Duarte v. Del Toro Loan Servicing CA2/1

Filed 8/28/23 Duarte v. Del Toro Loan Servicing CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION ONE
EDITH DUARTE, B316756
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV45169)
v.
DEL TORO LOAN
SERVICING, INC., et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Michael L. Stern, Judge. Affirmed.
Edith Duarte, in propria persona, for Plaintiff and
Appellant.
Harris L. Cohen; Law Offices of Elkanah J. Burns, and
Elkanah J. Burns for Defendants and Respondents.
___________________________________
Edith Duarte appeals from a judgment confirming an
arbitration award in favor of Milestone Financial, LLC
(Milestone) and Mortgage Lender Services, Inc. (collectively
Respondents), contending the arbitrator exceeded his powers.
Respondents contend that because Duarte failed either to move to
vacate the award or to oppose their motion to confirm it, she may
not challenge the award for the first time on appeal.
We agree with Respondents, and therefore affirm.
BACKGROUND
Duarte borrowed money from Milestone, secured by a deed
of trust. The loan agreement contained an arbitration agreement
with provisions to hold any arbitration in Santa Clara, split costs
equally, and award liquidated damages if either party filed a
complaint in the superior court rather than a demand for
arbitration.
When Duarte failed to repay the funds, Mortgage Lender
Services, the trust’s foreclosure trustee, moved to foreclose on the
property held in trust.
To stop the foreclosure, Duarte filed for chapter 13
bankruptcy protection on January 15, 2019, and transferred an
interest in the property to Walter Duarte, who also filed for
bankruptcy. Milestone obtained relief from the automatic stays
in both bankruptcy proceedings.
On December 17, 2019, Duarte sued Respondents to stop
foreclosure, asserting causes of action for negligence, slander of
credit, cancellation of instruments, violation of Civil Code
sections 2923.5 and 1671, and violation of Business and
Professions Code section 17200.
Respondents moved to compel arbitration. The trial court
severed certain causes of action, ordered that the remaining
2
causes be arbitrated, and changed the venue for arbitration to
Los Angeles, where Duarte resided, despite the parties’
agreement providing that arbitration would occur in Santa Clara.
The court also required that Respondents pay all arbitration
costs, despite the arbitration agreement’s provision that each side
would split costs equally, and abrogated the arbitration
agreement’s liquidated damage provision applicable if either
party filed a complaint rather than a demand for arbitration.
Duarte filed a demand for arbitration through her counsel,
Peter Nisson, and the parties agreed upon Hiro N. Aragaki as the
arbitrator.
The arbitrator issued orders (1) providing for 180 days of
any such discovery as could be conducted in an unlimited civil
action, (2) requiring that the parties exchange certain
information, and (3) prohibiting ex parte communications. On
March 29, 2021, Respondent requested leave to move for
summary disposition, which Duarte did not oppose.
At one point in the proceedings Nisson, Duarte’s counsel,
stated he intended to withdraw as counsel. He ultimately never
did so, but he failed to respond to several of Respondents’
communications and motions.
Respondents filed a motion for summary disposition, which
Duarte, through Nisson, opposed.
On June 24, 2021, the arbitrator issued an interim award
on the filings, granting summary disposition in favor of
Respondents. The arbitrator gave Duarte additional time to
identify any new issues for resolution and to establish good cause
as to why they were not raised earlier, but Duarte failed to
identify any new issues.
On August 17, 2021, the arbitrator issued a final award.
3
Respondents petitioned the Los Angeles Superior Court to
confirm the award. Duarte neither opposed Respondents’
petition nor sought separately to vacate the award.
The trial court confirmed the arbitration award and
entered judgment in favor of Respondents.
Duarte filed a notice of appeal on November 10, 2021.
DISCUSSION
Duarte contends the arbitrator exceeded his powers by (1)
granting Respondents’ motion for summary disposition on the
filings without conducting an oral hearing, (2) failing to disclose
to her that her attorney planned to withdraw from the case, and
(3) failing to disclose that the attorney lacked sufficient interest
in the case to adequately prosecute her claims.
Respondents contend Duarte cannot challenge the
arbitration award on appeal because she failed either to move to
have it vacated or to oppose Respondents’ petition to have it
confirmed. We agree with Respondents.
We independently review a claim that an arbitrator
exceeded his authority. (Advanced Micro Devices, Inc. v. Intel
Corp. (1994) 9 Cal.4th 362, 376, fn. 9.)
The California Arbitration Act (Act) (Code Civ. Proc., §
1
1280 et seq.) is “ ‘a comprehensive statutory scheme regulating
private arbitration in this state.’ ” (Haworth v. Superior Court
(2010) 50 Cal.4th 372, 380.) A proceeding begins with the filing
of a petition, and any person named as a respondent in that
petition may file a response. (§ 1290.)
1
All undesignated statutory references will be to the Code
of Civil Procedure.
4
The Act sets out procedures governing judicial proceedings
related to arbitration, including postarbitration disputes to settle
the status of an arbitral award. (See Code Civ. Proc., pt. 3, tit. 9,
ch. 5 [“General Provisions Relating to Judicial Proceedings”].)
With respect to judicial proceedings, the Act sets out deadlines by
which parties seeking to confirm or vacate an arbitral award
must file those requests with the court. (See Code Civ. Proc., pt.
3, tit. 9, ch. 4 [“Enforcement of the Award”].) A party seeking to
confirm the arbitral award may file a petition within four years of
the service of the final award. (§ 1288.)
A party seeking to vacate the arbitral award, however, has
much less time. A request to vacate may be made either in a
petition to vacate (§ 1285) or in a response to a petition to confirm
the award (§ 1285.2). A petition to vacate an award must be
served and filed not later than 100 days after service of the
award on the petitioner. (§ 1288.) A request to vacate made in
response to a petition to confirm must be made within 10 days
after service of the petition unless that time is “extended by an
agreement in writing between the parties to the court proceeding
or, for good cause, by order of the court.” (§ 1290.6; see also Law
Finance Group, LLC v. Key (June 26, 2023, S270798) 14 Cal.5th
___ [2023 Cal. Lexis 3531 [p. 17]] (Law Finance Group) [“a party
may not get the full benefit of the 100-day deadline for filing a
response seeking vacatur if section 1290.6 dictates a shorter
timeline”]; Coordinated Constr., Inc. v. Canoga Big “A”, Inc.
(1965) 238 Cal.App.2d 313, 317.) If no response to a petition is
filed, the allegations of the petition are “deemed to be admitted.”
(§ 1290.)
Generally, “issues not raised in the trial court cannot be
raised for the first time on appeal.” (Johnson v. Greenelsh (2009)
5
47 Cal.4th 598, 603 [claim that arbitration demand violated a
contractual no contest clause could not be raised for the first time
on appeal].) The general rule “is rooted in the notion that it is
unfair to the trial judge and the adverse party to take advantage
of an alleged error on appeal where it could have easily been
corrected in the trial court.” (Glassman v. Safeco Ins. Co. of
America (2023) 90 Cal.App.5th 1281, 1326-1327.)
As pertinent here, a party who fails to request before the
trial court that an arbitration award be vacated, either by
separate petition or in response to a petition to confirm the
award, may not challenge the award for the first time on appeal.
(Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 920, fn. 3
[claim that arbitrator committed legal error forfeited “for failing
to raise it in the trial court”]; Gordon v. G.R.O.U.P. (1996) 49
Cal.App.4th 998, 1010 [“Statutory grounds for correction of an
arbitrator's award cannot be asserted for the first time on appeal
from the judgment confirming the award”]; see Law Finance
Group, supra, 14 Cal.5th __ [2023 Cal. Lexis 3531 [p. 14]] [“if the
losing party wishes to attack the award, the statutes make clear
that such a challenge must be made promptly to promote the
timely final resolution of the matters submitted to arbitration”].)
“A party who has missed the Act’s carefully crafted
deadlines has sacrificed its right to seek to vacate or correct the
arbitration award before the trial court; were we permitted to
consider the arguments in support of vacating or correcting the
award on appeal, we would empower parties to resurrect that
right by the simple expedient of appealing from the judgment
confirming the award.” (Darby v. Sisyphian, LLC (2023) 87
Cal.App.5th 1100, 1114.)
6
Here, Duarte had 100 days from service of the final award
to file a petition requesting that the award be vacated. When
Respondents petitioned to confirm the award, she had 10 days to
respond and request that the award be vacated. She did neither.
Because she filed no response to Respondents’ petition, the
allegations of the petition are deemed to be admitted.
Duarte cannot avoid the consequences of failing to act by
resurrecting her right to vacatur in an appeal from the judgment
confirming the award.
DISPOSITION
The judgment is affirmed. Respondents are to recover costs
on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
7