing by statute for their enforcement is to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing." (Utah Const. Co. v. Western Pac. Ry. Co. (1916) 174 Cal. 156, 159 [162 P. 631] [hereafter Utah Const.].) "Typically, those who enter into arbitration agreements expect that their dispute will be resolved without necessity for any contact with the courts." (Blanton v. Womancare, Inc., supra, at p. 402, fn. 5.)
The arbitration clause included in the employment agreement in this case specifically states that the arbitrator's decision would be both binding and final. The parties to this action thus clearly intended the arbitrator's decision would be final. (3) Even had there been no such expression of intent, however, it is the general rule that parties to a private arbitration impliedly agree that the arbitrator's decision will be both binding and final.[3] Indeed, "The very essence of the term `arbitration' [in this context] connotes a binding award." (Blanton v. Womancare, Inc., supra, 38 Cal.3d at p. 402, citing Domke on Commercial Arbitration (rev. ed. 1984) p. 1 [hereafter *10 Domke].) In the early years of this state, this court opined that, "When parties agree to leave their dispute to an arbitrator, they are presumed to know that his award will be final and conclusive...." (Montifiori v. Engels (1853) 3 Cal. 431, 434.) One commentator explains, "Even in the absence of an explicit agreement, conclusiveness is expected; the essence of the arbitration process is that an arbitral award shall put the dispute to rest." (Comment, Judicial Deference to Arbitral Determinations: Continuing Problems of Power and Finality (1976) 23 UCLA L.Rev. 948-949 [hereafter Judicial Deference].) It has thus been observed that, "The parties [to an arbitration] can take a measure of comfort in knowing that the arbitrator's award will almost certainly mean an end to the dispute." (Oehmke, Commercial Arbitration (1987) § 6:10, p. 140 [hereafter Oehmke].)
This expectation of finality strongly informs the parties' choice of an arbitral forum over a judicial one. The arbitrator's decision should be the end, not the beginning, of the dispute. (See Feldman, Arbitration Modernized The New California Arbitration Act (1961) 34 So.Cal.L.Rev. 413, 414, fn. 11.) Expanding the availability of judicial review of such decisions "would tend to deprive the parties to the arbitration agreement of the very advantages the process is intended to produce." (Victoria v. Superior Court, supra, 40 Cal.3d at p. 751 [dis. opn. of Lucas, J.]; see generally, Judicial Deference, supra, 23 UCLA L.Rev. at p. 949.)
Ensuring arbitral finality thus requires that judicial intervention in the arbitration process be minimized. (City of Oakland v. United Public Employees, supra, 179 Cal. App.3d at p. 363; Lindholm v. Galvin (1979) 95 Cal. App.3d 443, 450-451 [157 Cal. Rptr. 167].) 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.[4]
(4) Moreover, "[a]rbitrators, unless specifically required to act in conformity with rules of law, may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim *11 that a party might successfully have asserted in a judicial action." (Sapp v. Barenfeld (1949) 34 Cal.2d 515, 523 [212 P.2d 233]; see also Morris v. Zuckerman (1968) 69 Cal.2d 686, 691 [72 Cal. Rptr. 880, 446 P.2d 1000]; Grunwald-Marx, Inc. v. L.A. Joint Board (1959) 52 Cal.2d 568, 589 [343 P.2d 23].) As early as 1852, this court recognized that, "The arbitrators are not bound to award on principles of dry law, but may decide on principles of equity and good conscience, and make their award ex aequo et bono [according to what is just and good]." (Muldrow v. Norris (1852) 2 Cal. 74, 77.) "As a consequence, arbitration awards are generally immune from judicial review. `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....)" (Nogueiro v. Kaiser Foundation Hospitals (1988) 203 Cal. App.3d 1192, 1195 [250 Cal. Rptr. 478].)
(5) Thus, both because it vindicates the intentions of the parties that the award be final, and because an arbitrator is not ordinarily constrained to decide according to the rule of law, it is the general rule that, "The merits of the controversy between the parties are not subject to judicial review." (O'Malley, supra, 48 Cal.2d at p. 111; Griffith Co. v. San Diego Col. for Women (1955) 45 Cal.2d 501, 510 [289 P.2d 476, 47 A.L.R.2d 1349]; Pacific Vegetable Oil Corp. v. C.S.T. Ltd. (1946) 29 Cal.2d 228, 233 [174 P.2d 441] [hereafter Pacific Vegetable].) More specifically, courts will not review the validity of the arbitrator's reasoning. (Grunwald-Marx, Inc. v. L.A. Joint Board, supra, 52 Cal.2d at p. 589; Nogueiro v. Kaiser Foundation Hospitals, supra, 203 Cal. App.3d at p. 1195; Ray Wilson Co. v. Anaheim Memorial Hospital Assn. (1985) 166 Cal. App.3d 1081, 1091 [213 Cal. Rptr. 62]; American & Nat. etc. Baseball Clubs v. Major League Baseball Players Assn. (1976) 59 Cal. App.3d 493, 498 [130 Cal. Rptr. 626] [hereafter Baseball Players].) Further, a court may not review the sufficiency of the evidence supporting an arbitrator's award. (Morris v. Zuckerman, supra, 69 Cal.2d at 691; Pacific Vegetable, supra, 29 Cal.2d at p. 238; Nogueiro v. Kaiser Foundation Hospitals, supra, 203 Cal. App.3d at p. 1195; see generally, 6 Cal.Jur.3d (rev.) Arbitration and Award, § 76, pp. 133-134.)
Thus, it is the general rule that, with narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law. In reaffirming this general rule, we recognize there is a risk that the arbitrator will make a mistake. That risk, however, is acceptable for two reasons. First, by voluntarily submitting to arbitration, the parties have agreed to bear that risk in return for a quick, inexpensive, and conclusive resolution to their dispute. *12 (See That Way Production Co. v. Directors Guild of America, Inc. (1979) 96 Cal. App.3d 960, 965 [158 Cal. Rptr. 475] [hereafter That Way].) As one commentator explains, "the parties to an arbitral agreement knowingly take the risks of error of fact or law committed by the arbitrators and that this is a worthy `trade-off' in order to obtain speedy decisions by experts in the field whose practical experience and worldly reasoning will be accepted as correct by other experts." (Sweeney, Judicial Review of Arbitral Proceedings (1981-1982) 5 Fordham Int'l L.J. 253, 254.) "In other words, it is within the power of the arbitrator to make a mistake either legally or factually. When parties opt for the forum of arbitration they agree to be bound by the decision of that forum knowing that arbitrators, like judges, are fallible." (That Way, supra, at p. 965.)
Griffith Co. v. San Diego Col. for Women, supra, 45 Cal.2d 501, is illustrative. In that case, the plaintiff contracted to build certain buildings for the defendant college. When work was delayed, a dispute arose and the matter was submitted to arbitration. When a split arbitration panel ruled in the defendant's favor, the plaintiff moved the superior court to vacate the award, claiming, inter alia, that "the decision is arbitrary, harsh and inequitable; that it is contrary to law; and that it is not coextensive with the issues submitted." (Id. at p. 510.) This court rejected these contentions, stating, "`Even if the arbitrator decided [the] point incorrectly, he did decide it. The issue was admitted properly before him. Right or wrong the parties have contracted that such a decision should be conclusive. At most, it is an error of law, not reviewable by the courts.'" (Id. at pp. 515-516, quoting Crofoot v. Blair Holdings Corp. (1953) 119 Cal. App.2d 156, 189, [260 P.2d 156] [Crofoot disapproved on other grounds, Posner v. Grunwald-Marx, Inc. (1961) 56 Cal.2d 169, 183 (14 Cal. Rptr. 297, 363 P.2d 313)].)
A second reason why we tolerate the risk of an erroneous decision is because the Legislature has reduced the risk to the parties of such a decision by providing for judicial review in circumstances involving serious problems with the award itself, or with the fairness of the arbitration process. As stated ante, private arbitration proceedings are governed by title 9 of the Code of Civil Procedure, sections 1280-1294.2. Section 1286.2 sets forth the grounds for vacation of an arbitrator's award. It states in pertinent part: "[T]he court shall vacate the award if the court determines that: [¶] (a) The award was procured by corruption, fraud or other undue means; [¶] (b) There was corruption in any of the arbitrators; [¶] (c) The rights of such party were substantially prejudiced by misconduct of a neutral arbitrator; [¶] (d) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; or [¶] (e) The rights of such party were substantially prejudiced by the refusal of the *13 arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title."
In addition, section 1286.6 provides grounds for correction of an arbitration award. That section states in pertinent part: "[T]he court, unless it vacates the award pursuant to Section 1286.2, shall correct the award and confirm it as corrected if the court determines that: [¶] (a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; [¶] (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or [¶] (c) the award is imperfect in a matter of form, not affecting the merits of the controversy."
The Legislature has thus substantially reduced the possibility of certain forms of error infecting the arbitration process itself (§ 1286.2, subds. (a), (b), (c)), of an arbitrator exceeding the scope of his or her arbitral powers (§§ 1286.2, subd. (d), 1286.6, subd. (b)), of some obvious and easily correctable mistake in the award (§ 1286.6, subd. (a)), of one party being unfairly deprived of a fair opportunity to present his or her side of the dispute (§ 1286.2, subd. (e)), or of some other technical problem with the award (§ 1286.6, subd. (c)). In light of these statutory provisions, the residual risk to the parties of an arbitrator's erroneous decision represents an acceptable cost obtaining the expedience and financial savings that the arbitration process provides as compared to the judicial process.
Although it is thus the general rule that an arbitrator's decision is not ordinarily reviewable for error by either the trial or appellate courts, Moncharsh contends three exceptions to the general rule apply to his case. First, he claims a court may review an arbitrator's decision if an error of law is apparent on the face of the award and that error causes substantial injustice. Second, he claims the arbitrator exceeded his powers. (§ 1286.2, subd. (d).) Third, he argues courts will not enforce arbitration decisions that are illegal or violate public policy. We discuss each point seriatim.
2. Error on the Face of the Arbitration Decision
A review of the pertinent authorities yields no shortage of proclamations that a court may vacate an arbitrator's decision when (i) an error of law appears on the face of the decision, and (ii) the error causes substantial injustice. (See, e.g., Abbott v. California State Auto. Assn. (1977) 68 Cal. App.3d 763, 771 [137 Cal. Rptr. 580].) Indeed, some cases hold the error *14 need only appear on the face of the award, with no mention of resulting injustice. (See, e.g., Park Plaza, Ltd. v. Pietz (1987) 193 Cal. App.3d 1414, 1420 [239 Cal. Rptr. 51].) As previously noted, however, the Legislature has set forth grounds for vacation (§ 1286.2) and correction (§ 1286.6) of an arbitration award and "[a]n error of law is not one of the grounds." (Nogueiro v. Kaiser Foundation Hospitals, supra, 203 Cal. App.3d at p. 1195, and cases cited.) Because Moncharsh contends that an additional exception to the general rule for errors of law is authorized by both common law and statute, we next determine the genesis of that notion as well as its continuing validity.
a. The Early Common Law Rule
We begin with Muldrow v. Norris, supra, 2 Cal. 74 [hereafter Muldrow], a case arising before the enactment of any arbitration statutes in this state. In Muldrow, a dispute arose between the parties and they agreed to submit the matter to a panel of three arbitrators, whose decision "should be final and conclusive." (Ibid.) The arbitrators reached a decision and Norris, the losing party, sought to vacate the award. This court ruled in his favor, and we quote the opinion at length because it exemplifies the contradictory rule of judicial review that has been repeated in modified form since those early days:
"The first point we propose to examine, is, as to the power of the Court below to inquire into the award now before us. It is a well settled principle that courts of equity, in the absence of statutes, will set aside awards for fraud, mistake, or accident, and it makes no difference whether the mistake be one of fact or law. It is true, under a general submission, arbitrators have power to decide upon the law and facts: and a mere mistake of law cannot be taken advantage of. The arbitrators are not bound to award on principles of dry law, but may decide on principles of equity and good conscience, and make their award ex aequo et bono. If, however, they mean to decide according to the law, and mistake the law, the courts will set their award aside. A distinction seems to have been taken in the books between general and special awards. In the case of a general finding, it appears to be well settled that courts will not inquire into mistakes by evidence aliunde: but where the arbitrators have made any point a matter of judicial inquiry by spreading it upon the record, and they mistake the law in a palpable and material point, their award will be set aside. [Citation.] The mere act of setting forth their reasons must be considered for the purpose of enabling those dissatisfied to take advantage of them. [Citation.] In all cases where the arbitrators give the reasons of their finding, they are supposed to have intended to decide according to law, and to refer the point for the opinion of the Court. In such cases, if they mistake the law, the award must be set aside; *15 for it is not the opinion they intended to give, the same having been made through mistake. [Citation.] In the case already cited, the Court says, `these special awards are not to be commended, as arbitrators may often decide with perfect equity between parties, and not give good reasons for their decision; but when a special award is once before the Court, it must stand or fall by its own intrinsic correctness, tested by legal principles.' [Citations.]" (2 Cal. at pp. 77-78.)
The Muldrow court concluded: "In the case before us, the arbitrators have set forth the particular grounds upon which their finding was based: and it follows from the authorities already cited, that the correctness of the principles by which they must be supposed to have been governed is a proper subject for judicial inquiry." (2 Cal. at p. 78.)
Although Muldrow, supra, thus acknowledged that, at common law, an arbitrator need not follow the law in arriving at a decision, and that "a mere mistake of law cannot be taken advantage of" (2 Cal. at p. 77), the opinion qualified that statement and held that an award reached by an arbitrator may nevertheless be reversed if the error is "spread[] ... upon the record" and the mistake is on a "palpable and material point." (Ibid.) Muldrow also stated that when an arbitrator gives reasons to support his decision, the award was subject to full-blown judicial oversight, and "must stand and fall by its own intrinsic correctness, tested by legal principles." (Id. at p. 78.)[5]
Later that same term, this court again addressed the issue. In Tyson v. Wells (1852) 2 Cal. 122, the parties agreed to submit their commercial dispute to a referee, whose decision was to be final. When the losing party challenged the referee's ruling, this court concluded the finality accorded a referee's report pursuant to statute was the same as for an arbitrator's ruling at common law. (Id. at p. 130.) This time avoiding any suggestion that an arbitrator's decision was subject to unqualified judicial review, we stated: "it may be regarded as the settled rule, that the Court will not disturb the award of an arbitrator ... unless the error which is complained of, whether it be of *16 law or fact, appears on the face of the award." (Id. at p. 131.) Although the court purported to be following Muldrow, supra, 2 Cal. 74, there was no qualification that the error must be on a "palpable and material point." (Id. at p. 77.)
Six months later, we addressed the issue again. In Headley v. Reed (1852) 2 Cal. 322, another case involving a reference, we wrote, "According to the rule settled in [Muldrow], the decision of the referee can only be set aside on account of fraud or gross error of law or fact apparent on its face." (Id. at p. 325, italics added.) The Headley court thus injected a new factor into the Muldrow test gross error but did not repeat Muldrow's assertion that an arbitrator's decision was subject to full-blown judicial review.
These three early cases Muldrow, Tyson, Headley involved arbitration (or a reference, which was considered functionally equivalent to arbitration) at common law. From them, we can perceive the beginnings of the rule permitting judicial review of an arbitrator's ruling if error appeared on the face of the award.
b. The Development of Statutory Law before 1927
Around the time the aforementioned cases were decided, the Legislature enacted the Civil Practice Act of 1851 and established the rules governing statutory arbitration. In section 386 of that act, the Legislature specified the grounds on which a court could v