Serrano v. Community Organized Relief Effort CA2/7

Filed 10/29/26 Serrano v. Community Organized Relief Effort CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN SARENA SERRANO, B340012 Plaintiff and Appellant, (Los Angeles County Super. Ct. v. No. 21STCV33097) COMMUNITY ORGANIZED RELIEF EFFORT et al., Defendants and Respondents. APPEAL from a judgment of the Superior Court of Los Angeles County, Upinder S. Kalra, Judge. Affirmed. Manuel Corrales, Jr., for Plaintiff and Appellant. Greenberg Traurig, Matthew Rosengart, Karin L. Bohmholdt and Philip I. Person for Defendants and Respondents. __________________________  Sarena Serrano appeals from a judgment confirming an arbitration award in favor of her former employer, Community Organized Relief Effort (CORE) and its chief executive officer, Ann Young Lee, on Serrano’s claims for sexual harassment based on hostile work environment, aiding and abetting sexual harassment, and retaliation in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) and related claims. Serrano contends the trial court erred in confirming the award because the arbitrator exceeded his powers under the parties’ arbitration agreement by granting a prehearing motion to dismiss Serrano’s claims as untimely. Serrano argues the arbitrator committed legal errors that denied her a hearing on her unwaivable FEHA rights, including the arbitrator’s finding that the American Arbitration Association’s (AAA) Employment Arbitration Rules and Mediation Procedures (Employment Arbitration Rules) governed the parties’ dispute. Serrano also contends the arbitrator erred in interpreting those employment rules to mean that the FEHA statute of limitations for commencement of civil actions following issuance of a right to sue letter also governed how long a plaintiff had to make a demand for arbitration following a trial court order granting a motion to compel arbitration. We affirm. FACTUAL AND PROCEDURAL BACKGROUND A. Serrano’s Employment, Termination, and Complaint CORE is a nonprofit crisis-response organization that partnered with the City of Los Angeles (City) in March 2020, at the beginning of the COVID-19 pandemic, to administer public testing for the COVID-19 virus. On June 16, 2020 CORE hired 2 Serrano to assist with the logistics, set-up, and administration of its testing site at Dodger Stadium. That day Serrano signed an employment agreement. Article 4, paragraph 8 of the employment agreement included a provision titled “binding arbitration” (arbitration agreement). (Capitalization omitted.) The provision stated in part: “Subject to each Party’s right to obtain provisional equitable relief in a court of applicable jurisdiction pending a final award of the arbitrator, any controversy or claim between the Employer and the Employee related to this Agreement shall be settled by expedited arbitration in accordance with the expedited Labor Arbitration Rules of the [AAA], except that if the Employer adopts an employment ADR plan, within the meaning of the National Rules for the Resolution of Employment Disputes of the AAA (the ‘Employment Rules’), then such employment ADR plan and the Employment Rules shall apply. . . .” From June 16 through mid-August 2020, while Serrano was working at Dodger Stadium, Battalion Chief Jaime Lesinski of the Los Angeles Fire Department (LAFD) was also working at the CORE testing site. Lesinski was present in his capacity as a City employee, but, as alleged by Serrano, he operated under CORE’s supervision and direction. Serrano alleged that throughout this period, Lesinski frequently touched her and other young female CORE employees on their lower backs or buttocks without their consent. Lesinski also frequently commented on Serrano’s and other women’s sex organs and made other sexually inappropriate and demeaning comments. In late August 2020 Serrano told her supervisor she needed a mental health day because she was suffering from depression and a breakdown after learning that CORE management (including 3 Lee) knew about Lesinski’s harassing behavior but would not stop it. Although Serrano initially received paid leave, CORE later advised her that her future leave would be unpaid. On October 1, 2020 CORE terminated Serrano for “‘unprofessional behavior.’” Serrano alleged CORE refused to tell her what this behavior was, and when Serrano complained about Lesinski’s harassment, Lee told her that Lesinski was a personal friend and Lee would not do anything about his conduct. CORE did not investigate Serrano’s claims and instead gave as a false pretext that it terminated Serrano because she was “‘irresponsible.’” On March 11, 2021 Serrano filed a complaint for employment discrimination under FEHA with the California Department of Fair Employment and Housing (DFEH) (now called the Civil Rights Department), naming CORE as the respondent. The same day, the DFEH issued a right to sue letter and closed the administrative complaint. On September 8, 2021 Serrano filed a civil action in the superior court against CORE, Lee, the City, and Lesinski. Serrano’s complaint asserted five causes of action under FEHA against CORE and/or Lee, including sexual harassment based on hostile work environment, aiding and abetting sexual harassment, retaliation, and failure to prevent harassment and retaliation (Gov. Code, § 12940, subds. (h)-(k)). Serrano also asserted against CORE a cause of action for sexual harassment in violation of Civil Code section 51.9 and a common law cause of action for wrongful termination in violation of public policy. The 4 causes of action alleged against the City and Lesinski are not at issue in this appeal.1 On October 27, 2021 CORE filed a motion to compel arbitration; Lee joined the motion. Serrano opposed the motion on multiple grounds, including that the arbitration agreement was procedurally unconscionable because Serrano was not “given any arbitration rules to review before signing” and the agreement did not “explain[] how [Serrano] could learn or find out what the arbitration rules were before she signed the document.” On January 19, 2022 the trial court (Judge Lawrence P. Riff) granted the motion to compel and ordered the claims against CORE and Lee to arbitration. Lesinski also filed a motion to compel arbitration, and on June 29, 2022 the trial court (Judge Upinder S. Kalra) granted Lesinski’s motion, finding Lesinski, as alleged, acted as CORE’s agent and was a third-party beneficiary of the arbitration agreement with Serrano. B. The Arbitration and CORE’s Dispositive Motion Approximately 19 months after the trial court granted CORE’s motion to compel arbitration, on August 21, 2023 Serrano filed a demand for arbitration (demand) with the AAA. Serrano utilized the AAA demand form titled “Employment Arbitration Rules Demand for Arbitration” (block capitalization omitted) and named as respondents CORE, Lee, and Lesinski. 1 Serrano dismissed her claims against the City on December 19, 2022. According to Serrano, her claims against Lesinski were settled before the merits hearing in the arbitration. 5 Serrano incorporated her civil complaint in lieu of a statement of her claims. The parties selected Richard R. Mainland as the arbitrator. On November 28, 2023, following the initial conference with the parties’ attorneys, the arbitrator issued a case management order. The order identified the claims at issue in the arbitration and summarized the procedures for discovery, expert witnesses, and pre-hearing exchanges. As relevant here, the order stated that “[t]he Employment Arbitration Rules of the AAA and California substantive law apply in this arbitration.” The order also stated that the parties could submit dispositive motions, and the arbitrator would set a briefing schedule and a hearing on such motions. On December 14, 2023 CORE and Lee (collectively, CORE) filed a dispositive motion (styled as a demurrer and motion to dismiss) seeking dismissal of the claims against them on statute of limitations grounds. CORE argued the AAA’s Employment Arbitration Rules governed the dispute, and rule 4(b)(i)(1) of those rules (Rule 4) specified that a claimant must file her arbitration demand “‘within the time limit established by the applicable statute of limitations.’” Pursuant to Government Code section 12965,2 Serrano’s five FEHA claims were subject to a one- 2 It is undisputed that Government Code section 12965 provides a one-year deadline to file a civil action under FEHA following issuance of a right to sue letter. Section 12965, subdivision (c)(1)(D), provides that the Civil Rights Department right to sue letter “shall indicate that the person claiming to be aggrieved may bring a civil action under this part . . . within one year from the date of that [letter].” (See Stats. 2025, ch. 321 § 3, eff. Jan. 1, 2026.) From 2022 to 2025 substantially the same 6 year filing deadline running from the date she received the right to sue letter from the DFEH. CORE conceded for purposes of the motion that pursuant to Code of Civil Procedure section 1281.12,3 the statute of limitations was tolled during the trial court proceedings until 30 days after the order compelling arbitration. Taking into account tolling, CORE calculated that Serrano filed the arbitration demand 730 days after receiving the right to sue letter, excluding the 163-day period from the date Serrano filed her civil complaint (Sept. 8, 2021) until 30 days after the trial court granted the motion to compel arbitration (Feb. 18, 2022). CORE asserted Serrano’s claim for wrongful termination in violation of public policy was subject to section 335.1’s two-year statute of limitations for personal injury claims, running from the date she was terminated. CORE calculated that Serrano filed the arbitration demand 891 days after she was terminated, excluding the 163-day tolling period under section 1281.12. language appeared in former subdivision (c)(1)(C). (See Stats. 2021, ch. 278, § 7, eff. Jan. 1, 2022.) 3 Code of Civil Procedure section 1281.12 states, “If an arbitration agreement requires that arbitration of a controversy be demanded or initiated by a party to the arbitration agreement within a period of time, the commencement of a civil action by that party based upon that controversy, within that period of time, shall toll the applicable time limitations contained in the arbitration agreement with respect to that controversy, from the date the civil action is commenced until 30 days after a final determination by the court that the party is required to arbitrate the controversy . . . .” Further undesignated statutory references are to the Code of Civil Procedure. 7  In her opposition, Serrano argued her FEHA claims were not time-barred because she filed the civil complaint just five months after receiving DFEH’s right to sue letter, clearly satisfying Government Code section 12965’s deadline to bring a “civil action” within a year. Further, section 12965 did not apply to contractual arbitration, and the fact CORE later successfully compelled arbitration of the FEHA claims did not negate her timely filing. Moreover, she argued, Rule 4’s requirement that Serrano commence arbitration within the time “‘established by the applicable statute of limitations’” did not apply because section 1281.12 governed the limitations period, which provided for tolling of any limitations period “contained in the arbitration agreement,” but there was no limitations period in the parties’ agreement. After CORE filed its reply brief, the arbitrator sent the parties a focus letter asking them to address at oral argument, among other topics, whether the Employment Arbitration Rules had been validly incorporated by reference into the arbitration agreement, and if so, what Rule 4’s “applicable statute of limitations” meant as applied to the demand. At the February 29, 2024 hearing on the dispositive motion, Serrano’s attorney argued that Rule 4 was not incorporated into the arbitration agreement because the Employment Arbitration Rules did not apply. Rather, the arbitration agreement provided that the arbitration would be governed by AAA’s Expedited Labor Arbitration Rules (Labor Rules). Only if the employer adopted an ADR plan would the arbitration be governed by a different set of rules. Serrano’s attorney argued there was no evidence that CORE had adopted an ADR plan at the time Serrano signed the arbitration agreement, and thus the Labor Rules applied. The 8 Labor Rules did not contain any reference to the “applicable statute of limitations” language, unlike Rule 4. Further, even where an employer adopts an ADR plan, the arbitration agreement provided in that case for arbitration under the AAA’s “‘Employment Rules,’” which the arbitration agreement defined as the AAA’s National Rules for the Resolution of Employment Disputes (National Arbitration Rules). Serrano’s attorney pointed out that the National Arbitration Rules were AAA’s employment arbitration rules in place as of 2004.4 4 Serrano submitted the National Arbitration Rules, amended and effective January 1, 2004, and the Labor Rules, amended and effective July 1, 2013, in connection with the hearing on the dispositive motion. On our own motion, we take judicial notice of the AAA’s Employment Arbitration Rules and Mediation Procedures (Rules amended and effective November 1, 2009 and Introduction revised October 1, 2017) (what we have referred to as the Employment Arbitration Rules), available on the AAA website: <https://www.adr.org/media/xzqblxny/employmentrules_web.pdf> (as of October 28, 2026), archived at <https://perma.cc/35AH- AXFN>. (Evid. Code, §§ 452, subd. (h), 459, subd. (a); see Emerald Aero, LLC v. Kaplan (2017) 9 Cal.App.5th 1125, 1132, fn. 5 [arbitration rules are subject to judicial notice].) Rule 1 of the 2009 and 2017 versions of the Employment Arbitration Rules states: “The National Rules for the Resolution of Employment Disputes have been re-named the Employment Arbitration Rules and Mediation Procedures. Any arbitration agreements providing for arbitration under its [National Arbitration Rules] shall be administered pursuant to these . . . Employment Arbitration Rules.” 9  Serrano’s attorney also argued (in response to a waiver argument by CORE) that Serrano’s use of the AAA’s Employment Arbitration Rules Demand Form and the failure to object to the case management order (which specified the Employment Arbitration Rules would apply to the arbitration) did not constitute Serrano’s consent to arbitrate under the Employment Arbitration Rules. Instead, the use of an incorrect form was a “hyper-technical” error, and the arbitrator was required to correct the erroneous case management order rather than enforce rules without Serrano’s consent. CORE’s attorney argued the Employment Arbitration Rules applied to the arbitration, not the Labor Rules, noting the dispute was a “straightforward employment case” and did not involve a union or a labor dispute. Further, the Employment Arbitration Rules applied “if the employer adopts an employment ADR plan—which CORE undisputedly did.” After hearing argument for more than an hour, the arbitrator took the dispositive motion under submission. On March 5, 2024 the arbitrator granted the motion. In his six-page ruling, the arbitrator addressed the arguments and authorities in the parties’ briefs and those presented for the first time at the hearing. The arbitrator found “the Employment Arbitration Rules . . . apply in this case, both because of [Serrano’s] initiation of the case as an employment rules case, because of my unopposed Case Management Order confirming applicability of the Employment [Arbitration] Rules, and because the Employment [Arbitration] Rules were validly incorporated by reference into [Serrano’s] Employment Agreement.” The arbitrator “accept[ed] the representation of [CORE’s] counsel at oral argument that CORE did adopt an ADR plan.” Moreover, it 10 was “likely that the AAA would not have accepted this case for administration unless such a plan had been adopted.” Instead, consistent with Serrano’s use of the employment arbitration demand form, the AAA administered the case from inception under the Employment Arbitration Rules. Serrano received multiple communications clarifying that the Employment Arbitration Rules were being applied and never objected. The arbitrator also noted the Labor Rules appeared to focus on “disputes under the collective bargaining agreements, not individual disputes between an employer and employee under an employment contract.” The arbitrator found that “pursuant to Rule 4 of the Employment [Arbitration] Rules, the one-year statute of limitations for FEHA claims and the two-year statute of limitations for wrongful termination claims apply.” Although Government Code section 12965 and Code of Civil Procedure section 335.1 governed “actions” and not arbitration proceedings, the “most reasonable interpretation of Rule 4 is that ‘applicable statute of limitations’ refers to those [code] sections establishing statues of limitations for the causes of action being asserted in the arbitration . . . .” Serrano’s contrary interpretation of Rule 4 that it could only refer to section 1281.12 was unreasonable because it would “eliminate or drastically limit the scope of Rule 4, by restricting ‘applicable statutes [sic] of limitations’ to contractual limitations and excluding the many statutes of limitations governing causes of action that may be asserted in arbitrations.” Finally, the arbitrator found it was “undisputed that [Serrano] did not initiate this arbitration within the limitations period for those claims, even giving [her] the benefit of the tolling 11 during the pursuit of her court action pursuant to [section] 1218.12.” Accordingly, Serrano’s claims against CORE and Lee were time-barred. C. Serrano’s Petition To Vacate On March 26, 2024 Serrano filed a petition to vacate the arbitration award, attaching the arbitrator’s March 5, 2024 ruling as the award. Serrano’s principal argument was that the arbitrator exceeded his authority under the arbitration agreement by applying the Employment Arbitration Rules and determining under Rule 4 that the statutes of limitations for civil actions governed her claims. After briefing and a hearing, on May 14, 2024 the trial court denied the petition to vacate and confirmed the award. The court found the arbitrator did not exceed his authority in applying the Employment Arbitration Rules because the award showed the arbitrator “was following the arbitration agreement’s clear expression that an employment ADR plan controls when the employer chooses to do so [and] [t]he [a]rbitrator found CORE had done so.” The arbitrator was also within his authority to interpret the arbitration rules, and his construction of Rule 4 was “reasonable and, as such, not a clear error of law.” Further, “since it was undisputed that after applying the tolling provision of [section] 1218.12, [Serrano] failed to initiate the arbitration within the applicable FEHA and wrongful termination time periods, the court’s limited judicial review prevents the [c]ourt from overturning the [a]rbitrator’s decision.” On June 4, 2024 the trial court entered a notice of ruling and judgment denying the petition to vacate, confirming the arbitrator’s ruling on the dispositive motion and dismissing 12 Serrano’s claims against CORE and Lee. Serrano timely appealed. DISCUSSION A. Judicial Review of Arbitration Awards “California law favors alternative dispute resolution as a viable means of resolving legal conflicts. ‘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.’” (Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916 (Richey); accord, Valencia v. Mendoza (2024) 103 Cal.App.5th 427, 440.) The California Arbitration Act (CAA; § 1281 et seq.) provides “only limited grounds for judicial review of an arbitration award”; under the statute, “courts are authorized to vacate an award if it was (1) procured by corruption, fraud, or undue means; (2) issued by corrupt arbitrators; (3) affected by prejudicial misconduct on the part of the arbitrators; or (4) in excess of the arbitrators’ powers.” (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1344, citing § 1286.2, subd. (a); see Soni v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1085-1286 [§ 1286.2 provides the “[e]xclusive grounds for vacating an arbitration award”].) “We review de novo a trial court order confirming an arbitration award, including its determination whether the arbitrator exceeded her powers in granting relief.” (Valencia v. Mendoza, supra, 103 Cal.App.5th at p. 442; see Roussos v. Roussos (2021) 60 Cal.App.5th 962, 973 [‘“‘“On appeal from an 13 order confirming an arbitration award, we review the trial court’s order (not the arbitration award) under a de novo standard.”’”’].) However, we review a trial court’s determination of disputed factual issues for substantial evidence. (Roussos, at p. 973.) Further, “‘[e]very reasonable intendment is indulged to give effect to arbitration proceedings; the burden is on the party attacking the award to affirmatively establish the existence of error by a proper record.’” (Rivera v. Shivers (2020) 54 Cal.App.5th 82, 94; accord Lopes v. Millsap (1992) 6 Cal.App.4th 1679, 1685.) “‘Generally, courts cannot review arbitration awards for errors of fact or law, even when those errors appear on the face of the award or cause substantial injustice to the parties.’” (Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 957; accord, Heimlich v. Shivji (2019) 7 Cal.5th 350, 367 (Heimlich) [“Most legal errors in arbitration are not reviewable.”]; Cable Connection, Inc. v. DIRECTV, supra, 44 Cal.4th at p. 1361 [“[T]he general rule [is] that the merits of the award are not subject to judicial review.”]; see Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28 [“‘[A]rbitrators do not exceed their powers merely because they assign an erroneous reason for their decision.’ [Citations.] 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.”].) However, the Supreme Court has recognized some limited and “‘exceptional circumstances justifying judicial review of an arbitrator’s decision”’ where “[a]rbitrators 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, supra, 60 Cal.4th at pp. 916-917.) For example, in Pearson Dental Supplies, Inc. v. 14 Superior Court (2010) 48 Cal.4th 665 (Pearson), the Supreme Court held that a trial court could vacate an award where “a clear error of law by an arbitrator means that an employee subject to a mandatory arbitration agreement will be deprived of a hearing on the merits of an unwaivable statutory employment claim.” (Id. at p. 670.) In Pearson, the arbitrator misapplied section 1281.12 and concluded, without providing a written explanation, that the plaintiff’s FEHA claims were untimely and issued an award in favor of the employer.5 (Pearson, at pp. 671-672.) Construing the CAA “in light of the Legislature’s intent that employees be able to enforce their right to be free of unlawful discrimination under FEHA,” the Pearson court concluded that “when, as here, an employee subject to a mandatory employment-arbitration agreement is unable to obtain a hearing on the merits of his FEHA claims, or claims based on other unwaivable statutory rights, because of an arbitration award based on legal error, the trial court does not err in vacating the award.” (Id. at p. 680, italics added.) In Richey, supra, 60 Cal.4th at page 918, the Supreme Court reexamined Pearson and emphasized the decision’s 5 Although the arbitrator in Pearson did not state his reasons for finding the employee’s FEHA claims were time-barred pursuant to section 1281.12, the Supreme Court suggested the arbitrator may have erroneously adopted the defendant’s argument that section 1281.12 did not toll the statute of limitations during the pendency of the civil action, but once the one-year limitations period is reached, the deadline is “temporarily abated,” then reinstated 30 days after the court compels arbitration, thereby allowing the plaintiff only 30 days in which to initiate arbitration of a time-barred claim. (Pearson, supra, 48 Cal.4th at p. 675.) 15 “limited application.” The court in Richey explained that the arbitrator in Pearson had “‘misconstrued the procedural framework under which the parties agreed the arbitration was to be conducted, rather than misinterpreting the law governing the claim itself’ [citation], a distinction that explained the narrow application of our holding.” (Richey, at p. 918, quoting Pearson, at pp. 679-680.) Specifically, the arbitrator “committed clear legal error by (1) ignoring a statutory mandate, and (2) failing to explain in writing why the plaintiff would not benefit from the statutory tolling period. . . . [This] narrow rule was sufficient to resolve the case.” (Richey, at pp. 918-920 [declining to review for legal error the arbitrator’s decision to accept employer’s “honest belief” defense to denial of leave claims under the California Family Rights Act, Gov. Code, §§ 12945.1, 12945.2].) Serrano contends we should review the arbitrator’s dispositive ruling under the Pearson rule because, as in Pearson, the arbitrator “committed clear legal error in misapplying the statute of limitations beyond the confines of the arbitration agreement, which had the effect of denying [Serrano] the right to fully vindicate her statutory FEHA claims in the arbitral forum.” Although this case involves Serrano’s unwaivable statutory rights under FEHA, it does not fall within Pearson’s “narrow rule.” (Richey, supra, 60 Cal.4th at p. 918.) Unlike Pearson, the arbitrator did not ignore a statutory mandate or misconstrue the procedural framework of the arbitration. Indeed, Serrano does not challenge the arbitrator’s construction of Code of Civil Procedure sections 1281.12 or 335.1, or Government Code section 12965. Rather, she argues the arbitrator erred in interpreting the arbitration agreement and the AAA rules in deciding whether to impose the one- and two- 16 year statutes of limitation. But these are questions of law on which we defer to the arbitrator. (See Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 378 (Advanced Micro Devices) [“‘[A]s long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.’”]; JP-Richardson, LLC v. Pacific Oak SOR Richardson Portfolio JV, LLC (2021) 65 Cal.App.5th 1177, 1188 [same]; see also Ortiz v. Elmcrest Care Center, LLC (2024) 106 Cal.App.5th 594, 613, fn. 8 [“unless the parties have agreed the arbitrator’s interpretation of provider rules may be judicially reviewed on the merits, the court must ‘defer to the arbitrator’s interpretation and application of the [r]ules.’”].) Further, unlike in Pearson, the issues involving application of the limitation periods were fully briefed and extensively argued. The arbitrator issued a focus letter articulating the key issues, considered Serrano’s last-minute submissions and arguments, and issued a detailed ruling addressing the arguments and authorities presented at the hearing.6 6 As we will discuss, even if we review the arbitrator’s decision for “clear legal error” under Pearson, the arbitrator did not err in interpreting the application of the FEHA limitations period under Rule 4. (See Richey, supra, 60 Cal.4th at pp. 918- 920.) 17 B. The Trial Court Did Not Err in Confirming the Arbitrator’s Award 1. The arbitrator did not exceed his powers in applying the Employment Arbitration Rules Serrano contends the trial court erred in denying the motion to vacate the arbitrator’s dispositive ruling because the arbitrator exceeded his authority under the arbitration agreement by applying the Employment Arbitration Rules (and thus Rule 4) to the proceedings. As discussed, the parties agreed in the arbitration agreement that the Labor Rules would apply to any dispute unless CORE “adopts an employment ADR plan, within the meaning of the [National Arbitration Rules] (the ‘Employment Rules’),” in which case the “Employment Rules shall apply.” Serrano argues the arbitrator was required to apply the Labor Rules because there was no evidence CORE adopted an ADR plan, and further, even if CORE had adopted an ADR plan, the arbitrator was required to apply the 2004 National Arbitration Rules rather than the “current version now named Employment Arbitration Rules.” The arbitrator did not exceed his powers. “‘Absent an express and unambiguous limitation in the contract or the submission to arbitration, an arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her factual findings and contractual interpretation.’” (Heimlich, supra, 7 Cal.5th at p. 358; accord, Advanced Micro Devices, supra, 9 Cal.4th at p. 378; see Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179, 1182 [“the arbitrator did not exceed his powers by interpreting the contract to allow for equitable excusal of the 18 notice-and-cure condition or by making a factual finding that notice would have been an idle act”].) The arbitrator’s factual finding that CORE adopted an ADR plan was based on the representation of CORE’s attorney during the dispositive motion hearing that CORE “undisputedly” adopted an ADR plan, as well as the arbitrator’s finding that it was likely that AAA would not have accepted Serrano’s case for administration unless an ADR plan had been adopted. Serrano argues this was mere speculation, not “evidence.” It is true that counsel’s representation that CORE adopted an ADR plan is not evidence. But the arbitrator also considered other facts in making his ruling, including whether the arbitration would have proceeded without an ADR plan and that Serrano had filed her demand on AAA’s Employment Arbitration Rules Demand Form. Moreover, California’s evidentiary rules do not apply to the arbitration under any interpretation of the agreement: both Employment Arbitration Rule 30 and Labor Arbitration Rule 27 provide that “the arbitrator shall be the judge of the relevance and materiality of the evidence offered” and that “conformity to legal rules of evidence shall not be necessary.” Further, to the extent the arbitrator made any evidentiary errors in considering these facts, these rulings are not subject to judicial review under the CAA. (See Heimlich, supra, 7 Cal.5th at p. 370 [“an erroneous legal ruling result[ing] in the exclusion of evidence” was “not judicially reviewable”].) In light of the arbitrator’s finding that CORE adopted an ADR plan, the arbitrator’s reliance on the arbitration agreement to reject application of the 19 Labor Rules is not a ground to vacate the award. (Heimlich, supra, 7 Cal.5th at p. 358.)7 Serrano argues that even if the AAA’s “Employment Rules” (instead of Labor Rules) applied, the arbitrator exceeded his powers in applying the current Employment Arbitration Rules rather than the pre-2009 National Arbitration Rules expressly named in the agreement.8 However, Serrano concedes that the Employment Arbitration Rules are a “newly revised version” (capitalization omitted) of the National Arbitration Rules that were last modified in 2004. As discussed, the revised rules state that the National Arbitration Rules “have been re-named the Employment Arbitration Rules,” and “[a]ny arbitration agreements providing for arbitration under its [National 7 Because we hold the arbitrator did not exceed his powers in finding the Labor Rules did not apply, we do not reach Serrano’s argument that she did not waive application of the Labor Rules by demanding arbitration under the Employment Arbitration Rules and repeatedly failing to object to administration of the case under those rules. 8 Rule 4(b)(i)(1) of the National Arbitration Rules, amended January 1, 2004, provided that a claimant must file her demand “within the time limit established by the applicable statute of limitations if the dispute involves statutory rights. If no statutory rights are involved, the time limits established by the applicable arbitration agreement shall be followed.” (Italics added.) Rule 4 of the Employment Arbitration Rules does not contain the language we have italicized. Because we hold the arbitrator properly applied the Employment Arbitration Rules, we do not reach Serrano’s argument that the award should be vacated under the Labor Rules because her single nonstatutory claim for wrongful termination in violation of public policy (i.e., FEHA) was not subject to section 335.1’s two-year limitations period. 20 Arbitration Rules] shall be administered pursuant to these Employment Arbitration Rules . . . .” The arbitrator found the National Arbitration Rules “had no applicability” because Serrano’s employment (starting in 2020), the arbitration agreement, and the arbitration all occurred after the Employment Arbitration Rules were adopted. In so ruling, the arbitrator impliedly rejected Serrano’s argument that the arbitration agreement, in referring to the National Arbitration Rules, expressed the parties’ clear intent to arbitrate under the 16-year-old superseded rules rather than AAA’s current employment rules. The arbitrator’s factual findings and his legal interpretation of the arbitration agreement are not subject to judicial review. (Panoche Energy Center, LLC v. Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68, 99 [in reviewing order on petition to confirm or vacate, appellate court must “defer to the factual and legal findings made by the arbitrator”]; see Advanced Micro Devices, supra, 9 Cal.4th at p. 378 [“[I]f the award [is] derived from the arbitrator’s construction of the agreement, even an erroneous construction, it was within his authority.”].) Serrano relies on Gilbert Street Developers, LLC v. La Quinta Homes, LLC (2009) 174 Cal.App.4th 1185, 1194 (Gilbert) to argue that the parties could not have agreed to arbitrate under the Employment Arbitration Rules because “a contract cannot incorporate by reference terms of a document that does not exist or might exist in the future as a possibility.” In Gilbert, the parties’ agreement provided for arbitration of commercial disputes “‘conducted in accordance with the Rules of [AAA] existing at the date thereof.’” (Id. at p. 1187.) At the time the parties executed the agreement, the AAA had no rule 21 providing that the arbitrators had jurisdiction to rule on their own jurisdiction, but by the time of the dispute, AAA had adopted such a rule. (Id. at pp. 1187-1188.) Following an original demand for arbitration, the panel of arbitrators determined that the arbitration agreement delegated jurisdictional issues to the panel. (Id. at p. 1188.) The Court of Appeal affirmed the trial court’s order denying confirmation of the award, holding the language in the arbitration agreement incorporating the subsequent AAA rules did not constitute a “clear and unmistakable” agreement to delegate jurisdiction to the arbitrators to decide their own jurisdiction (and issues of arbitrability), as required under settled law. (Id. at pp. 1190- 1191.) The court reasoned that “[i]ncorporating the possibility of a future rule by reference simply doesn’t even meet the basic requirements for a valid incorporation by reference under simple state contract law,” because “what is being incorporated must actually exist at the time of the incorporation,” and “to have a valid incorporation by reference, the terms of the document being incorporated must be ‘“‘known or easily available’”’ to the contracting parties.” (Id. at p. 1194.) Gilbert is inapposite for multiple reasons. First, the arbitration agreement in this case did not incorporate by reference “the possibility of a future rule” that did not yet exist. (Gilbert, supra, 174 Cal.App.4th at p. 1192.) The Employment Arbitration Rules existed long before parties’ arbitration agreement. And the rules were readily available to the parties; had Serrano looked for the AAA’s “employment rules” as provided in the agreement—or even if she had looked only for the National Arbitration Rules—she would have found the Employment Arbitration Rules as the AAA’s then-current employment rules 22 (as well as the provision that the rules would apply where the agreement named the National Arbitration Rules instead). Moreover, Gilbert involved the question whether an arbitration agreement was clear and unmistakable in delegating to the arbitrators jurisdiction to decide their own jurisdiction (and arbitrability). (Id. at p. 1190.) In this case, the trial court determined the arbitrator’s jurisdiction over Serrano’s claims and whether the arbitration agreement was enforceable. The arbitrator simply determined which rules were applicable to the proceeding based on his “‘factual findings and contractual interpretation.’” (Heimlich, supra, 7 Cal.5th at p. 358.) 2. The arbitrator’s interpretation of Rule 4 to apply the statutes of limitations in the applicable California codes was not clear error Serrano contends the arbitrator exceeded his powers by misconstruing Rule 4 to find that FEHA’s one-year filing deadline (Gov. Code, § 12965) and the two-year statute of limitations applicable to a nonstatutory cause of action for wrongful termination (Code Civ. Proc, § 335.1) applied to her arbitration demand, warranting dismissal of her claims. Because the parties did not agree to enhanced judicial revie