Oak Avenue Partners v. Caen CA1/4 filed
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Filed 3/16/11 Oak Avenue Partners v. Caen CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIRST APPELLATE DISTRICT DIVISION FOUR OAK AVENUE PARTNERS LLC, Plaintiff and Respondent, A128219 v. (Marin County Super. Ct. No. CIV094203) CHRISTOPHER CAEN et al., Defendants and Appellants. An arbitrator ordered that appellants Christopher and Stacey Caen1 pay respondent Oak Avenue Partners LLC nearly $60,000 in connection with a residential lease agreement that appellants breached. Respondent thereafter successfully petitioned the trial court to confirm the arbitration award. Appellants argue that the trial court erred when it concluded that their attempt to vacate the arbitration award was untimely, because the trial court extended the applicable deadline to challenge the award. We disagree and affirm. I. FACTUAL AND PROCEDURAL BACKGROUND While appellants San Francisco home was on the market for sale in August 2008, they signed a contract to lease a home in Marin from respondent. The lease agreement was for a one-year term, starting on September 15, 2008. Christopher gave a check to 1 In the interests of brevity and clarity, some later references to husband and wife Christopher and Stacey Caen will be by first names only. 1 respondent to cover part of the security deposit, but the check did not clear. Because it took longer to sell their home than they anticipated, appellants never moved into the rental home. Respondent demanded arbitration pursuant to the terms of the lease agreement. An arbitration hearing was scheduled for June 4, 2009. The day before the hearing, appellants requested a continuance by e-mail that was not received until after the arbitration hearing was held in appellants absence. An interim arbitration award was issued on June 4, awarding respondent unpaid rent and other expenses. The arbitrator provided appellants seven days to request that the award be corrected or set aside; however, appellants did not communicate with the arbitrator. The arbitrator issued a final award dated June 25, 2009, which awarded a total of $59,070.92 to respondent. The award was served the next day, on June 26. Respondent filed a petition to confirm the arbitration award on August 18, 2009, with a scheduled hearing date of January 15, 2010. According to proofs of service filed with the trial court, the petition was personally served on Christopher on November 5, 2009, and was served by mail on Stacey the next day. On January 14, 2010, appellants, now represented by counsel, filed an ex parte application to continue the hearing on the petition to confirm the award and the response dates. Citing Code of Civil Procedure section 1290.62 (time for filing and service of response), appellants argued that good cause existed to extend the time for responding to the petition to confirm. Respondent opposed the application, arguing that there was no good cause to extend the deadline. It also argued that the deadline to seek to vacate the arbitration award (either by petition to vacate or by response to the petition to confirm) had already passed, and that a continuance of the hearing therefore would not alter appellants inability to challenge the arbitration award. (§§ 1288 [petition to vacate must be served within 100 days after service of arbitration award], 1288.2 [response to petition to confirm must be filed and served within 100 days after service of arbitration award].) 2 All statutory references are to the Code of Civil Procedure. 2 At the hearing on appellants ex parte application, respondent s counsel again argued that granting appellants a continuance would not affect their ability to challenge the arbitration award, because the deadline to seek to vacate the award already had passed. The trial court stated that appellants should have an opportunity to address the timeliness issue, and that it was reasonable to give them a chance to oppose the petition to confirm the arbitration award. The court ordered that the hearing on the petition to confirm the arbitration award be continued, and that appellants be permitted to file a response to the petition nine days before the newly set hearing date. Appellants thereafter filed a response to the petition to confirm the arbitration award, and a request to vacate the award on several grounds. Respondent argued in a reply brief that appellants request to vacate the award was untimely, and that the asserted bases to vacate the award lacked merit in any event. The trial court issued a tentative ruling stating that the petition to confirm the arbitration award was granted, and that the request to vacate the award was untimely and lacked merit. At the continued hearing, appellants counsel argued that by previously granting appellants a continuance, the court had extended the time to file a response pursuant to section 1290.6. The trial court disagreed, stating, What I did when you came in is I gave you a chance to submit legal authority. The court told counsel that appellants were guilty of gross lack of diligence, adding, And I wasn t, by giving you a chance to come in and make your arguments here, intending to put my imprimatur on your clients [] delay here. I was giving you a chance to make an argument to the Court. The court concluded that it lacked power to vacate the arbitration award because appellants had not sought to vacate the award within 100 days, and they had not sought relief pursuant to section 473 (relief from mistake, inadvertence, surprise, or excusable neglect). Appellants counsel again stated that he had understood that the court previously had found good cause to extend the deadline to file a response pursuant to section 1290.6. The court stated that it did not think good cause had been shown, and that it had granted a continuance because I didn t want to just cut you off and say you can t file anything. 3 The trial court adopted its tentative ruling and granted the petition to confirm the arbitration award. Judgment was entered the same day, and this timely appeal followed. II. DISCUSSION Appellants argue that the trial court erred when it concluded that their challenge of the arbitration award was untimely. The parties to an arbitration may petition the court to confirm, correct, or vacate the award. (§ 1285; Elden v. Superior Court (1997) 53 Cal.App.4th 1497, 1511 (Elden).) Petitions to confirm arbitration awards are governed by different deadlines than petitions to vacate an award. A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. (§ 1288, italics added.) By contrast, a party seeking to correct or vacate an award must do so not later than 100 days after the date of the service of a signed copy of the award on the petitioner. (§ 1288, italics added; Elden, supra, at p. 1511.) A response to a petition to confirm an award requesting that the award be vacated or corrected likewise must be served and filed not later than 100 days after the date of service of a signed copy of the award. (§ 1288.2, italics added.) In some situations, however, a party seeking to vacate an award has fewer than 100 days to seek vacation of an award. That is because any response to a petition to confirm must be served within 10 days after service of the petition, a time period that may be extended only by agreement or by order of the court upon a showing of good cause. (§ 1290.6.) Therefore, when a party files a petition to confirm an award within 100 days of the service of the award, any response that seeks vacation of the award must be filed and served within the 10 days specified in section 1290.6. (Elden, supra, 53 Cal.App.4th at p. 1511; see also Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66 [where party seeks confirmation of award, response governed by § 1290.6, not § 1288.2]; Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 856 [same].) In other words, a party (such as appellants) seeking to vacate an award must do so within 100 days (§ 1288), but if the opposing party requests confirmation of the award before 4 100 days have passed, any response seeking to vacate the award must be filed within 10 days of the date the petition to confirm is served (§ 1290.6). (Elden at p. 1511.) If a party wishing to have an award vacated or corrected does not act within 100 days of service of the award (either by filing a petition to vacate or filing a response to a petition to confirm), the award must be treated as final, and the party is precluded from attacking it. (Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745.) If a party files and serves a petition to confirm the award after 100 days have passed, a party may respond within 10 days (§ 1290.6), but only by requesting something other than vacation or correction e.g., dismissal of the petition as to him. (Coordinated Construction, Inc. v. Canoga Big A, Inc. (1965) 238 Cal.App.2d 313, 318 (Coordinated Construction), italics added.) Applying the forgoing statutes and legal principles to the relevant dates in this matter, it is clear that appellants attempt to vacate the arbitration award was untimely. The arbitration award was served on June 26, 2009, which meant that appellants were required to seek vacation of the award by October 5, 2009 (100 days after service of the award October 4 pursuant to section 1288, plus an additional day pursuant to sections 12 and 12a because October 4 fell on a Sunday). Respondent filed its petition to confirm the arbitration award on August 18, 2009 (within 100 days of service of the award), but did not serve it on Christopher and Stacey until November 5 and November 6, respectively. By November, the 100-day period to seek vacation had passed, and any response filed by appellants was thus limited to requesting something other than vacation or correction of the award.3 (Coordinated Construction, supra, 238 Cal.App.2d at p. 318, italics added.) Because appellants did not seek to vacate the award within 100 days, the trial court had no alternative but to confirm the award as 3 Appellants argue that because respondent filed its petition to confirm on August 18, 2009, this was the date that triggered their 10-day time period to file a response pursuant to section 1290.6. However, the statute makes clear that a response to a petition must be served and filed within 10 days after service (as opposed to the mere filing) of the petition. (§ 1290.6, italics added.) 5 made. (Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at p. 746, quoting § 1286.) Appellants argue that the deadline to seek vacation of the arbitration award was extended by the trial court pursuant to section 1290.6, which provides that a court may, upon a showing of good cause, extend the 10-day deadline for responding to a petition to confirm an arbitration award. First, it is clear from reading the record that although the trial court granted appellants ex parte application to continue the hearing on respondent s petition to confirm the award and permitted appellants to submit briefing on the timeliness issue, the court did not formally extend the deadline to respond to respondent s petition to confirm pursuant to section 1290.6. In fact, the court specifically stated that it did not find good cause to extend the deadline. Second, even if the trial court had extended the deadline to respond to the petition to confirm the arbitration award pursuant to section 1290.6, any such response was limited to requesting something other than vacation of the award, because the petition to confirm was served more than 100 days after service of the arbitration award, and appellants did not seek to vacate the award during that time. (Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at p. 746; Elden, supra, 53 Cal.App.4th at p. 1511; Coordinated Construction, supra, 238 Cal.App.2d at p. 318.) We reject appellants argument that an extension of the deadline to file such a response somehow excused them from complying with the strict requirement that they seek to vacate the award within 100 days or lose the ability to do so, except by seeking relief pursuant to section 473 (which they did not do). (Eternity Investments at pp. 745-746; DeMello v. Souza (1973) 36 Cal.App.3d 79, 84-85 [party may seek relief from failure to comply with 100-day time limit pursuant to § 473, subd. (b)].) Because we conclude that appellants challenge to the arbitration award was untimely and the trial court was therefore without authority to vacate the award, we need not consider appellants legal arguments as to why the trial court should have vacated the arbitration award. 6 III. DISPOSITION The judgment is affirmed. Respondent shall recover its costs on appeal. _________________________ Sepulveda, J. We concur: _________________________ Reardon, Acting P.J. _________________________ Rivera, J. 7
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