Abers v. Rohrs CA4/3

Filed 6/13/13 Abers v. Rohrs CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

RUTH E. ABERS et al.,

Appellants, G047034

v. (Super. Ct. No. 30-2012-00546927)

VERA C. ROHRS et al., OPINION

Respondents.

Appeal from a judgment of the Superior Court of Orange County, Nancy
Wieben Stock, Judge. Affirmed.
Snell & Wilmer, Richard A. Derevan, Todd E. Lundell and Christopher B.
Pinzon for Appellants.
Palmieri, Tyler, Wiener, Wilhelm & Waldron, Michael H. Leifer, Erin
Balsara Naderi; Bullard, Brown & Beal and Timothy W. Brown for Respondents.
 The owners of 57 homes in a condominium development (the homeowners)
appeal from an order dismissing their petition to vacate an arbitration award setting the
allowable increases in monthly rent charged by the trust that owns the property on which
their homes are situated. The trial court’s dismissal order was based on the homeowners’
failure to properly serve the respondent trustees with their petition to vacate within 100
days of service of the award, as required by Code of Civil Procedure section 1288. (All
further statutory citations are to this code unless otherwise indicated.)
The homeowners argue the trial court erred in dismissing their petition
because: (1) the petition was served in accordance with the requirements of the parties’
lease agreements, and thus was properly served under section 1290.4; (2) the court
abused its discretion by refusing to treat the petition as part of a previously filed and still
pending declaratory relief action between the parties; (3) the court abused its discretion
by refusing to find that the trustees were estopped from asserting service was improper;
and (4) the homeowners were entitled to relief from the dismissal pursuant to section 473.
We find none of these contentions persuasive and affirm the order.
The homeowners’ reliance on section 1290.4 fails because the lease
provisions they rely upon as specifying the method for serving the petition to vacate
apply only to the manner in which notices respecting the leases may be sent. Those
provisions say nothing about the manner in which a party may be served with process in
connection with a petition to vacate an arbitration award, to establish the court’s personal
jurisdiction over the party. Merely providing a party with notice that a petition has been
filed does not establish personal jurisdiction.
Further, the court did not abuse its discretion by refusing to treat the
petition as though it had been filed under the still-pending declaratory relief case number,
because the homeowners themselves acknowledge they made a deliberate, strategic
decision not to do that. Equity certainly does not obligate the court to pretend the
homeowners made the opposite strategic decision. Likewise, equity does not compel a

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finding that the trustees are estopped from claiming service was improper. The
requirements for service are established by statute, and equity does not prohibit a party
from demanding adherence to those legal requirements.
And finally, we agree with the trustees that section 473 cannot be relied
upon to relieve a party from its failure to comply with the 100-day deadline for filing and
serving a petition to vacate an arbitration award. That 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. Once jurisdiction is lost, it cannot be
retroactively reinstated.

FACTS

This case involves a dispute over a provision in a series of identical ground
leases underlying a condominium development. The property is owned by the trustees of
the John and Vera B. Rohrs Trust, Dated May 16, 1961, and the terms of the leases
specify payment of a fixed monthly rent for the land under each unit for initial 30 years
and six months of the 70-year lease term, but thereafter allow the rents to be adjusted
based on a re-valuation of the “leased land.” If the parties are unable to agree on the
proper amount of a rent adjustment, the issue was to be resolved by arbitration.
Unfortunately, the parties could not even agree on the definition of the
“leased land” to be valued, and thus initially sought declaratory relief from the court to
resolve that issue. In a published opinion, this court declared that the leased land to be
valued was defined as “each lessee’s interest in his or her individual condominium unit . .
. and his or her undivided fractional interest in the common areas within parcel one or
parcel three, depending upon whether the unit is located in first or second phase of the
project.” (Abers v. Rounsavell (2010) 189 Cal.App.4th 348, 363-364.)

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 The parties thereafter participated in the arbitration, and the arbitrators
announced their decision on December 13, 2011. According to the homeowners, the
arbitrators’ decision was inconsistent with both this court’s interpretation of the pertinent
lease provisions and its declaration of the parties’ rights in connection therewith. The
homeowners claim the arbitrators’ decision resulted in a “27-fold increase” in their
average lease payments, and required each of them to make a retroactive lease payment
of between $70,000 and $90,000. They characterize the award as “devastating” to them.
Two days after the arbitrators issued their decision, the trustees filed an ex
parte application with the trial court which had presided over the declaratory relief action,
seeking an order “vacat[ing] further proceedings under this case number” because “some
of the lessees may attempt to file papers in this action seeking to vacate . . . the award.”
The homeowners opposed the ex parte application, arguing the court properly retained
“vestigial jurisdiction” over the matter submitted to arbitration, which included
jurisdiction to confirm, correct or vacate the award. (Citing SWAB Financial, LLC. v.
E*Trade Securities LLC. (2007) 150 Cal.App.4th 1181, 1200-1201.) The court denied
the motion on the ground the issue was not ripe until someone actually attempted to file
such a petition.
On February 17, 2012, the homeowners filed their petition to vacate,
choosing to do so under a new case number, rather than in the still-pending declaratory
relief case. According to their opening brief on appeal, they did so because the court’s
refusal to issue a definitive ruling on whether it was proper to file the petition under the
old case number “left uncertainty about whether the trial court understood the nature of
its vestigial jurisdiction over the arbitration and meant that further litigation over that
issue was inevitable.” Consequently, “[t]o avoid spending the homeowners’ limited
resources litigating over such a tangential issue, the homeowners filed the petition to
vacate under a new case number.” (Italics added.)

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 Unfortunately, despite their decision to file the petition as a separate case,
the homeowners purported to serve it on the trustees in the manner that would normally
be used for a motion in a pending case – by overnight delivery to the trustees’ counsel,
one of whom they explain is also a successor trustee. On March 22, the homeowners
served an amended petition to vacate, again by overnight delivery on the same counsel.
Four days later, on the 100th day after the arbitration award was served, the trustees’
counsel informed the homeowners he was not authorized to accept service of the petition
by mail. The following day, the attorney identified as successor counsel who informed
the homeowners he would not accept mail service.
Shortly thereafter, the trustees moved to quash service and sought an order
dismissing the petition on the ground the homeowners failed to properly serve the
petition within 100 days of the arbitrator’s award as required by section 1288. Over the
homeowners’ strenuous opposition, the court granted the motion.

DISCUSSION

1. Service of Petition by Mail was Insufficient to Confer Jurisdiction over Trustees
Section 1288 requires that “[a] petition to vacate an [arbitration] award
. . . shall be served and filed not later than 100 days after the date of service of a signed
copy of the award on petitioner.” Section 1286.4 limits the court’s power to vacate an
award, stating that a “court may not vacate an award unless: [¶] (a) A petition or
response requesting the award be vacated has been duly served and filed; or [¶] (b) A
petition or response requesting that the award be corrected has been duly served and filed
and: [¶] . . . [¶] (2) All petitioners and respondents have been given reasonable notice
that the court will be requested at the hearing to vacate the award or that the court on its
own motion has determined to vacate the award and all petitioners and respondents have

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been given an opportunity to show why the award should not be vacated.” (Italics
added.)
The requirements for serving a petition to vacate an arbitration award are
governed by section 1290.4, which specifies that “[a] copy of the petition and a written
notice of the time and place of the hearing thereof and any other papers upon which the
petition is based shall be served in the manner provided in the arbitration agreement for
the service of such petition and notice.” (§ 1290.4, subd. (a), italics added.) However,
“[i]f the arbitration agreement does not provide the manner in which such service shall
be made and the person upon whom service is to be made has not previously appeared in
the proceeding and has not previously been served in accordance with this subdivision:
[¶] (1) Service within this State shall be made in the manner provided by law for the
service of summons in an action.” (§ 1290.4, subd. (b), italics added.)
The homeowners first argument is that their service of the petition by
overnight mail was appropriate under section 1290.4, subdivision (a), because it
substantially complied with Paragraph 16 of the ground leases which includes a provision
stating that “written notice[s] . . . respecting this Lease” may be “sent by certified or
registered mail” to a specified address. Their argument fails because it conflates the
concept of providing notice with the concept of serving process.
Proper service of process of a petition or complaint is the means by which a
court obtains personal jurisdiction over a party. (In re Jennifer O. (2010) 184
Cal.App.4th 539, 547 [“a court acquires jurisdiction over a party by proper service of
process or by that party’s general appearance”].)
The obligation to serve a party with process is not coextensive with merely
providing the party with notice of the proceeding. Even undisputed actual notice of a
proceeding does not substitute for proper service of the petition or complaint. (Honda
Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1049 [“The fact that the person
served ‘got the word’ is irrelevant”]; In re Abrams (1980) 108 Cal.App.3d 685, 693

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[“Mere knowledge of the action is not a substitute for service, nor does it raise any
estoppel to contest the validity of service”].)
Paragraph 16 of the parties’ leases, which governs only the manner in
which “notices” may be “sent,” says nothing at all about the manner in which a petition
to vacate an arbitration award must be served. The homeowners’ compliance with that
provision would consequently demonstrate nothing more than that the trustees were
aware both that the petition had been filed, and of the date of the hearing. Significantly,
however, it would not demonstrate the court had gained jurisdiction over the trustees so
as to permit it to render a binding decision with respect to the petition. “Actual notice of
the action alone . . . is not a substitute for proper service and is not sufficient to confer
jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383,
392; see also, Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“No California
appellate court has gone so far as to uphold a service of process solely on the ground the
defendant received actual notice when there has been a complete failure to comply with
the statutory requirements for service”].)
Because Paragraph 16 of the parties’ leases governs only notice, and not
service it does not qualify as a provision which specifies the manner in which a petition
to vacate an arbitration award may be served. Consequently, the homeowners’ reliance
on those notice provisions as a means of demonstrating proper service of the petition
necessarily fails.
Nor can the homeowners rely on Estate of Moss (2012) 204 Cal.App.4th
521 (Moss), as precedent demonstrating mail service of their petition was appropriate
here. In Moss, a probate case was initiated by the decedent’s wife when she filed a
petition to probate decedent’s will. Decedent’s son and grandson later filed a separate
petition seeking removal of the will from probate, which would ordinarily require service
in the manner of a summons. However, they filed their separate petition under the same
case number as the wife’s original petition, and served it on her attorney of record as the

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functional equivalent of a cross-complaint. (See § 465 [“Except with leave of the court,
all pleadings subsequent to the complaint, together with proof of service unless a
summons need be issued, shall be filed with the clerk or judge, and copies thereof served
upon the adverse party or his or her attorney”].)
Although the trial court agreed with the wife’s assertion that service in such
a manner had been inadequate to establish the court’s jurisdiction over her in connection
with the second petition, the Court of Appeal did not. It concluded instead that “in
circumstances such as exist in this case, in which a party and her attorney have already
appeared in the action, . . . proper service of process on the party’s attorney of record in
that same case is sufficient as a matter of law under Code of Civil Procedure section
416.90.” (Moss, supra, 204 Cal.App.4th at p. 534, italics added.)
However, the court in Moss took pains to “emphasize the narrowness of our
holding” (Moss, supra, 204 Cal.App.4th at p. 533), explaining that it was expressly
limited to circumstances in which the party to be served with the new petition had already
appeared in the action. Unfortunately for the homeowners here, this case is
distinguishable on that very point. Because the homeowners chose to file their petition to
vacate as a separate action, rather than as part of the existing declaratory relief case in
which the trustees had previously appeared, Moss is of no assistance to them.
Nor could we extend the rationale of Moss to these distinct circumstances
without running afoul of statute. As we have already noted, section 1290.4 sets forth the
procedures to be followed in serving a petition to vacate an arbitration award, and the
narrow rule set forth in Moss is exactly consistent with those required procedures.
Specifically, section 1290.4, subdivision (b)(1) creates an exception from the general
requirement that the petition be served within this state “in the manner provided by law
for the service of summons” in the case of service on a person who has “previously
appeared in the proceeding.” (§ 1290.4, subd. (c).) Because the homeowners chose to
file their petition to vacate as a new proceeding, that exception could not be applied.

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2. Trial Court’s Refusal to Grant Equitable Relief
Appellants next argue the trial court was essentially obligated to either
“deem the petition to vacate to have been filed under the original [declaratory relief] case
number,” so as to bring it within the exception of section 1290.4, subdivision (c), or hold
that the trustees were estopped from asserting that service of the petition by certified mail
had been improper. These are, to say the least, difficult arguments to make. The trial
court’s discretion to grant or deny equitable relief is broad, and we must indulge all
inferences in favor of its decision. “Equity or chancery law has its origin in the necessity
for exceptions to the application of rules of law in those cases where the law, by reason of
its universality, would create injustice in the affairs of men.” (Estate of Lankershim
(1936) 6 Cal.2d 568, 572-573.) Thus, “[f]rom the very nature of equity, a wide play is
left to the conscience of the chancellor in formulating his decrees . . . . It is of the very
essence of equity that its powers should be so broad as to be capable of dealing with
novel conditions.” (Bechtel v. Wier (1907) 152 Cal. 443, 446.)
The homeowners’ assertion that they are entitled to have their petition
treated as though it had been filed within the declaratory relief action is apparently based
on the notion they had the right to proceed in that fashion, despite the trustees’ contrary
contention and the trial court’s equivocal ruling on the point. In support of their position,
the homeowners have requested we take judicial notice of documents reflecting that the
court which presided over the declaratory relief action was kept apprised of the
arbitration’s progress. We deny that request.
Whatever theoretical right the homeowners may have had to pursue their
petition within the framework of the existing declaratory relief case is irrelevant, since
they have frankly acknowledged making a deliberate, strategic decision not to do that.
Instead, despite the homeowners’ awareness of that option, and their emphatic belief in
its propriety, they chose to file their petition to vacate as a separate proceeding rather than
waste resources arguing about whether it might properly be filed as part of the existing

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case. That deliberate choice precludes any determination that the court abused its
discretion by refusing to pretend they had done the opposite. Stated simply, holding the
homeowners to the consequences of their voluntary election creates no injustice.
As to the assertion that the trustees should be estopped to deny that service
was proper, we agree with the trial court. There is no basis in equity to estop the trustees
from demanding compliance with legal requirements for service of process. As our
Supreme Court has repeatedly emphasized, a finding of estoppel requires some act or
representation by the party to be estopped, on which the party seeking estoppel has relied
to its detriment: “[t]he doctrine of equitable estoppel is founded on concepts of equity
and fair dealing.” (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.) “The
essence of an estoppel is that the party to be estopped has by false language or conduct
‘led another to do that which he [or she] would not otherwise have done and as a result
thereof that he [or she] has suffered injury.’” (State Compensation Ins. Fund v. Workers’
Comp. Appeals Bd. (1985) 40 Cal.3d 5, 16; Steinhart v. County of Los Angeles (2010) 47
Cal.4th 1298, 1315.)
Here, the homeowners base their estoppel argument on the parties’ “course
of dealing over seven years of litigation in which counsel accepted mail service on behalf
of the [trustees],” and the trustees’ failure to alert the homeowners that their service of
the petition to vacate did not comply with the requirements of law before the 100-day
deadline passed. The homeowners’ claim this “lull[ed]” them into a “false sense of
security” and “induced” them into believing their service effort had been adequate. We
reject the argument.
Significantly, the homeowners’ conclusory characterization of the parties’
long “course of dealing . . . in which counsel accepted mail service on behalf of the
[trustees]” is unsupported by any examples of the trustee’s counsel agreeing to accept
initial service of process by mail on behalf of the trustees. The mere fact that once the
trustees had appeared in litigation, future notices and documents filed in the case were

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served on them via their counsel of record establishes nothing. After a party has
appeared in litigation and designated a counsel of record, the general rule is that future
pleadings and notices may be served on that counsel. (See, §§ 465, 1010 [“Notices and
other papers may be served upon the party or attorney in the manner prescribed in this
chapter, when not otherwise provided by this code”].) Again, initial service of process on
a party and the mere provision of notice are not the same thing.
Moreover, whatever prior course of conduct may have been followed, the
trustees’ ex parte effort, in the immediate wake of the arbitration award, to obtain a court
order requiring that any petitions to vacate the award would have to be filed as a separate
action (rather than under the case number of the existing declaratory relief action)
probably should have been a tip-off that the trustees had no intention of cooperating in an
effort to vacate that award. Under these circumstances, we could not conclude the trial
court erred by rejecting the homeowner’s claim they were reasonably misled by the
parties’ past practice of serving documents on counsel.
As for the homeowners’ claimed reliance on the trustees’ failure to point
out their error in service, that assertion is undercut by the fact the homeowners were at all
times represented by counsel. “[T]he law ‘particularly’ disfavors estoppels ‘where the
party attempting to raise the estoppel is represented by an attorney at law.’” (Steinhart v.
County of Los Angeles, supra, 47 Cal.4th at p. 1316.) This is so because “[f]or purposes
of analyzing estoppel claims, attorneys are ‘charged with knowledge of the law in
California.’” (Ibid.) Thus, in Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67
Cal.2d 671, 679, our Supreme Court flatly rejected the notion that a plaintiff who was at
all relevant times represented by counsel, could have been “induced to delay the filing of
her complaint in reliance” on defendant’s acts. We apply the same reasoning here as
well. It was the responsibility of the homeowners’ counsel to determine the legal
requirements for serving their petition to vacate, and they could not reasonably rely on
their opponents to apprise them when that effort fell short.

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3. Appellants Right to Relief under Section 473
The homeowners’ final contention is that the court erred by refusing to
grant them relief under section 473, subdivision (b), which provides the court with
discretionary power to “relieve a party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect,” and also requires the court “whenever an
application for relief is made no more than six months after entry of judgment, is in
proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, [to] vacate any . . . resulting default judgment
or dismissal entered against his or her client, unless the court finds that the default or
dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or
neglect.” (Ibid., italics added.)
Section 473’s provision for mandatory relief from a dismissal based upon a
declaration of attorney error does not require a determination the error was excusable. It
applies even when the attorney has no excuse. “‘Relief is mandatory when a complying
affidavit is filed, even if the attorney’s neglect was inexcusable.’” (SJP Limited
Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517.)
However, respondents counter that section 473 is inapplicable here, because
the 100-day limitation for a petition to vacate a arbitration award is jurisdictional and
section 473 cannot be relied upon to excuse a party’s failure to comply with a
jurisdictional statute of limitations. We agree.
“Notwithstanding the broad construction afforded section 473, subdivision
(b), the statute does not offer relief from mandatory deadlines deemed jurisdictional in
nature.” (Maynard v. Brandon (2005) 36 Cal.4th 364, 372 (Maynard).) Generally,
section 473 does not apply “to a party’s failure to comply with the applicable limitations
period in which to institute an action,” nor can it “extend the time in which a party must
move for a new trial.” (Ibid.) “The time limits that are not subject to relief under section

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473, subdivision (b), include, among others, statutes of limitations (Castro v. Sacramento
County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 933 [Code Civ. Proc., § 340.5];
Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1563 [same]; Kupka v. Board of
Administration (1981) 122 Cal.App.3d 791, 794-795 [Gov. Code, § 11523]) and the time
to file a notice of intention to move for a new trial (Union Collection Co. v. Oliver (1912)
162 Cal. 755, 756-759; Kisling v. Otani (1962) 201 Cal.App.2d 62, 67-68, 71) or to set
aside a judgment under section 663 (Advanced Building Maintenance v. State Comp. Ins.
Fund (1996) 49 Cal.App.4th 1388, 1394).” (Arambula v. Union Carbide Corp. (2005)
128 Cal.App.4th 333, 344.)
The same rule applies to the deadline for filing an appeal. “The
requirement as to the time for taking an appeal is mandatory, and the court is without
jurisdiction to consider one which has been taken subsequent to the expiration of the
statutory period. In the absence of statutory authorization, neither the trial nor appellate
courts may extend or shorten the time for appeal, even to relieve against mistake,
inadvertence, accident, or misfortune.” (Stuart Whitman, Inc. v. Cataldo (1986) 180
Cal.App.3d 1109, 1113.)
The rule must be applied here as well. The trial court’s power to vacate an
arbitration award is governed by statute, and the deadline for seeking such relief is
mandatory. In the absence of some other statutory authority, the court simply cannot
extend that deadline.
Moreover, the mere fact the homeowners actually filed their petition to
vacate in a timely fashion does not alter the analysis. Section 1286.4 specifically limits
the court’s authority to vacate an award to situations where a petition to vacate or correct
the award has been “duly served and filed.” (§ 1286.4, subds. (a), (b), italics added.) In
the absence of such service and filing, the court has no option but to confirm the award if
requested to do so within four years of its issuance. (§ 1286.) And in Bernasconi
Commercial Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57

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Cal.App.4th 1078, 1081-1082, the court held that section 473 is equally inapplicable to a
claim for relief from a litigant’s failure to timely serve a properly filed complaint, as
mandated by statute.
As the Bernasconi court explained, the problem with applying section 473
relief in a case where a party has failed to timely serve a complaint, is that it would
“effectively abrogate the . . . dismissal statutes, since few if any dismissals under those
statutes would ever be final.” (Bernasconi Commercial Real Estate v. St. Joseph’s
Regional Healthcare System, supra, 57 Cal.App.4th at p. 1082.) Of course, the same is
true here. In nearly every case where a party is represented by counsel, a failure to timely
serve a petition to vacate an arbitration award would be attributable to counsel’s error.
And if section 473 relief were extended to provide relief for such an error, then it follows
that relief would be mandated in nearly every case, without regard to the excusability of
counsel’s conduct. The result would be an effective nullification of the statutory 100-day
limitation on filing and serving a petition to vacate. We cannot endorse such a result.
We recognize, of course, that the homeowners cite two cases, De Mello v.
Souza (1973) 36 Cal.App.3d 79 (De Mello), and Elden v. Superior Court (1997) 53
Cal.App.4th 1497, as support for the proposition that section 473 does provide relief from
a party’s failure to comply with the 100-day deadline for filing and serving a petition to
vacate and arbitration award. A third case, Eternity Investments, Inc. v. Brown (2007)
151 Cal.App.4th 739, 746, states the same proposition: “Of course, a party with a
reasonable excuse for failing to comply with the 100-day time limit may obtain relief in a
trial court under section 473, subdivision (b).” We find none of those cases persuasive,
however, for the simple reason that none of them makes any effort to persuade. De Mello
simply states, without explanation, that relief from the 100-day limitation “may be
granted only under section 473 and/or pursuant to the inherent equitable power of the
court, and only in strict compliance with the requirements outlined therein. (De Mello,
supra, 36 Cal.App.3d at p. 84.) The other cases merely repeat the notion, but again

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without analysis. None of the cases actually accords a party relief under section 473,
because in each case the request was deemed untimely under that section. In our view,
these cases are simply inconsistent with the rule announced by the Supreme Court in
Maynard, and must be rejected on that basis.
In light of the foregoing, we conclude the trial court did not err in refusing
to grant the homeowners relief under section 473 from their failure to properly serve their
petition to vacate the arbitration award.

DISPOSITION

The judgment is affirmed. Respondent trustees are entitled to their costs on
appeal.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.

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