Law Finance Group, LLC v. Key

Filed 8/19/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LAW FINANCE GROUP, LLC, B305790
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP04251)
v.
ORDER MODIFYING OPINION
SARAH PLOTT KEY, AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed herein on July 30, 2021,
and reported in the Official Reports (___ Cal.App.5th ___ [2021
Cal.App. Lexis 625]) be modified in the following particulars:
1. On page *17, first full paragraph, after the quoted
phrase “cannot be relied upon to excuse a party’s failure to
comply with a jurisdictional statute of limitations,” add as
footnote 8 the following footnote, which will require renumbering
the subsequent footnote:
8 Our opinion in Santa Monica also forecloses another
argument presented for the first time in Key’s petition for
rehearing. Key argues that she could raise her challenges to the
arbitrators’ ruling in response to LFG’s petition to confirm
whether or not she filed a timely request to vacate because the
Loan Agreement was an illegal contract that the courts may not
enforce. Of course, the alleged illegality of the Loan Agreement
under the governing statutes was an issue in the arbitration, the
results of which Key sought to challenge in court. In Santa
Monica, we rejected the argument that a trial court is empowered
“to entertain a challenge to an arbitration award based on the
award’s illegality, even when the challenging party missed the
100-day filing and service deadline.” (Santa Monica, supra, 243
Cal.App.4th at p. 546.) Specifically, we declined to construe the
holding in South Bay Radiology Medical Associates v. Asher
(1990) 220 Cal.App.3d 1074 as “authorizing judicial review of
untimely challenges to arbitration awards whenever those
challengers assert that the award contravenes a statute.” (Santa
Monica, at p. 546.) We explained that “to do so would create an
exception that would swallow the general rule hinging
jurisdiction on the timeliness of the challenge.” (Ibid.) That
same reasoning applies here.
2. On page *21, at the end of the last paragraph of part 2 of
the Discussion, add as footnote 10 the following two-paragraph
footnote:
10 In light of this analysis, Key’s reliance on Saint Francis
Memorial Hospital v. State Dept. of Public Health (2020) 9
Cal.5th 710 (Saint Francis) is misplaced. In that case, which Key
cited for the first time in her petition for rehearing, our Supreme
Court held that, absent statutory language or a “manifest policy”
to the contrary, “we presume that statutory deadlines are subject
to equitable tolling.” (Id. at p. 720.) Nothing in Saint Francis
undermines our conclusion that equitable relief is unavailable to
Key here, even assuming (again, without deciding), that such
relief is not foreclosed by the statutory scheme.
2
In Saint Francis, the court explained that, where equitable
tolling is available under a statute, it is a “narrow remedy that
applies to toll statutes of limitations only ‘occasionally and in
special situations.’ ” (Saint Francis, supra, 9 Cal.5th at p. 724,
quoting Addison v. State (1978) 21 Cal.3d 313, 316.) The remedy
applies only when three elements are present: (1) timely notice;
(2) lack of prejudice to the defendant; and (3) reasonable and good
faith conduct on the part of the plaintiff. (Saint Francis, at
p. 724.) The third element has both a subjective and an objective
component: “A plaintiff’s conduct must be objectively reasonable
and subjectively in good faith.” (Id. at p. 729, italics added.) For
the reasons discussed above, Key’s claimed reliance on LFG’s
purported agreement to extend the 100-day deadline was not
objectively reasonable because LFG did not have the authority to
extend that deadline. This conclusion is unrelated to the court’s
authority to provide equitable relief. Nothing in Saint Francis
suggests that a court’s authority to excuse late filings in
appropriate circumstances under the doctrine of equitable tolling
means that parties may simply agree to extend jurisdictional
deadlines.
There is no change in the judgment.
Key’s petition for rehearing is denied.
CERTIFIED FOR PUBLICATION.
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
3
Filed 7/30/21 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
LAW FINANCE GROUP, LLC, B305790
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP04251)
v.
SARAH PLOTT KEY,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County. Rafael A. Ongkeko, Judge. Reversed and
remanded with directions.
Eisner, Christopher L. Frost, Taylor S. Simeone; Greines,
Martin, Stein & Richland, Cynthia E. Tobisman and Alana H.
Rotter for Plaintiff and Appellant.
Grignon Law Firm, Margaret M. Grignon and Anne M.
Grignon for Defendant and Respondent.
_________________________________
Law Finance Group (LFG) appeals from an order of the
superior court denying its motion to confirm an arbitration award
against respondent Sarah Plott Key. Key borrowed $2.4 million
from LFG to help finance a probate action alleging that Key’s
sister, Elizabeth Plott Tyler, exercised undue influence over their
mother in orchestrating changes to a trust (the Probate Action).
Key ultimately prevailed in that action, winning the right to a
third of the parents’ estate. This court previously affirmed the
order of the probate court awarding that relief. (See Key v. Tyler
(June 27, 2016, B258055) [nonpub. opn.] [2016
Cal.App.Unpub.LEXIS 4757].)1
Although Key repaid the principal that she borrowed from
LFG, she refused to pay any interest, claiming that the terms of
the note violated the California Financing Law (Fin. Code,
§ 22000 et seq.). LFG demanded binding arbitration under the
loan agreement.
A panel of three arbitrators found that some of the loan
terms were invalid but otherwise enforced the loan agreement,
awarding LFG $778,351 in simple interest along with attorney
fees and costs. The panel issued a modified award on
September 18, 2019.
Less than two weeks later, on October 1, 2019, LFG filed a
petition in superior court to confirm the award. Nearly four
months after that, and 130 days after service of the modified
1 Litigation among the sisters continues. In Key v. Tyler
(2019) 34 Cal.App.5th 505, we considered an anti-SLAPP motion
filed in a probate proceeding to enforce a no contest clause in the
parents’ trust instrument. Another currently pending appeal
(B298739) concerns issues arising from a petition by Key alleging
that Tyler breached her duties as trustee of the trust.
2
arbitration award, Key filed a motion to vacate the award. Her
motion claimed that the arbitrators exceeded their authority by
finding that the loan from LFG was a consumer loan but
nevertheless enforcing some of the terms of the loan agreement
rather than finding it void. Nine days later, Key filed a response
to LFG’s petition raising the same arguments.
The superior court agreed with Key and vacated the
arbitration award.
On appeal, LFG argues that the trial court should have
independently considered the evidence underlying the
arbitrators’ conclusion that the litigation loan it made to Key was
a consumer loan rather than a commercial loan. LFG also argues
that Key’s requests to vacate the arbitration award were
untimely. We do not reach the substantive issue because we
agree with LFG that Key did not timely request that the
arbitration award be vacated.
Code of Civil Procedure section 1288 requires that a
petition to vacate an arbitration award must be filed and served
not later than 100 days after service of the award.2 Section
1288.2 imposes the same deadline on a response to a petition to
confirm an arbitration award when the response requests that
the award be vacated. These deadlines are jurisdictional. (Santa
Monica College Faculty Assn. v. Santa Monica Community
College Dist. (2015) 243 Cal.App.4th 538, 544–545 (Santa
Monica); Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th
376, 384–385 (Douglass).) Neither Key’s petition to vacate the
arbitration award nor her request to vacate the award in her
2Subsequent undesignated statutory references are to the
Code of Civil Procedure.
3
response to LFG’s petition to confirm were filed within the 100-
day limit. Thus, the trial court lacked jurisdiction to consider
Key’s request to vacate, and the arbitration award must be
confirmed.
BACKGROUND
1. The Loan Agreement
In 2013, Key needed money to pay her ongoing legal fees in
the Probate Action. Her counsel in that action referred her to
LFG.
Key borrowed approximately $2.4 million from LFG
pursuant to a Loan and Security Agreement (Loan Agreement)
that permitted her to borrow up to a maximum of $3 million. In
addition to repayment of the principal, the Loan Agreement
required Key to pay interest at a rate of 1.53 percent per month,
compounded monthly, along with an origination fee (calculated as
2 percent of the maximum loan availability), a due diligence fee,
and a servicing fee (calculated as 0.25 percent of the total amount
that Key owed at the end of each month). Absent a default,
LFG’s right to repayment was limited to Key’s recovery in the
Probate Action and her interest in the trust that was the subject
of that action.
The Loan Agreement contained an arbitration provision.
That provision required that “any dispute between the Parties
arising out of the transaction provided for in this Agreement”
would be decided by a three-member arbitration panel under the
Commercial Arbitration Rules of the American Arbitration
Association. The provision also entitled the prevailing party to
attorney fees.
4
2. The Arbitration
Key prevailed in the Probate Action, winning the right to a
third of her parents’ estate which, at the time, was equivalent to
about $20 million. She repaid the principal amount of the $2.4
million loan from LFG, but did not pay any interest or other fees.
LFG demanded arbitration, seeking about $1.45 million
that it claimed Key still owed under the Loan Agreement. In
defense, Key argued that the Loan Agreement was
unconscionable and that the various fees in the agreement
violated provisions of the California Financing Law applicable to
consumer loans.
On August 6, 2019, the three-arbitrator panel served its
final arbitration award. At the request of the parties, the
arbitrators later modified the award to reduce the amount of
costs awarded to LFG. The modification was served on
September 19, 2019.
The arbitrators found that the Loan Agreement was
binding and enforceable. However, the arbitrators also found
that the loan from LFG was a consumer loan and that the
provisions for compounded interest and servicing fees were
therefore unlawful under the California Financing Law. The
arbitrators disregarded those provisions and awarded damages
consisting of simple interest in the amount of $778,351. The
arbitrators awarded LFG costs and attorney fees in the amount
of $838,864 as the prevailing party.
3. LFG’s Petition to Confirm the Arbitration
Award and Key’s Requests to Vacate
LFG filed a petition to confirm the arbitration award on
October 1, 2019, less than two weeks after the modified
arbitration award was served. The parties then communicated
5
about coordinating the timing for the hearing on LFG’s petition
and for the petition to vacate that Key intended to file.
Key’s counsel agreed to accept service of LFG’s petition and
to file a challenge under section 170.6 to the assigned judge. The
parties further agreed that “the 10 day time period for filing a
Petition to Vacate will not apply and that once the new judge is
appointed, and we can find out when a hearing can be set
pursuant to that judge’s calendar, we will work backwards to
come up with a briefing schedule for the Petition to Confirm and
the Petition to Vacate that we will be filing.” Key’s counsel
confirmed this agreement by e-mail on October 10, 2019.
Over the next few months, the parties discussed setting a
hearing date, and finally agreed on a hearing date of
February 20, 2020. On December 12, 2019, counsel for LFG sent
an e-mail to Key’s counsel asking, “Do you know when your
substantive petition is due? I know we talked conceptually about
timelines way back. I just don’t know with the hearing date set
for 2/20 whether we need to revisit that or, just go according to
standard timing.” Key apparently did not respond to that e-mail.
The parties then communicated further about the details of
filing and service. They agreed to accept electronic service, and
Key’s counsel informed LFG’s counsel that Key intended to serve
her petition to vacate on January 27, 2020.
As promised, Key filed her petition to vacate with
supporting documents on January 27, 2020 (130 days after
service of the modified arbitration award). On February 5, 2020,
Key filed her response to LFG’s petition to confirm. Key’s
response also requested that the arbitration award be vacated.
Both Key’s petition to vacate and her response to LFG’s
petition to confirm argued that the arbitrators exceeded their
6
powers by finding that the loan from LFG was a consumer loan
while failing to void the loan (or at least cancel all interest and
other charges) under Financial Code sections 22750–22752.
4. The Trial Court’s Ruling
In a written order, the trial court ruled that Key’s petition
to vacate was untimely under the 100-day deadline of section
1288, which the court concluded was jurisdictional. However, the
court also ruled that Key’s request to vacate in her opposition to
LFG’s petition was timely because it complied with the time
period to respond to petitions to confirm specified in section
1290.6. The court further found that, “[i]f there is a need to
extend the time to the actual filing date to enable the court to
decide the petition on its merits, the court finds good cause to
grant such an extension.” The trial court’s order did not mention
section 1288.2.
On the merits, the trial court found that “the arbitrators
exceeded their powers by issuing an award that violates a party’s
unwaivable statutory rights or that contravenes an explicit
legislative expression of public policy.” The court cited Financial
Code section 22750, subdivision (a), which provides that, “[i]f any
amount other than, or in excess of, the charges permitted by this
division is willfully charged, contracted for, or received, the
contract of loan is void, and no person has any right to collect or
receive any principal, charges, or recompense in connection with
the transaction.”
7
DISCUSSION
1. The Governing Statutes Require that a Request
to Vacate an Arbitration Award Be Served and
Filed Within 100 Days of Service of the Award
Section 1288 governs the timing of both petitions to confirm
and petitions to vacate arbitration awards. That section provides
that a party seeking to confirm an award may file a petition any
time within four years after service of the award. However, a
party who wishes to vacate an award must act much more
quickly. “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
service of a signed copy of the award on the petitioner.” (§ 1288.)
A request to vacate an arbitration award may be included
in a party’s response to a petition to confirm. (§ 1285.2.)
However, such a request is also subject to the 100-day rule.
Under section 1288.2, “[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.”
Sections 1288 and 1288.2 appear in title 9 of the Code of
Civil Procedure (which governs arbitration) under an article
entitled, “Limitations of Time.” Together, the sections establish a
clear and certain 100-day deadline for any request to vacate an
arbitration award.
Title 9 also contains a separate chapter entitled, “General
Provisions Relating to Judicial Proceedings,” which, among other
things, addresses the procedures applicable to petitions and
responses. Section 1290.6 in that chapter provides that a
response to a petition must be served and filed “within 10 days
after service of the petition” (or within 30 days if the petition is
8
served by mail outside the state). It also provides that 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.”
Key argues that when, as here, a petition to confirm an
arbitration award is filed within 100 days of service of the award,
the time limit for filing a response to the petition requesting that
the award be vacated is governed by section 1290.6 rather than
by section 1288.2. Thus, according to Key, if a petition to confirm
is filed within 100 days of service of the arbitration award, a
request to vacate the award is timely if it complies with the 10-
day requirement of section 1290.6 (as modified by any
extensions), even if the request to vacate is filed more than 100
days after service of the arbitration award.
This argument requires us to interpret the governing
statutes. We therefore review the issue de novo. (Apple, Inc. v.
Superior Court (2013) 56 Cal.4th 128, 135 (Apple); Santa Monica,
supra, 243 Cal.App.4th at p. 544.)
In analyzing the statutes, we are guided by well-known
principles. Our analysis starts with the language of the statutes,
giving the words their usual and ordinary meaning. (Apple,
supra, 56 Cal.4th at p. 135.) If statutory language is not
ambiguous, “we presume the lawmakers meant what they said,
and the plain meaning of the language governs.” (Day v. City of
Fontana (2001) 25 Cal.4th 268, 272.) The words of a statute are
“construed in context, and provisions relating to the same subject
matter must be harmonized to the extent possible.” (Lungren v.
Deukmejian (1988) 45 Cal.3d 727, 735.) “It is a basic canon of
statutory construction that statutes in pari materia should be
construed together so that all parts of the statutory scheme are
9
given effect.” (Lexin v. Superior Court (2010) 47 Cal.4th 1050,
1090–1091.)
Key’s interpretation of the governing statutes founders on
these principles.
Key’s claim that a request to vacate an arbitration award
may be filed more than 100 days after service of the award
contradicts the plain language of section 1288.2. That section
states categorically that a response requesting that an award be
vacated “shall be” filed and served “not later than 100 days” after
service of the award. (§ 1288.2, italics added.) Key’s
interpretation would require reading an exception into this rule
that applies when a petition to confirm is filed within 100 days
after service of the arbitration award. We decline to create such
an exception that does not exist in the statutory language.
In Douglass, this court rejected the argument that a
response requesting vacation of an arbitration award filed after
the 100-day period has expired is nevertheless timely if it
complies with the time period for filing a response to a petition.
Citing the plain language of section 1288.2, we held that a
response containing a request to vacate is timely only if it is
served and filed not later than 100 days after service of the
award. (Douglass, supra, 20 Cal.App.5th at p. 385.) We
explained that, “[i]f the rule were otherwise, a party who missed
the initial 100-day deadline would be able to resurrect any
otherwise time-barred challenge by filing a timely response to a
petition to confirm.” (Ibid.) In light of the four-year time period
to file such a petition, such a rule would “effectively turn the
statute’s 100-day deadline into a 1,560-day deadline.” (Ibid.) We
further explained that “ ‘[i]t is not for us to rewrite . . .
10
statute[s].’ ” (Ibid., quoting J.M. v. Huntington Beach Union
High School Dist. (2017) 2 Cal.5th 648, 657, fn.7.)3
The same reasoning applies here. Key’s interpretation of
section 1288.2 would theoretically limit the outside range of
timely responses by permitting a request to vacate after the 100-
day period only if the request responds to a petition to confirm
that was filed within 100 days.4 But nothing in the language of
the section supports such a specific exception. Rather, sections
3 The court in Eternity Investments, Inc. v. Brown (2007)
151 Cal.App.4th 739 (Eternity Investments) explained the reason
for the disparity between the four-year deadline for a petition to
confirm and the 100-day deadline for a petition to vacate. A
petition to vacate or correct an arbitration award typically
requires factual determinations. “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 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.”
(Eternity Investments, at p. 746.)
4 However, as explained below, the outside limit of timely
responses would nevertheless be uncertain and beyond the court’s
control because of the provision in section 1290.6 permitting
parties to extend the response date by agreement.
11
1288.2 and 1288 together establish a clear deadline of 100 days
after which a request to vacate is untimely.
Key’s interpretation is also inconsistent with the broader
statutory scheme. Section 1288.2 establishes a time limitation
for filing a response to a petition to confirm that includes a
request to vacate. Section 1290.6 is one of a number of sections
in a separate chapter that governs the procedure for adjudicating
petitions relating to arbitration awards. There 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
applicable to requests to vacate.
Moreover, we must give effect to both statutes if possible.
(§ 1858; Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 986.)
The two sections may easily be read together to provide that,
when a petition to confirm an arbitration award is filed, a
response requesting that the award be vacated 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. A
response that fails to comply with either deadline is untimely.
Courts have consistently applied the two statutes in this
manner. As discussed above, this court and others have held that
a request to vacate is untimely if filed beyond 100 days even if it
responds to a petition to confirm. (See Douglass, supra, 20
Cal.App.5th at p. 385; Soni v. Simplelayers, Inc. (2019) 42
Cal.App.5th 1071, 1093; Eternity Investments, supra, 151
Cal.App.4th at pp. 743, 745–746.) And courts have held that a
response requesting vacation that is filed within the 100-day
deadline is nevertheless untimely if it fails to comply with the 10-
day filing deadline of section 1290.6. (See Rivera v. Shivers
12
(2020) 54 Cal.App.5th 82, 93–94; Coordinated Constr., Inc. v.
Canoga Big “A”, Inc. (1965) 238 Cal.App.2d 313, 317 [“section
1290.6 limits the 100-day provision found in section 1288.2”];
Oaktree Capital Management, L.P. v. Bernard (2010) 182
Cal.App.4th 60, 66–68 (Oaktree Capital).)5
5 Key cites Oaktree Capital for the proposition that, when a
petition to confirm is filed within 100 days of service of an
arbitration award, “the 10-day rule trumps the 100-day
limitations period.” The opinion does not support such a broad
reading.
In Oaktree Capital, the appellant argued that his request to
vacate was timely because it was filed within 100 days of the
arbitration award, even though there was a dispute about
whether he had complied with the 10-day deadline under section
1290.6. (Oaktree Capital, supra, 182 Cal.App.4th at p. 66.) The
court held that the appellant’s response was timely because it
was filed within 10 days of the arbitration award, “when one
allows for the extra days for overnight mail and his temporary
removal to federal court.” (Ibid.) The court added that the
response was therefore timely “irrespective of the 100-day
deadline, which case law establishes did not apply here.” (Ibid.)
Because the appellant’s petition in Oaktree Capital was filed
within the 100-day deadline, the only deadline at issue was the
10-day deadline under section 1290.6. Fairly read in light of
these facts, the court’s statement that the 100-day deadline “did
not apply” meant that the appellant’s request was not timely
simply because it was filed within 100 days of the arbitration
award; rather, the relevant issue was whether the appellant had
complied with the 10-day rule in section 1290.6. Oaktree Capital
is therefore consistent with the rule that, when a party requests
vacation of an arbitration award in response to a petition to
confirm the award, the party’s response must comply with both
the 10-day deadline in section 1290.6 and the 100-day deadline in
section 1288.2.
13
In contrast, Key’s interpretation fails to give effect to the
firm 100-day deadline in section 1288.2. Under Key’s
interpretation, a petition to confirm an arbitration award filed on
day 99 would permit a timely response requesting vacation of the
award on day 109. Further, by giving precedence to the time
limits of section 1290.6 over section 1288.2 when a petition to
confirm is filed within 100 days of the award, Key’s
interpretation would permit the parties to delay indefinitely a
request to vacate simply by agreeing to do so.
Section 1290.6 permits the parties to extend the time for
filing and serving a response to a petition by making an
agreement in writing. Section 1288.2, which was enacted at the
same time, contains no such extension provision. We presume
that this omission was intentional. (Walt Disney Parks & Resorts
U.S., Inc. v. Superior Court (2018) 21 Cal.App.5th 872, 879
[where a phrase is included in one provision of a statutory
scheme but omitted from another provision, “we presume that the
Legislature did not intend the language included in the first to be
read into the second”]; Hennigan v. United Pacific Ins. Co. (1975)
53 Cal.App.3d 1, 8 [“The fact that a provision of a statute on a
given subject is omitted from other statutes relating to a similar
subject is indicative of a different legislative intent for each of the
statutes”].) Key’s interpretation therefore undermines the
legislative scheme by permitting the parties to alter a deadline
that the statutory language treats as firm.6
6That is of course precisely what Key urges here.
Although LFG filed its petition to confirm the arbitration award
within weeks after it was served, Key did not file her response for
months, well after the 100-day deadline had passed. She excuses
14
Our prior decision in Santa Monica, supra, 243 Cal.App.4th
538, is not to the contrary. Although in that case we stated that,
“[a]s a general matter, a party seeking to vacate an arbitration
award must either (1) file and serve a petition to vacate that
award ‘not later than 100 days after the date of service of a
signed copy of the award’ [citations], or (2) file and serve a timely
response (that is, within 10 days) to the other party’s petition to
confirm that award, which seeks to vacate that award [citations]”
(id. at p. 544, italics added), our use of the word “or” was not a
holding that a response to a petition that also seeks to vacate an
arbitration award is jurisdictionally proper as long as it is a
timely response and irrespective of the 100-day deadline. That is
because (1) the petition to vacate filed in Santa Monica was an
affirmative petition (not a response) that was served more than
100 days after the award was served (id. at p. 454) and (2) the
applicability of section 1288.2 was not at issue (and, indeed,
section 1288.2 was never cited at all) (Silverbrand v. County of
Los Angeles (2009) 46 Cal.4th 106, 127 [“ ‘ “cases are not
authority for propositions not considered” ’ ”]).
2. Key’s Late Filing Cannot Be Excused Under the
Doctrines of Estoppel or Waiver
Key argues that LFG “expressly agreed in writing that the
parties would not adhere to the statutory timeframes for
arbitration proceedings, but instead would obtain a simultaneous
hearing date for the competing petitions.” She further claims
that LFG knew that Key intended to file a timely petition to
vacate and that she delayed doing so because of the parties’
the delay on the ground that the parties agreed to a different
deadline.
15
agreement. Key argues that, based on this conduct, LFG is
equitably estopped from relying on the statutory 100-day filing
deadline. Alternatively, she argues that LFG waived the right to
assert that deadline.
We reject both arguments. 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.
Key’s estoppel and waiver arguments both depend upon the
assumption that the parties could alter the 100-day deadline by
agreement. But neither section 1288 nor section 1288.2 permits
extension of the 100-day deadline through agreement of the
parties. And, as discussed above, the provision in section 1290.6
permitting extension of the 10-day response deadline cannot be
read into the 100-day limitation in sections 1288 and 1288.2.
Thus, even if Key believed that LFG had agreed to alter the 100-
day deadline, she could not reasonably have relied on such an
agreement in filing her response.7
7 The evidence of such an agreement is, at best, ambiguous.
The record of the parties’ correspondence shows that LFG
expressly agreed on October 10, 2019, only to alter the 10-day
period to respond to LFG’s petition to confirm, which was
governed by section 1290.6. (While the confirming e-mail
referred to the “10 day time period for filing a Petition to Vacate,”
that apparently meant a request to vacate in response to LFG’s
petition.) The parties communicated about coordinating a
hearing date for both petitions, but a fixed hearing date did not
preclude Key from filing a timely petition to vacate well in
advance of the hearing. Based upon the correspondence record, it
is certainly possible that LFG intended to assert the 100-day
16
Moreover, numerous cases treat the 100-day deadline as
jurisdictional. For example, in Santa Monica, this court held
that the trial court did not have the authority under section 473,
subdivision (b) to excuse a late-filed petition to vacate because
that section “cannot be relied upon to excuse a party’s failure to
comply with a jurisdictional statute of limitations.” (Santa
Monica, supra, 243 Cal.App.4th at p. 545; see also Abers v. Rohrs
(2013) 217 Cal.App.4th 1199, 1203 (Abers) [the 100-day deadline
“operates in the same manner as the deadline for filing an
appeal, and the court loses jurisdiction to vacate the award if the
petition is not timely served and filed”].)8 Like section 1288,
deadline all along while waiting to see if Key would miss it.
However, that does not necessarily mean that LFG agreed to
extend the 100-day deadline or intended to mislead Key about the
existence of such an agreement. Indeed, LFG itself raised the
issue of the due date for Key’s petition to vacate well before the
deadline had passed. When LFG’s counsel asked Key’s counsel
by e-mail on December 12, 2019, “Do you know when your
substantive petition is due,” and suggested that the parties might
need to “revisit” their agreement about “timelines,” over two
weeks remained to file a timely petition to vacate (100 days from
September 19, 2019, was Saturday, December 28). As far as the
record shows, after receiving that e-mail Key did not attempt to
confirm any agreement concerning the 100-day deadline.
8 A few cases suggest that relief may be granted under
section 473 for late-filed petitions to vacate. (See Eternity
Investments, supra, 151 Cal.App.4th at p. 746; De Mello v. Souza
(1973) 36 Cal.App.3d 79, 84; Elden v. Superior Court (1997) 53
Cal.App.4th 1497, 1512.) However, none of those cases actually
granted relief under section 473, and their statements are
therefore arguably dicta. Moreover, as the court noted in Abers,
17
section 1288.2 imposes a strict 100-day deadline to file and serve
a request to vacate. It is similarly jurisdictional.
The rule is firmly established that parties may not confer
jurisdiction by agreement. (See Rockefeller Technology
Investments (Asia) VII v. Changzhou SinoType Technology Co.,
Ltd. (2020) 9 Cal.5th 125, 138–139 (Rockefeller) [“ ‘[w]here the
jurisdiction of the Court as to the subject-matter has been limited
by the Constitution or the statute, the consent of the parties
cannot confer jurisdiction’ ”], quoting Gray v. Hawes (1857) 8 Cal.
562, 568; People v. Burhop (2021) 65 Cal.App.5th 808, 813 [trial
court loses jurisdiction over the subject matter of an appealed
order, and “even the consent of the parties has been held
ineffective to reinvest the trial court with jurisdiction” until the
remittitur issues], quoting In re Lukasik (1951) 108 Cal.App.2d
438, 443; Land v. Johnston (1909) 156 Cal. 253, 254–255 [“the
time within which a notice of appeal may be filed is fixed by law
and cannot be enlarged by stipulation of the parties”].) Thus,
parties may not simply waive the jurisdictional deadline in
sections 1288 and 1288.2 by stipulation.
Key argues that the 100-day rule is not jurisdictional, but
is like other filing deadlines that parties may expressly or
impliedly waive. The cases she cites in support of that argument
either do not stand for that proposition or are unpersuasive.
For example, Key cites Abers and Southern Cal. Pipe
Trades Dist. Council No. 16 v. Merritt (1981) 126 Cal.App.3d 530the 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.) In any event, none of those cases
suggests that the 100-day deadline can be changed by agreement.
18
(So. Cal. Pipe Trades) for the principle that a party may be
equitably estopped from asserting the 100-day limitations period.
But those cases both concerned questions of proper service, not a
purported agreement to extend the 100-day deadline. In So. Cal.
Pipe Trades, the court ruled that an individual was not a party to
the arbitration and that it would therefore be “fundamentally
unfair” to conclude that service on him on behalf of a corporation
was adequate. (126 Cal.App.3d at p. 541.) And in Abers, the
court rejected the argument that a party was estopped from
contesting whether a petition was properly served, finding that
there was “no basis in equity to estop the [party] from demanding
compliance with legal requirements for service of process.”
(Abers, supra, 217 Cal.App.4th at p. 1209.)
Parties may generally agree to personal jurisdiction by
accepting service of process or appearing in an action. (See
Rockefeller, supra, 9 Cal.5th at pp. 138–139 [“Cases have
recognized that one may waive both personal jurisdiction and
notice aspects of service”].) In contrast, as discussed above,
parties may not circumvent statutory jurisdictional deadlines.
(Ibid.) Abers and So. Cal. Pipe Trades therefore do not support
the conclusion that Key and LFG could just agree to extend the
jurisdictional deadline in sections 1288 and 1288.2.
Key also cites Trabuco Highlands Community Assn. v.
Head (2002) 96 Cal.App.4th 1183, which suggested in a footnote
that the “failure to raise the limitations period under sections
1288 and 1288.2 in the trial court forfeits the issue on appeal.”
The court did not actually decide that issue, as it was raised for
the first time at oral argument. (At p. 1192, fn. 10.) In any
event, to the extent the court in Trabuco intended to suggest that
the 100-day rule is not jurisdictional, we disagree in light of the
19
explicit statutory language and the clear precedent to the
contrary.
Whatever else they might stand for, none of the cases that
Key cites holds that parties are free to extend the 100-day
deadline in sections 1288 and 1288.2 by stipulation. Thus, in
light of the clear language of sections 1288 and 1288.2 and the
cases interpreting them, Key could not have reasonably believed
that LFG had the authority to waive the 100-day deadline.
In sum, Key might have been misled about LFG’s intention
to waive the 100-day deadline, but Key could not have reasonably
believed that LFG had the legal authority to do so. Key was
represented by counsel. For purposes of estoppel claims,
“ ‘attorneys are “charged with knowledge of the law in
California.” ’ ” (Abers, supra, 217 Cal.App.4th at p. 1210, quoting
Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1316.)
Key was therefore charged with the knowledge that the 100-day
deadline is jurisdictional and could not be waived or extended by
agreement. Thus, LFG could not waive the deadline and was not
estopped from asserting it as a ground for disregarding Key’s
untimely request to vacate.
3. LFG’s Petition to Confirm Must Be Granted
Section 1286 states that, if a petition to confirm is duly
served and filed, “the court shall confirm the award as made,”
unless the award is corrected or vacated or the proceeding is
dismissed. (§ 1286, italics added.) “The Legislature’s use of the
word ‘shall’ renders this provision mandatory.” (Law Offices of
David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8 (Law
Offices).) Thus, confirmation of an arbitration award “is the
mandatory outcome absent the correction or vacatur of the award
20
or the dismissal of the petition.” (Eternity Investments, supra,
151 Cal.App.4th at p. 745, citing § 1286.)
Key’s request to vacate was untimely, and she did not
request any correction (which, in any event, would also have been
untimely under sections 1288 and 1288.2). Key has not identified
any grounds for dismissal of LFG’s petition. The petition was
timely and in proper form and Key was a party to the arbitration.
(See §§ 1285.4, 1287.2.) The award must therefore be confirmed.
(See Law Offices, supra, 176 Cal.App.4th at p. 3 [remanding for
trial court to confirm an arbitration award as “the only proper
resolution of this case” after the trial court correctly denied a
petition to correct the award].)
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DISPOSITION
The trial court’s order is reversed. On remand, the trial
court shall enter an order confirming the arbitration award.
Appellant Law Finance Group is entitled to its costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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