Cooper Investors Properties v. Chen CA2/1 ( 2021 )

Filed 10/18/21 Cooper Investors Properties v. Chen 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
COOPER INVESTORS B309081
PROPERTIES, LLC,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. KC069858)
v.
RAYMOND CHEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gloria White-Brown, Judge. Affirmed in
part, reversed in part, and remanded with instructions.
Law Offices of Gary Hollingsworth and Gary Hollingsworth
for Defendant and Appellant.
Bower & Associates, Leslie A. Bower and Jeffrey D. Montez
for Plaintiff and Respondent.
____________________________
In April 2013, defendant and appellant Raymond Chen
(Chen) entered into a five-year-and-two-month lease for space at
a shopping mall for his restaurant. In February 2014, Chen
assigned the lease to another tenant and secured the written
consent of the landlord to do so. Later that year, plaintiff and
respondent Cooper Investors Properties, LLC, (Cooper) acquired
the property subject to the lease, thereby becoming the landlord.
In October 2014, the tenant to whom Chen had assigned the lease
attempted to assign the lease to new tenants, but the parties to
that transaction failed to acquire Cooper’s consent to this
assignment. The new tenants nonetheless moved into the
premises in November 2014, but abandoned the premises in
August 2015. Cooper later entered into a new lease with yet
another tenant for a term that began in March 2016 and ended in
March 2021.
Cooper initiated the instant proceedings by filing suit
against Chen for breach of contract, alleging that Chen was liable
for the other tenants’ failure to pay all rent due and for their
abandonment of the premises. The trial court later stayed the
action to allow Cooper and Chen to arbitrate their dispute in
accordance with an arbitration provision in the lease. The
arbitrator issued a final award that ordered: (a) Chen to pay
Cooper $132,816.95 in damages, along with attorney fees,
interest, and costs; and (b) Cooper to return Chen’s table sets to
him.
Cooper moved to confirm the arbitration award, including
the provision requiring return of the table sets to Chen. Chen
opposed the motion, arguing the arbitrator exceeded his
authority in various respects, and that the entirety of the award
was unenforceable because Cooper admitted that it lost Chen’s
2
table sets. The trial court rejected Chen’s arguments, corrected
the award by striking the provision concerning the table sets, and
confirmed the award as corrected.
On appeal, Chen reiterates his contentions that the
arbitrator exceeded his authority, and that Cooper’s inability to
return the table sets to him renders the whole award
unenforceable. We reject Chen’s challenges to the arbitrator’s
authority because he failed to request an order of vacatur or
correction within 100 days of service of the award. We also
conclude the trial court lacked statutory authority to strike the
provision regarding Chen’s table sets because Cooper likewise
did not file and serve a timely request to vacate or correct the
award. Consequently, we reverse the judgment to the extent it
corrected the award, affirm the remainder of the judgment, and
remand the matter to the trial court with instructions to issue a
new judgment confirming the entirety of the arbitrator’s award.
Because the parties apparently agree the table sets are missing,
upon request, the trial court may determine the value of the table
sets and whether that value serves as an offset to the arbitrator’s
award.
FACTUAL AND PROCEDURAL BACKGROUND1
We summarize only those facts relevant to this appeal.
1 Our factual and procedural background is derived in part
from undisputed aspects of the trial court’s ruling on Cooper’s
motion to confirm, the arbitration award, and the parties’
briefing. (See Standard of Review, post [noting that the trial
court’s ruling and the arbitrator’s award are presumed to be
correct]; see also Baxter v. State Teachers’ Retirement System
(2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of
facts provided in the trial court’s ruling]; Artal v. Allen (2003)
3
In April 2013, America West Investment, Inc. (AWI) and
Chen executed a lease for space to operate a restaurant at the
Seasons Place Shopping Center in the City of Industry. The lease
had a term of five years two months, and was scheduled to expire
on June 30, 2018. The lease provided that it could not be
assigned without the lessor’s prior written consent, and imposed
a late fee for rent not received by the lessor within five days after
it was due. The lease also included a provision requiring the
parties to submit their disputes to binding arbitration.
On July 1, 2013, Chen opened his restaurant to the public.
On February 1, 2014, Chen assigned the lease to Ming
Yang (Yang). In consenting to Chen’s assignment to Yang, AWI
stated it did “ ‘not release Chen from liability for any obligations
as Lessee under the Lease.’ ” Cooper purchased the Seasons
Place Shopping Center from AWI in 2014, thereby becoming
AWI’s successor in interest under the lease.
After Cooper acquired the premises, Yang executed an
assignment of the lease to Haibo Dai and Fengli Xi on
October 28, 2014; the assignment became effective on
November 1, 2014. Cooper did not consent to this new
assignment. Dai and Xi occupied the premises and made certain
rent payments to Cooper from November 14, 2014 through
August 10, 2015, but abandoned the property shortly thereafter.
Cooper subsequently leased the premises to Meng Han (Han),
effective March 15, 2016 through March 14, 2021 at a lower
monthly base rate than that charged in the lease Chen had
111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and argument . . . are
reliable indications of a party’s position on the facts as well as the
law, and a reviewing court may make use of statements therein
as admissions against the party. [Citations.]’ [Citations.]”].)
4
executed with AWI.2 Chen testified during the arbitration
proceedings that Cooper did not give him notice that he owed a
sum, augmented by late fees, for failing to pay rent owed after he
had assigned his interest in the lease to Yang.
On December 4, 2017, Cooper filed a complaint that alleged
a cause of action for breach of contract against Chen and Yang for
unpaid rent and vacating the premises prior to the expiration of
the lease.3 Cooper sought, inter alia, damages (including unpaid
rent and late charges) accrued from August 2015 to March 2016
in the amount of $56,510.13.
On January 30, 2018, Yang’s default was entered.
On March 1, 2018, the trial court stayed the action
pursuant to a stipulation by Cooper and Chen to submit their
dispute to binding arbitration.
On August 28, 2018, Cooper filed with Judicial Arbitration
and Mediation Services (JAMS) a demand for arbitration that
once again sought damages accrued from August 2015 to
2 Whereas the lease Chen executed set the monthly base
rent at $5,636.99 as of July 1, 2015, $5,806.10 as of July 1, 2016,
and $5,980.28 as of July 1, 2017, Han’s lease obligated him to pay
a monthly base rent of $3,748 from March 15, 2016 through
March 14, 2021.
Additionally, we disregard Chen’s assertion that Han
“already started occupying the premises in February 2016”
because he does not support that assertion with any citation to
the record. (See Fierro v. Landry’s Restaurant Inc. (2019)
32 Cal.App.5th 276, 281, fn. 5 (Fierro) [holding that “we are
unable to accept counsel’s argument on appeal as facts” and that
“ ‘unsworn averments in a memorandum of law prepared by
counsel do not constitute evidence’ ”].)
3 Yang is not a party to this appeal.
5
March 2016 in the amount of $56,510.13. The arbitrator
conducted an evidentiary hearing on June 6 and 7, 2019.
On September 11, 2019, the arbitrator issued a final award
that made the following findings and orders in the conclusion
section of the document: “1. [Cooper] proved by a preponderance
of the evidence that Chen breached the Lease by failing to pay all
rent and related amounts due during the term of the Lease. [¶]
2. [Cooper] is entitled to $132,816.95 in damages. [¶] 3. [Cooper]
shall return to Chen his table sets. [¶] 4. [Cooper] is the
prevailing party in this arbitration. [¶] 5. [Cooper] is awarded
$36,533.75 in attorney’s fees, $22,876.45 in costs and $31,406 in
prejudgment interest. [¶] 6. Judgment shall be entered in favor
of [Cooper] and against Chen.” With regard to paragraph two of
the conclusion, the arbitrator found that Chen was liable for
damages accrued from August 2015 through the end of the lease
term (i.e., June 30, 2018). Accompanying the final award is a
signed proof of service form indicating that on
September 12, 2019, a JAMS employee served copies of the
signed award on the parties’ respective counsel via e-mail and
U.S. mail.
On December 18, 2019, Cooper filed and served a motion to
confirm the final award, including the provision requiring Cooper
to return Chen’s table sets to him.4 On July 6, 2020, Chen filed
4 Although the copy of the notice of motion provided in the
appellant’s appendix bears a stamp (but not a file stamp) dated
December 19, 2019, the version of the notice of motion included in
the respondent’s appendix bears an electronic file stamp showing
that Cooper actually filed the motion on December 18, 2019.
Indeed, the index accompanying the appellant’s appendix reflects
that the motion was filed on December 18, 2019.
6
his opposition.5 Chen maintained the arbitrator exceeded his
powers in awarding damages above the amount sought in
Cooper’s complaint and demand for arbitration, the arbitration
award ignored the requirement that a tenant be given notice and
an opportunity to cure a default of a lease, the arbitration award
was based on “[m]isleading [a]ccounting by Cooper,” and the
award was void because it required an impossible act—i.e., the
return of table sets that Cooper had lost. (Boldface omitted.)
On July 15, 2020, Cooper filed its reply brief, arguing, inter alia,
that, “[i]f anything, the requirement that the table sets be
returned should be stricken because they in no way are connected
to the amount of damages awarded Cooper (otherwise, logically,
[the arbitrator] would have reduced Cooper’s damages award by
the amount of the table sets).”
The trial court heard Cooper’s motion to confirm on
July 22, 2020. Later that day, the court issued a ruling that
corrected the arbitration award by striking paragraph three of
the conclusion, and confirmed the award as corrected. In its
ruling, the court elected to consider the merits of Chen’s
opposition to the motion even though the court found it was
untimely. The court found that Cooper provided sufficient notice
to Chen of the amount of damages sought in discovery responses
that Cooper served on Chen during the arbitration proceedings.
The court’s decision to correct the award to strike the
provision requiring Cooper to return the table sets to Chen was
5 Although the trial court found that Chen filed his
opposition on July 6, 2020, the index to the appellant’s appendix
indicates Chen filed this document on July 8, 2020. This
discrepancy has no impact on our resolution of the instant
appeal.
7
predicated on the court’s finding that “[t]he issue of the table
sets . . . was not submitted to the Arbitrator and is clearly
severable.” Specifically, the court found that “Chen never filed a
cross-complaint or counter-demand for arbitration and never
requested reimbursement for any table sets at any point.”
The court seems to have disposed of the remainder of
Chen’s arguments on the ground that “ ‘Arbitrators do not exceed
their powers [for the purposes of the statutory scheme governing
the confirmation of awards] by reaching erroneous factual or
legal conclusions on the merits of the parties’ claims, even if the
award causes substantial injustice to one of the parties.’
[Citation.]”
On September 17, 2020, the trial court issued a judgment
in favor of Cooper and against Chen in accordance with the
court’s ruling on Cooper’s motion to confirm the arbitration
award. Also on that date, the trial court entered a default
judgment in favor of Cooper and against Yang in the amount of
$86,374.33. Chen timely appealed the judgment entered against
him.
STANDARD OF REVIEW
In reviewing a trial court’s ruling on a motion to confirm an
arbitration award, “ ‘we affirm the [trial court’s factual] findings
if they are supported by substantial evidence,’ ” but insofar as
“ ‘the trial court resolved questions of law on undisputed facts,
we review the trial court’s rulings de novo.’ [Citation.]” (See
Rivera v. Shivers (2020) 54 Cal.App.5th 82, 89 (Rivera).) Because
“neither party disputes the facts in the record” that are
dispositive of the instant appeal, our review is de novo. (See
ibid.; Discussion, parts A–B, post.)
8
Further, the arbitrator’s award is presumed to be correct,
and the party challenging the award bears the burden of
affirmatively establishing error therein. (See Rivera, supra,
54 Cal.App.5th at p. 94 [“ ‘Every reasonable intendment is
indulged to give effect to arbitration proceedings; the burden is
on the party attacking the award to affirmatively establish the
existence of error by a proper record.’ [Citation.]”].) Likewise,
“the trial court’s judgment is presumed correct” and “the
appellant bears the burden to affirmatively demonstrate
error . . . .” (See Shenouda v. Veterinary Medical Bd. (2018)
27 Cal.App.5th 500, 512, 513–514 (Shenouda).) The appellant
must bear this burden even when the de novo standard of review
applies. (See Orange County Water Dist. v. Sabic Innovative
Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, 399 [indicating
that an appellant must affirmatively show the trial court erred
even if the de novo standard of review applies].)
DISCUSSION
Code of Civil Procedure6 section 1286 provides in pertinent
part: “If a petition or response under this chapter [governing the
enforcement of arbitration awards] is duly served and filed, the
court shall confirm the award as made, . . . unless in accordance
with this chapter it corrects the award and confirms it as
corrected, vacates the award or dismisses the proceedings.” (See
§ 1286.) Under this statute, so long as the petition to confirm is
duly served and filed, “confirmation of an arbitration award ‘is
the mandatory outcome absent the correction or vacatur of the
award or the dismissal of the petition.’ [Citation.]” (See
6Undesignated statutory citations are to the Code of Civil
Procedure.
9
Law Finance Group, LLC v. Key (2021) 67 Cal.App.5th 307, 325
(Law Finance Group, LLC), petn. for review pending, petn. filed
Sept. 8, 2021, S270798.)
Here, the trial court explicitly found that Cooper had
timely served Chen with the motion to confirm the arbitration
award. Furthermore, by confirming the award, the court tacitly
concluded that the motion otherwise satisfied the requirement
that it was “duly served and filed” for the purposes of
section 1286. (See Yu v. University of La Verne (2011)
196 Cal.App.4th 779, 787 [“ ‘ “All intendments and presumptions
are indulged to support [a trial court’s order or judgment] on
matters as to which the record is silent . . . .” ’ [Citation.]”].)
Because neither party contests these findings, we presume they
are correct. (See Shenouda, supra, 27 Cal.App.5th at p. 512
[“Because judgments of the trial court are presumed to be correct,
the appellant bears the burden to affirmatively demonstrate
error . . . .”].) Consequently, the trial court was required to
confirm the arbitrator’s award in its entirety unless the award
was subject to vacatur or correction. (See Law Finance Group,
LLC, supra, 67 Cal.App.5th at p. 325, petn. for review pending.)
As discussed below, Chen could not seek a ruling vacating
the arbitration award because his opposition was untimely and
he did not file a petition to vacate or correct the award.
Similarly, we conclude the trial court lacked the authority to
correct the award because Cooper did not make a timely request
to correct or vacate it. Accordingly, the trial court erred in
striking paragraph three of the conclusion section of the award
regarding the table sets. Thus, we remand and instruct the trial
court to confirm the award in its entirety, although the parties
10
may request the trial court to value the table sets and determine
whether that value should be offset against the arbitral award.
A. Chen Did Not File a Timely Request To Vacate or
Correct the Arbitration Award
Chen “seeks to vacate [the trial court’s] judgment on the
grounds that the arbitration award the judgment is based on
did not comply with the requirements for enforcement of an
arbitration award under [section] 1286.2, in that the arbitrator
exceeded his powers in rendering an award in excess of the
damages claimed in the submission by the parties to the
arbitration, without due notice to . . . Chen . . . .” Chen further
contends the arbitrator “exceeded his power” by “ignor[ing] the
requirement” that the landlord provide Chen with notice and an
opportunity to cure any default, and by issuing an award that
was “based on” Cooper’s “misleading accounting.” (Capitalization
& boldface omitted.) In essence, Chen is arguing the trial court
erred in declining to exercise its authority under section 1286.2 to
vacate the arbitration award.7 (See § 1286.2, subd. (a)(4)
[“Subject to Section 1286.4, the court shall vacate the award if
the court determines any of the following: [¶] . . . [¶] (4) The
arbitrators exceeded their powers and the award cannot be
7 Chen also argues in passing that the arbitrator was
“biased in favor of” Cooper and against Chen, and that the
arbitrator “pre-judged the outcome.” We disregard any such
claim of error because Chen does not adequately develop it in
his briefing. (See Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277 (Hernandez) [“ ‘When an appellant raises
an issue “but fails to support it with reasoned argument and
citations to authority, we treat the point as waived. [Citations.]”
[Citation.]’ [Citation.]”.)
11
corrected without affecting the merits of the decision upon the
controversy submitted.”].)
Section 1286.4 provides that a trial court “may not vacate”
an arbitration award unless: “(a) A petition or response
requesting that 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; [¶] (1) All
petitioners and respondents are before the court; or [¶] (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 been
given an opportunity to show why the award should not be
vacated.” (See § 1286.4.)
Sections 1288 and 1288.2 govern the timeliness of requests
to vacate or correct an arbitration award. Section 1288 provides
in pertinent part: “A petition to vacate an award or to correct an
award shall be served and filed not later than 100 days after the
date of the service of a signed copy of the award on the
petitioner.” (§ 1288.) Similarly, section 1288.2 states that if the
person filing a response “was a party to the arbitration,” then “[a]
response requesting that an award be vacated or that an award
be corrected shall be served and filed not later than 100 days
after the date of service of a signed copy of the award” on that
person. (See § 1288.2.) Section 1283.6 in turn requires the
arbitrator to “serve a signed copy of the award on each party to
the arbitration personally or by registered or certified mail or as
provided in the agreement.” (See § 1283.6.)
On the other hand, section 1290.6 provides in pertinent
part: “A response shall be served and filed within 10 days after
12
service of the petition . . . . The time provided in this section 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.” (§ 1290.6.)
Division Two of this court found “[t]here is nothing in the
statutory scheme suggesting that the Legislature intended the
procedural rule in section 1290.6 governing all responses to take
precedence over the firm time limitation in section 1288.2 . . . .”
(See Law Finance Group, LLC, supra, 67 Cal.App.5th at p. 319,
petn. for review pending.) Thus, in order to secure a ruling
vacating an arbitration award, the response “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.” (See ibid.) Law
Finance Group, LLC further held that section 1288’s and
section 1288.2’s “100-day deadline” is a jurisdictional limitation
on the trial court’s authority to vacate an award. (See id. at
pp. 313, 322–324, petn. for review pending; see also Santa
Monica College Faculty Assn. v. Santa Monica Community
College Dist. (2015) 243 Cal.App.4th 538, 544–545 [“The filing
and service deadline for a petition to vacate is jurisdictional;
noncompliance deprives a court of the power to vacate an award
unless the party has timely requested vacation in response to a
petition to confirm,” citing, inter alia, § 1286.4, subds. (a)–(b)].)
In this case, the record contains a proof of service form
indicating that a signed copy of the arbitration award was served
on the parties’ respective counsel by e-mail and U.S. mail on
September 12, 2019. In the award, the arbitrator stated that “the
JAMS Streamlined Arbitration Rules and Procedures govern[ed]
this arbitration” (JAMS Streamlined Rules). Under rule 19(h) of
the JAMS Streamlined Rules, “[s]ervice [of the award] may be
13
made by U.S. mail,” and [i]t need not be sent” via “certified or
registered” mail.8 Accordingly, Chen could request an order
vacating or correcting the arbitration award no later than 100
days from September 12, 2019. (See Law Finance Group, LLC,
supra, 67 Cal.App.5th at p. 319, petn. for review pending;
Davis v. Calaway (1975) 48 Cal.App.3d 309, 310–311 & fn. 1
[indicating that service of an award is proper under
section 1283.6 it if satisfies “[t]he rules . . . pursuant to which
[the] arbitration was conducted”].)
Chen does not claim to have filed a petition to vacate or
correct the award, and no such petition appears in the record
before us. Chen filed his opposition to the motion to confirm on
July 6, 2020—298 days after he was served with the arbitrator’s
award. It follows that Chen failed to comply with section 1288’s
and section 1288.2’s 100-day deadline to request an order
correcting or vacating the arbitration award, and that
section 1286.4 barred the trial court from vacating the award.9
8 Chen does not dispute Cooper’s assertion that the version
of the JAMS Streamlined Rules included in the respondent’s
appendix governed the proceedings before the arbitrator. (See
also Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77,
89–90 [concluding that the appellants made an implicit
concession by “failing to respond in their reply brief to the
[respondent’s] argument on th[at] point”].)
9 Rule 19(j) of the JAMS Streamlined Rules provides that
“[t]he Award is considered final, for purposes of judicial
proceeding to enforce, modify or vacate the Award . . . fourteen
(14) calendar days after service is deemed effective if no request
for a correction is made, or as of the effective date of service of a
corrected Award.” (Neither party claims to have asked the
arbitrator to correct the award.) Even if rule 19(j) added 14 days
14
We note that in its ruling, the trial court nonetheless found
it had the discretion to reach the merits of Chen’s challenges to
the arbitrator’s award. (Citing Ruiz v. Moss Bros. Auto Group,
Inc. (2014) 232 Cal.App.4th 836, 847.) In Ruiz, the Court of
Appeal held that a trial court did not err in considering a
response to a petition to compel arbitration that did not comply
with section 1290.6’s “10-day time period.” (See Ruiz at pp. 838,
846–847.) In contrast, section 1288.2 is a “jurisdictional
deadline” on a trial court’s power to vacate an arbitration award
(see Law Finance Group, LLC, supra, 67 Cal.App.5th at p. 323,
petn. for review pending), one which—unlike section 1290.6—
does not include any language authorizing a court to excuse
noncompliance therewith. (Compare § 1290.6 [providing that an
“order of the court” may “extend[ ]” that statute’s deadline “for
good cause”] with § 1288.2 [omitting any such language].)
Therefore, the trial court should not have entertained
Chen’s arguments that the arbitrator exceeded his power (i.e., the
arguments that we summarized at the outset of this section).10
(See Law Finance Group, LLC, supra, 67 Cal.App.5th at pp. 312–
313 [holding that the because the defendant failed to adhere to
to the 100-day deadline, Chen’s opposition would still be untimely
because he filed it well beyond that extended deadline.
10 We may affirm the judgment confirming the arbitrator’s
award for a reason that differs from those articulated by the trial
court, to wit, that Chen failed to comply with section 1286.4
because he did not file a timely petition or response seeking an
order vacating or correcting the award. (Young v. Fish & Game
Com. (2018) 24 Cal.App.5th 1178, 1192–1193 [“[I]t is a settled
appellate principle that if a judgment is correct on any theory,
the appellate court will affirm it regardless of the trial court’s
reasoning.”].)
15
section 1288’s and section 1288.2’s 100-day deadline, the trial
court had to confirm the arbitration award without considering
the defendant’s request to vacate it], petn. for review pending.)
B. The Trial Court Lacked the Authority to Correct the
Arbitration Award
At our request, the parties submitted letter briefs
addressing “[w]hat impact, if any, do Code of Civil Procedure
sections 1286.8, 1288, and 1288.2 have on the trial court’s ability
to correct the final award to strike the provision requiring Cooper
to return Chen’s table sets to him?” (Fn. omitted.) For the
reasons discussed below, we conclude that Cooper’s failure to
comply with these provisions barred the trial court from
correcting the award.
Just as section 1286.4 conditions a trial court’s power to
vacate an arbitration award on the timely filing and service of a
petition or response requesting that the award be corrected or
vacated, section 1286.8 likewise requires the timely filing and
service of such a petition or response before the court may correct
an award. (See Discussion, part A, ante [quoting portions of
§ 1286.4]; § 1286.8 [“The court may not correct an award unless:
[¶] (a) A petition or response requesting that the award be
corrected has been duly served and filed; or [¶] (b) A petition or
response requesting that the award be vacated has been duly
served and filed and [certain other conditions have been
satisfied.]”].) Accordingly, the trial court could not correct the
award unless a request to vacate or correct the award was filed
and served within 100 days of service of the arbitration award.
(See §§ 1288, 1288.2; see also MacDonald v. San Diego State
University (1980) 111 Cal.App.3d 67, 70, 73, 79–81 (MacDonald)
[reversing the part of a judgment that corrected an arbitration
16
award by deleting a provision that awarded a school official
$5,000 in compensatory damages and legal fees because the
defendant’s request for correction was untimely under section
1288.2].)
As we explained in Discussion, part A, ante, the arbitration
award was served on Cooper and Chen on September 12, 2019.
Although Cooper filed and served its motion to confirm the
arbitration award on December 18, 2019 (i.e., 97 days after
service of the award), Cooper did not request an order vacating or
correcting the award in its motion. In fact, Cooper’s motion
sought an order confirming, inter alia, the arbitrator’s award
requiring Cooper to “return to Chen his table sets.” The record
reveals Cooper suggested for the first time in its reply brief that
the portion of the award requiring Cooper to return Chen’s table
sets should have been stricken.11 Even if Cooper’s reply
somehow constituted “[a] response requesting that . . . an award
be corrected” for the purposes of section 1288.2, it would be
untimely because Cooper filed it on July 15, 2020, which was 307
days after Cooper was served with a signed copy of the
arbitration award.12 Consequently, the trial court lacked the
11 Insofar as Chen’s opposition could be construed as a
request to vacate the award because Chen argued therein that
the award was void on account of Cooper’s inability to return the
table sets, the opposition was nonetheless untimely for the
reasons addressed in Discussion, part A, ante. Therefore, Chen’s
filing and service of his opposition did not authorize the trial
court to correct the award under section 1286.8.
12 Even if Cooper’s 100-day deadline for requesting an
order to correct the award were extended by 14 days in
accordance with rule 19(j) of the JAMS Streamlined Rules (see
fn. 9, ante), its request would still be untimely.
17
statutory authority to strike the provision requiring Cooper to
return Chen’s table sets to him. (See §§ 1286.4, 1288, 1288.2; see
also MacDonald, supra, 111 Cal.App.3d at pp. 79–81.)
In its supplemental brief, Cooper concedes that “the trial
court’s correction of the Arbitration Award was beyond its
jurisdiction under . . . sections 1286.8, 1288, and 1288.2,” yet it
argues “the correction must stand on equitable grounds.”
(Boldface & underscoring omitted.) Cooper points out that the
Law Finance Group, LLC court “kept the door open for a
potential exception to the 100-day deadline on equitable
grounds,” and argues that exception applies here because “[b]oth
parties had the opportunity to brief and be heard on the issue o[f]
vacating or correcting the award regarding the table sets without
objection.” (Boldface & underscoring omitted.) This argument is
unpersuasive.
In Law Finance Group, LLC, the Court of Appeal stated:
“Even assuming (without deciding) that there could be situations
in which a party’s failure to comply with the 100-day rule may be
excused on equitable grounds, this is not one of them.” (Supra,
67 Cal.App.5th at p. 321, petn. for review pending.) The court
explained the defendant could not invoke equitable estoppel or
equitable tolling to excuse her noncompliance with the 100-day
rule because the defendant’s “claimed reliance on [the plaintiff’s]
purported agreement to extend the 100-day deadline was not
objectively reasonable . . . .” (See id. at pp. 321–324 & fn. 10,
petn. for review pending.)
Even if we also assumed for the sake of argument that the
100-day deadline could be extended on equitable grounds, Cooper
has not shown its entitlement to any such relief. As we noted
above, Cooper’s motion sought confirmation of the provision
18
requiring it to “return to Chen his table sets.” Further, although
Chen’s opposition argued that this provision of the award was
unenforceable, his opposition was untimely (see Discussion,
part A, ante), and Cooper could not have reasonably believed the
trial court was authorized to consider Chen’s belated argument or
Cooper’s rebuttal that the provision should be stricken. (See
Law Finance Group, LLC, supra, 67 Cal.App.5th at p. 324 [“For
purposes of estoppel claims, ‘ “attorneys are ‘charged with
knowledge of the law in California.’ ” ’ [Citation.] [The defendant]
was therefore charged with the knowledge that the 100-day
deadline is jurisdictional and could not be waived or extended by
agreement.”], petn. for review pending.) Under these
circumstances, Cooper did not act reasonably when it failed to file
and serve a timely request to correct the award. It follows that
equitable estoppel and equitable tolling are not available to
Cooper. Because Cooper does not identify any other potentially
applicable equitable doctrine for excusing its noncompliance with
the 100-day deadline, we do not address this issue further. (See
also Pack v. Kings County Human Services Agency (2001)
89 Cal.App.4th 821, 826–827, fn. 5 [“ ‘Although it is the
appellant’s task to show error, there is a corresponding obligation
on the part of the respondent to aid the appellate court in
sustaining the judgment. “[I]t is as much the duty of the
respondent to assist the [appellate] court upon the appeal as it is
to properly present a case in the first instance, in the court
below.” [Citations.]’ [Citation.]”].)
Next, Chen insists that because Cooper “admitted” during
the trial court proceedings that “it cannot return the table sets,
because they have been lost for reasons [Cooper] cannot explain,”
“and there is no way to value the table sets, . . . the entire award
19
is unenforceable.”13 Chen seems to argue that because the
portion of the award requiring the return of the table sets
“requires an impossible act,” the award is not “ ‘final’ for
confirmation purposes.”
Assuming arguendo that the entirety of an arbitration
award cannot be confirmed if a portion of it is unenforceable,
Chen has not shown that to be the case here. A judgment
confirming an arbitration award “may be enforced like any other
judgment of the court in which it is entered, in an action of the
same jurisdictional classification.”14 (See § 1287.4.) “A judgment
for possession of personal property may be enforced by a writ of
possession of personal property . . . .” (See § 714.010, subd. (a).)
The statutory scheme governing writs of possession provides that
“[i]f the property specified in the writ of possession cannot be
taken into custody,” then “the judgment for the possession of the
property may be enforced in the same manner as a money
judgment for the value of the property as specified in the
judgment or a supplemental order.” (See § 714.020, subd. (b).)
Hence, the mere fact that Cooper no longer possesses the table
sets does not, in and of itself, render enforcement of the award
impossible.
13 During the proceedings below, Cooper conceded in its
reply that “it could not locate the marble table sets . . . .” Cooper
intimated that one of the other occupants of the premises may
have taken the table sets after Chen assigned the lease to Yang.
14 The complaint identified the instant matter as an
unlimited civil case, and Chen does not dispute that
classification. (See § 32.5 [“The ‘jurisdictional classification’ of a
case means its classification as a limited civil case or an
unlimited civil case.”].)
20
Further, Chen’s assertion that “there is no way to value the
table sets” fails because he does not support it with any citation
to the record.15 (See Fierro, supra, 32 Cal.App.5th at p. 281, fn. 5
[holding that “we are unable to accept counsel’s argument on
appeal as facts” and that “ ‘unsworn averments in a
memorandum of law prepared by counsel do not constitute
evidence’ ”].) Additionally, this assertion is belied by the
arbitrator’s observation—which Chen does not dispute—that
Chen “testified that he spent $28,000 for 28 marble table sets and
the labor to install them at the premises . . . .”16 As a result, we
15 Chen argues for the first time in his reply that the table
sets “were custom made and unique.” The portion of the record
Chen cites for that proposition, however, merely shows that the
arbitrator ordered Cooper to return Chen’s table sets. We thus
disregard this argument as untimely and unsupported by any
citation to the record. (See Hernandez, supra, 37 Cal.App.5th at
p. 277 [“ ‘[T]o demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ [Citation.]” . . . [¶] . . . “ ‘[W]e
will not ordinarily consider issues raised for the first time in a
reply brief.’ [Citation.]”].)
16 Cooper points out the arbitrator found Chen “ ‘offered no
documentary evidence to verify’ ” his testimony that he spent
$28,000 on the table sets. That fact alone would not preclude
Chen from establishing the value of the table sets in a proceeding
to enforce the judgment. (See OCM Principal Opportunities
Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th
835, 876 [“ ‘The opinion of an owner of personal property is in
itself competent evidence of the value of that property, and
sufficient to support a judgment based on that value. [Citations.]
“The credit and weight to be given such evidence and its effect . . .
is for the trier of fact.” [Citation.]’ [Citation.]”].)
21
reject Chen’s contention that the arbitrator’s ruling concerning
the table sets prevented the trial court from confirming the
award.
We acknowledge that allowing this provision to remain in
the arbitration award seems anomalous given that it appears the
table sets are not in Cooper’s possession. Indeed, the parties
apparently concede that Cooper does not have the table sets. In
the interests of judicial economy, the parties should request
that the trial court: (a) Set the value of the table sets, and
(b) determine whether that value should be offset against the
arbitral monetary award to Cooper. We express no opinion on
the value of the table sets or whether there would be a defense to
such an offset.
In conclusion, the trial court erred in correcting the
arbitration award to strike the order that Cooper return the table
sets to Chen. Because the parties have not shown that the
proceedings should have been dismissed or that the trial court
had the authority to vacate or correct the award, the court must
confirm the award in its entirety on remand. (See § 1286;
Law Finance Group, LLC, supra, 67 Cal.App.5th at p. 325,
petn. for review pending.)
22
DISPOSITION
We reverse the judgment to the extent it corrected the
arbitration award, affirm the remainder of the judgment, and
remand this matter to the trial court with instructions to issue a
judgment confirming the award in its entirety. Upon remand,
and upon request, the trial court may value the table sets and
consider whether that value serves as an offset to the arbitral
award. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
23