Bay Area Drilling v. RGW Construction CA1/5

Filed 12/15/20 Bay Area Drilling v. RGW Construction CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
BAY AREA DRILLING, INC., A159417
Plaintiff and Appellant,
v. (Alameda County Super. Ct. No.
RGW CONSTRUCTION Inc. et al, RG18930151 )
Defendant and Respondent.
After a dispute arose in the course of a highway reconstruction project,
RGW Construction obtained an arbitration award against its subcontractor,
Bay Area Drilling, and filed a petition to confirm the award in the trial court.
Bay Area Drilling appeals from the court’s decision denying its petition to
vacate the arbitration award and granting RGW Construction’s petition.
Because Bay Area Drilling’s response to the petition to confirm the
arbitration award was untimely, we affirm.
BACKGROUND
RGW Construction entered into a contract with Caltrans to reconstruct
a stretch of Highway 880 in Oakland. RGW Construction then entered into
subcontracts with Bay Area Drilling to perform work for the project.
Subsequently, RGW Construction cancelled the subcontract based on its
determination that Bay Area Drilling had breached the contract.
1
To recover its damages from the breach, RGW Construction initiated
arbitration against Bay Area Drilling and ultimately obtained a final
arbitration award in its favor.
On November 6, 2019, RGW Construction filed a petition to confirm the
arbitration award in the trial court. On November 21, 2019, Bay Area
Drilling filed an opposition to the petition as well as a petition to vacate the
arbitration award under Code of Civil Procedure 1282.6. The trial court
granted RGW Construction’s petition to confirm the award, and denied Bay
Area Drilling’s petition for vacatur.
DISCUSSION
RGW Construction asserts that the trial court’s judgment should be
affirmed because Bay Area Drilling’s petition to vacate was untimely. By
failing entirely to address this question in its briefing on appeal, Bay Area
Drilling has forfeited the issue. (See, e.g., Recorder v. Comm’n on Judicial
Performance (1999) 72 Cal. App. 4th 258, 278 fn. 20.) We therefore affirm.
Pursuant to Code of Civil Procedure section 1290.6,1 a response to a
petition to confirm an arbitration award must be served and filed within 10
days after service of the petition (subject to an exception inapplicable here)
(See Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal. App. 4th
60, 66-67.) RGW Construction served Bay Area Drilling by overnight mail on
November 6, 2019. Ten days from that date (taking into account that the last
day fell on a weekend (see § 12)) would have been November 18. However,
because service was by overnight delivery, section 1013, subdivision (c),
extends the response deadline by two court days. As a result, Bay Area
Drilling’s response was due on November 20, 2019.
1 Undesignated statutory references are to the Code of Civil Procedure.
2
The trial court thus correctly concluded that Bay Area Drilling’s
response, filed on November 21, was untimely and properly denied its
petition to vacate. (See, e.g., Rivera v. Shivers (2020) 54 Cal. App. 5th 82, 94
[“Because [the] response to the petition to confirm was not filed and served
within 10 days of the petition, . . . the trial court had no authority to hear
it.”].) Further, because the allegations of a petition to confirm an arbitration
award “are deemed to be admitted by a respondent duly served therewith
unless a response is duly served and filed,” the trial court properly granted
RGW Construction’s petition to confirm the award. (§ 1290.)
Disposition
The judgment is affirmed.
3
_________________________
Burns, J.
WE CONCUR:
_________________________
Simons, Acting P.J.
_________________________
Reardon, J.*
(A159417)
* Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
4