Filed 1/29/20 Sayegusa v. Ogawa CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

PAUL SAYEGUSA et al.,

Plaintiffs and Respondents,

v.

CURTIS OGAWA,

Appellant.

B294886

(Los Angeles County
Super. Ct. No. BP172111)

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel Juarez, Judge. Affirmed.

Law Office of Michael J. Curls, Michael J. Curls and Nichelle D. Jones for Appellant.

Bock & Plummer, Michael C. Bock for Plaintiffs and Respondents.

Appellant Curtis Ogawa and respondents Timothy Sayegusa and Paul Sayegusa agreed to arbitrate their dispute concerning Ogawa’s administration of the Erling and Mitsuko Goo-Living Trust (“the trust”), of which the Sayegusas are beneficiaries. The arbitrator found that Ogawa failed to administrate the trust in a timely fashion and breached various fiduciary duties to the Sayegusas. She issued an award that removed Ogawa as trustee of the trust, surcharged him $236,712, appointed the Sayegusas as co-administrators of the trust, and awarded them $40,670 in attorney fees and costs. The arbitration award further ordered Ogawa to transfer one of the two duplexes he received from the trust back into the trust so it could be sold to satisfy his liabilities under the award.

The Sayegusas filed a petition to confirm the arbitration award, and Ogawa filed a motion to vacate or correct it. At Ogawa’s request, the trial court issued a written ruling in which it granted the petition to confirm and denied the motion to vacate or correct. After Ogawa objected to the trial court’s written ruling, it issued a second, more detailed ruling. Ogawa again objected, and the trial court issued a third and final ruling, from which Ogawa timely appealed.

Ogawa contends the trial court’s order should be reversed and the arbitration award vacated. First, he argues the order must be reversed because the trial court’s written rulings were not an adequate statement of decision under Code of Civil Procedure section 632. Second, he asserts the court erred in confirming the arbitration award. Ogawa alleges both that the award was procured by undue means and that the arbitrator refused to hear his evidence because she denied his request to respond to the Sayegusas’ brief and expert declaration, which he received late. Finally, Ogawa contends the award should have been vacated because the arbitrator exceeded her powers in two primary ways: she ignored the intent of the trustors by removing him as trustee, appointing the Sayegusas as co-trustees, and surcharging him in an amount that essentially negates his trust distribution; and she awarded remedies not authorized by law or related to his alleged misconduct, including removing him as trustee, requiring him to relinquish specific property to meet his liability, and awarding attorney fees to the Sayegusas. We affirm.

BACKGROUND

I. The Trust

The trust was settled by Erling and Mitsuko Goo in 1985 and amended by Mitsuko after Erling’s death in 2005. As is relevant here, the trust named Ogawa as successor trustee upon the Goos’ deaths. It further provided, “If CURTIS O. OGAWA is unable or unwilling to act as successor Trustee, then any corporate Trustee delegated by CURTIS O. OGAWA shall act as successor Trustee. IF CURTIS O. OGAWA is unable or unwilling to act as successor Trustee, and no corporate Trustee was delegated by CURTIS O. OGAWA, then WELLS FARGO shall act as successor Trustee hereunder. Such successor Trustee shall have all the powers, rights[,] discretions, and obligations conferred on such Trustee by this Declaration.” Ogawa became trustee upon Mitsuko’s death in 2007.

The trust corpus consisted largely of several duplexes located on 6th Avenue in Los Angeles. Upon Mitsuko’s death, the properties were to be distributed as follows:
“The real property located at 4602 6th Avenue . . . shall be distributed to our good friend Kenneth C. Bramble;

“The real property located 4612 6th Avenue . . . shall be distributed to Meyer Goo, Erling’s brother;

“The real property located at 4616 6th Avenue . . . shall be distributed in equal parts to Timothy S. Sayegusa and Paul Sayegusa, Mitsuko’s nephews; this distribution shall be regulated to reflect distribution at age 55 they get 50% of their portions, the 50% shall be divided equally between them, at age 60 they shall be distributed the 100% balance of their portions divided equally between the two of them; this distribution plan goes for all of their distributions to be distributed to them at age 55 and 60.

“The real property located at 4611 6th Avenue . . . and the real property located at 4607 6th Avenue . . . shall be distributed to my cousin Curtis O. Ogawa who has been by my side constantly before Erling died and since. These properties shall be distributed outright to Curtis as sole owner.

“The balance of the trust assets shall be liquidated and distributed in separate portions as follows:

“(a) Fifty-five percent (55%) to Orphan Foundation of America, Virginia[.]

“(b) Of the remaining balance of the trust assets after any taxes are paid, Twenty percent (20%) to Timothy Sayegusa, Twenty percent (20%) to Paul Sayegusa, Twenty percent to Curtis Ogawa, Twenty Percent (20%) to Meyer Goo. Ten Percent (10%) to Josefa Ordonez and Ten Percent (10%) to Kay Okino.

“I would like to further add that the distributions to all beneficiaries except Timothy and Paul Sayegusa shall be distributed in full 100% and outright; Timothy Sayegusa and Paul Sayegusa are the only beneficiaries that are to be governed by the age restriction stipulated in paragraph 4.”
Timothy Sayegusa turned 55 in 2015 and will turn 60 in 2020. Paul Sayegusa will turn 55 in 2024 and 60 in 2029.

II. Petitions for Accounting, Distribution, Surcharge, and Trustee Removal

On March 24, 2016, some nine years after Mitsuko’s death, trust beneficiary Meyer Goo filed a verified petition under the Probate Code seeking an accounting, distribution of the trust assets, surcharge of Ogawa for misuse of the trust assets, and removal of Ogawa as trustee. The Sayegusas filed their own substantively identical petition on August 3, 2016. They alleged Ogawa failed to respond to “a number of oral and written requests for a full and complete account of the management of the TRUST,” “failed to disperse any portion of Trust assets to Petitioners” or respond to “repeated request [sic] for information regarding distribution,” and demonstrated “favoritism towards the other beneficiaries, himself included,” to their detriment.

III. Arbitration Proceedings

A. Stipulation to Arbitrate

On August 11, 2017, Ogawa and the Sayegusas filed a stipulation to submit their dispute to binding arbitration. Pursuant to the stipulation, the parties waived the right to trial de novo and agreed that the arbitrator’s decision would “constitute a final and binding resolution of all claims and defenses raised in this action.” The parties further agreed to split the cost of the arbitration, and that “[a]ll other costs, trustee fees and/or attorney fees at issue in this action shall be decided by the arbitrator in accordance with the pleadings and evidence thereto pursuant to applicable California law. As a formal accounting will not be required pursuant to this stipulation, attorneys’ fees (if awarded by the arbitrator) shall be allocated pursuant to Probate Code section 17211 as to any monetary dispute as though such dispute arose pursuant to a formal accounting provided pursuant to Probate Code section 17200, 16062, 16063, and/or any other applicable rule of law.” They additionally agreed to permit the use of declarations at the arbitration with 30 days’ notice to the opposing party, and that “[a]ll evidence and arguments are to be shared with the opposing party in accordance with the arbitrator’s scheduling of this matter or pursuant to the agreement of the parties.”

B. Arbitration Briefs

In April 2018, the parties agreed to submit the matter on the briefs, without a live arbitration hearing. They later agreed to exchange their briefs simultaneously on May 11, 2018. As we discuss more fully below, Ogawa maintains that he did not receive the Sayegusas’ brief until May 23, 2018.

In his brief, Ogawa informed the arbitrator that the parties had “worked together to pair [sic] down the issues to be heard before the Arbitrator.” According to Ogawa, the Sayegusas agreed to withdraw their request for a formal accounting, and “Distribution of Trust Assets is also withdrawn from this case.” Ogawa further stated it was his “understanding that Petitioners no longer wish to have Respondent removed as trustee. Thus, the only issue before the arbitrator is whether or not Mr. Ogawa should be surcharged for misuse/mismanagement of trust assets. . . .” In accordance with these understandings, Ogawa argued only that he should not be surcharged or made to pay attorney fees because he did not abuse the wide discretion vested in him by the trust instrument.

The Sayegusas characterized the issues before the arbitrator differently. Their brief summarized the “remaining disputed issues” as follows: “i. For a further Accounting if needed for a final and full Judgment/Award in this matter [¶] ii. For Distribution of Trust Assets Pursuant to the Terms of the Trust [¶] iii. To Surcharge Trustee for Misuse of Trust Assets and/or Waste to the Estate in regards to the SAYEGUSA DUPLEX [SA DUPLEX [¶] iv. Remove CURTIS OGAWA as Trustee [¶] v. Deny CURTIS OGAWA compensation as Trustee [¶] vi. Deny CURTIS OGAWA reimbursement for costs related to TRUST litigation (attorney fees, litigation costs, etc.) [¶] vi. [sic] For Petitioners to be awarded attorneys’ fees and costs.” They argued that Ogawa should be removed as trustee, and surcharged for misuse of the trust’s assets.

Along with their brief, the Sayegusas submitted an expert declaration from Michael J. Seibert, a licensed professional fiduciary whom they identified to Ogawa at least one month prior to the brief submission date. Seibert generally opined that Ogawa breached his fiduciary duties and should be removed as trustee and replaced with either the Sayegusas or a professional fiduciary. He also offered calculations and estimates of the financial impacts of Ogawa’s alleged misdeeds. Ogawa did not submit a competing expert declaration with his brief. As we discuss further below, he contends he did not know he needed to do so because he “was never given information on what the expert would be providing testimony on prior to tardy receipt of Respondents’ brief.”

C. Merits Award

On May 29, 2018, the arbitrator issued a lengthy award resolving the merits of the case against Ogawa. The arbitrator rejected as “not credible” Ogawa’s claim that he kept the trust beneficiaries informed about the status of the trust and distributions therefrom, and further found that he failed to administer the trust in a timely fashion and keep adequate funds in the trust’s reserve.

The arbitrator found that Ogawa breached numerous fiduciary duties to the Sayegusas, including the duties of loyalty (Prob. Code, § 16002), impartiality (Prob. Code, § 16003), and avoiding conflicts of interest (Prob. Code, § 16004), by renting out for income the two duplexes (totaling four rental units) he received from the trust, while using one half of the duplex left to the Sayegusas as his own rent-free home and the other half as a residence for his cats. Relying on Seibert’s expert declaration, the arbitrator found that Ogawa’s failure to rent out the Sayegusas’ duplex for the nine years between Mitsuko Goo’s death and the instant action deprived them of $194,647 in rental income, while his charging of expenses to their trust share cost them an additional $42,065. The arbitrator found that “Mr. Ogawa alone created the issues related to the lack of productivity, the deterioration in the condition of the property, and his decision to charge his personal expenses related to living in the property . . . against Timothy and Paul’s interests in the trust. Only Mr. Ogawa had control over these decisions, and for each decision he made, he decided in favor of himself and against the interests of Timothy and Paul.” She added that Ogawa “seeks only to justify his behavior and blame others for the problems faced by the administration of the trust,” and “does not accept any part of his conduct as contributing to the breaches of duty toward” the Sayegusas.

The arbitrator found that the Sayegusas “clearly want Mr. Ogawa removed as trustee.” She ruled that removal “forthwith” was proper, “[d]ue to Mr. Ogawa’s flagrant disregard for the interests of the Petitioners, AND his repeated conduct favorable only to himself.” The arbitrator further found that appointing a professional fiduciary as replacement trustee “would further erode Petitioners’ interest in the trust.” Because the Sayegusas’ interests were “the same,” and Timothy had already reached the vesting age of 55, she appointed them “successor co-Trustees” of the trust.

The arbitrator surcharged Ogawa $194,647 in lost rents, and $42,065 in expenses, for a total surcharge of $236,712, plus prejudgment interest. She found that the rental income and cash distributions that Ogawa had received from the trust, which totaled $216,694, were “insufficient to satisfy any judgment in this matter.” She further found that “[n]o evidence was introduced to establish that Curtis Ogawa will be able to fully satisfy any surcharge and resulting Judgment rendered in this matter,” and concluded that “[t]he only way that Mr. Ogawa will be able to satisfy the monetary surcharges and/or attorney fee orders . . . is from the proceeds from the sale of one of the two duplexes” he received from the trust. She accordingly ordered Ogawa to “transfer one of the two duplexes, either 4611-4613 6th Avenue or 4607-4609 6th Avenue, he received from the Trust back into the Trust not later than July 31, 2018,” and further ordered that the transferred duplex “shall be sold and the proceeds from the sale used to satisfy” the obligations imposed on him by the instant award, as well as her forthcoming award on attorney fees.

The arbitrator also found Ogawa liable for attorney fees. Specifically, she found “pursuant to [Probate Code] § 17211(b), that Mr. Ogawa opposed Petitioners’ claims for surcharge without reasonable cause and in bad faith.” She ordered the Sayegusas to file “a supplemental Cost Memorandum setting forth attorneys’ fees and costs in pursuing their Joinder and Petition not later than June 15, 2018,” and gave Ogawa until June 22, 2018 to file a response.

D. Request to Reopen

On June 14, 2018, two weeks after the arbitrator issued the merits award, Ogawa requested that the arbitrator reopen the hearing. The record contains only supportive exhibits and a declaration by Ogawa’s counsel; it does not contain a formal request to reopen or memorandum in support thereof.

In her declaration, Ogawa’s counsel asserted that she did not receive the Sayegusas’ arbitration brief or expert declaration until May 23, 2018, some 12 days after the agreed-upon submission date. When she “had the opportunity to review the brief,” she learned that the Sayegusas had argued for Ogawa’s removal. “Before [she] had the opportunity to provide additional argument on this issue, [she] received the final invoice indicating that a decision had been reached.” Counsel requested that the arbitrator reopen the hearing to allow Ogawa “to present evidence and argument on why [he] should continue his role as trustee . . . and to rebut the findings of Petitioner’s [sic] Expert Witness.” She did not mention the order directing Ogawa to return one of his duplexes to the trust.

The Sayegusas opposed the request to reopen. They argued that the parties had agreed to simultaneous briefing and the first they had heard of Ogawa’s issues with their briefing was in the request to reopen. They further argued it was inappropriate for Ogawa to include settlement negotiations among the exhibits in support of reopening, and that Ogawa had misrepresented them in any event. The Sayegusas further argued that the parties’ agreement to exchange briefs and “all evidence” on May 11, 2018 superseded any other agreements regarding the disclosure of their expert, and asserted Ogawa did not provide them with a copy of his declaration prior to submitting his brief.

The arbitrator denied Ogawa’s request to reopen on July 5, 2018. She found the American Arbitration Association rules permit reopening only “on the Arbitrator’s initiative, or by the direction of the Arbitrator upon application of a party, at any time BEFORE the award is made,” and that Ogawa’s request was neither permitted nor timely under those rules or section 1284, which requires requests for correction of an arbitration award be made “not later than 10 days after service of a signed copy of the award on the applicant.” (§ 1284.)

E. Attorney Fee Award

The arbitrator also issued her attorney fee award on July 5, 2018. First, she found that the parties’ stipulation to arbitrate authorized her to award attorney fees. The arbitrator found the fees and costs requested by the Sayegusas were not “grossly excessive, nor are they vague, ambiguous, or uncertain.” She nevertheless “adjusted” the billings to exclude bills for work performed in connection with Meyer Goo’s petition and “emails and related items.” The arbitrator ordered Ogawa to pay $37,500 in attorney fees and $3,170 in litigation costs, “directly from escrow from the sale of Mr. Ogawa’s property.” The court ordered interest to accrue at the rate of seven percent beginning on October 1, 2018.

IV. Trial Court Proceedings

A. Petition to Confirm

On July 19, 2018, the Sayegusas filed in the trial court a petition to confirm the arbitration award, enter judgment thereon, and order Ogawa to execute a grant deed transferring one of his duplexes back to the trust. They provided the trial court with the stipulation to arbitrate and the arbitrator’s merits and attorney fee awards.

B. Motion to Vacate, Correct, or Modify

Ogawa responded on August 3, 2018 with a combined opposition and motion to vacate, correct, or modify the award. Citing section 1286.2, he contended the award should be vacated because it “was obtained by undue means to the extent that Petitioners failed to abide by the agreed upon exchange of arbitration briefs” and did not timely provide an expert witness declaration. Ogawa further argued that the arbitrator exceeded her powers and contravened the terms of the trust by removing him as trustee and replacing him with the Sayegusas, ordering him to return his duplex to the trust, and “disinheriting” him. Ogawa also challenged the arbitrator’s denial of his request to reopen and her authority to award attorney fees.

C. Hearing

The trial court heard the matter on October 3, 2018. It explained at the beginning of the hearing that its tentative was to confirm the award, as “I’m just not seeing that there are grounds upon which to find that it’s not appropriate.” After hearing argument from both sides, the court orally granted the petition to confirm and denied the motion to vacate, modify, or correct. Subsequent to this pronouncement, Ogawa orally requested a statement of decision pursuant to section 632; he did not identify any particular facts or issues he wanted the court to address. The court nevertheless agreed to provide “a written statement of decision.”

D. First Written Ruling

The court issued a written ruling on October 30, 2018 (“first written ruling”), despite noting therein that Ogawa did not request a statement of decision before the matter was submitted and was not entitled to one under California Rules of Court, rule 3.1590. The court found that Ogawa “failed to establish” vacating the award was warranted under section 1286.2 on any of the bases he asserted in his motion, “that arbitration briefs were served untimely, that declarations were served untimely, that there was a misunderstanding as to whether the removal of Movant [Ogawa] was at issue in the arbitration, and that the arbitrator overstepped her authority.” The court explained: “The failure to timely serve the arbitration briefs is of no consequence, as the parties agreed to submit on the papers. Any delay in receipt of filed briefs did not result in harm to the parties as no further argument would be submitted. Although Movant argued that he was confused about the scope of the arbitration, Petitioners prayed for Movant’s removal as trustee. Movant’s argument that the scope of the arbitration is limited was unclear and unpersuasive. Movant’s argument that the arbitrator overstepped her authority was without merit. All of these arguments appear to be an attempt to relitigate the case presented to the arbitrator (for example, arguing that the arbitrator failed to consider the settlor’s intent).”

The first written ruling directed Ogawa to “transfer all funds belonging to [the trust] currently in his possession, custody, or control to Timothy and Paul Sayegusa as successor co-trustees.” It also directed the clerk to sign a grant deed transferring Ogawa’s property at 4611 6th Avenue to the Sayegusas as co-trustees of the trust.

E. Objections to First Written Ruling

On November 6, 2018, Ogawa filed objections to the first written ruling. Ogawa first objected to the court’s determination that he was not entitled to a statement of decision. Relying on Metis Development LLC v. Bohacek (2011) 200 Cal.App.4th 679 (Metis), he contended sections 632 and 1291 required the court to issue a statement of decision in response to his proper request. Ogawa next objected that the first written ruling was not an adequate statement of decision, because it did not explain the legal and factual bases of the court’s decisions on the principal controverted issues. He requested “the Court set forth the legal and factual basis as to each of the following decisions: [¶] A. The award was procured by undue means and respondent should have been afforded the opportunity to produce additional evidence; [¶] B. The Arbitrator’s award Includes [sic] a remedy that is not authorized by law [¶] 1. The Arbitrator is forcing respondent to relinquish his property to satisfy a judgment that is not yet enforceable. [¶] 2. The remedies awarded by the Arbitrator bear no rational relationship to Respondent’s alleged breach [¶] 3. The Arbitrator did not have authority to award Attorney’s Fees.”

Ogawa next objected that the statement of decision was ambiguous as to the basis for its finding about the settlors’ intent and whether the age restrictions on the Sayegusas’ shares remained in effect. However, his argument as to the former sought a basis for the ruling rather than clarification of an ambiguity: “Respondent respectfully requests that the Court include in his Statement of Decision, the basis for the Court’s ruling that the Arbitrator did not exceed her powers by ignoring the intent of the Settlors . . .; by punitively sanctioning Respondent for exercising his discretion in the administration of the trust; and by disinheriting Respondent despite the explicit language in the trust indicating that his inheritance was based in large part of [sic] the care that Respondent provided to Erling and Mitsuko Goo during their lifetime.”

Ogawa’s final objection was that the first written ruling “omits findings on critical issues.” In connection with this objection, he requested more specific findings concerning the lack of prejudice he suffered due to his late receipt of the Sayegusas’ arbitration brief. He also asked the court to explain the basis of its findings regarding the propriety of the remedies awarded by the arbitrator, including transfer of his duplex and attorney fees.

The Sayegusas responded to Ogawa’s objections on November 15, 2018. They contended Ogawa was not entitled to a statement of decision for three reasons: (1) the parties stipulated the arbitration would be final and binding with no trial de novo, so “there is no ruling in this matter that is ‘appealable’ and thus . . . section 1291 does not apply”; (2) section 1291 did not apply because Ogawa filed a motion to vacate rather than a petition to vacate; and (3) Metis “does not appear to be applicable to the present situation.”

F. Second Written Ruling

The court issued a second written ruling on November 27, 2018 (“second written ruling”). It again concluded that Ogawa was not entitled to a statement of decision. The court acknowledged that sections 632 and 1291 appeared to support Ogawa’s claim for a statement of decision, but found his reliance on Metis, supra, 200 Cal.App.4th 679 misplaced because a petition to confirm an arbitration award is not “in essence a suit in equity to compel specific performance on a contract” and does not require the court to make factual findings. “Despite this, however,” the court explained that it was issuing the second written ruling “to amplify and clarify its initial ruling.” “The instant ruling includes factual findings based on the documents submitted by the parties at hearing. . . . The court incorporates the initial ruling herein. . . . [and] offers the parties the same opportunity to object to this clarified ruling, as required of statements of decision.”

The court proceeded to make the following “findings of fact upon which the court bases its legal conclusions and ultimate ruling.” “The parties stipulated to arbitration to resolve a dispute regarding Petitioner’s [sic] action to surcharge Respondent trustee for waste, misconduct, and misuse of trust property. The parties stipulated to submit written documentation to the arbitrator, in lieu of live testimony. The parties agreed not to exchange written material prior to the agreed-to submission date. The issues submitted to arbitration included the removal of Respondent Ogawa, as the underlying petition included removal in its prayer for relief. Respondent did not request to have any declarations or other material provided prior to the submission of the arbitration briefs. Respondent did not request leave to file supplemental material prior [to] the arbitrator’s award being issued. The arbitrator, the Honorable (retired) Reva Goetz, issued an arbitration award on May 29, 2018. On June 14, 2018, Respondent moved to re-open the arbitration, arguing that Petitioners failed to timely serve arbitration briefs, failed to timely serve declarations, it was unclear that Respondent’s removal was at issue in the arbitration, and that the arbitrator overstepped her authority. On July 5, 2018, the arbitrator denied Respondent’s request to re-open the arbitration.”

After restating the first written ruling in its entirety, the court “clarifie[d] its determination as follows: the court’s instant ruling, including all factual findings and legal conclusions of both the initial ruling and the instant ruling, meets the requirements of a statement of decision if it were required. Respondent seeks specific legal and factual bases for particular issues (restated here as numbers one and two): 1) the court’s ruling is ambiguous [as] to the issues of the arbitrator ignoring the settlor’s [sic] intent and age restrictions in the Trust at issue, and 2) the court’s ruling omits findings on the issue of whether the arbitration award was procured by undue means and the arbitrator’s award includes a remedy not authorized by law.”

The court concluded that “[t]o make factual findings on these issues and reconsider the issues raised by Respondent in its motion to vacate, . . . would be to re-open the issues at arbitration and go over the evidence, law, and arguments raised in front of the arbitrator. The court has no basis in law or fact to vacate the award, pursuant to Code of Civil Procedure section 1286.2. The arbitration award was well within the arbitrator’s discretion and well within the law. The court is unpersuaded that any other irregularity alleged and argued by Respondent has any basis in law to vacate the arbitration award. In whole, Respondent failed to persuade this court by any fact, law, or argument that there is cause to vacate the arbitration award. The motion to vacate is denied and the court’s October 30, 2018 ruling, as set forth herein, remains the order of the court.”

G. Objections to Second Written Ruling

Ogawa filed objections to the second written ruling on December 12, 2018. The objections were largely identical to those lodged against the first written ruling, with four notable additions. First, Ogawa contended the court erroneously relied on In re Marriage of Fong (2011) 193 Cal.App.4th 278 (Fong) when it concluded a statement of decision was not required. (The second written ruling mentioned Fong as a case cited by Metis. Second, Ogawa expanded his argument that the arbitrator improperly ordered him to return his personal property to the trust, contending the award was unlawful because there was no enforceable judgment, his ability to pay was not before the arbitrator, and he had not yet defaulted. Third, Ogawa objected to the order directing the clerk to sign the grant deed transferring his duplex to the trust. He contended his “ability to satisfy any monetary judgment was never before this Court. Thus, the Arbitrator was in error to force the sale of Respondent’s property at this state of the proceedings.” Finally, Ogawa objected, without further elaboration, that the court “failed to provide an enforceable Judgment has [sic] required by Code of Civil Procedure § 1287.6.”

H. Final Written Ruling

On December 21, 2018, the court issued its final written ruling. It stated: “The court received and considered the objections filed to the court’s ruling denying the motion to vacate, correct, or modify the arbitration award. The court’s previous ruling, dated November 27, 2018 [the second written ruling], stands with no modifications and is issued as the court’s final ruling. The motion to vacate the arbitration award is denied.”

Ogawa timely appealed.

DISCUSSION

I. Scope and Standard of Review

Judicial review of arbitration awards is very narrow in scope. With few exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or law and must be confirmed if duly served and filed in the trial court. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11; § 1286.) Section 1286.2 sets forth the sole grounds on which an arbitration award may be vacated. As relevant here, the trial court “shall vacate the award if the court determines” that “[t]he award was procured by corruption, fraud or other undue means,” “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted,” or “the rights of the party were substantially prejudiced by the refusal of the arbitrators . . . to hear evidence material to the controversy.”

(§ 1286.2, subds. (a)(1), (a)(4).) The party seeking to vacate the award bears the burden of showing the award meets one or more of the criteria in section 1286.2 and demonstrating prejudice. (Comerica Bank v. Howsam (2012) 208 Cal.App.4th 790, 826.)

“On appeal from an order confirming an arbitration award, we review the trial court’s order (not the arbitration award) under a de novo standard. [Citations.] To the extent that the trial court’s ruling rests upon a determination of disputed factual issues, we apply the substantial evidence test to those issues.” (Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892 fn.7.)

II. Statement of Decision

Ogawa argues “the order confirming the award of the arbitrator should be reversed outright” because the trial court “failed to meet its obligation to issue an adequate statement of decision.” He maintains that the court was required to issue a statement of decision under Code of Civil Procedure sections 632 and 1291, as well as Metis, supra, 200 Cal.App.4th 679, and with that obligation came the obligation for the court to fully explain the legal and factual bases of its decision. The Sayegusas do not address this issue in their response brief.

As a general rule, the trial court is not required to provide written findings of fact and conclusions of law. (See § 632.) However, section 632 provides, “upon the trial of a question of fact by the court,” “[t]he court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” (Ibid.) “The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision,” and, when the trial is “concluded within one calendar day or in less than eight hours over more than one day,” must be made “prior to the submission of the matter for decision.” (Ibid.) The California Arbitration Act (§§ 1280-1294.4) requires a trial court to issue a statement of decision “if requested pursuant to Section 632” for any order made appealable under the Act. (§ 1291.) Orders “dismissing a petition to confirm, correct or vacate” an arbitration award are appealable under the Act. (§ 1294, subd. (b).) We need not decide whether Ogawa was entitled to a statement of decision. Although the record here suggests Ogawa did not properly request a statement of decision—he did not request a statement of decision until after the court rendered its decision, and did not identify the principal controverted issues he wished the statement to address until after the court issued its first written ruling—the trial court agreed to provide him with one. We accordingly consider whether the written rulings the court issued satisfy the requirements of a statement of decision.

“The trial court is not required to respond point by point to the issues posed in a request for statement of decision. The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.” (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1379-1380; see also Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983 (Thompson).) “‘When this rule is applied, the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a claim.’ [Citation.] ‘Ultimate facts are distinguished from evidentiary facts and from legal conclusions.’” (Thompson, supra, 6 Cal.App.5th at p. 983.) “Thus, a court is not expected to make findings with regard to ‘detailed evidentiary facts or to make minute findings as to individual items of evidence.’ [Citation.]” (Ibid.) If a court fails to make a finding on a particular matter, the omission is harmless if the judgment is otherwise supported, “‘unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings.’” (Ibid.) Errors related to a statement of decision are subject to harmless error review. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1108-1109.)

The court’s written rulings here fairly disclose its determinations as to the ultimate facts and material issues in the case. The material issues were whether Ogawa demonstrated that the arbitration award should be vacated because it was procured by undue means, the arbitrator refused to hear evidence, or the arbitrator exceeded her powers. The court disclosed its determinations as to those issues and made factual findings relevant thereto. As to procurement by undue means and the arbitrator’s willingness to hear evidence, the court found that the parties agreed to exchange their materials on a specific date, and that Ogawa made no effort prior to the arbitrator’s decision to file supplemental material. The court also found that any delay in the receipt of briefs was not prejudicial to Ogawa, because the parties agreed the matter would be submitted on the papers only; he was not deprived of an opportunity to respond or submit argument. As to whether the arbitrator exceeded her authority, the court concluded that it could not make factual findings without improperly reopening the arbitration. It further stated, after summarizing the issues Ogawa presented, that he “failed to persuade this court by any fact, law, or argument that there is cause to vacate the arbitration award.” The statement of decision thus evinces that the court considered and rejected Ogawa’s theories. No more was required.

Even if more were required, Ogawa has not demonstrated that he was prejudiced by any defect in the court’s written rulings. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong.”].) He argues only that “the order confirming the arbitration award should be reversed outright” because the “trial court failed to meet its obligation to issue an adequate statement of decision under § 1291.” Yet, as the Supreme Court recently held in F.P. v. Monier, supra, 3 Cal.5th at p. 1108, “a trial court’s error in failing to issue a requested statement of decision is not reversible per se.” Without some showing of prejudice by Ogawa, we are not persuaded that reversal is warranted here.

III. Exchange of Briefs and Expert Declaration

Ogawa contends the court should have vacated the arbitration award because it was procured by undue means

(§ 1286.2, subd. (a)(1)) and the arbitrator refused to hear his arguments and evidence relating to removal (§ 1286.2, subd. (a)(5)). Both arguments stem from his delayed receipt of the Sayegusas’ arbitration brief and expert declaration. He asserts the arbitration award was procured by undue means because he “did not have time to raise a timely objection” to either the declaration or the inclusion of the issue of his removal before the arbitrator ruled. He also contends the arbitrator prevented him from fairly presenting his case when she denied his motion to reopen. Neither of these arguments has merit.

As Ogawa acknowledges in his briefing, he agreed to simultaneously exchange briefs and other materials, and to submit the matter on those papers, without further presentation or argument. He posits that if the parties had “agreed to live testimony or a briefing schedule that included reply briefs, these issues could have been addressed before the arbitrator instantly.” However, “[a]rbitration is foremost a creature of contract,” and Ogawa was bound by the terms of the parties’ stipulation to arbitrate. (Bunker Hill Park Ltd. v. U.S. Bank National Assn. (2014) 231 Cal.App.4th 1315, 1326.) The arbitrator, too, was bound by the parties’ agreement; it was not her responsibility, as Ogawa suggests, to “request[ ] additional argument and evidence on the issue of removal upon receipt of Appellant’s brief.” There was nothing “undue” about the arbitrator’s conduct, and we agree with the trial court that Ogawa cannot demonstrate prejudice in light of the agreed briefing schedule.

By his own account, Ogawa received the Sayegusas’ arbitration brief on May 23, 2018. The arbitrator did not issue her award until May 29, 2018. This gave Ogawa six days to alert the Sayegusas and/or the arbitrator to his concerns, seek a continuance, or seek permission to supplement his brief. He did none of those things. He claims he “did not have time to raise a timely objection because Appellant did not receive Respondents’ brief until a couple days prior to the Arbitrator issuing her award,” but six days, or even “a couple days,” would seem to be sufficient time to raise at least an informal objection.

Instead, Ogawa waited nearly two weeks after the arbitration award was issued before filing his request to reopen.

The arbitrator denied the request as untimely, under both section 1284 and arbitral rules. Ogawa does not address these authorities. He instead contends his request should have been granted because the award, which left open the issue of attorney fees, was not final. We disagree. The arbitration award was final as to the issues on which Ogawa sought to make further presentation and argument. He knew that he wanted to make additional argument upon receipt of the Sayegusas’ arbitration brief, but did not alert the arbitrator before she prepared the award or within ten days after it was served.

Ogawa also contends the denial of the request to reopen was tantamount to an improper refusal to hear evidence material to the controversy and prevented him from fairly presenting his case. In his reply brief, he likens this case to Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092, in which we held that an arbitration award should be vacated under section 1286.2, subdivision (a)(5) because the arbitrators prevented one party from introducing oral testimony during the arbitration hearing. The analogy is inapt. The arbitrator here accepted and clearly considered briefs and evidence from both sides. Any deprivation Ogawa suffered stemmed from his agreement to submit on simultaneous briefs or his failure to alert the arbitrator to his misunderstanding of the scope of the arbitration in a timely fashion. Though Ogawa contends he “was never given information on what the expert would be providing testimony on,” the general subject matter of the arbitration was clear, and there is no indication Ogawa—who was aware of the expert’s name—made any attempt to discern more information from the Sayegusas or the expert himself. On this record, we cannot conclude the arbitrator improperly refused to hear Ogawa’s evidence.

IV. Intent of Settlors

Ogawa argues the award should be vacated under section 1286.2, subdivision (a)(4), because the arbitrator exceeded her powers by ignoring the intent of the trust settlors. He starts from the premise that we may avoid the standard restriction on merits review of arbitration awards because the arbitrator arbitrarily remade the terms of the trust and thus violated the “well-defined public policy” of “adherence to the intent of the settlor’s [sic] who drafted the trust agreement.” Ogawa urges us to vacate the award because the arbitrator contravened rather than effectuated the Goos’ intent for Ogawa “to be rewarded by his inheritance for the care and support that he provided to the Goo’s [sic] in their lifetime” by imposing surcharges that essentially disinherited him. He acknowledges that a surcharge “could be appropriate if Appellant’s [sic] was stealing money or otherwise abusing trust assets,” but asserts “there is ABSOLUTELY no evidence of malfeasance on the part of Appellant.” He further contends the arbitrator ignored the intent of the Goos by naming the Sayegusas successor trustees.

“Arbitrators may exceed their powers by issuing an award that violates a party’s unwaivable statutory rights or that contravenes an explicit legislative expression of public policy.” (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916.) Ogawa has not pointed to an explicit legislative expression of public policy that is relevant to the matters presented here. There is a statute—not cited by Ogawa—which provides, “The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument.” (Prob. Code,

§ 21102, subd. (a).) (And, of course, courts have long recognized ‘“‘The paramount rule in the construction of wills [and trusts], to which all other rules must yield, is that a will [or trust] is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.”’ [Citation.]” (Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134.).)

Neither disposition of the Goos’ assets nor interpretation of the trust language was at issue in this case. The dispute concerned the adequacy of Ogawa’s performance as trustee and his compliance with his statutory fiduciary duties (see Prob. Code, §§ 16000-16015). The arbitrator did not interpret the terms of the trust. Instead, she considered the parties’ evidence and argument regarding Ogawa’s actions and deficiencies in administering the trust, and surcharged him in accordance with her factual findings and legal conclusions. She also determined that appointing a corporate trustee would further erode the trust assets, and that the Sayegusas—the only remaining trust beneficiaries—were able to administer the trust. She was permitted to do both of these things (see, e.g., Prob. Code

§ 17206), and this is not one of the rare cases in which we may pierce the arbitral veil to review the factual or legal correctness of her decision.

V. Propriety of Remedies

Absent express limitation in the arbitration contract, “an arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her findings and contractual interpretation.” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 117, 1182.) The scope of this authority is broad; unless restricted by the parties’ agreement, an arbitrator is not limited to legal remedies and may fashion relief “consider[ed] just and fair under the circumstances existing at the time of arbitration.” (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, 383.) “‘[A] court may not vacate an award because the arbitrator has exceeded the power the court would have, or would have had if the parties had chosen to litigate, rather than arbitrate the dispute. Those who have chosen arbitration as their forum should recognize that arbitration procedures and awards often differ from what may be expected in courts of law.’ [Citation.]” (Id. at p. 388, emphases omitted.) That is not to say an arbitrator’s authority is without limit. “An arbitrator exceeds his powers when he acts without subject matter jurisdiction [citation], decides an issue that was not submitted to arbitration [citations], arbitrarily remakes the contract [citation], upholds an illegal contract [citation], issues an award that violates a statutory right [citations], fashions a remedy that is not rationally related to the contract [citation], or selects a remedy not authorized by law [citations].” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443; see also O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1055-1056 (quoting Jordan); Marsch v. Williams (1994) 23 Cal.App.4th 238, 245 [“Arbitrators do not have the power to provide all the remedies which are available from the superior court.”].)

Ogawa contends the arbitrator exceeded her broad authority here with regard to several remedies she awarded. We review the trial court’s decision de novo but give substantial deference to the arbitrator’s assessment of her contractual authority. (O’Flaherty v. Belgum, supra, 115 Cal.App.4th at p. 1056.)

A. “Punitive Surcharge”

Ogawa argues the arbitrator exceeded her remedial powers “when she awarded the punitive surcharge that essentially disinherited Appellant in contradiction to the intentions of the trust.” He contends the “punitive monetary award” of approximately $236,000 “has no bearing to the conduct of Respondent [sic] in this matter,” and points out that “[t]he only other trust beneficiary to receive this much cash was the Orphan Fund of America.” He further asserts “[t]he record is wholly devoid of any bad faith or malfeasance on the part of Appellant that would lead to the punitive surcharge ordered by the Arbitrator.” We are not persuaded.

The surcharge the arbitrator imposed upon Ogawa was not by its terms “punitive.” Rather, per the arbitration award, it represented the amount of rental income the Sayegusas did not receive from their duplex while Ogawa and his cats were living in it rent-free, as well as expenses he improperly charged against their distribution share. The compensatory surcharge was rationally—indeed, directly—related to the underlying dispute. The arbitrator found Ogawa breached several fiduciary duties to the Sayegusas, and clearly intended the surcharge to compensate them for those breaches. It is not our role to review the underlying factual findings, or compare the relative size of distributions to the surcharge; it is enough here to conclude that those findings are rationally related to the surcharge imposed.

B. Order to Return Duplex

The arbitrator found: “The total surcharge against Mr. Ogawa, not including attorney fees payable to Petitioner [sic] and/or interest is $236,712. Curtis Ogawa received rental income in the amount of $87,778 and trust distributions in the amount of $128,916 for a total of $216,694. This amount is insufficient to satisfy any judgment in this matter. [¶] Mr. Seibert opines that each of the two properties that were distributed to Mr. Ogawa from the trust . . . have a value of $450,000 to $600,000, depending on their condition. [¶] No evidence was introduced to establish that Curtis Ogawa will be able to fully satisfy any surcharge and resulting judgment in this matter. [¶] The only way that Mr. Ogawa will be able to satisfy the monetary surcharges and/or attorney fee orders made regarding Petitioners’ Attorney Fees and Costs is from the proceeds from the sale of one of the two duplexes. [¶] Curtis Ogawa shall transfer one of the two duplexes . . . he received from the Trust Back into the Trust not later than July 31, 2018. [¶] The duplex shall be sold and the proceeds from the sale shall be used to satisfy” the surcharge, fee award, and other costs and expenses “attributable to Mr. Ogawa,” with “any funds remaining in the reserve upon termination of the Trust [to] be returned to Curtis Ogawa.” Notably, the Sayegusas requested this relief in their arbitration brief.

Ogawa contends the arbitrator exceeded her powers by “arbitrarily determining Appellant’s ability to satisfy a money judgment and ordering Appellant to return his inherited property to satisfy a judgment that has not yet been confirmed.” He relies primarily on Luster v. Collins (1993) 15 Cal.App.4th 1338 (Luster) for support.

In Luster, two neighbors agreed to arbitrate their dispute over an easement. (Luster, supra, 15 Cal.App.4th at p. 1342.) One of the neighbors, Collins, planted trees in the easement, and the arbitrator ordered him to remove them and to pay $50 per day per tree for each day he failed to do so. (Id. at p. 1343.) The arbitrator imposed the daily fee at least in part due to Collins’ failure to comply with previous arbitral orders. (Id. at p. 1348.) The other neighbor, Luster, obtained confirmation of the award, but the appellate court reversed. It reasoned that “the arbitrator’s responsibility was to determine whether Collins had wrongfully placed trees on the easement and, if so, how those wrongful acts could be rectified. Consistent with his responsibility the arbitrator found Collins improperly burdened Luster’s use of the easement and ordered removal of specific trees. This should have been the extent of his decision unless he was statutorily empowered or the parties agreed he could include self-executing provisions to insure its enforcement as part of the award.” (Id. at p. 1348.) The court then examined the relevant statutes and arbitration agreement and concluded the arbitrator was not so empowered. It found “nothing in section 1280 et seq., which authorizes an arbitrator to include economic sanctions, such as those imposed here, as part of the award.” (Ibid.) The court further observed that the Legislature had enacted an entire statutory scheme, the Enforcement of Judgments Law, and thus “had no need to furnish an arbitrator additional authority for enforcement purposes postjudgment. Such authority would not only conflict with judicial power, but absent carefully prescribed procedures potentially interfere with the respective rights of the parties.” (Id. at p. 1349.)

Ogawa’s reliance on Luster is misplaced, and the other cases he cites in passing, Hall, Goodhue, Haisley & Barker, Inc. v. Marconi Conference Center Board (1996) 41 Cal.App.4th 1551, and Jordan-Lyon Productions, Ltd. v. Cineplex Odeo Corp. (1994) 29 Cal.App.4th 1459, 1467-1468 are likewise distinguishable. The arbitration award does not impose sanctions on Ogawa for violating it or any previous award. Instead, it directs him to satisfy the award in a specific fashion. The arbitrator’s factual findings regarding his ability to pay the award are not reviewable, and the order that Ogawa return one of his two duplexes to the trust is rationally related to those findings. While unconventional, the award is clearly based in equity and therefore is within the scope of the arbitrator’s authority, which was in no way circumscribed by the parties’ stipulation to arbitrate. Moreover, the award provides that any excess proceeds from the ultimate sale of the duplex are to be returned to Ogawa; he is not, as he maintains, fully disinherited as a result.

C. Removal as Trustee

Ogawa contends the arbitrator exceeded her authority by removing him as trustee of the trust because there was no statutory basis for her to do so. Specifically, he argues the arbitrator failed to address Probate Code section 15642, which sets forth a nonexclusive list of grounds for which a trustee may be removed. Ogawa also takes issue with the arbitrator’s factual findings, asserting “it does not appear from the record that the Arbitrator considered whether Appellant breached his fiduciary duties, considering he had sole discretion to manage the trust assets,” and “there is nothing in the record to suggest that Appellant acted in bad-faith [sic].” Ogawa adds, without any citation to the record or authority, that the arbitrator “entirely abused her authority by allowing the Respondents to administer their own trust shares despite the specific age-restriction attached to their inheritance,” and the award “is likewise flawed because it is silent as to whether or not the Respondents are ordered to comply with the age restrictions included in the trust.”

These arguments are not persuasive. The arbitrator explicitly considered and found that Ogawa breached multiple fiduciary duties while administering the trust. Probate Code section 15642, subdivision (b) authorizes removal of a trustee “[w]here the trustee has committed a breach of the trust,” “[w]here the trustee fails or declines to act,” and generally “[f]or other good cause.” (Prob. Code § 15642, subds. (b)(1), (4), (9).) Ogawa’s disagreement with the arbitrator’s findings is not a valid basis supporting vacation of her award. To the extent he argues it was improper for the arbitrator to name the Sayegusas as co-trustees, he does not indicate how the appointment of successor trustees to replace one found to have violated his fiduciary duties is beyond the authority of the arbitrator.

D. Attorney Fees

Ogawa finally contends the arbitrator’s award of $40,670 in attorney fees and costs “is not authorized by the Probate Code.” He argues that attorney fees are not recoverable absent statutory or contractual authority, and the pertinent statutory authority here requires a showing of bad faith. We reject this attempt to challenge the arbitrator’s factual findings and application of law.

The parties’ stipulation to arbitrate provides that “[a]ll other costs, trustee fees and/or attorney fees at issue in this action shall be decided by the arbitrator in accordance with the pleadings and evidence submitted thereto pursuant to California law. . . . [A]ttorneys’ fees . . . shall be allocated pursuant to Probate Code section 17211 as to any monetary dispute as though such dispute arose pursuant to a formal accounting provided pursuant to Probate Code section 17200, 16062, 16063, and/or any other applicable rule of law.” Probate Code section 17211, subdivision (b) authorizes an award of attorney fees to beneficiaries who challenge a trustee’s accounting where “the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith.”

The arbitrator expressly found “pursuant to P.C.

§ 17211(b), that Mr. Ogawa opposed Petitioners’ claims for surcharge without reasonable cause and in bad faith.” She rejected Ogawa’s explanations for his actions (and inaction) as not credible, and explained that “[w]ithout credible explanations for Mr. Ogawa’s actions, the Arbitrator cannot find that Mr. Ogawa’s defense of his actions was taken in good faith.” These findings are not subject to review, notwithstanding Ogawa’s disagreement with them.

DISPOSITION

The judgment of the trial court is affirmed. The Sayegusas may recover their costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.