Judge: Martha K. Gooding, Case: 19-01112937, Date: 2023-07-24 Tentative Ruling

Motion to Vacate

The Petition by Plaintiffs Wayne Reader and Sharon Reader (collectively, “Plaintiffs”) to vacate arbitration award is DENIED.

The final arbitration award was served on 10/18/22.  [Plaintiffs’ currently-pending Petition to Vacate, ¶ 9.]

Before that, on 9/22/22, Plaintiffs filed and served their previous “petition to vacate” the interim arbitration award. [ROA #156.]

Then, on 2/14/23, Plaintiffs filed their motion/petition to vacate “award of arbitrator,” which was set for hearing on 3/6/23.  [ROA #197.]  That motion essentially sought to vacate both the interim award and, ultimately, the final award: “Therefore, Plaintiff is petitioning this Court to set aside the preliminary award, which would then allow no prevailing party fees/ costs.”  [Plaintiffs’ Second Motion to Vacate MPA (ROA #197), at 12:1-2.]

The Court dismissed Plaintiff’s First Petition to Vacate the interim arbitration award and denied as untimely their Second Motion to Vacate the interim and final arbitration awards.  [ROA #204.]  As to the interim award, the Court ruled it had no jurisdiction because the interim award was not subject to a petition to vacate under Code Civ. Proc. (“CCP”) §§ 1985, 1284.4, 1285.4.  As to the final arbitration award, the Court found Plaintiffs filed their Motion to Vacate more than 100 days after the award was issued and the Motion therefore was untimely. CCP § 1288.  [Id.]

The Court also denied without prejudice the prior motion by Defendants David and Sharleene Dennis (collectively, “Defendants”) to confirm the final arbitration on the ground that it was filed prematurely – that is, it was filed sooner than 10 days after issuance of the final arbitration award.  CCP §§ 1288, 1288.4.

On 3/7/23, Defendants filed another petition to confirm arbitration award, which is set for hearing on 7/31/23.  [ROA #220.]

On 3/8/23, Plaintiffs filed the currently-pending petition to vacate the final arbitration award.  [ROA #225.]

Basic Applicable Procedural Law for Vacating Arbitration Award

Under California law, a petition to vacate an arbitration award must be served and filed no later than 100 days after service of a signed copy of the award on the party seeking to vacate the award.  CCP § 1288.  A petition to confirm an arbitration award must be filed within four years from the date of service of a signed copy of the arbitration award upon the petitioner and at least 10 days after service of the award upon the petitioner.  CCP §§ 1288, 1288.4.

If a petition to confirm an arbitration award is filed, a petition to vacate must be filed within 10 days thereafter, regardless of when the 100-day time period would run.  DeMello v. Souza (1973) 36 Cal.App.3d 79, 83; see Oaktree Capital Mgmt., L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66-68.

If a petition to confirm an arbitration award is filed after 100 days, the time to file a petition to vacate does not start anew.  At that point, it is too late to file a petition to vacate.  Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 742, as modified (June 20, 2007).  See also Law Finance Group, LLC v. Key (Cal., June 26, 2023, No. S270798) ____ P.3d ___, 2023 WL 4168752, at *4.

Application

The first problem with Plaintiff’s currently-pending petition to vacate is that the Court already denied Plaintiff’s petition/motion to vacate the final arbitration award on the ground that it was filed too late. The matter has already been adjudicated.

Plaintiffs contend they are not precluded from relitigating the same issue because, when Defendants filed their renewed petition to confirm the arbitration award, that triggered a new 10-day window for Plaintiffs to file yet another petition to vacate.

As discussed above, this is not correct.  Plaintiffs’ time to petition to vacate was the shortest of either 100 days after the final award was issued or 10 days after a motion to confirm was filed and served.  Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376, 384–385 (“To be sure, ‘[a] response to a petition’ to confirm an award ‘may request the court to ... vacate the award’ (§ 1285.2), but a response containing such a request is only timely if it is ‘served and filed not later than 100 days’ after the responding party was served with a signed copy of the award (§ 1288.2).”).

In short, even if the Court’s denial of Plaintiffs’ prior motion to vacate the final arbitration award did not bar Plaintiffs’ current petition to vacate, the current petition is still untimely and is denied on that additional basis.

Nor have Plaintiffs met the requirements for reconsideration of the Court’s denial of their prior motion to vacate.  Code Civ. Proc. §1008(b).

Finally, even if the currently-pending petition to vacate the arbitration award were not untimely, it substantively has no merit, and the Court denies it on that additional ground.  Plaintiffs have not shown:  (1) the award was procured by corruption, fraud, or other undue means; (2) the arbitrator exceeded his authority; or (3) their rights were substantially prejudiced by the arbitrator’s refusal to consider evidence.

Defendant is ordered to give notice.