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Bar on Tardy Assaults on Arbitration Award Can’t Be Skirted, Court of Appeal Declares
Says Points Raised in Untimely Motion to Correct or Vacate Award May Not Be Considered in Opposition to Motion to Confirm
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that where a party to arbitration makes ay motion for an order vacating or correcting the award, but that motion is untimely, the Superior Court may not consider objections in the late-filed motion in ruling on the other side’s motion for an order confirming the award.
And, it said, the Court of Appeal may not address the alleged infirmities on an appeal from a judgment pursuant to the award.
“Because well-settled law dictates the finding that the appealing party in this case did not meet the Act’s deadlines for vacating or correcting the arbitration award, we affirm the judgment confirming that arbitration award and grant the prevailing party her attorney fees on appeal” Justice Brian M. Hoffstadt said in his opinion for Div. Two.
Stone’s Award
The defendant was Sisyphian, LLC which owned and operated the Xposed Gentlemen’s Club in Canoga Park where plaintiff Aisha Darby had been employed as an exotic dancer. The arbitrator, former Los Angeles Superior Court Judge Richard A. Stone, awarded Darby $23,347.25 in damages and penalties based on Labor Code violations and, on reconsideration, added $82,800 in attorney fees.
Darby on March 24, 2021, filed a petition for an order confirming the award, and served it on the defendant on Sisyphian eight days later. On May 3, Sisyphian served and filed opposition to Darby’s motion, and also a petition to vacate or correct the award.
The defendant argued that Stone, in reconsidering the matter of an attorney-fee award, exceeded his powers.
Stern’s Ruling
Los Angeles Superior Court Judge Michael L. Stern on June 7, 2021, ruled:
“The defendant’s Motion to Correct/Vacate Arbitration Award is untimely. Defendant would normally have 100 days to file a petition to correct or vacate pursuant to Code of Civil Procedure section 1288. But where a party petitions the court to confirm the award before the expiration of the 100-day period, the opposing side may only seek vacation or correction of the award if it serves and files a response within 10 days after the service of the petition….Failure to do so removes court jurisdiction.”
Hoffstadt agreed.
Appellate Court Opinion
He wrote:
“A party may seek an order vacating or correcting an award in a standalone petition (§ 1285), and the default deadline for filing such a petition is 100 days (from the date the petitioner was served with the award)…. A party may also seek an order vacating or correcting an award in its response to a prior-filed petition to confirm that award (§ 1285.2), and the default deadline for filing that response is 10 days (from the date the responding party is served with the petition to confirm). (§ 1290.6.)
“How do these two deadlines interact?
“When no petition to confirm the award is filed, the deadline is easy—namely, 100 days after the award was served on the party petitioning to vacate or correct the award.
“But when a petition to confirm is filed, the question becomes which deadline controls—the absolute deadline of 100 days after the award is served, or the relative deadline of 10 days after a petition to confirm the award is served? The answer is: Whichever deadline is the shorter. If a petition to confirm the award is filed fewer than 90 days after an award is served, a competing request to vacate or correct the award—whether styled as a response to the petition to confirm or as a standalone petition—must be filed and served within 10 days of service of the petition to confirm, even if that due date is less than 100 days after service of the award….But if a petition to confirm is filed more than 90 days after an award is served, a competing request to vacate or correct the award—no matter how styled—must still have been filed within 100 days of the service of the award, even if that due date is less than 10 days after service of the petition to confirm.”
The 10-day deadline may be extended, Hoffstadt noted, where the parties so agree or where the court finds good cause and a lack of prejudice. There was no extension of Sisyphian’s time.
Waited Too Long
Once Darby served her motion to confirm, he said, Sisyphian had 10 days within which to move for an order correcting or vacating the award but “waited 32 days.”
“Sisyphian’s sole response is to object that it has been caught in a ‘procedural gotcha,’ ” Hoffstadt wrote, but declared”
“[A] party’s failure to follow a statutory deadline that has been interpreted consistently for years by the courts does not amount to an unfair ‘gotcha.’ ”
The jurist went on to say:
“Where, as here, the petition to confirm is procedurally proper, dismissal of that petition is not sought, and there is no timely filing seeking to vacate or correct the arbitration award, is the trial court obligated to confirm the arbitration award? The answer is ‘yes.’ ”
He explained:
“[V]acating or correcting an arbitration award is the flip side of the same coin as confirming that award: If it isn’t heads, it has to be tails; if an award cannot be vacated or corrected, it must be confirmed.”
Appeals Court
The Court of Appeal may not come to Sisyphian’s rescue, under the opinion. Hoffstadt said:
“Sisyphian’s failure to timely file a petition or response seeking to vacate or correct that award before the trial court deprives us of the ability to consider its arguments on appeal seeking to vacate or correct that award….A party who has missed the Act’s carefully crafted deadlines has sacrificed its right to seek to vacate or correct the arbitration award before the trial court; were we permitted to consider the arguments in support of vacating or correcting the award on appeal, we would empower parties to resurrect that right by the simple expedient of appealing from the judgment confirming the award.”
He added:
“[W]ere we to sanction this power to resurrect, we would be creating a blueprint for prolonging postarbitration litigation in derogation of the Act’s purpose of minimizing—not maximizing—such litigation.”
In an unpublished portion of the opinion, Hoffstadt found that Darby is entitled to an award of attorney fees on appeal.
The case is Darby v. Sisyphian, LLC, 2023 S.O.S 365.
San Diego lawyers Stacey Y. Mouton and Clifford H. Young represented Darby and Westwood attorneys
Jeffrey M. Cohon and Kristina S. Keller acted for Sisyphian.
Copyright 2023, Metropolitan News Company