Moradian v. Rideshare Port Management CA2/3 ( 2021 )

Filed 12/2/21 Moradian v. Rideshare Port Management CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 THREE
RAYMOND MORADIAN, B301784
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BC496400
v.
RIDESHARE PORT
MANAGEMENT, LLC, et al.,
Defendants and Appellants.
APPEAL from a judgment and orders of the Superior Court
of Los Angeles County, Kenneth R. Freeman, Judge. Judgment
and orders affirmed; appeals dismissed.
Koletsky, Mancini, Feldman & Morrow, Jason N. Cirlin
and Kristyn J. Mintesnot for Defendants and Appellants.
Capstone Law, Ryan H. Wu, Liana Carter and Robert
Drexler; The Hamideh Firm and Basil A. Hamideh for Plaintiff
and Respondent.
_________________________
Defendants Rideshare Port Management, LLC (Rideshare),
Prime Time Shuttle, Inc. (Prime Time), Airport Transportation
Associates, LLC (Airport Transportation), Red Vans Management
Services, Inc. (Red Vans), and Rattan Joea appeal a judgment
confirming an arbitration award in favor of plaintiff Raymond
Moradian and other post-judgment orders.
The trial court vacated the judgment against Rideshare
and Prime Time, concluding a bankruptcy stay protected them
from state court action. Because they are not subject to the
judgment, Rideshare and Prime Time are not proper parties
to this appeal, and we must dismiss their appeal accordingly.
As for the remaining defendants, the record shows they
failed to petition to vacate the arbitration award within the
100-day period mandated under Code of Civil Procedure sections
1286.4, 1288, and 1288.2.1 Because their failure to comply with
this deadline deprived the trial court of jurisdiction to vacate the
award against them, the non-debtor defendants cannot establish
prejudicial error as a matter of law. We affirm the judgment
against the non-debtor defendants and the post-judgment orders.
FACTS AND PROCEDURAL HISTORY
Defendants operate the Prime Time Shuttle airport
transportation service.2 Moradian worked for defendants as
a shuttle van driver for over 200 workdays in 2011 and 2012.
On November 29, 2012, Moradian filed this action against
Rideshare, Prime Time, and Airport Transportation for alleged
1 Statutory references are to the Code of Civil Procedure,
unless otherwise designated.
2 Unless otherwise specified, the term “defendants” refers to
Rideshare, Prime Time, Airport Transportation, Red Vans, and
Joea, collectively.
2
Labor Code violations. He asserted a representative claim under
the Private Attorneys General Act (Lab. Code, § 2698 et seq.,
PAGA) and several causes of action in his personal capacity. The
complaint generally alleged defendants misclassified Moradian
and other non-exempt employees as independent contractors,
resulting in numerous wage and hour violations.
On September 12, 2013, Rideshare, Prime Time, and
Airport Transportation filed a motion to compel arbitration
and to stay the litigation. Joea (who was not named as a
defendant at the time) offered a supporting declaration in his
capacity as Managing Member of Rideshare, authenticating
an Owner-Operator Sub-Carrier Agreement between Rideshare
and Moradian. The agreement required arbitration of “any
controversy or claim between the parties” to be submitted
to arbitration under JAMS Rules of Practice and Procedure.
The agreement also stipulated that “if either party fails to appear
at any properly-noticed arbitration proceeding, an award may
be entered against such party despite said failure to appear.”
On November 20, 2013, the trial court granted defendants’
motion to compel arbitration of the individual claims, and
severed and stayed the PAGA claim pending completion
of the arbitration.
On June 9, 2014, Moradian submitted his demand and
statement of claims in arbitration, naming Rideshare, Prime
Time, and Airport Transportation as respondents. JAMS
assigned the arbitration to the Honorable Steven J. Stone (Ret.).
On June 29, 2016, after taking the deposition of Joea
(whom the arbitration respondents designated the person
most qualified to testify regarding the relevant labor practices),
3
Moradian amended his arbitration claim to name Red Vans
and Joea as respondents in the arbitration.
On February 28, 2017, defendants asked the arbitrator
to dismiss Joea from the action. Moradian opposed the request,
expressing concern that Joea could be using the entity defendants
as an alter ego to protect assets from an eventual judgment.
To resolve the issue, the arbitrator authorized Moradian to
propound a total of 15 discovery requests about the corporate
structure and financial status of each company.
On March 1, 2017, Moradian propounded written discovery
regarding the alter ego issues. On April 19, 2017, defendants
provided limited responses, refusing to disclose certain financial
information. Moradian sent a meet and confer letter requesting
supplemental responses. Defendants did not respond.
On June 5, 2017, the arbitrator notified the parties that
defendants’ arbitration fee payment was delinquent.
On July 11, 2017, Moradian moved to compel compliance
with the arbitrator’s discovery order.
On July 13, 2017, the arbitrator ordered defendants to pay
$44,228.84 in past-due arbitration fees, to provide supplemental
responses to Moradian’s discovery requests, and to produce
all financial documents requested within 10 calendar days.
Defendants did not pay the arbitration fees or supplement
their responses by the ordered deadline.
On August 10, 2017, Moradian moved for terminating
sanctions based on defendants’ violation of the arbitrator’s
orders.
On September 15, 2017, Moradian moved for a liability
finding. Relying on deposition testimony by Joea and other
defense witnesses, Moradian argued defendants had “failed to
4
overcome the presumption under California law that [Moradian]
was an employee rather than an independent contractor.”
The arbitrator ordered defendants to file a response to
Moradian’s pending motions by October 9, 2017. Defendants
failed to respond by the ordered deadline.
On October 10, 2017, the arbitrator granted defendants’
request for a one-week extension to submit responses to
Moradian’s motion to compel compliance with discovery,
motion for sanctions, and motion for a liability finding.
Despite receiving the extension, defendants failed to respond
to the pending motions.
On October 19, 2017, the arbitrator entered an order
granting Moradian’s request for a liability finding and award
against defendants. Citing evidence submitted with Moradian’s
request, the arbitrator found the nature of Moradian’s
relationship with defendants, defendants’ ability to terminate
the relationship, and defendants’ ability to control Moradian’s
work, among other factors, weighed in favor of finding an
employer-employee relationship. The arbitrator also found the
deposition testimony given by defendants’ designated witnesses
established the “different ‘companies’ [were] alter egos of the
other” and, “in the absence of ordered discovery” regarding their
financial relationships that defendants refused to provide, the
arbitrator concluded all defendants were jointly and severally
liable for the wage and hour violations. The arbitrator ordered
Moradian to submit briefing on damages and attorney fees
to determine the monetary amount of the award.
On October 25, 2017—six days after the arbitrator issued
its order finding defendants jointly and severally liable for
Moradian’s injuries—Rideshare filed for Chapter 11 bankruptcy
5
and provided notice to the trial court. On October 27, 2017,
the trial court entered a minute order acknowledging the case
(including the related arbitration) was automatically stayed
for all purposes.
On December 6, 2017, the bankruptcy court extended a
litigation injunction for non-debtor entities related to Rideshare,
including the four other defendants in this action. However, on
July 16, 2018, the bankruptcy court terminated the non-debtor
injunction in an order denying Rideshare’s motion to confirm its
plan of reorganization. The bankruptcy court found Rideshare’s
disclosure statement did not contain adequate information and
its plan for reorganization was “patently un-confirmable.”
On August 3, 2018, the trial court entered an order lifting
the stay on arbitration against the non-debtor defendants to
allow Moradian to “seek individual damages through the current
Arbitrator.” The order confirmed the “matter continues to be
stayed with respect to Rideshare.”
On November 9, 2018, Moradian submitted briefing on
damages and attorney fees to the arbitrator. The arbitrator
ordered the non-debtor defendants to submit their opposition
by November 27, 2018. The non-debtor defendants failed to
file a response.
On November 29, 2018, “to provide full due process to the
parties . . . [and] to provide the Parties an opportunity to verbally
express their views,” the arbitrator requested a conference call
with the parties. On January 14, 2019, the arbitrator held
the call. Defendants’ counsel and Joea appeared on defendants’
behalf. Defendants made no argument regarding the bankruptcy
and asserted only that they had no funds to pay a judgment.
6
On January 15, 2019, the arbitrator issued the final
arbitration award, awarding Moradian $121,519.31 for unpaid
wages, prejudgment interest, unreimbursed business expenses,
and statutory penalties, plus $1,000,000 in attorney fees and
$31,264.76 for litigation costs and expenses. On January 16,
2019, the arbitrator’s office served defendants with a signed
copy of the final arbitration award.
On February 8, 2019, Moradian filed a petition to
confirm the arbitration award in the trial court. The court
set defendants’ opposition deadline for March 28, 2019 and
the hearing on the petition for April 11, 2019 (71 and 85 days,
respectively, after defendants were served with the final
arbitration award). The court expressly admonished defendants
and their counsel about the consequences of failing to oppose
the petition: “If there is no opposition to this petition filed by
the hearing date, then there will be no reason not to confirm the
arbitration award. In other words, if you do nothing, the award
will be confirmed, and there will be a judgment.” Defendants’
counsel responded: “Understood.”
On April 8, 2019, Prime Time filed a voluntary petition
for Chapter 7 bankruptcy. Prime Time did not, however, notify
the trial court or Moradian of the automatic bankruptcy stay,
despite the requirement to do so under rule 3.650(b)(4) of the
California Rules of Court.3
Defendants never submitted an opposition or response to
Moradian’s petition to confirm the arbitration award. Nor did
they make an appearance at the April 11, 2019 hearing.
3 Rule references are to the California Rules of Court.
7
On April 11, 2019, the trial court granted Moradian’s
unopposed petition to confirm the arbitration award.4 The
court also “lifted [the stay] for Plaintiff to add parties added
in the arbitration” and granted Moradian leave to add those
respondents in the arbitration (Red Vans and Joea) who were
not named as defendants in the complaint. The court deferred
entry of judgment pending the resolution of Moradian’s PAGA
claims.
On April 19, 2019, Moradian filed doe amendments adding
Red Vans and Joea as named defendants in the action. Moradian
served Red Vans with the summons and complaint on May 23,
2019, and served Joea on May 27, 2019.
On April 23, 2019, the bankruptcy court denied Rideshare’s
motion to approve its amended disclosure statement with
prejudice and dismissed the bankruptcy case. On April 26, 2019,
4 In its written ruling, the court reviewed the statutory
grounds for vacating an arbitration award and found there was
“nothing before the Court which indicates the arbitrator exceeded
his powers; that the award was procured by fraud, corruption, or
other undue means; that the arbitrator was required to disqualify
himself; or that the Defendants’ right to challenge the award was
substantially prejudiced by the arbitrator’s refusal to postpone
the hearing.” In the absence of grounds to vacate or to modify
the award, the court recognized it was statutorily “compelled to
approve the award in its current form.” (See § 1286 [If a petition
to confirm an arbitration award “is duly served and filed, the
court shall confirm the award as made, whether rendered in
this state or another state, unless in accordance with this chapter
it corrects the award and confirms it as corrected, vacates the
award or dismisses the proceedings.”].)
8
Moradian notified the trial court of the dismissal and asked the
court to lift the bankruptcy stay for Rideshare.
On May 20, 2019, Prime Time’s Chapter 7 bankruptcy
case closed after the trustee determined there was “no property
available for distribution from the estate.”
On June 4, 2019, Moradian filed and served a request to
voluntarily dismiss his PAGA claim without prejudice in order
to have judgment entered on his individual claims.
On July 22, 2019, the trial court held a status conference.
Defendants’ counsel requested more time to consider options
for responding to the arbitration award and its confirmation.
The trial court rejected the request, stating defendants had
already had ample opportunity to contest the arbitration award.
The court granted Moradian’s request to dismiss his PAGA claim
and entered judgment on the arbitration award. Consistent with
the confirmed award, the judgment provided that Rideshare,
Prime Time, Airport Transportation, Red Vans, and Joea were
jointly and severally liable for Moradian’s damages, attorney fees,
and litigation costs.
On August 7, 2019, defendants filed notices of intention
to move for new trial and to vacate the judgment. On
August 20, 2019, they filed three motions: a motion to set aside
the judgment and enter a new judgment under section 663;
a motion to vacate the order confirming the arbitration award,
the decision to enter judgment, and the judgment under
section 473, subdivisions (b) and (d); and a motion for new trial
under section 657. The motions argued the arbitrator’s award
was contrary to the evidence and law; the attorney fee award
was excessive; the arbitrator exceeded his authority in issuing
the award; the automatic stay precluded litigation against
9
Rideshare and Prime Time while their bankruptcy petitions were
pending; judgment could not be entered against the non-debtor
defendants while the bankruptcy stay was in effect; and Red
Vans and Joea were not properly added to the state court action.
On October 4, 2019, after a hearing on the three motions,
the trial court entered its order partially granting the motion
to vacate the judgment under section 473 as to Rideshare and
Prime Time and denying the other motions as moot. Because
the arbitrator entered the final award while the automatic
bankruptcy stay enjoined litigation against Rideshare, the court
concluded “[t]he action taken by the arbitrator as to Rideshare
. . . was void” under federal law. Similarly, the court reasoned
its order confirming the arbitration award was void with respect
to Prime Time because, despite Prime Time’s failure to notify the
court of the bankruptcy, the automatic stay was “self-executing”
upon Prime Time filing its petition. However, because the
bankruptcy court had lifted the non-debtor injunction before
any of the challenged arbitration and state court proceedings
occurred, the court concluded there was “no reason” to vacate
the award, confirmation order, or judgment as to the non-debtor
defendants.
DISCUSSION
1. Rideshare and Prime Time Do Not Have Standing
to Appeal the Judgment or Post-Judgment Orders
Notwithstanding an appealable order or judgment, an
appeal may be taken only by a party who has standing to appeal.
(Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 (Sabi).)
The rule of appellate standing is codified in section 902,
which provides: “Any party aggrieved may appeal in the cases
prescribed” for appeals in a civil action. (Italics added.) A party
10
is aggrieved only if its “rights or interests are injuriously affected
by the judgment.” (County of Alameda v. Carleson (1971)
5 Cal.3d 730, 737 (Carleson); see also § 902, Code Commission
Notes [“A party not affected by a judgment cannot take an
appeal.”].) The injury “ ‘ “must be immediate, pecuniary, and
substantial and not nominal or a remote consequence of the
judgment.” ’ ” (Carleson, at p. 737.) The standing requirement
is jurisdictional. (Sabi, at p. 947.)
The trial court vacated the judgment and order confirming
the arbitration award against Rideshare and Prime Time,
granting their motion for relief under section 473. Because
these defendants are not parties affected by the judgment
or confirmation order, and because they are not aggrieved
by the order granting them the relief they requested, they
have no standing to appeal.5 Accordingly, we must dismiss
their appeal.6 (See Sabi, supra, 183 Cal.App.4th at p. 947.)
5 Rideshare and Prime Time also purport to appeal from
the order denying their new trial motion and several other
interlocutory orders. Like the interlocutory orders, “an order
denying a motion for new trial is not independently appealable
and may be reviewed only on appeal from the underlying
judgment.” (Walker v. Los Angeles County Metropolitan
Transportation Authority (2005) 35 Cal.4th 15, 19; cf. § 904.1,
subd. (a)(4) [order granting a new trial is appealable].) Because
Rideshare and Prime Time lack standing to appeal the judgment,
we also have no jurisdiction to consider their appeal from the
various orders listed in their notice of appeal.
6 Additionally, as Moradian emphasizes, the trial court’s
order partially vacating the judgment remanded the claims
against Rideshare and Prime Time to arbitration. Consequently,
there is no final judgment from which these defendants could
11
2. The Trial Court Did Not Err in Refusing to Vacate
the Judgment Against Red Vans and Joea
Red Vans and Joea contend the trial court was compelled to
vacate the judgment and dismiss the action against them under
section 583.250, because Moradian failed to serve them with
the summons and complaint within three years of commencing
the action. (See § 583.210.)7 They also argue dismissal was
appeal. (See Sy First Family Ltd. Partnership v. Cheung (1999)
70 Cal.App.4th 1334, 1345 [order remanding claims to arbitration
“constituted an interlocutory rather than a final ruling”]; Griset
v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697 [“an
appeal cannot be taken from a judgment that fails to complete
the disposition of all causes of action between the parties”].)
Moreover, because these defendants petitioned to compel
arbitration in the first place, they cannot reasonably contend
they are aggrieved by the court’s ruling returning the matter
to arbitration. (See Carleson, supra, 5 Cal.3d at p. 737.)
7 Section 583.210 provides: “(a) The summons and complaint
shall be served upon a defendant within three years after the
action is commenced against the defendant. For the purpose
of this subdivision, an action is commenced at the time the
complaint is filed. [¶] (b) Proof of service of the summons shall be
filed within 60 days after the time the summons and complaint
must be served upon a defendant.”
Under section 583.250, subdivision (a), “If service is not
made in an action within the time prescribed in this article: [¶]
(1) The action shall not be further prosecuted and no further
proceedings shall be held in the action. [¶] (2) The action shall
be dismissed by the court on its own motion or on motion of any
person interested in the action, whether named as a party or not,
after notice to the parties.” These requirements “are mandatory
and are not subject to extension, excuse, or exception except as
expressly provided by statute.” (§ 583.250, subd. (b).)
12
compelled under rule 3.110(b), because Moradian failed to file
proofs of service with the court within 30 days of adding them
as defendants to the action.8 We disagree on both counts.
Section 583.240 governs computation of the three-year
period for effecting service of process mandated under section
583.210. As pertinent here, section 583.240 provides: “In
computing the time within which service must be made pursuant
to this article, there shall be excluded the time during which
any of the following conditions existed: . . . (b) The prosecution
of the action or proceedings in the action was stayed and the stay
affected service.”
Red Vans and Joea emphasize Moradian commenced this
action on November 29, 2012, but he did not serve them with
the summons and complaint until May 23 and May 27, 2019—
more than six years later. However, on September 12, 2013,
Rideshare, Prime Time, and Airport Transportation filed a
motion to compel arbitration and to stay the litigation. And,
on November 20, 2013, the trial court granted defendants’
motion, necessarily staying the action as required under section
1281.4.9 The record shows it was not until April 11, 2019—
8 Rule 3.110(b) provides, in pertinent part: “When the
complaint is amended to add a defendant, the added defendant
must be served and proof of service must be filed within 30 days
after the filing of the amended complaint.”
9 Section 1281.4 provides, in pertinent part: “If a court of
competent jurisdiction, whether in this State or not, has ordered
arbitration of a controversy . . . , the court in which such action or
proceeding is pending shall, upon motion of a party to such action
or proceeding, stay the action or proceeding until an arbitration
is had in accordance with the order to arbitrate or until such
earlier time as the court specifies.” (Italics added.)
13
more than five years later—that the trial court ordered “[t]he
stay is lifted for Plaintiff to add parties [to the court action]
added in the arbitration.” When that five-year period is excluded
from the computation of time for effecting service of process, we
find (as the trial court did) that Moradian served Red Vans and
Joea with the summons and complaint well within the required
three years.10 (See, e.g., Highland Stucco & Lime v. Superior
Court (1990) 222 Cal.App.3d 637, 644 [in complex asbestos
litigation, where trial court “stayed all proceedings in the action
on non[-]abatement issues,” stay “clearly affected the service
of process in that it precluded service upon additional defendants
until the stay was lifted” and thus was to be excluded from
computation of three-year period under sections 583.210 and
583.240].)
As for the 30-day deadline under rule 3.110(b) for filing
proof of service after amending the complaint to add a defendant,
rule 3.110(f) states that “[i]f a party fails to serve and file
pleadings as required under this rule, . . . the court may issue
an order to show cause why sanctions shall not be imposed.”
(Italics added.) Red Vans and Joea argue the trial court was
required to vacate the judgment and dismiss the action against
them because Moradian amended his complaint to add them as
defendants on April 19, 2019, but he did not file proofs of service
until August 29, 2019—more than 130 days later. The trial court
addressed Moradian’s late filing of the proofs of service in its
order denying the motions to vacate, and the court exercised its
10 In filing the proofs of service on August 29, 2019, Moradian
also complied with the three-year and 60-day deadline under
section 583.210, subdivision (b) when the five-year stay period
is excluded.
14
discretion not to set an order to show cause regarding sanctions
under rule 3.110(f). As the undisputed record shows Red Vans
and Joea were named as respondents in Moradian’s arbitration
claim, they participated in the arbitration proceedings, and they
were served with the summons and complaint before the trial
court entered judgment against them, we cannot say the court
abused its discretion by declining to issue an order to show cause
for the failure to timely file proofs of service.11
In any event, even if sanctions had been warranted, the
trial court correctly determined that dismissal of the action was
not authorized for a violation of rule 3.110(b). Rule 2.30 specifies
the sanctions that are permitted for a violation of the California
Rules of Court relating to general civil cases. (Rule 2.30(a).)
Rule 2.30(b) provides that, “[i]n addition to any other sanctions
permitted by law, the court may order a person . . . to pay
reasonable monetary sanctions to the court or an aggrieved
person, or both, for failure without good cause to comply with
the applicable rules.” (Italics added.) Red Vans and Joea have
not cited, and we are not aware of, any other law (besides rule
2.30(b)) authorizing sanctions for violation of the 30-day deadline
under rule 3.110(b). Thus, the trial court had no discretion to
11 Contrary to Red Vans’s and Joea’s argument in their
motions to vacate the judgment, the record shows they were
served with the summons and complaint (on May 23 and May 27,
2019, respectively) before the trial court entered the July 22, 2019
judgment. Thus, there is no merit to their renewed contention
that the trial court lacked jurisdiction to enter the judgment
against them when it did. (See § 410.50, subd. (a) [“Except
as otherwise provided by statute, the court in which an action
is pending has jurisdiction over a party from the time summons
is served on him.” (Italics added.)].)
15
dismiss Red Vans and Joea from the action for this rule violation,
and the court correctly concluded as much. The trial court
did not err in refusing to vacate the judgment against these
defendants.
3. The Non-Debtor Defendants Cannot Establish
Prejudice Because They Failed to Petition to
Vacate the Arbitration Award Before the 100-day
Jurisdictional Deadline Lapsed
The non-debtor defendants advance several arguments that
they contend compelled the trial court to vacate the judgment
entirely or to order a new trial. However, as we will explain,
none of these arguments is sufficient to establish reversible error
because the trial court no longer had jurisdiction to vacate the
arbitration award when defendants filed their post-judgment
motions.
“Arbitration is designed to provide expeditious resolutions
of disputes. It is the ‘policy of the law . . . to favor arbitration
as a means of providing a summary disposition of controversies,
[and] every reasonable intendment is indulged to give effect to
such proceedings.’ [Citation.] ‘Every presumption favors [an
arbitration] award, and therefore the merits of an award, either
on questions of law or fact, are generally not subject to review.’ ”
(Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 393
(Knass); see Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9
(Moncharsh) [“[T]he Legislature has expressed a ‘strong
public policy in favor of arbitration as a speedy and relatively
inexpensive means of dispute resolution.’ [Citations.]
Consequently, courts will ‘ “indulge every intendment to
give effect to such proceedings.” ’ ”].)
16
An arbitration award that has not been vacated or
confirmed “has the same force and effect as a contract in writing
between the parties to the arbitration.” (§ 1287.6.) If a petition
to confirm an arbitration award “is duly served and filed, the
court shall confirm the award as made, . . . unless in accordance
with [the arbitration statutes] it corrects the award and confirms
it as corrected, vacates the award or dismisses the proceedings.”
(§ 1286, italics added.) “If an award is confirmed, judgment shall
be entered in conformity therewith,” and the judgment is to be
treated in all respects like a judgment in “a civil action of the
same jurisdictional classification.” (§ 1287.4.)
The trial court is authorized to vacate an arbitration award
upon narrow statutory grounds, “[s]ubject to [s]ection 1286.4.”
(§ 1286.2, subd. (a); see Knass, supra, 228 Cal.App.3d at p. 393.)
Under section 1286.4, the “court may not vacate an award unless:
. . . [a] petition or response requesting that the award be vacated
[or corrected] has been duly served and filed” and all parties are
before the court. (§ 1286.4, subds. (a)–(b), italics added; Knass, at
p. 393; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1205 (Abers).)
Under section 1288, “[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.” Section 1288.2 likewise provides: “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.”12
12 In many instances, a response must be filed and served
well before the 100-day jurisdictional deadline. Section 1290.6
provides that “[a] response shall be served and filed within
10 days after service of the petition except that if the petition
17
The statutory “deadlines for challenging and confirming
arbitration awards serve important goals.” (Eternity Investments,
Inc. v. Brown (2007) 151 Cal.App.4th 739, 746 (Eternity
Investments).) “A challenge to an award—to correct or vacate it—
typically requires the trial court to make factual determinations.
[Citation.] Consequently, a challenge must be made soon after
the award is served—within 100 days—while the evidence is
fresh and witnesses are available. But absent a challenge, there
may be no need for judicial intervention. The award is treated as
a contract (§ 1287.6), and the prevailing party has a substantially
longer period—up to four years (similar to the four-year statute
of limitations for breach of contract (§ 337, subd. 1))—to obtain
satisfaction of the award before resorting to the courts. In the
event of satisfaction, judicial relief will not be necessary,
conserving court resources. If, however, the award is not
satisfied, the prevailing party may convert it into an enforceable
is served [by mail], the response shall be served and filed
within 30 days after service of the petition.” Unlike the 100-day
jurisdictional deadline, the time 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.) However, section 1288.2 takes precedence
over section 1290.6, and a trial court has no jurisdiction to vacate
an award if a request is filed beyond 100 days, even if the request
responds to a petition to confirm. (Law Finance Group, LLC v.
Key (2021) 67 Cal.App.5th 307, 320, 316, 318 (Law Finance); see
Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376, 384–385
[“ ‘[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)”].)
18
judgment by way of a petition to confirm. (§§ 1287.4, 1288.)
And confirmation will be a simple process absent a prompt,
timely challenge to the award.” (Ibid.)
In sum, “[t]he trial court’s power to vacate an arbitration
award is governed by statute, and the deadline for seeking such
relief is mandatory.” (Abers, supra, 217 Cal.App.4th at p. 1211.)
“[T]he 100-day limitation for a petition to vacate an arbitration
award is jurisdictional” and a trial court has no authority
to vacate an arbitration award absent the petitioning party’s
compliance with this statutory mandate. (Ibid., italics added;
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.”]; see also Law Finance Group, supra, 67
Cal.App.5th at p. 322 [“Like section 1288, section 1288.2 imposes
a strict 100-day deadline to file and serve a request to vacate.
It is similarly jurisdictional.”].) Unless a petition to vacate or
correct the arbitration award is filed before the statutory 100-day
deadline passes, “the court has no option but to confirm the
award if requested to do so within four years of its issuance.”
(Abers, at pp. 1211–1212, citing § 1286; see also § 1288
[“A petition to confirm an award shall be served and filed not
later than four years after the date of service of a signed copy
of the award on the petitioner.”].)
On January 16, 2019, the arbitrator’s office served a
signed copy of the final award on defendants. Thus, the 100-day
deadline to file and serve a petition to vacate the award under
section 1288 expired on April 26, 2019. Defendants did not file
19
a petition to vacate the arbitration award. Nor did they respond
to Moradian’s petition to confirm the award by the March 28,
2019 deadline the trial court ordered. (See § 1290.6 [authorizing
extension of 10-day deadline to respond to petition for
confirmation of arbitration award “for good cause, by order
of the court”].) Due to defendants’ failure to timely petition
to vacate the award, the trial court was statutorily mandated
to “confirm the award as made.” (§ 1286; Abers, supra, 217
Cal.App.4th at pp. 1211–1212; Eternity Investments, supra,
151 Cal.App.4th at p. 745 [“[C]onfirmation of an award is the
mandatory outcome absent the correction or vacatur of the award
or the dismissal of the petition.” (First italics added.)].) And,
upon confirming the award, the court was statutorily compelled
to enter judgment in conformity with the award’s terms.
(§ 1287.4 [“If an award is confirmed, judgment shall be entered
in conformity therewith.” (Italics added.)].) The trial court
lacked jurisdiction to do otherwise.
The non-debtor defendants acknowledge the 100-day
time limit imposes a jurisdictional constraint on the trial court’s
authority to vacate the arbitration award, yet they contend it
placed no constraint on the court’s authority to rule on their post-
judgment motions challenging the arbitration award’s validity.
First, they argue where “an arbitration award is void ab initio,
it need not be the subject of a timely petition to vacate” for the
court to set aside an order or judgment based upon the award.
They maintain the award and order confirming it were entered
in violation of the automatic bankruptcy stay and, therefore,
section 473, subdivision (d) authorized the trial court to
“ ‘set aside [the] void judgment or order,’ ” notwithstanding
the jurisdictional bar to vacating the award. Second, they
20
assert their appeal concerns “decisions that were insufficiently
supported, legally erroneous and contrary to law, particularly
the Arbitration Award,” and they argue “[s]uch erroneous actions
taken by the Arbitrator make the arbitration award itself invalid
and void in its entirety.” We reject both arguments.
The contention that the bankruptcy stay rendered the
arbitration award subject to the non-debtor defendants’ post-
judgment attack fails for two reasons. First, as the trial court
recognized, the non-debtor defendants were not subject to a
bankruptcy stay when the arbitrator issued the final award,
because the bankruptcy court had terminated the non-debtor
injunction several months earlier. Federal law specifies that
a bankruptcy petition automatically stays “the commencement
or continuation . . . of a judicial, administrative, or other action
or proceeding against the debtor.” (11 U.S.C. § 362(a)(1), italics
added.) Consistent with federal law, our state courts have
recognized “ ‘the automatic stay protects only the debtor,’ ” and
“the ‘[b]ankruptcy of one defendant in a multidefendant case does
not stay the case as to the remaining [non-debtor] defendants.’ ”
(Higgins v. Superior Court (2017) 15 Cal.App.5th 973, 979–980;
Cross v. Cooper (2011) 197 Cal.App.4th 357, 365, fn. 2 [“the
automatic stay of judicial proceedings against a debtor in
bankruptcy does not apply to non[-]debtor codefendants”]; Danko
v. O’Reilly (2014) 232 Cal.App.4th 732, 748 [“ ‘The automatic
stay does not . . . apply to non[-]debtor entities such as corporate
affiliates, corporate officers, codefendants, guarantors or general
partners.’ ” (First italics added.)].) That rule applies with special
force here, as the bankruptcy court terminated the non-debtor
injunction upon an express finding that Rideshare’s plan for
reorganization was “patently un-confirmable.” As our Supreme
21
Court has said, because federal law specifies that the automatic
stay operates for the benefit of the debtor, a non-debtor “is not
in a position to complain of the flaunting of the claimed authority
of the bankruptcy court which that court did not choose to
exercise, or of invasions into the field of alleged exclusive control
as to property which it in effect had abandoned.” (Beck v. Unruh
(1951) 37 Cal.2d 148, 153; accord In re Pecan Groves (9th Cir.
1991) 951 F.2d 242, 245 [“[I]f the [bankruptcy] trustee does
not seek to enforce the protections of the automatic stay,
no other party may challenge acts purportedly in violation
of the automatic stay.”].)13
13 For the same reasons, the fact that the arbitration award
holds all defendants jointly and severally liable as alter egos
for Moradian’s damages does not render the award void. As
the bankruptcy court observed in Pavers & Road Builders Dist.
Council Welfare Fund v. Core Contracting of N.Y., LLC (E.D.N.Y.
2015) 536 B.R. 48, “[j]ust because two entities are alter egos
does not make them both debtors under the Bankruptcy Code.
It simply means they are liable for each other’s debts. If the
non-debtor entity wants that protection, it need only file its own
petition.” (Id. at p. 51.) To hold otherwise “ignores the plain
language of [11 U.S.C. § 362(a)(1)], which provides that the
automatic stay protects only the debtor, not non-debtor entities.”
(Ibid. [criticizing dictum in In re Adler (E.D.N.Y. 2013) 494 B.R.
43, 53 suggesting the automatic stay forecloses judicial action
against non-debtor alter egos of debtor corporation].) Here,
of course, we have more than inaction by the non-debtor
defendants—we have the bankruptcy court expressly
determining they should no longer enjoy the protection of the
bankruptcy stay. In this circumstance, it would be nonsensical
to hold the arbitrator’s award and alter ego finding retroactively
bestowed bankruptcy protection on the non-debtor defendants
after the bankruptcy court deliberately removed that protection.
22
Second, even if we agreed that a violation of the bankruptcy
stay as to Rideshare and Prime Time rendered the arbitration
award void as to the non-debtor defendants, this still would
not authorize the trial court to vacate the award or to set aside
the judgment entered upon it after the 100-day jurisdictional
deadline lapsed. Defendants cite Tearlach Resources Limited
v. Western States Internat., Inc. (2013) 219 Cal.App.4th 773 for
the proposition that “ ‘[t]he court may . . . on motion of either
party after notice to the other party, set aside any void judgment
or order’ ” under section 473. (Tearlach, at p. 779, quoting § 473,
subd. (d).) However, Tearlach considered only whether the time
limitations applicable to a motion to set aside a judgment for
“mistake, inadvertence, surprise or excusable neglect” under
section 473, subdivision (b) also applied to a motion to set aside
a void judgment under section 473, subdivision (d). (Tearlach, at
p. 779.) The Tearlach court correctly recognized that section 473,
subdivision (d) “does not place any time limit on bringing such
a motion” (Tearlach, at p. 779), but the court did not address
a situation like we have here, where the trial court entered a
judgment under a statutory mandate after it had lost jurisdiction
to take any other action on the underlying controversy. (See
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [“ ‘An
opinion is not authority for propositions not considered.’ ”].)
(See Pavers, at p. 51 [further criticizing Adler dictum, observing
it would make “the automatic stay into a provision that can
only be applied with the benefit of hindsight,” as it would allow
“extensive litigation in the non-bankruptcy court, and then
invalidate[ ] everything that occurred” upon an alter ego
finding].)
23
In People v. Financial Casualty & Surety, Inc. (2017)
14 Cal.App.5th 127 (Financial Casualty), the reviewing court
addressed and rejected the appellant’s attempt to “invoke
[section] 473, subdivisions (b) and (d) for relief from a
jurisdictional bar.” (Id. at p. 140.) The appeal concerned Penal
Code section 1305, subdivision (j), which mandates that a motion
to vacate a bail forfeiture must be “ ‘filed in a timely manner
within the 180-day period’ ” after the court declares the
forfeiture. (Financial Casualty, at p. 138.) As with the statutes
prescribing the requirements to vacate an arbitration award,
when a court “ ‘does not strictly follow [the bail forfeiture]
statutes [it] acts in excess of its jurisdiction.’ ” (Ibid.) Because
the appellant filed its motion for vacatur outside the mandatory
180-day period, the Financial Casualty court held the trial
court had no jurisdiction to consider the motion, and section 473,
subdivision (d) could not be used “to create jurisdiction where
there is none.” (Financial Casualty, at p. 141; see Maynard v.
Brandon (2005) 36 Cal.4th 364, 372 (Maynard) [section 473 “does
not offer relief from mandatory deadlines deemed jurisdictional
in nature”].)
The Abers court reached the same conclusion with respect
to the 100-day jurisdictional deadline for a petition to vacate
an arbitration award and section 473’s provision for mandatory
relief based on an attorney’s declaration of error. (Abers, supra,
217 Cal.App.4th at pp. 1202–1203.) Equating the 100-day
deadline with the jurisdictional “deadline for filing an appeal,”
the Abers court emphasized that “the court loses jurisdiction
to vacate the award if the petition is not timely served and filed.”
(Id. at p. 1203.) And, like the Financial Casualty court, the Abers
court rejected the contention that section 473 could be invoked
24
to relieve a party of its failure to comply with a jurisdictional
deadline, holding: “Once jurisdiction is lost, it cannot be
retroactively reinstated.” (Abers, at p. 1203; see also Knass,
supra, 228 Cal.App.3d at p. 394 [“The fact the award was reduced
to a judgment does not resurrect [the] opportunity to challenge
it.”].)
We agree with Financial Casualty and Abers, and likewise
conclude that section 473 cannot be invoked to circumvent the
jurisdictional deadline for filing and serving a petition to vacate
an arbitration award.14 As the Abers court aptly observed, any
other result “would be an effective nullification of the statutory
100-day limitation on filing and serving a petition to vacate,”
and “[w]e cannot endorse such a result.” (Abers, supra, 217
14 We acknowledge there are a handful of cases suggesting
relief is available under section 473 for late-filed petitions to
vacate. (See Eternity Investments, supra, 151 Cal.App.4th at
p. 746; DeMello v. Souza (1973) 36 Cal.App.3d 79, 84; Elden v.
Superior Court (1997) 53 Cal.App.4th 1497, 1512.) However,
as our colleagues in Division Two recently noted, “none of
those cases actually granted relief under section 473, and their
statements are therefore arguably dicta.” (Law Finance Group,
supra, 67 Cal.App.5th at p. 322, fn. 9.) Moreover, as both the
Law Finance Group and Abers courts determined, these cases are
not persuasive “for the simple reason that none of them makes
any effort to persuade.” (Abers, supra, 217 Cal.App.4th at p.
1212; Law Finance Group, at p. 322, fn. 9].) In any event, we
agree with the Abers court that these cases are simply
inconsistent with the rule announced by the Supreme Court in
Maynard and must be rejected on that basis. (Abers, at p. 1212;
Maynard, supra, 36 Cal.4th at p. 372 [section 473 “does not offer
relief from mandatory deadlines deemed jurisdictional in
nature”].)
25
Cal.App.4th at p. 1212; see Eternity Investments, supra, 151
Cal.App.4th at p. 746 [discussing important policy goals served
by 100-day limitation].)
Defendants’ contention that the award was subject to
post-judgment challenge because the arbitrator’s decisions were
“insufficiently supported, legally erroneous and contrary to law”
fares no better. The narrow grounds for vacating an arbitration
award include the ground that “[t]he arbitrators exceeded their
powers and the award cannot be corrected without affecting
the merits of the decision upon the controversy submitted.”
(§ 1286.2, subd. (a)(4).) In Moncharsh, our Supreme Court
addressed what had been a frequent contention that an
arbitrator exceeded his powers “because the arbitrator reached
an erroneous decision” on the law and the evidence. (Moncharsh,
supra, 3 Cal.4th at p. 28.) The Moncharsh court rejected
the contention under the “rule of limited judicial review,”
emphasizing it is well settled that “ ‘arbitrators do not exceed
their powers merely because they assign an erroneous reason
for their decision.’ ” (Ibid.) Here, we need not invoke the limited
judicial review principle because any contention that defendants
might have made about the arbitrator exceeding his powers with
respect to the law, the evidence, or the arbitration rules had to
be made in a petition to vacate the award, filed and served within
the 100-day jurisdictional period under section 1288.15 Once that
15 Notably, defendants make the same argument that the
arbitrator “demonstrably disregarded evidence, erred, and
exceeded his arbitral powers” under the JAMS rules in a section
of their opening brief under the heading: “THE ARBITRATOR
EXCEEDED HIS POWERS.” (Boldface and underlining
omitted.) They also make these arguments with respect to
26
period elapsed, all contentions about the arbitrator exceeding his
powers were effectively forfeited as a basis for post-confirmation
relief. (See Louise Gardens of Encino Homeowners’ Assn., Inc.
v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 659 [“A
party who fails to timely file a petition to vacate under section
1286 may not thereafter attack that award by other means on
grounds which would have supported an order to vacate.”].)
We need not discuss the non-debtor defendants’ other
arguments. As appellants, these defendants bear the burden of
establishing not only error, but also prejudice—i.e., that in the
absence of the claimed error it is reasonably probable they would
have obtained a more favorable result. (Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 800; Waller v. TJD, Inc. (1993) 12
Cal.App.4th 830, 833 [“Prejudice is not presumed, and the burden
is on the appealing party to demonstrate that a miscarriage of
justice has occurred.”].) Because the non-debtor defendants failed
to petition to vacate the arbitration award within the 100-day
jurisdictional period, the trial court had no option but to confirm
the award and to enter judgment in conformity therewith.
(§§ 1286, 1287.4; Abers, supra, 217 Cal.App.4th at pp. 1211–
1212.) And, because the result the trial court reached was
statutorily mandated, none of the non-debtor defendants’
arguments about the trial court’s reasons for rejecting their post-
judgment motions is sufficient to establish prejudice as a matter
of law. (See Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597,
610 [“there can be no prejudicial error from erroneous logic or
their new trial motion, which, like their other post-judgment
motions, could not be used to obtain relief on grounds that
had to be asserted in a petition to vacate the award before
the jurisdictional deadline lapsed.
27
reasoning if the decision itself is correct”].) Simply put, because
the trial court lacked jurisdiction to do anything other than
confirm the arbitration award and enter judgment in conformity
with it, the non-debtor defendants cannot demonstrate they
would have obtained a more favorable result, regardless of
the claimed error.
DISPOSITION
The appeals of Rideshare Port Management, LLC and
Prime Time Shuttle, Inc. are dismissed. The order confirming
the arbitration award, the judgment thereupon, and the post-
judgment orders are affirmed. Moradian is entitled to his costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
HILL, J.

Judge of the Santa Barbara County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
28