Rome & Associates v. Moi CA2/1

Filed 11/15/23 Rome & Associates v. Moi CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE

ROME & ASSOCIATES, A.P.C., et B322725
al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 22STCP00648)

v.

PATRIZIO MOI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael L. Stern, Judge. Affirmed.
Law Offices of Jeff Mann and Jeff A. Mann for Defendant
and Appellant.
Rome, Eugene Rome, Brianna Dahlberg, and Andrew
Keyes for Plaintiffs and Respondents.
_________________________________________________
 Patrizio Moi appeals from a judgment confirming an
arbitration award, contending the petition to confirm the award
was premature and his motion to quash notice of the petition and
his own petition to vacate the award were erroneously denied.
We disagree with each contention, and therefore affirm the
judgment.
BACKGROUND
A. Agreement
In 2019, Moi, Jabari McDavid and Jabari’s Inc. (the Jabari
parties will be referred to as “Jabari”; Moi and Jabari are
collectively the “Clients”) entered into a legal representation
agreement with Rome & Associates, A.P.C. (the Firm) to
represent them in a lawsuit.
The agreement provided, “The Clients agree to pay [the
Firm] on an hourly basis for services rendered.” “With respect to
the fee allocation between Moi . . . and [Jabari],” the agreement
provided that “the Clients agree that all work will be performed
for both sets of Clients. Consequently, it is anticipated that [fees
and expenses] will be split on a 50/50 basis between Moi and
[Jabari] . . . . However, in the more rare situation where a
litigation event concerns only one party, e.g.[,] a Motion for
Summary Judgment as to Moi’s claims only, then, in that
situation and in the good faith determination by [the Firm], the
entirety of fees incurred in connection with that event shall be
apportioned to the concerned party . . . .”
The agreement provided that any dispute between the
parties would be resolved by binding arbitration.

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B. Arbitration
1. Arbitration Proceedings
After the representation ended, Moi commenced an
arbitration proceeding before the Los Angeles County Bar
Association (LACBA), seeking recovery of certain attorneys’ fees
and costs from Eugene Rome, the Firm’s principal, that had been
billed by the Firm.
The Firm counterclaimed against Moi and Jabari for
recovery of unpaid fees and costs, alleging claims for breach of
written contract, open book account, and quantum meruit. Moi,
Jabari, Rome, and the Firm all agreed to binding arbitration.
Shortly before arbitration, the Firm disclaimed any
recovery against Jabari.
The arbitration was held on November 16, 2021.
The Firm claimed it billed the Clients $203,891.83, for
which they were jointly and severally liable, but Moi paid only
$85,925 and owed the balance of $117,966.83.
Moi claimed that all fees were to be split 50-50 between
him and Jabari. He also claimed the Firm’s billing was excessive,
and he should have been billed only $70,907 and was owed the
$15,018 he overpaid.
The primary issue was whether Moi was obligated to pay
100 percent or only 50 percent of the fees owed to the Firm.
The arbitration panel found that the Firm should have
charged only $191,367.83, which should have been paid half by
Moi and half by Jabari. Moi had already paid $85,975, leaving a

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balance of $105,392.83 owing. The panel determined that Moi
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owed 50 percent of this balance, or $52,696.42.
The panel credited Moi for half of a $8,259.78 filing fee it
thought he had paid, $4,129.89, resulting in an award of
$48,566.53, payable solely by Moi.
On January 5, 2022, the LACBA issued an award in the
amount of $48,566.53, payable solely by Moi.
On January 19, the LACBA issued and served by mail a
corrected award in the amount of $50,196.42, payable only by
Moi.
2. Post-Arbitration Emails
After service of the original award, Moi initiated an email
exchange with the arbitration panel. We take the following facts
from Moi’s motion to admit those emails into evidence on appeal,
post.
On January 14, 2022, Moi emailed the arbitration panel,
with copies to other interested parties, requesting that the award
be amended to reflect Jabari’s indebtedness to the Firm. He
argued that the panel’s determination that Jabari owed half of
the Firm’s fees should apply not only to the balance owing but
also to the $85,975 Moi had already paid, which should reduce
the award against Moi by half of that amount, $42,987.50.
Also in the email, Moi informed the panel that he paid
$5,000 for the filing fee, not $8,259.78.

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We note the seeming divergence between the panel’s
findings—that Moi and Jabari were each responsible for half of
the Firm’s fees—and its award, which essentially disregarded
Moi’s prior payment. In emails we discuss below, Moi complained
to the panel that the award effectively assessed him 72 percent of
the fees. The panel twice reaffirmed its calculation.

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 On January 17, 2022, the arbitration panel emailed the
parties indicating it had considered Moi’s January 14 email and
reviewed the reward. After review, the panel left the allocation
in place but reduced Moi’s filing fee credit from $4,129.89 to
$2,500 to reflect that Moi paid only a $5,000 filing fee, not
$8,259.78. (This occasioned the increased award, ante.)
On February 18, 2022, Moi emailed Eugene Rome, with
copies to the panel, arguing Jabari’s 50 percent responsibility for
the Firm’s fees “applied from the date of the retainer
agreement . . . not from the date of the fee dispute.” He also
argued the award should be against Moi Productions, Inc., which
had contracted with the firm, not against Moi himself.
On February 22, 2022, the panel, responding to Moi’s
February 18 email, found there was no miscalculation in the
award and stated there should be no further contact between the
parties and the panel.
C. Litigation
1. The Firm’s Petition to Confirm and Judgment
On February 24, 2022, the Firm filed a petition to confirm
the award in the Los Angeles County Superior Court.
The Firm served the petition on Moi through his attorney,
Brian Trinidad, and sent a courtesy copy of it to Trinidad himself.
Trinidad informed the Firm that he no longer represented Moi “in
reference to the petition to confirm fee award.”
Moi filed no opposition to the Firm’s petition to confirm the
arbitration award but on March 29, 2022, filed by special
appearance a “Motion to Quash Alleged Service of Notice of
Petition,” arguing service via Trinidad was improper because he
had retained Trinidad only for limited purposes and had not
authorized him to accept service of the Firm’s petition.

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 The hearing on the Firm’s petition to confirm the award
and Moi’s motion to quash was held on June 2, 2022. The minute
order reflects Moi’s “appearance” by attorney Michael Sayer.
After the hearing, the trial court “overruled” Moi’s motion to
quash and granted the Firm’s petition to confirm the award. The
hearing was not transcribed and no settled statement was
requested or prepared.
Later in the evening on June 2, 2022, Moi filed a petition to
correct the arbitration award.
On June 9, 2022, the court entered judgment in the amount
of $50,196.42 in favor of the Firm and against Moi, with interest
at 10 percent per year from January 17, 2022.
2. Post-Judgment Proceedings
On June 16, 2022, Moi filed an ex parte application to stay
enforcement of the judgment pending the hearing on Moi’s
petition to correct the award. The trial court denied the
application on the ground that it no longer had jurisdiction over
the matter.
On August 4, 2022, Moi’s June 2 petition to correct the
arbitration award came on for hearing. Finding it lacked
jurisdiction to hear the petition after judgment had been entered,
the court denied the petition. The hearing was not transcribed
but a settled statement was prepared.
Moi appeals.

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 DISCUSSION
A. Timeliness of the Firm’s Petition
1. Moi Forfeited any Claim that the Firm’s
Petition was Untimely by Failing to Object on this
Ground Below
Moi contends the trial court erred in entertaining the
Firm’s petition (filed February 24, 2022) to confirm the
arbitration award because it was filed too soon after the
arbitration panel’s February 22, 2022 response to his second
email. We reject the contention.
Pursuant to Code of Civil Procedure section 1285, any party
to an arbitration in which an award has been made may petition
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the court to “confirm, correct or vacate the award.” “Once a
petition to confirm an award is filed, the superior court must
select one of only four courses of action: It may confirm the
award, correct and confirm it, vacate it, or dismiss the petition.”
(EHM Productions, Inc. v. Starline Tours of Hollywood, Inc.
(2018) 21 Cal.App.5th 1058, 1063 (EHM).) “ ‘[I]t is the general
rule that, with narrow exceptions, an arbitrator’s decision cannot
be reviewed for errors of fact or law.’ [Citation.] Under section
1286.2, the court may vacate the award only under ‘ “very limited
circumstances.” ’ [Citation.] Neither the trial court, nor the
appellate court, may ‘review the merits of the dispute, the
sufficiency of the evidence, or the arbitrator’s reasoning, nor may
we correct or review an award because of an arbitrator’s legal or
factual error, even if it appears on the award’s face. Instead, we

2
Undesignated statutory references will be to the Code of
Civil Procedure.

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restrict our review to whether the award should be vacated under
the grounds listed in section 1286.2.” (Id. at pp. 1063-1064.)
We review confirmation of an arbitration award de novo.
(Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362,
376, fn. 9.) “If the trial court’s ruling relies on a determination of
disputed factual issues, we apply the substantial evidence test on
those particular issues. [Citation.] Where error is shown, this
court may not set aside the order unless the error prejudiced the
appellant. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)”
(EHM, supra, 21 Cal.App.5th at p. 1063.)
Here, Moi never objected to the trial court that the Firm’s
petition to confirm the arbitration award was premature. He
therefore forfeited his right to raise this challenge on appeal.
(See In re Carrie W. (2003) 110 Cal.App.4th 746, 755 [“An
appellate court will ordinarily not consider procedural defects or
erroneous rulings, in connection with relief sought or defenses
asserted, where an objection could have been but was not
presented to the [trial] court by some appropriate method”].)
2. The Firm’s Petition was Timely
On the merits, the Firm’s petition was timely.
Section 1288.4 provides that no petition to confirm, correct
or vacate an arbitration award “may be served and filed . . . until
at least 10 days after service of the signed copy of the award upon
the petitioner.”
“If an application is made to the arbitrators for correction of
the award, the date of the service of the award . . . shall be
deemed to be” 30 days after service of the award or the date of
service of a correction of the award or denial of the application,
whichever is earlier. (§ 1288.8.)

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 Here, the corrected arbitration award was served on
January 19, 2022. The Firm filed its petition to confirm the
award on February 24, 2022, more than 10 days later. Therefore,
the petition was timely.
Moi claims that his emails of January 14 and February 18,
2022, constituted applications for correction of the award, which
under section 1288.8 triggered new dates for service of the award.
Therefore, he argues, section 1288.4 prevented the Firm from
filing a petition to confirm the award until ten days after the
panel’s February 22 response to his February 18 email. We
disagree.
First, the emails upon which Moi relies were not presented
to the trial court and are not the record on appeal. Moi offers the
emails for the first time in a request for judicial notice on appeal
and a motion for leave to produce documentary evidence on
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appeal. We deny the request and motion.

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Moi requests that we take judicial notice, augment the
record, or make a factual determination under section 909, so
that the record in these proceedings will include the emails he
exchanged with the arbitration panel but not presented to the
trial court, in order to demonstrate that the Firm’s petition to
confirm the arbitration award was premature. “Augmentation
does not function to supplement the record with materials not
before the trial court. [Citations.] Reviewing courts generally do
not take judicial notice of evidence not presented to the trial
court. Rather, normally ‘when reviewing the correctness of a trial
court’s judgment, an appellate court will consider only matters
which were part of the record at the time the judgment was
entered.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
Cal.4th 434, 444, fn. 3.)

No exceptional circumstances exist that would justify
deviating from that rule, either by taking judicial notice or

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 Even were we to consider Moi’s post-award email exchange
with the panel, and even assuming his emails of January 14 and
February 18 constituted applications to correct the award and
triggered a new date for service of the award under section
1288.8, Moi suffered no prejudice.
Moi’s second application to correct the award was
substantially the same as his first. In the first, he argued that
the panel’s determination that Jabari owed half of the Firm’s fees
should apply not only to the balance owing but also to the amount
Moi had already paid, which should reduce the award against
Moi by half of the amount he paid. In the second email, Moi
argued that Jabari’s 50 percent liability for the Firm’s fees should
be applied from the time of the retainer agreement, not the time
of the fee dispute.
The Panel ruled on Moi’s first application to correct the
award on January 17, 2022, correcting the award upward. The
Firm complied with section 1288.4 by filing its petition to confirm
the award more than ten days after this ruling.
The panel denied Moi’s second application to correct the
award on February 22, 2022.
The Firm filed its petition only two days later, on February
24, but Moi’s second application to correct the award was
substantially the same as the first, triggering no new date for
service of the award under section 1288.8. In any event, the
hearing on the petition did not occur until June 2, 2022, giving
Moi time to prepare an opposition. Moi filed no opposition.

exercising the power to take evidence under section 909. The
request and motion are denied.

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 Moi offers no explanation how the Firm waiting an
additional eight days, until March 4, 2022, before filing its
petition would have made any difference. He does not claim, for
example, that he had insufficient notice or time to understand
the implications of the award and formulate a challenge to it,
either to oppose the petition or to file his own petition to vacate
the award.
Because Moi was not prejudiced by the alleged error, the
trial court’s order may not be reversed. (See EHM, supra, 21
Cal.App.5th at p. 1063.)
Moi argues he need not show prejudice because the court’s
error was structural and jurisdictional, i.e., the trial court lacked
jurisdiction to rule upon the Firm’s petition because it was
premature. Moi offers no legal authority in support of the
proposition that the 10-day waiting period of section 1288.4 is
jurisdictional. He has therefore forfeited the argument.
In any event, the 10-day waiting period of section 1288.4 is
not jurisdictional.
“[W]e apply a ‘presumption that statutes do not limit the
courts’ fundamental jurisdiction absent a clear indication of
legislative intent to do so.’ [Citations.] This approach reflects ‘ “a
preference for the resolution of litigation and the underlying
conflicts on their merits by the judiciary.” ’ [Citations.] To be
sure, mandatory procedural rules—like many statutes of
limitations or other filing deadlines—serve important policy
goals, and courts must enforce them when properly raised.
[Citation.] But we will not assume that the Legislature intended
to imbue a time bar with jurisdictional consequences merely
because the statute speaks in mandatory terms; as we have said,
‘jurisdictional rules are mandatory, but mandatory rules are not

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necessarily jurisdictional.’ [Citations.] To establish that a
particular filing deadline is jurisdictional, more is required.
Much as the high court has said of Congress, our Legislature
‘must do something special, beyond setting an exception-free
deadline, to tag a statute of limitations as jurisdictional’ in the
fundamental sense.” (Law Finance Group, LLC v. Key (2023) 14
Cal.5th 932, 950 [holding that the timing mandate of section
1288.2 is not jurisdictional].)
For example, section 1288.2, which prescribes the time
limit for responding to a petition to confirm an arbitration award,
“speaks only to obligations of the litigants and makes no
reference at all to the power of the courts—in other words, the
section reads as an ordinary statute of limitations,” not a
jurisdictional prescription. (Law Finance Group, LLC v. Key,
supra, 14 Cal.5th at p. 950.) Sections 1288.2 and 1288.4 both
appear in Article 2 (“Limitations of Time”) of Chapter 4
(“Enforcement of the Award”) of the California Arbitration Act.
Our Supreme Court’s holding that the limitation prescribed in
the former is not jurisdictional applies equally to that prescribed
in the latter.
B. Moi Fails to Show the Court Erred in Denying his
Motion to Quash
Moi argues the trial court erred in overruling his motion to
quash service of the Firm’s petition because it was served only on
Trinidad, who although engaged by Moi for the arbitration had
no authority to receive the petition on Moi’s behalf. We disagree.
Service of a petition to confirm an arbitration award is “in
the manner provided in the arbitration agreement for the service
of such petition and notice” or, “[i]f the arbitration agreement
does not provide the manner in which such service shall be made

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. . . [,] [¶] . . . Service within this State shall be made in the
manner provided by law for the service of summons in an action.”
(§ 1290.4.) Sections 415.10 and 415.40 require that “a copy of the
summons and of the complaint [is sent] to the person to be
served.” In a proceeding to confirm or vacate an arbitration
award, service on the attorney who may have represented a party
in arbitration but was not authorized to accept service in court
proceedings is insufficient. (Mercuri v. Ligar (1964) 225
Cal.App.2d 240, 241.)
But “[a] general appearance operates as a consent to
jurisdiction of the person, dispensing with the requirement of
service of process, and curing defects in service.” “A general
appearance occurs when the defendant takes part in the action or
in some manner recognizes the authority of the court to proceed.”
(Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) This rule
“applies to one who appears in a lawsuit after defective service of
process upon him . . . .” (De Luca v. Board of Supervisors (1955)
134 Cal.App.2d 606, 609.) A party who appears and argues at a
hearing, never requests a continuance of the hearing, and never
claims prejudice by reason of insufficient notice or service is
deemed to have waived any claim of inadequate service or notice
assuming. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-698.)
Here, because the joint hearing on the Firm’s petition to
confirm the award and Moi’s motion to quash was not
transcribed, and no settled statement was requested, Moi
provides no adequate record to affirmatively show error. (See In
re Marriage of Deal (2020) 45 Cal.App.5th 613, 622 [“Under well-
established rules of appellate procedure, . . . the appellant . . . has
the burden to provide an adequate record on appeal and to
affirmatively show error”]; see also Hotels Nevada, LLC v. L.A.

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Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 [“ ‘Failure to
provide an adequate record on an issue requires that the issue be
resolved against [the] appellant”].) We do not know, for example,
that Moi’s counsel made only a special as opposed to general
appearance at the June 2, 2022 hearing to contest the Firm’s
petition, or what was discussed. We do not know whether the
trial court believed Moi’s representation that Trinidad was
unauthorized to represent him in court proceedings. And we do
not know whether Moi’s attorney argued substantively at the
hearing, requested a continuance, or claimed prejudice by reason
of insufficient notice or service. We must therefore presume the
trial court’s denial of Moi’s motion to quash—either due to
insufficient proof or waiver—was correct.
C. The Court Lacked Jurisdiction to Consider Moi’s
Petition to Correct the Award
Moi argues the trial court erred in denying his petition to
correct the arbitration award. We disagree.
“[E]ntry of judgment ordinarily terminates a trial court’s
jurisdiction to rule on the merits of a case.” (Ballona Wetlands
Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455,
479.) “Once judgment has been entered . . . the court may not
reconsider it and loses its unrestricted power to change the
judgment.” (APRI Ins. Co. S.A. v. Superior Court (1999) 76
Cal.App.4th 176, 181.)
Here, once the court entered judgment on June 9, 2022, it
lacked jurisdiction to change that judgment in response to Moi’s
petition, filed June 2, 2022.
Moi argues the judgment did not deprive the court of
jurisdiction because it is void for reasons he asserts on appeal.

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But for reasons discussed above, we conclude the judgment is not
void.
D. Attorney Fees on Appeal
The Firm requests that we award it attorney fees incurred
on appeal pursuant to Business and Professions Code section
6203. We will leave that decision to the trial court. (See Bus. &
Prof. Code, § 6203, subd. (c) [“a court confirming . . . an award
under this section may award to the prevailing party reasonable
fees and costs incurred in obtaining confirmation . . . , including,
if applicable, fees and costs on appeal”].)
DISPOSITION
The judgment is affirmed. Respondents are to recover their
costs on appeal.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

WEINGART, J.

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