Filed 10/31/22 3200 Imperial Highway v. Setareh CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
3200 IMPERIAL HIGHWAY B312467
CORP.,
Los Angeles County
Plaintiff and Appellant; Super. Ct. No. BC573118
MEHRDAD SETAREH et al.,
Cross-defendants and
Appellants,
v.
KAMRAN SETAREH,
Defendant, Cross-complainant
and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Susan Bryant-Deason, Judge. Affirmed.
Southern California Attorneys and Mac E. Nehoray
for Plaintiff, Cross-defendants and Appellants.
Sam Vahedi & Associates and Sam Vahedi for Defendant,
Cross-complainant and Respondent.
_________________________
Mehrdad Setareh and 3200 Imperial Highway Corp. (IHC)
(collectively, plaintiffs) appeal from a judgment confirming
an arbitration award in favor of Mehrdad’s brother Kamran
Setareh.1 In confirming the award, the trial court rejected IHC’s
response—asking the court to vacate the award—because it
was filed more than 10 days after service of Kamran’s petition
to confirm, in contravention of Code of Civil Procedure section
1290.6.2 The court found that, although IHC had presented
evidence that could support the vacation of the arbitration award,
it could not consider IHC’s response because the 10-day deadline
was jurisdictional. The court thus considered the petition
unopposed, deemed its factual allegations admitted under
section 1290, and confirmed the award.
We conclude section 1290.6 authorizes a court to consider—
upon a showing of good cause—a responsive request to vacate
an award filed more than 10 days after service of a petition to
confirm, where, as here, the response is served and filed within
100 days of service of the award. Nevertheless, because plaintiffs
failed to provide an adequate record demonstrating the trial court
erred, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
Kamran and Mehrdad are brothers and shareholders
in their family-owned corporation IHC, a real estate holding
company for a commercial property that generates rental income.
Mehrdad is the majority shareholder of IHC. IHC’s underlying
1 We refer to the Setareh brothers by their first names to
avoid confusion.
2 Statutory references are to the Code of Civil Procedure,
unless otherwise indicated.
2
lawsuit against Kamran alleges he owes IHC for the attorney
fees it incurred in defending a lawsuit a third brother brought
against Kamran and IHC.3 The operative second amended
complaint alleges Kamran’s fraudulent conduct caused the
third brother to file his lawsuit. Kamran cross-complained
against IHC and Mehrdad, alleging Mehrdad, who controlled
IHC’s finances, breached his fiduciary duty, and he and IHC
owed Kamran shareholder distributions and other funds.
Eventually, the parties stipulated to submit the entire
cause to arbitration. The stipulation—signed by the parties on
June 12 and 13, 2019, and filed by the court on June 18, 2019—
is titled, “Stipulation and Order for Binding Arbitration.” It
states the parties “stipulate to submit the instant matter to
arbitration pursuant to section 3.817 et seq. of [the] California
Rules of Court,” and ask the court to stay the action pending
the outcome of the arbitration. The parties agreed: to submit
“all . . . claims and counter claims” to a panel of three named
arbitrators, with a decision of the majority to determine the
prevailing party; “a final written decision shall be rendered
by the arbitrators within 30 days of the [a]rbitration hearing
at which time the original award shall be filed with the Court”;
to share the cost of the arbitration equally; and there would be
no further discovery.
The arbitration was conducted over two hearings on
August 20 and October 6, 2020. On November 3 and 4, 2020,
two of the three arbitrators signed an arbitration award, as
3 In February 2015, Mehrdad filed, in his individual
capacity, the original complaint against Kamran. The court
subsequently ordered Mehrdad to amend the action to substitute
IHC for Mehrdad as the plaintiff.
3
“concurring court-appointed arbitrators,” in favor of Kamran on
both the complaint and cross-complaint. They awarded Kamran
a total of $238,536.33, plus attorney fees and costs incurred in
connection with the lawsuit, including the arbitration.
Kamran’s counsel sent a proposed arbitration award to
the two arbitrators who ultimately signed the award. According
to plaintiffs’ counsel, neither the proposed award nor executed
final award was sent to the third arbitrator, and the arbitrators
never sent the final executed award to plaintiffs’ counsel. Rather,
on November 4, 2020, Kamran’s counsel served plaintiffs’ counsel
with a notice of entry of arbitration award.
On November 16, 2020, Kamran filed a petition to confirm
the arbitration award on the judicial council form approved
for arbitrations “conducted pursuant to an agreement” subject
to section 1285 et seq. The petition attached a copy of the
stipulation and the signed “final binding arbitration award.”
On November 18, 2020, IHC filed a judicial council form request
for trial de novo after judicial arbitration under section 1141.20
and rule 3.826 of the California Rules of Court.4 The same day,
Kamran filed objections to the request contending a trial de novo
was unavailable as the parties had not participated in a
nonbinding, judicial arbitration but a contractual, binding
arbitration. Kamran also filed a notice of hearing on the petition
for January 8, 2021.
4 Rule references are to the California Rules of Court.
Rule 3.826 permits a party to request a trial within 60 days after
a judicial arbitration award has been filed with the court. (Rule
3.826(a).) If the request is timely, the “case must be tried as
though no arbitration proceedings had occurred.” (Rule 3.826(c).)
4
On December 24, 2020, nine court days before the noticed
hearing date, IHC filed an “opposition” to Kamran’s petition
to confirm the arbitration award. IHC argued the court must
set aside the arbitration award and set the matter for a jury trial
because the parties stipulated to nonbinding arbitration, and
IHC had filed a timely request for trial de novo. Plaintiffs’
counsel declared the parties agreed in March 2019 to submit
the matter to binding arbitration, but they never executed the
stipulation he prepared. In June 2019, the parties agreed to have
the matter “proceed as [j]udicial [a]rbitration.” Plaintiffs’ counsel
said he revised the original stipulation but “[u]nfortunately”
failed to delete the word “ ‘[b]inding’ ” from the caption. The
body of the stipulation does not call the arbitration “binding.”
Plaintiffs’ counsel noted the stipulation states the arbitration
“was to be conducted under . . . [r]ules . . . 3.817 et seq.[,] which
is for [j]udicial [a]rbitration and NOT [b]inding [a]rbitration.”
IHC alternatively argued that, even if the award were
binding, the court must vacate it based on any one of the
following grounds set forth in section 1286.2: the award was
“procured by corruption, fraud or other undue means”; there
was “corruption in any of the arbitrators”; IHC’s rights “were
substantially prejudiced by misconduct of a neutral arbitrator”;
and the “arbitrators exceeded their powers.” (§ 1286.2, subd.
(a)(1)–(4) [“court shall vacate the award” if it determines any
of the enumerated grounds occurred].) IHC presented evidence
supporting its request to vacate through its counsel’s declaration
and various e-mail communications among the arbitrators,
counsel, and parties.
Among other things, plaintiffs’ counsel declared he
discovered, after the arbitration’s conclusion, two of the three
5
arbitrators could not read or write in English; the three
arbitrators never met to deliberate and discuss the matter,
and the third arbitrator did not know the award had been signed;
the lead arbitrator was “working together”—and had ex parte
communications—with Kamran; the lead arbitrator allowed
undesignated expert witnesses to testify on behalf of Kamran
and refused to take plaintiffs’ documentary evidence with him
at the end of the hearing; and the arbitrators signed an award
unilaterally prepared by Kamran’s counsel that awarded items
not presented during the arbitration.
Kamran’s reply objected to IHC’s opposition as untimely
under section 1290.6, which required IHC’s response to “be
served and filed within 10 days after service of the petition.”
Kamran argued the trial court thus had no authority to consider
the opposition under Rivera v. Shivers (2020) 54 Cal.App.5th 82,
94 (Rivera), must consider the petition’s allegations admitted as
true under section 1290, and should confirm the award. Other
than to object to plaintiffs’ counsel’s declaration and deny IHC’s
accusation that the award was a product of fraud, corruption,
or other impropriety, Kamran did not address the substance of
IHC’s request to vacate. He contended IHC had forfeited its right
to challenge the petition.
Kamran briefly addressed the parties’ stipulation, however.
He declared the brothers agreed to submit the matter to binding
arbitration to avoid a lengthy trial. He was self-represented
when he signed the stipulation plaintiffs’ counsel prepared—
his current counsel began to represent him around June 2020.
Kamran’s counsel attached two emails to his declaration showing
plaintiffs’ counsel, on August 10, 2020, and his law partner,
on August 13, 2020, described the arbitration as “binding.”
6
The trial court ultimately convened the hearing on
Kamran’s petition to confirm on January 29, 2021. No reporter
was present, but the court’s minute order includes its ruling.
The court concluded the parties’ arbitration “was a binding
arbitration.” The court recognized the stipulation was ambiguous
as it included “[b]inding [a]rbitration” in its title but provided
the parties “ ‘stipulate to submit the instant matter to
arbitration’ ” under rule 3.817 et seq., which “set forth the
rules regarding nonbinding judicial arbitration, not binding
contractual arbitration.” The court noted, under Civil Code
section 1654, any uncertainty in the stipulation must be
construed against IHC, whose attorney drafted the stipulation.
The court also found the extrinsic evidence—the two emails
Kamran included with his reply—“shows that the parties
intended the stipulation to be for binding arbitration.”
Addressing the merits, the court noted IHC had filed
its opposition to the petition within nine court days before the
scheduled hearing date as required for a typical motion under
section 1005, subdivision (b). The court found, relying on Rivera,
it had no authority to consider IHC’s response because it was
not filed and served within 10 days of the petition as required
by section 1290.6 and thus “was not duly served and filed” under
section 1286.4, subdivision (a). The court stated,
“Due to what was apparently plaintiff’s or its
legal representative’s mistake, inadvertence,
or neglect in failing to timely respond to the
petition within 10 days per CCP § 1290.6
but did respond within nine court days of the
hearing per CCP § 1005(b), this Court cannot
entertain the substantial evidence that the
7
award should be vacated under CCP
§ 1286.2(1)–(4) because it was procured by
corruption, fraud, or other undue means,
that there was corruption in the arbitrators,
that plaintiff’s rights were substantially
prejudiced by misconduct of a neutral
arbitrator, and that the arbitrators exceeded
their powers.”
The court then granted the petition to confirm the arbitration
award. On February 5, 2021, the trial court signed and entered a
“final judgment and order confirming binding arbitration award.”
On February 16, 2021, IHC and Mehrdad filed a motion
asking the court to reconsider its January 29, 2021 ruling under
section 1008, based on new evidence showing the parties agreed
to nonbinding arbitration. The motion also asked the court to set
aside the judgment under section 473, subdivision (b) (§ 473(b)),
and consider IHC’s opposition to the petition, because plaintiffs’
counsel filed the opposition late due to his mistake, inadvertence,
surprise, or neglect, and section 1290.6 authorizes the court to
extend the 10-day deadline for good cause.
Kamran opposed the motion. He contended the new
evidence plaintiffs submitted was fraudulent and, in any event,
did not meet the “new fact” requirement of section 1008. Kamran
also argued the court lacked jurisdiction to grant IHC relief
under section 473(b) because IHC’s response was filed outside
the 10-day jurisdictional deadline. Plaintiffs’ reply included
additional evidence to show the parties intended the arbitration
to be nonbinding. Kamran in turn responded with further
evidence to show they agreed to binding arbitration. Needless
8
to say, each side accused the other of lying and fabricating
evidence.
The court convened a hearing on plaintiffs’ motion on
March 30, 2021. Although a reporter was present, the appellate
record does not include a reporter’s transcript of the proceeding.
The court denied plaintiffs’ motion in its entirety. The court
found it had no jurisdiction to reconsider its ruling under
section 1008 because it already had entered judgment. The
court also found plaintiffs could not use section 473(b) to excuse
the untimeliness of a response to a petition to confirm because
the deadline was jurisdictional.
On April 5, 2021, IHC and Mehrdad filed a notice of appeal.
The notice states the appeal is “[f]rom an [o]rder [d]enying
vacation of Arbitrator’s Award under Code of Civil Procedure
sec. 1294 (b), (d) and (e)”5 and provides an entry date of
February 5, 2021.
DISCUSSION
1. Scope of appeal
We first address Kamran’s contention that, because
plaintiffs’ notice of appeal does not include the court’s
postjudgment March 30, 2021 order denying IHC’s motion
for relief under section 473(b), the scope of our review is limited
to the February 5, 2021 judgment confirming the arbitration
award. We agree.
Although the notice of appeal states the appeal is from
an order denying vacation of the arbitration award, we liberally
5 Section 1294, subdivisions (b), (d), and (e) permit a party
to appeal from, respectively, an order dismissing a petition to
confirm, correct, or vacate an arbitration award; a judgment; and
a “special order after final judgment.”
9
construe the notice as appealing from the final judgment and
order confirming the award, entered on February 5, 2021—the
date identified on the notice of appeal. (Rule 8.100(a)(2) [notice
of appeal must be liberally construed].)6 Our review of the final
judgment encompasses the court’s rejection of IHC’s response to
the petition to confirm, however. (§ 1294.2 [“court may review
the decision and any intermediate ruling, proceeding, order or
decision which involves the merits or necessarily affects the order
or judgment appealed from, or which substantially affects the
rights of a party”].)
In their opening brief, plaintiffs not only contend the court
erred in rejecting IHC’s response and confirming the arbitration
award, but also that it erred in not considering their motion for
relief under section 473(b). Indeed, in their reply brief, plaintiffs
argue, “This Court is tasked with deciding whether or not the
trial court erred in not even considering [IHC’s] argument and
evidence presented to the Court via its [section] 473(b) motion
as to whether or not the arbitration was binding.” Plaintiffs
do not address the omission of the order denying their section
473(b) motion from their notice of appeal.
The notice of appeal refers to section 1294, subdivision (e),
which permits an appeal from a “special order after final
judgment.” An order denying a motion to set aside a final
judgment under section 473(b) is “a special order after judgment
on a statutory motion to set aside the judgment, and as such is
6 As IHC did not file a separate petition to vacate the
arbitration award, the court’s rejection of IHC’s response on
January 29, 2021 when it granted the petition to confirm was not
an order dismissing a petition to vacate an award and thus was
not separately appealable under section 1294, subdivision (b).
10
appealable.” (Shapiro v. Clark (2008) 164 Cal.App.4th 1128,
1137 [motion to set aside default judgment].) Nevertheless,
the notice of appeal neither mentions the order denying IHC’s
section 473(b) motion, nor includes the date of that order—
March 30, 2021.
“ ‘ “[W]here several judgments and/or orders occurring close
in time are separately appealable . . . each appealable judgment
and order must be expressly specified—in either a single notice
of appeal or multiple notices of appeal—in order to be reviewable
on appeal.” ’ [Citations.]” (Sole Energy Co. v. Petrominerals
Corp. (2005) 128 Cal.App.4th 212, 239.) “The policy of liberally
construing a notice of appeal in favor of its sufficiency [citation]
does not apply if the notice is so specific it cannot be read as
reaching a judgment or order not mentioned at all.” (Filbin v.
Fitzgerald (2012) 211 Cal.App.4th 154, 173; see also § 1294.2
[appellate court is not authorized “to review any decision or order
from which an appeal might have been taken”].)
As the order denying the motion to set aside the judgment
under section 473(b) was separately appealable, and plaintiffs
“totally omit[ted] any reference” to it in their notice of appeal,
we lack jurisdiction to consider their challenge to that order.
(Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990)
220 Cal.App.3d 35, 46–47 [no jurisdiction to review appealable
order granting costs and attorney fees when notice of appeal
mentioned underlying judgment only]; Colony Hill v. Ghamaty
(2006) 143 Cal.App.4th 1156, 1172 [“ ‘ “a notice of appeal will
not be considered adequate if it completely omits any reference
to the judgment [or order] being appealed” ’ ”].)
Accordingly, we consider only whether the trial court erred
in granting the petition to confirm the arbitration award.
11
2. Binding vs. nonbinding arbitration
“Contractual arbitration is regulated by section 1280 et seq.
and ‘generally results in a binding and final decision.’ [Citation.]
Except as provided by sections 1286.2 and 1286.6, the awards
resulting from such arbitrations are not subject to judicial
review.” (Rivera, supra, 54 Cal.App.5th at p. 89.) In contrast,
judicial arbitration, governed by section 1141.10 et seq.,
“ ‘generally does not result in a binding or final decision . . .
but instead allows a trial de novo at the election of any party
by timely request therefor[.]’ ”7 (Rivera, at p. 90.) Parties to a
litigation may voluntarily submit to either contractual, binding
arbitration or judicial, nonbinding arbitration. (Ibid.)
Here, within two days of each other, Kamran filed a timely
petition to confirm a “contractual arbitration award” under
section 1288, and IHC filed a timely “request for trial de novo
after judicial arbitration,” under section 1141.20 and rule 3.826.
The two forms of arbitration, however, are “mutually exclusive
and independent of each other.” (§ 1141.30.) Accordingly,
before the trial court could consider Kamran’s petition, it
had to determine whether the parties stipulated to binding,
contractual arbitration or nonbinding, judicial arbitration.
The parties stipulated to submit their dispute to arbitration
more than four years after Mehrdad filed the initial complaint.
The June 18, 2019 stipulation was the only written agreement
then available to the court that reflected the parties’ agreement
7 Judicial arbitration is a statutory, mandatory arbitration
program authorizing courts to order certain types of cases to
nonbinding arbitration. (§ 1141.11.) Parties may stipulate
to judicial arbitration, however. (§ 1141.12; rule 3.811(a)(4).)
12
to arbitrate their dispute.8 We apply general contract law
principles to construe the parties’ stipulation to arbitrate.
(Sy First Family Ltd. Partnership v. Cheung (1999) 70
Cal.App.4th 1334, 1341 (Sy First) [stipulation is an agreement
subject to ordinary rules of contract interpretation]; Pinnacle
Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 236 [“ ‘[g]eneral principles of contract law
determine whether the parties have entered a binding agreement
to arbitrate’ ”].) The “court’s paramount consideration in
construing [a] stipulation is the parties’ objective intent when
they entered into it.” (Sy First, at p. 1341; Civ. Code, § 1636.)
If possible, we infer the parties’ intent solely from the language
of the agreement. (Civ. Code, §§ 1638, 1639.) We consider the
contract as a whole, “giv[ing] effect to every part, if reasonably
practicable, each clause helping to interpret the other.” (Id.,
§ 1641.)
When the parties dispute the meaning of contractual
language, we determine “whether the language is ‘reasonably
susceptible’ to the interpretations urged by the parties.” (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 798.) If the
language of a contract is ambiguous, i.e., susceptible to more than
8 Both sides filed the June 2019 stipulation as evidence in
support of their respective positions in connection with Kamran’s
petition. Plaintiffs then filed an “arbitration agreement” for
judicial arbitration, as well as other extrinsic evidence, in support
of their motion for reconsideration/relief under section 473(b),
and Kamran filed a “binding arbitration agreement,” and other
extrinsic evidence, in opposition to the motion. As the order
denying that motion is not properly before us, we do not consider
any evidence submitted in support of, or in opposition to, it.
13
one reasonable interpretation, the court may consider extrinsic
evidence to determine the parties’ intent. (Ibid.; Wolf v. Walt
Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1126.)
“Interpretation of a contract is solely a question of law
unless the interpretation turns upon the credibility of extrinsic
evidence. [Citations.] Even where extrinsic evidence is admitted
to interpret a contract, unless it is conflicting and requires a
determination of credibility, the reviewing court is not bound
by the trial court’s interpretation.” (Badie v. Bank of America,
supra, 67 Cal.App.4th at p. 799.) Where the parties present
conflicting extrinsic evidence, however, the substantial evidence
rule applies. (Burch v. Premier Homes, LLC (2011) 199
Cal.App.4th 730, 742.) In that case, “[a]s long as the trial court’s
order was supported by substantial evidence in the record, any
evidentiary conflict must be resolved in favor of the prevailing
party . . . and any reasonable interpretation of the writing by
the trial court will be upheld.” (Ibid.)
We agree with the trial court that the plain language
of the stipulation is ambiguous: The stipulation is entitled,
“Stipulation and Order for Binding Arbitration,” but it states
the parties “stipulate to submit the instant matter to arbitration
pursuant to section 3.817 et seq. of [the] California Rules of
Court.” Rules 3.810 through 3.830 are the court rules governing
the practice and procedure of judicial arbitrations. As plaintiffs
note, the body of the stipulation does not qualify “arbitration”
with the word “binding.” At the same time, nowhere does the
stipulation describe the agreed-to arbitration as “judicial” or
“nonbinding.” Nor does the stipulation refer to the statutory
provisions governing nonbinding or binding arbitration.
14
And, despite referring to rule 3.817 et seq., the terms of
the stipulation include indicia of both binding and nonbinding
arbitration. For example, the parties agreed there would
be no further discovery “in this matter,” despite the right to
conduct discovery in judicial arbitrations under rule 3.822.
(Rule 3.822(a) & (b) [parties to judicial arbitration have right
to take depositions and to obtain discovery, but discovery must
be completed 15 days before arbitration hearing]; see also
Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 344
[contractual arbitration “does not permit full and unconditional
discovery . . . whereas judicial arbitration does”].) On the other
hand, the stipulation provides for the arbitrators to render “a
final written decision” within 30 days of the arbitration hearing
“at which time the original award shall be filed with the Court.”
In a contractual arbitration, the prevailing party has four years
to convert the award into an enforceable judgment through a
petition to confirm. (§§ 1287.4, 1288.) Yet, the stipulation does
not follow rule 3.825, which requires the arbitrator to file the
award with the clerk within 10 days after the conclusion of
the arbitration hearing. (Rule 3.825(b)(1).)9 And, significantly,
the stipulation does not refer to the parties’ ability to request
a trial de novo after the arbitrators’ final award is filed with
the court, as set forth in rule 3.826 and section 1141.20.
9 It is unclear whether the arbitrators or parties were
expected to file the award with the court. In any event, the
arbitrators didn’t file it. It seems the award was not filed with
the court until Kamran—the prevailing party—filed a notice
of entry of final binding arbitration award, followed by his
petition to confirm that attached the award.
15
As the stipulation is ambiguous, the trial court could
consider evidence of the parties’ conduct “after the execution
of the contract, and before any controversy arose,” to ascertain
whether they intended the arbitration to be binding or not.
(Oceanside 84, Ltd. v. Fidelity Federal Bank (1997) 56
Cal.App.4th 1441, 1447–1449 [interpreting ambiguous
interest rate provision in a loan agreement]; Sy First, supra,
70 Cal.App.4th at p. 1342 [“One important factor indicating the
proceeding involved binding arbitration is the parties’ conduct
after entering into the stipulation.”].) Here, the court considered
two emails dated August 10 and 13, 2020—sent shortly before
the arbitration hearings commenced and well before the parties’
dispute over the nature of the arbitration. Nothing in the record
suggests plaintiffs objected to their authenticity.
The August 10 email is from plaintiffs’ counsel—who
drafted the stipulation—to Kamran’s newly retained counsel
and the two arbitrators who ultimately signed the award.
Plaintiffs’ counsel tells Kamran’s counsel, “As you are new,
I will explain the court order that was issued regarding the
Arbitration. At the time the matter was ordered into binding
arbitration, the Judge ordered no new discovery!!!” Three days
later, in a response to Kamran’s counsel—copied to the same
two arbitrators and plaintiffs’ counsel—the law partner of
plaintiffs’ counsel stated, “[I]t should be mentioned that the
code section cited by [Kamran’s counsel] does not apply to this
Arbitration which is a stipulated binding arbitration.” 10 As
the trial court found, these emails demonstrate plaintiffs
intended the arbitration to be binding.
10 The email does not mention what code section Kamran’s
counsel cited.
16
Based on plaintiffs’ own counsel’s pre-dispute
characterization of the stipulated arbitration as “binding,”
the stipulation’s reference to “binding arbitration” in its title,
the lack of any mention of “nonbinding” or “judicial” arbitration
or the right to request a trial de novo in its text, and the other
terms in the stipulation we discussed, we conclude it is more
reasonable to interpret the stipulation as requiring binding
arbitration. (See City of Hope National Medical Center v.
Genentech, Inc. (2008) 43 Cal.4th 375, 393 [“party’s conduct
occurring between execution of the contract and a dispute about
the meaning of the contract’s terms may reveal what the parties
understood and intended those terms to mean”]; Sterling v.
Taylor (2007) 40 Cal.4th 757, 772–773 [“[i]t is a ‘cardinal rule
of construction that when a contract is ambiguous or uncertain
the practical construction placed upon it by the parties before
any controversy arises as to its meaning affords one of the most
reliable means of determining the intent of the parties’ ”].)
Considering the foregoing, and reading the stipulation
as a whole, we can infer the reference to rule 3.817 et seq.
expressed the parties’ general intent to conduct the arbitration
itself in the manner set forth in those rules,11 without intending
the arbitration award to be nonbinding. (See Rivera, supra, 54
Cal.App.5th at p. 91 [“[L]itigants are always free to voluntarily
submit their dispute to arbitration on their own terms.”].) For
example, rule 3.817 dictates when and how to set the date and
provide notice of the arbitration; rule 3.820 prohibits ex parte
communications with the arbitrators; and rule 3.823 sets forth
evidentiary rules.
11 As we discussed, however, the stipulation’s terms do not
follow some of those rules.
17
The only extrinsic evidence IHC submitted in its response
concerning the parties’ intent was its counsel’s declaration
attesting the parties originally agreed to binding arbitration but,
on June 12, 2019, “agreed to have this matter proceed as Judicial
Arbitration under the California Rules of Court §3.817 et seq.”
Counsel averred he “[u]nfortunately” failed to delete the word
“ ‘[b]inding’ ” from the stipulation’s title when he revised it
but removed “all other references” to the arbitration being
“ ‘[b]inding’ ” from the body of the stipulation.
The court considered Kamran’s petition unopposed because
IHC’s opposition was untimely under section 1290.6. As we
noted, the hearing was not reported. We thus do not know
whether the court entertained counsel’s declaration or argument
about the parties’ intent at the hearing. Nevertheless, we can
infer the court credited counsel’s and his partner’s pre-dispute
email communications describing the arbitration as “binding”
over counsel’s post-dispute declaration stating the parties
intended the arbitration to be nonbinding.12 (See Hearn v.
12 The court also construed the stipulation against IHC
under Civil Code section 1654 because plaintiffs’ counsel drafted
it and thus caused the uncertainty concerning the nature of
the arbitration. As Kamran notes, application of this doctrine
was unnecessary because the extrinsic evidence sufficiently
demonstrated the parties intended the arbitration to be binding,
as the trial court and we have concluded. (See, e.g., Rainier
Credit Co. v. Western Alliance Corp. (1985) 171 Cal.App.3d 255,
264 [“Only in those instances where the extrinsic evidence
is either lacking or is insufficient to resolve what the parties
intended the terms of the contract to mean will the rule that
ambiguities are resolved against the drafter of the contract
be applied.”].)
18
Howard (2009) 177 Cal.App.4th 1193, 1200–1201 [in absence
of reporter’s transcript appellate court presumes “that what
occurred at that hearing supports the judgment”]; Burch, supra,
199 Cal.App.4th at p. 742 [evidentiary conflicts are resolved
in favor of the prevailing party]; id. at p. 744 [“ ‘appellate court
must defer to a trial court’s assessment of the extrinsic evidence,
as it defers to other factual determinations’ ”].) We similarly
infer the court credited Kamran’s declaration over plaintiffs’
counsel’s declaration. In any event, the trial court’s order
finding the parties’ arbitration was binding is supported by
both substantial evidence and our independent interpretation
of the stipulation.
3. Section 1290.6
Having concluded the arbitration was binding, we consider
whether the trial court erred when it confirmed the arbitration
award under section 1286 after it found it had no authority
to consider IHC’s late-filed request to vacate the award.13 We
review a trial court’s findings of fact in deciding whether to
confirm or vacate an arbitration award for substantial evidence,
“but if ‘the trial court resolved questions of law on undisputed
facts, we review the trial court’s rulings de novo.’ ” (Rivera,
supra, 54 Cal.App.5th at p. 89.) Here, the trial court’s rejection
of IHC’s response raises issues of statutory construction, which
we also review de novo. (Santa Monica College Faculty Assn. v.
Santa Monica Community College Dist. (2015) 243 Cal.App.4th
538, 547, 551 (Santa Monica College) [trial court’s interpretation
13 Under section 1286, if a petition or response is “duly served
and filed,” the court must confirm the award as made, confirm
it as corrected, vacate the award, or dismiss the proceeding.
19
of statutes and their application to undisputed facts are questions
of law reviewed de novo].)
We begin our analysis with the language of the statutes
and give the words their “ ‘usual and ordinary meaning.’ ”
(Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) If the
language is unambiguous, “we presume the lawmakers meant
what they said, and the plain meaning of the language governs.”
(Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) We construe
the words of a statute in context and, to the extent possible,
harmonize provisions relating to the same subject matter.
(Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
A party to an arbitration may petition the court to confirm
an arbitration award anytime within four years after service
of the award. (§ 1288.) A party who wants to vacate (or correct)
an arbitration award may either file and serve a petition with
the court or include a request to vacate the award in a response
to a petition to confirm. (§§ 1285, 1285.2.) The party must file
and serve the request to vacate (or correct) an arbitration award
—whether by petition or in a response—within 100 days of
service of the award. (§§ 1288, 1288.2.)
A court has no authority to vacate an arbitration award
unless a petition or response asking the court to vacate the award
“has been duly served and filed.” (§1286.4, subd. (a).) The
100-day filing and service deadline under sections 1288 (petition
to vacate) and 1288.2 (response containing a request to vacate)
is jurisdictional: a party’s failure to comply with the deadline
deprives the court of the power to vacate the award. (Law
Finance Group, LLC v. Key (2021) 67 Cal.App.5th 307, 313,
20
318–319 (Law Finance Group), review granted Nov. 10, 2021,
S270798;14 Santa Monica College, supra, 243 Cal.App.4th at
pp. 544–546 [trial court “lacked jurisdiction to entertain” party’s
challenge to arbitration award where it served its petition to
vacate 108 days after the award was served]; see also Abers v.
Rohrs (2013) 217 Cal.App.4th 1199, 1203 [the 100-day deadline
“operates in the same manner as the deadline for filing an
appeal, and the court loses jurisdiction to vacate the award
if the petition is not timely served and filed”]; Douglass v.
Serenivision, Inc. (2018) 20 Cal.App.5th 376, 384–385, citing
Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739,
745 [court must treat arbitration award as final if losing party
fails to file and serve a petition to vacate or a response to a
petition to confirm the award within the 100-day deadline].)
Under section 1290.6, a party who seeks to vacate an award
through a response to a petition to confirm, also must serve and
file the response within 10 days of service of the petition.15 In
14 Our Supreme Court granted review of the Law Finance
Group decision to consider whether equitable tolling applies to
the 100-day deadline in section 1288.2. We consider Law Finance
Group persuasive and cite it for its persuasive value. (Rule
8.1115(e)(1).)
15 Section 1290.6 generally governs the timing for service and
filing of responses to petitions filed under title 9 of the Code of
Civil Procedure, which governs arbitrations. (See §§ 1290, 1290.6
[under chapter entitled “General Provisions Relating to Judicial
Proceedings,” and article entitled “Petitions and Responses”].)
It thus applies to responses to petitions to compel arbitration,
to confirm an arbitration award, and to vacate or correct an
arbitration award.
21
contrast to section 1288.2, however, section 1290.6 expressly
provides that its 10-day deadline for serving and filing a response
“may be extended by an agreement in writing between the
parties to the court proceeding or, for good cause, by order of
the court.”16 Plaintiffs contend the 10-day deadline under section
1290.6 is not jurisdictional because, unlike the 100-day deadline
under section 1288.2, the parties and the court have discretion
to extend it. They thus argue the court had authority to consider
IHC’s response because good cause existed to extend the 10-day
deadline and Kamran would not have been prejudiced.
Our colleagues in Division Two considered the interplay
between the 100-day deadline under section 1288.2 and the
10-day deadline under section 1290.6 in Law Finance Group.
There, the defendant filed a petition to vacate an arbitration
award and also asked the court to vacate the award in its
response to the plaintiff’s petition to confirm—both were filed
more than 100 days from the service of the award. (Law Finance
Group, supra, 67 Cal.App.5th at pp. 313, 315–316.) The trial
court rejected the defendant’s petition to vacate as untimely
under section 1288 but ruled the response was timely under
section 1290.6.17 (Law Finance Group, at p. 316.) After finding
16 As the parties here did not agree to extend the filing
deadline, we discuss only the court’s authority to extend the
deadline for good cause.
17 The defendant’s response complied with section 1290.6
because the parties had stipulated that the 10-day deadline
would not apply, and they would agree to a briefing schedule
after setting the hearing. (Law Finance Group, supra, 67
Cal.App.5th at p. 315.) At the hearing, the court found that,
if it were necessary “ ‘to extend the time to the actual filing date
22
the arbitrators exceeded their powers, the trial court vacated
the arbitration award. (Id. at pp. 312–313.) Division Two
reversed and remanded for the trial court to enter an order
confirming the award. (Id. at p. 325.)
Applying general principles of statutory construction,
the court synthesized sections 1288.2 and 1290.6 to provide,
“[W]hen a petition to confirm an arbitration award is filed,
a response requesting that the award be vacated must be filed
within 10 days of the petition (plus any extensions), and in
any event no later than 100 days after service of the award.
A response that fails to comply with either deadline is untimely.”
(Law Finance Group, supra, 67 Cal.App.5th at p. 319, italics
added.)
In analyzing the two statutes—which were enacted at the
same time—the court presumed the Legislature intentionally
omitted from section 1288.2 the extension provision that it
included in section 1290.6. (Law Finance Group, supra, 67
Cal.App.5th at p. 320, citing Walt Disney Parks & Resorts U.S.,
Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 879 [“where
a phrase is included in one provision of a statutory scheme but
omitted from another provision, ‘we presume that the Legislature
did not intend the language included in the first to be read
into the second’ ”]; Hennigan v. United Pacific Ins. Co. (1975)
53 Cal.App.3d 1, 8 [“ ‘The fact that a provision of a statute on a
given subject is omitted from other statutes relating to a similar
subject is indicative of a different legislative intent for each of
the statutes[.]’ ”].) Nor did the statutory scheme suggest the
[to hear the request to vacate], the court finds good cause to grant
such an extension.’ ” (Id. at p. 316.)
23
Legislature “intended the procedural rule in section 1290.6
governing all responses to take precedence over the firm time
limitation in section 1288.2 applicable to requests to vacate.”
(Law Finance Group, at p. 319.)
Here, however, IHC undisputedly complied with the
100-day jurisdictional deadline mandated by section 1288.2
but filed its response 40 days from service of the petition.
As our colleagues recognized, the filing deadline under
section 1290.6 includes any extensions. Applying the logic
in Law Finance Group, we also can presume the Legislature
intentionally gave trial courts the discretion to extend the 10-day
filing deadline imposed by section 1290.6. It follows, then, that
a trial court may, for good cause, allow a party to serve and file a
response to a petition to confirm more than 10 days from service
of the petition, as long as that date falls within the 100-day
deadline under section 1288.2.
Here, the trial court—relying on Rivera, as Kamran did
and does on appeal—found it had “no authority to hear” IHC’s
request to vacate because IHC did not file and serve its response
within 10 days of Kamran’s petition. The plaintiff in Rivera, like
IHC, filed a response to a petition to confirm “within the 100-day
period under section 1288.2, but beyond the 10-day period under
section 1290.6.” (Rivera, supra, 54 Cal.App.5th at p. 93.) As
a result, the Court of Appeal concluded the response “was not
‘duly served and filed,’ and thus the trial court had no authority
to hear it.” (Id. at p. 94.) Nevertheless, the court considered
the substance of plaintiff’s request to vacate and concluded that
it had no merit. (Ibid.)
The court in Rivera, however, did not mention, much less
discuss, the trial court’s authority under section 1290.6 to extend
24
the 10-day deadline for good cause. The plaintiff does not appear
to have raised that issue. We thus do not read Rivera to hold a
trial court never has authority to consider a responsive request
to vacate filed late under section 1290.6, but on time under
section 1288.2. Moreover, the trial court there had denied the
petition to confirm after treating the parties’ stipulation as one
for nonbinding arbitration. (Rivera, supra, 54 Cal.App.5th at
pp. 87–91.) The reviewing court concluded the arbitration was
binding, however. (Id. at p. 91.)
And, contrary to Kamran’s assertion on appeal, the court
in Santa Monica College did not hold the trial court there lacked
jurisdiction to vacate an arbitration award because the defendant
filed responses to the plaintiff’s petitions to confirm more than
10 days from their service. In Santa Monica College, the
appellate court reversed the trial court’s order granting
the defendant’s petition to vacate three arbitration awards.
(Santa Monica College, supra, 243 Cal.App.4th at pp. 543, 555.)
It held the trial court had no jurisdiction to “entertain” the
defendant’s challenge to one of the three awards—because the
defendant had served its petition more than 100 days after the
service of that award—and concluded the court erred in vacating
the other two awards on the merits. (Id. at pp. 544–555.)
The defendant there also had filed late responses to the
plaintiff’s petitions to confirm the awards, which the plaintiff had
filed after the defendant’s petition. (Santa Monica College, supra,
243 Cal.App.4th at pp. 543, 545.)18 Thus, even if the defendant in
18 The procedural history was slightly more complicated.
The parties initially filed their petitions as limited jurisdiction
matters. The limited jurisdiction court confirmed the awards,
but the appellate division vacated them because they should
25
Santa Monica College had filed its responses within the 10-day
deadline, they would have been untimely under section 1288.2.
In other words, both the defendant’s petition and responses blew
the 100-day jurisdictional deadline as to that one award. The
trial court’s authority to consider the late-filed responses under
section 1290.6 simply was not at issue, and the appellate court
did not discuss it.
As plaintiffs note, appellate courts have confirmed a
trial court’s authority to consider a late-filed response to a
petition to compel arbitration under its authority to extend the
10-day deadline under section 1290.6. For example, in Ruiz v.
Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846–
847, the defendant argued on appeal that the allegations in its
petition to compel arbitration must be deemed true under section
1290 because the plaintiff served and filed its response more than
10 days from service of the petition. The court disagreed, noting,
“Courts have long acknowledged that the trial court may consider
untimely filed and served response papers, when no prejudice to
the petitioner is shown, without an order extending the 10-day
time period of section 1290.6.” (Ruiz, at p. 847.) The trial court
had considered the plaintiff’s late-filed opposition and then
denied the motion to compel after plaintiff’s counsel “offered
good cause” at the hearing—counsel had treated the petition as
a motion and thus filed and served the response within the time
not have been adjudicated there. The defendant then moved
to reclassify its petition as an unlimited jurisdiction matter,
and the plaintiff filed a second petition to which the defendant
filed a demurrer and a response. (Santa Monica College, supra,
243 Cal.App.4th at p. 543.)
26
required to oppose a motion under section 1005, subdivision (b).
(Ruiz, at pp. 847–848.)
Kamran argues this rationale does not apply to a response
to a petition to confirm an arbitration award. As Kamran notes,
a party to a lawsuit may proceed to compel arbitration either by
filing a petition or a motion. (See Correia v. NB Baker Electric,
Inc. (2019) 32 Cal.App.5th 602, 612–613 (Correia), relied on
by Kamran [noting “it is not clear that the arbitration petition
statute—rather than the general motions statute—governs the
timing requirements” of a petition to compel arbitration and
opposition to it]; Mercury Ins. Group v. Superior Court, supra,
19 Cal.4th at p. 349 [noting that where an action is already
pending, “one may proceed by motion as well as petition”
to compel arbitration].)
In Correia, the plaintiffs also filed their response to
a petition to compel arbitration within the deadline to file
an opposition to a motion under section 1005, subdivision (b)—
nine court days before the hearing—rather than within 10 days
from service of the petition. (Correia, supra, 32 Cal.App.5th
at pp. 612–613.) The Court of Appeal rejected the defendant’s
contention that the trial court had no jurisdiction to consider
the untimely response. Although the court concluded it was
unclear whether section 1005 or section 1290.6 governed the
time for plaintiffs to file their opposition, it noted section 1290.6
“specifically allows a court to extend the time for filing an
opposition for good cause, and reviewing courts have long held
trial courts are authorized to consider late-filed opposition papers
for good cause if there is no undue prejudice to the moving party.”
(Correia, at p. 613.) The court added, “an untimely opposition to
a petition or motion to compel arbitration should be viewed under
27
‘the strong policy of the law favoring disposition of cases on the
merits.’ ” (Ibid.)
Although this last point does not apply in the context of
whether a court should enforce or vacate an arbitration award—
as the arbitration already would have occurred—the first point
does. Given the plain language of section 1290.6, we do not see
why the statute does not similarly permit a trial court to consider
a late-filed response to a petition to confirm an arbitration award
if the response was served and filed within 100 days from the
service of the award. In effect, the court would be ordering the
10-day deadline extended to the actual date the late response
was filed.
Kamran seems to argue the trial court here lacked
jurisdiction to hear IHC’s request to vacate because IHC did
not obtain a signed court order granting it an extension under
section 1290.6 before it filed its response late. We do not agree.
Nothing in the statute’s express language prevents the court
from retroactively ordering the 10-day deadline extended before
it decides a petition to confirm.19 If the Legislature did not
intend to grant the court that discretion, it could have excluded
responses to petitions to confirm awards from section 1290.6
altogether or added language mandating any court order
extending the 10-day deadline be entered before the deadline’s
expiration. As it did not, we read section 1290.6—together
with section 1288.2—as authorizing a trial court to consider,
upon a showing of good cause, a late-filed response to a petition
19 By using the word “retroactively,” we do not suggest
a trial court has authority to order the filing date for a late
response extended after already having ruled on a petition.
28
to confirm, if the response was served and filed within the
100-day deadline under section 1288.2.
We do not intend to suggest the service and filing deadline
for a response to a petition to confirm is not jurisdictional,
however. We simply clarify the extent of the trial court’s
authority under section 1290.6 to extend the 10-day deadline,
and the Legislature’s intent to include any extensions by the
court within that deadline. Consistent with the authorities
we have discussed, therefore, a response served and filed within
the 10-day deadline under section 1290.6 plus any extensions—
whether granted prospectively or retroactively—and within the
100-day deadline under section 1288.2, is “duly served and filed,”
meaning the court has jurisdiction to hear it. (§ 1286.4, subd. (a)
[a court “may not vacate an award unless . . . [a] petition or
response requesting that the award be vacated has been duly
served and filed”].)
Of course, if the responding party never made a proffer
of good cause to the trial court under section 1290.6, or the trial
court rejected the party’s claim that good cause existed to extend
the time to respond, then the response would not have been “duly
served and filed.” In that case, we agree the trial court would
have no jurisdiction to consider the response’s request to vacate,
and the petition’s allegations would be deemed admitted under
section 1290. (§ 1290 [“allegations of a petition are deemed to
be admitted by a respondent . . . unless a response is duly served
and filed”].)
Here, IHC filed its opposition to Kamran’s petition to
confirm the arbitration award on December 24, 2020—well
within the 100-day deadline under section 1288.2, but 30 days
too late under section 1290.6. Upon IHC’s showing of good cause,
29
therefore, the trial court had discretion to deem the filing date
extended to December 24, 2020, and consider the merits of the
response. The trial court stated it had no authority to consider
IHC’s response after noting IHC failed to file its response
within 10 days of the petition under section 1290.6 “[d]ue to what
was apparently plaintiff’s or its legal representative’s mistake,
inadvertence, or neglect,” but “respond[ed] within nine court days
of the hearing” under section 1005, subdivision (b).
Nevertheless, we find no prejudicial error based on the
record before us. The most fundamental rule of appellate review
is that the judgment or order challenged is presumed to be
correct, and “it is the appellant’s burden to affirmatively
demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th
1567, 1573.) “ ‘All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error
must be affirmatively shown. This is not only a general principle
of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ ” (Denham v. Superior Court of
Los Angeles County (1970) 2 Cal.3d 557, 564.) To overcome this
presumption, an appellant must provide a record that allows for
meaningful review of the challenged order. (Jameson v. Desta
(2018) 5 Cal.5th 594, 609.)
The hearing on the petition to confirm the arbitration
award was not reported. Plaintiffs’ counsel apparently was
unaware of the deadline under section 1290.6 until he received
Kamran’s reply brief. Nothing in the record, however, shows
IHC filed an application for an ex parte order extending its
opposition’s deadline to December 24, 2020, for good cause under
section 1290.6, after it received the reply. When asked at the
oral argument on appeal, plaintiffs’ counsel said he did not file
30
an ex parte application because the reply had been filed only a
few days before the hearing. According to the record, however,
the court did not hear the petition to confirm until January 29,
2021—29 days after Kamran objected to the timeliness of IHC’s
opposition.20
Although it was not entirely clear from counsel’s argument,
he apparently told the trial court he didn’t know he had to file
IHC’s response to the petition 10 days after the petition’s service.
Without a reporter’s transcript, however, we do not know if
plaintiffs’ counsel asked the court to order the 10-day deadline
extended for good cause under section 1290.6, or if the court
simply decided his unfamiliarity with section 1290.6 was
insufficient to support a finding of good cause. Whether IHC
did not ask for, or was not granted, a court-ordered extension
under section 1290.6, without one, IHC’s response was not duly
served and filed. (Jameson v. Desta, supra, 5 Cal.5th at p. 609
[“ ‘Failure to provide an adequate record on an issue requires
that the issue be resolved against [the appellant].’ ”]; Hearn v.
Howard, supra, 177 Cal.App.4th at pp. 1200–1201 [presuming
what occurred at hearing supported judgment].) The trial court
thus had no authority to consider IHC’s request to vacate the
arbitration award.
Plaintiffs nevertheless argue that, even if the petition’s
allegations were deemed admitted under section 1290, its
legal conclusions were not. Citing Taheri Law Group, A.P.C.
20 The record shows Kamran filed—and electronically served
—his objections and reply to IHC’s opposition to the petition on
December 31, 2020. Although originally scheduled for January 8,
2021, the court did not hear the petition until January 29, 2021.
31
v. Sorokurs (2009) 176 Cal.App.4th 956, 962, plaintiffs contend
the admission of a petition’s factual allegations does not require
the court to grant an unopposed petition—“ ‘courts still have
the power and duty to draw their own legal conclusions and
confirm, correct, or vacate the award, or dismiss the petition,
as appropriate.’ ” Plaintiffs fail to note the court in Taheri Law
Group made that statement when reviewing a judgment that
confirmed an arbitration award after denying an unopposed—
due to an untimely response—petition to vacate the award. (Id.
at pp. 959–960.) The court concluded the petition’s admitted
factual allegations did not establish bias, prejudice, or fraud, and
the trial court correctly refused to vacate the arbitration award.
(Id. at pp. 964–965.)
Plaintiffs contend the trial court here was not required
to grant the petition to confirm and should have reviewed
the arbitration award’s legal conclusions, especially because—
in plaintiffs’ words—the court “itself was convinced that . . .
there was fraud, corruption and over reaching [sic] in the
rendering of the [a]ward.” That evidence, however, was part
of IHC’s untimely response. As we have presumed IHC did
not make an offer of good cause, or the court did not find good
cause, to extend the filing deadline, the court had no authority
to vacate the arbitration award based on evidence included
in that response. (See § 1286.2 [court’s vacation of arbitration
award is “subject to [section] 1286.4”]; § 1286.4 [“court may not
vacate award” unless petition or response requesting vacation
or correction “has been duly served and filed”]; Harris v. Sandro
(2002) 96 Cal.App.4th 1310, 1313 [court may not vacate an award
unless one of the grounds enumerated in section 1286.2 exists,
32
“ ‘even if it contains a legal or factual error on its face which
results in substantial injustice’ ”].)
Rather, “confirmation of an arbitration award ‘is the
mandatory outcome absent the correction or vacatur of the award
or the dismissal of the petition.’ ” (Law Finance Group, supra,
67 Cal.App.5th at p. 325.) The request to vacate, and any
included request for correction, was untimely.21 (§ 1286.8,
subd. (a) [court also may not correct an award unless a petition
or response has been duly served and filed].) Nor have plaintiffs
identified any grounds requiring dismissal of Kamran’s petition.
(See, e.g., § 1285.4 [providing proper form for petition to confirm
21 Plaintiffs also challenge the judgment’s inclusion of
$154,906.50 in attorney fees based on the arbitrators’ award
of attorney fees and costs to Kamran as the prevailing party,
in an amount to be submitted in a memorandum of costs upon
confirmation of the award. The fees were part of the total
$160,385.30 in costs added to the judgment per the court’s
May 13, 2021 order ruling on Kamran’s memorandum of costs
and Plaintiffs’ motion to tax costs. Plaintiffs challenge the
arbitrators’ authority to award fees. Based on the parties’
stipulation to conduct the arbitration under rule 3.817 et seq.,
plaintiffs argue the arbitrators had no authority to award any
party attorney fees—that issue was reserved for the trial court
to determine under rule 3.824. (See rule 3.824(a) [enumerating
arbitrators’ powers and providing “all other questions arising
out of the case are reserved to the court”].) Plaintiffs thus ask us
to reverse the trial court’s order awarding Kamran attorney fees
and remand the issue of his entitlement to fees to the trial court.
Whether the arbitrators exceeded their authority, however,
relates to IHC’s request to vacate, which we have concluded
the court had no authority to consider. (§§ 1286.2, subd. (a)(4)
& 1286.6, subd. (b) [arbitrators exceeding their powers is ground
to vacate or to correct award].)
33
arbitration award]; § 1287.2 [providing court shall dismiss
proceeding against named respondent if respondent was not
bound by arbitration award and was not a party to the
arbitration]; Law Finance Group, at p. 325 [holding court must
confirm arbitration award where request to vacate was untimely
and no grounds existed to dismiss the petition].) Accordingly,
the court’s confirmation of the award was proper.
DISPOSITION
The final judgment and order confirming the arbitration
award is affirmed. In the interests of justice, the parties are
to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
ADAMS, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
34