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TENTATIVE RULINGS: CIVIL LAW & MOTION
Wednesday, October 5, 2022 at 3:00 p.m. ***
Courtroom 18- Hon. Jennifer V. Dollard
Civil and Family Law Courthouse
3055 Cleveland Avenue
Santa Rosa, California 95403
***PLEASE NOTE: Any requests for oral argument will be heard next Friday, October 14, 2022, at 3:00 p.m.
PLEASE NOTE: In accordance with the Order of Presiding Judge, a party or representative of a party may appear in Department 18 in person or remotely by Zoom, a web conferencing platform. However, appearances by Zoom are STRONGLY encouraged. Whether a party or their representative will be appearing in person or by Zoom must be part of the notification given to the Court and other parties stated below.
Masks need not be worn in the courthouse if you are fully vaccinated.
Persons are considered vaccinated two weeks after the final dose in a primary series of vaccinations.
All unvaccinated persons entering any Sonoma County Superior Courthouse, including any remote jury selection location, shall wear a face covering at all times compliant with all California State Health Orders and CAL/OSHA standards which must completely cover both the nose and mouth.
CourtCall is not permitted for this calendar.
If the tentative ruling does not require appearances, and is accepted, no appearance is necessary.
Any party who wishes to be heard in response or opposition to the Court’s tentative ruling MUST NOTIFY the Court’s Judicial Assistant by telephone at (707) 521-6723 and MUST NOTIFY all other parties of the intent to appear, and whether they will appear in person or by Zoom. Both notifications must be completed no later than 4:00 p.m. on the court (business) day immediately before the day of the hearing.
Unless notification of an appearance has been given as provided above, the tentative ruling shall become the ruling of the court the day of the hearing at the beginning of the calendar.
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1. MCV-254104 State Farm Mutual Automobile Insurance Company v Samson
Plaintiff’s unopposed motion to deem requests for admissions, set one, admitted is GRANTED. Plaintiff’s request for sanctions is GRANTED in the amount of $460 against Defendant Samson pursuant to CCP §§ 2033.280 and 2023.010. If no hearing is requested, the Court will sign the proposed order lodged with the moving papers.
Plaintiff served Defendant with Requests for Admission, Set One, on February 23, 2022. After a number of stipulated extensions, Defendant’s response became due on April 25, 2022. On April 25, 2022, Defendant served unverified responses. Unverified responses are tantamount to no responses at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.)
CCP § 2033.280(a) provides in relevant part that if a party to whom requests for admission are directed “fails to serve a timely response,” the party to whom the requests are directed waives any objection. CCP § 2033.280(b) provides that “[t]he requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted”. CCP § 2033.280(c) provides that the court “shall make this order” unless it finds that the party to whom the requests have been directed has served a proposed response in substantial compliance with section 2033.220 before the hearing on the motion.
Accordingly, Plaintiff’s motion is granted. The truth of the matters set forth in Plaintiff’s Requests for Admission, set one, are deemed admitted.
2. SCV-264887 Schwarz v Garcia
Plaintiff’s motion to strike/tax costs is GRANTED. Plaintiff’s counsel shall submit a written order consistent with this tentative ruling and in compliance with CRC Rule 3.1312.
I. The Existence of a Condition Within Defendant’s CCP § 998 Offer to Compromise Did Not Automatically Render the Offer Invalid.
Plaintiff argues that Defendant should not be awarded costs because Defendant was not the prevailing party and because Defendant’s CCP § 998 offer was invalid. Plaintiff argues that the offer was invalid because a section 998 offer cannot include a requirement that Plaintiff indemnify and hold Defendant harmless against third party claims; rather, a section 998 offer must be unconditional. (MPA iso motion to strike/tax, p. 2.) This overstates the matter.
In Valentino v. Elliott Sav-On Gas, Inc. (1988) 201 Cal.App.3d 692, cited by Plaintiff, the 998 offer required the plaintiff to release the defendant, its attorneys, and insurance carrier from “any and all claims and causes of action arising out of [plaintiff’s] claims…” (Id. at 695.) The Valentino Court did not adopt a categorical rule that any section 998 offer which contains a condition is invalid, as Plaintiff suggests. Rather, the Court found that a condition which requires the plaintiff to surrender “an array of lawsuits against not only the defendant but two other parties” makes the task of valuing the offer impossible. (Id. at 700.)
To pinpoint the value of the various potential unfiled claims Ms. Valentino might have had at the time of the statutory offer or in the future against three different parties, only one of whom was even a party to the instant action, would require the court to engage in wild speculation bordering on psychic prediction.
(Id. at 699.) As recognized in a further case cited by Plaintiff, Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, “The release portion of the section 998 offer in Valentino, unlike the offer here, expressly included causes of action that were outside the scope of the litigation.” (Id. at 374.) In Toste, the Court found a 998 offer valid which required the plaintiff to release and discharge the defendant and defendant’s insurance carriers from all claims set forth in the complaint. (Id. at 374.) The Toste Court explained,
The policy behind section 998 is to encourage the settlement of lawsuits prior to trial. [Citation.] “[N]o ‘ “magic language” ’or specific format is required for either an offer or acceptance under section 998. [Citations.]” [Citation.]
(Toste, supra, at 374.)
“An offer to settle under section 998 must have several features to be valid. For example, it must not dispose of any claims beyond the claims at issue in the pending lawsuit. (Valentino v. Elliott Sav–On Gas, Inc. (1988) 201 Cal.App.3d 692, 696–697, 247 Cal.Rptr. 483 (Valentino).)” (Chen v. Interinsurance Exch. of the Auto. Club (2008) 164 Cal.App.4th 117, 121.) “That limitation exists because of the difficulty in calculating whether a jury award is more or less favorable than a settlement offer when the jury's award encompasses claims that are not one and the same with those the offer covers.”(Ibid.)“’To trigger the potential § 998 penalties, the terms and conditions must be sufficiently certain to be capable of valuation. Otherwise, it may not be possible to determine whether any recovery at trial is ‘more favorable.’” (Ibid.) The Chen Court found that a 998 offer requiring Plaintiff to release “all claims” with no further explanation was too ambiguous. (Id. at 122.)
In reply, Plaintiff argues that Defendant did not offer the Court any authority to support his position that the offer was valid. This is inaccurate. Defendant has cited to Menges v. Department of Transportation (2020) 59 Cal.App.5th 13, which provides, “The inclusion of nonmonetary terms and conditions does not render a 998 offer invalid; but those terms or conditions must be sufficiently certain and capable of valuation to allow the court to determine whether the judgment is more favorable than the offer.” (Id. at 26.) “A 998 offer that includes a dismissal with prejudice or the execution of a release as a settlement term is valid.” (Ibid.) Defendant also cited to Oakes v. Progressive Transportation Services, Inc. (2021) 71 Cal.App.5th 486, which provides,
An offer to compromise under section 998 “must be sufficiently specific to allow the recipient to evaluate the worth of the offer and make a reasoned decision whether to accept the offer. Any nonmonetary terms or conditions must be sufficiently certain and capable of valuation to allow the court to determine whether the judgment is more favorable than the offer.”
(Id. at 497.)
Therefore, the mere existence of a condition within a section 998 offer does not render it invalid. Rather, the offer becomes invalid if that condition makes the offer impossible to value.
II. Plaintiff has shown that a specific condition placed in Defendant’s offer rendered the offer impossible to value.
The language of the condition in question states, “An express term of this offer is that Plaintiff MICHAEL SCHWARZ agrees to be solely liable and reasonable for any lien from the worker’s compensation carrier and will defend, indemnify, and hold Defendant harmless relating to any claim from the worker’s compensation carrier against Defendant and his insurance carrier.” (See Decl. of Scott Montgomery iso Motion to Strike/Tax, Exhibit B.) The condition clearly requires Plaintiff to defend and indemnify Defendant against claims from the worker’s compensation carrier regarding the worker’s compensation lien. Defendant argues that the amount of the lien was known and capable of valuation, and was in the amount of $14,453.83, paid to or on behalf of Plaintiff “for workers’ compensation and related benefits.” (See Decl. of Michael Welch iso Opposition, Exhibit 1.) This lien was served on Plaintiff on January 13, 2021, thus Defendant argues Plaintiff was aware of the amount. While this is correct, the lien also states: “…plus further sums, the exact amount of which are not yet known, which it may become obligated to pay under the provisions of the Labor Code of the State of California.” This language raises the specter that the $14,453.83 is not a final total. And while, as Defendant points out, Plaintiff may have been responsible for payment of any amount out of a judgment (Labor Code section 3856(b)), this does not address the unknown cost of defending and indemnifying the Defendant if the employer were to bring a separate claim against the Defendant (Labor Code section 3852). This condition therefore does amount to one which is not readily capable of valuation.
The Court finds that as this condition within the section 998 offer was not capable of valuation it rendered the offer invalid. Accordingly, the motion to strike is granted.
3. SCV-265228 Norton v The Procter & Gamble Company
On August 9, 2022, the Court issued an order approving compromise of the minor’s claim in this matter and continued the hearing in order for the parties to submit proof of purchase of annuity pursuant to the compromise. The parties have not submitted such proof; the Court assumes more time is needed and the matter is continued to October 26, 2022, at 3:00 p.m. in Department 18 for proof such purchase has occurred. If proof is filed prior to the hearing, the hearing will be vacated and no appearances required.
4-7. SCV-265416 Papenhausen v Funez
This matter was previously on for hearing on September 14, 2022, prior to which the Court issued a tentative ruling requiring the parties’ appearances if verifications were not provided by the Cross-Defendants prior to the hearing. No party called to request oral argument by 4:00 p.m. the day prior to the hearing; however, counsel for Cross-Defendants appeared before the Court at the time set for hearing and explained he had planned to attend as directed by the Court’s tentative ruling as he did not believe verifications would be provided prior to the hearing, but only that morning had received and provided the verifications to moving parties. He expressed uncertainty about whether he was required to request oral argument given that he had provided the verifications, but done so after the time to request oral argument had passed. He indicated he wished to argue the issue of sanctions. The Court concluded that the tentative ruling, stated in the alternative, could cause confusion, particularly where the verifications were provided before the hearing, but after the time to request oral argument. In light of this, and considering the fact that Cross-Complainants had not been notified of counsel’s intent to argue the issue of sanctions, the Court continued the matter for oral argument on the sanctions issue.
The Court further notes that counsel sought clarification regarding what appears to be a typographical error in the Court’s previously published tentative ruling. The previous tentative ruling included a line stating that “Defendants are ordered to pay these sanctions within 30 days of notice of entry of this order.” This was intended to say “Cross-Defendants are ordered to pay these sanctions…” Accordingly, the Court issues the following tentative ruling that is identical to the previously published tentative, with the exception of this one correction and a direction for Cross-Complainants’ counsel to submit a written order.
Defendant Linda Pardini has filed four motions to compel further responses from Cross-Defendants David Papenhausen and Michael Papenhausen to Defendant’s form interrogatories, special interrogatories, requests for admission, and request for production of documents. Cross-Defendants have represented, and Defendant has confirmed in reply, that they have provided supplemental responses to each of the discovery items in dispute. David Papenhausen provided supplemental responses on August 4, 2022 and Michael Papenhausen provided supplemental responses on August 29, 2022. Defendant represents that none of these supplemental responses were verified. However, the Declaration of Paul Vaillancourt in support of Cross-Defendants’ opposition to the motion to compel further responses to special interrogatories shows that the verification for David Papenhausen’s supplemental responses to the special interrogatories and the request for production of documents was served on August 5, 2022. The declaration provides that the verification for Michael Papenhausen’s responses to the same “will be provided promptly upon receipt.” Neither of the Cross-Defendants has verified the remainder of the supplemental discovery responses.
Unverified responses are tantamount to no responses at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Accordingly, Cross-Defendants are ordered to provide Defendant with verifications prior to the time for hearing on this matter. If verifications are provided, the motion to compel will be moot. If verifications are not provided by the time for the hearing, the appearances of the parties are required.
Regarding the requests for sanctions, the Court does find that sanctions are appropriate. Cross-Defendants did not provide supplemental responses until months after these motions were filed. There is no explanation for such a delay. Sanctions are appropriate because these motions could have been avoided by promptly providing amendments to the deficient discovery. It appears from the record that there has been delay in every step of Cross-Defendants’ cooperation. Cross-Defendants provided their initial discovery responses on October 15, 2021, but these responses were not verified. Cross-Defendants did not provide verifications until March 16, 2022. Even then, from what appears in the record before the Court, only the responses to Defendant’s requests for admissions and form interrogatories were verified. (See Decl. of Nicole M. Jaffee iso Motion to Compel Form Interrogatories, Exhibit E.) Cross-Defendants delayed in providing supplemental responses until just before their oppositions to the motions were due. Even now, most of the supplemental responses are not verified. This type of conduct is a misuse of the discovery process and is sanctionable.
In regard to the motion to compel further responses to form interrogatories, Defendant first requested $920.50 in sanctions be imposed, then in her reply requests $1,80.50 [sic] be imposed. So, it is unclear what figure Defendant is requesting. In light of this, the Court will calculate sanctions based on the number of hours counsel represents she spent on each motion, times the hourly rate of $325, plus the filing fee of $60 per motion. The Court finds that the hourly rate of $325 is reasonable and that the amount of hours counsel has represented she spent on each motion (as explained below) is also reasonable.
For the motion on the form interrogatories, Defendants’ counsel represented in her declarations that she spent 1.9 hours preparing and drafting the motion, 0.8 hours on replying, and that the filing fee was $60 dollars. Based on this, $937.50 in sanctions will be imposed for this motion. Furthermore, $1,067.50 will be imposed for the motion to compel further responses to special interrogatories (2.2 hours preparing motion, 0.9 hours replying); $1,360.00 for the motion to compel further responses to requests for production (1.1 hours preparing motion, 2.9 hours replying); and $1,262.50 for the motion to compel further responses to requests for admissions (2.1 hours preparing motion, 1.6 hours replying).
The total amount of sanctions imposed for all four motions is $4,627.50. Cross-Defendants are ordered to pay these sanctions within 30 days of notice of entry of this order.
Furthermore, the parties are ordered to immediately begin meeting and conferring on the sufficiency of the supplemental responses in an effort to avoid any further motions to compel.
Defendants/Cross-Complainants’ counsel shall submit a written order consistent with this tentative ruling and in compliance with Rule 3.1312.
8. SCV-266159 Lua v Aguilera
Plaintiffs Zane Lua and Zara Lua, by and through their Guardian ad litem, Luzelena Lua Elliott, (“Plaintiffs”), filed the complaint in this action against Stonecushion, Inc. (“Stonecushion”) and Fernando Leon Aguilera (“Aguilera” together with Stonecushion “Defendants”) with causes arising out of the alleged wrongful death of the decedent Rosa Lua (the “Complaint”). This matter is on calendar for the motion by Stonecushion to compel answers to special interrogatories (SIs) against Defendant under Code of Civil Procedure (“CCP”) § 2030.300 and to compel production of documents (“RPODs”) from Defendant under CCP § 2031.310. Aguilera filed an opposition on September 29, 2022, only four court days prior to hearing. The opposition is untimely and is not considered. The Motion is DENIED.
I. The Discovery Requests
Stonecushion served Aguilera with SIs Set One and RPODs on December 8, 2021. Stonecushion served SIs Set two on December 28, 2022. After a grant of extensions by Stonecushion, Aguilera served timely responses on February 15, 2022 asserting a right against self-incrimination in response to all the requested discovery. Only one response, SI ¶ 4, varied from blanket assertion of the same language: “Objection: violates responding party’s Fifth Amendment rights against self-incrimination. Additionally, see Evidence Code §§ 913, 954, 994 and CACI jury instruction 216: Exercise of Right Not to Incriminate Oneself. Discovery and investigation continue.” The response to SI ¶ 4 added an assertion as to the “right to privacy as to myself and a third person.” Stonecushion has moved to compel further responses to SIs ¶¶ 4 and 6, and RPODs ¶¶ 1-8. Stonecushion filed the instant motion on July 5, 2022.
II. Governing Law
Regarding the SIs, a party responding to an interrogatory must provide a response that is “as complete and straightforward as the information reasonably available to the responding party permits” and “[i]f an interrogatory cannot be answered completely, it shall be answered to the extent possible.” CCP §2030.220(a)-(b). “If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” CCP §2030.220(c).
Upon receipt of a response, the propounding party may move to compel further response if it deems that an answer to a particular interrogatory is evasive or incomplete, an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or an objection to an interrogatory is without merit or too general. CCP §2030.300(a). Any motion to compel further answers to interrogatories must be filed within 45 days of receipt of response unless the parties agree to extend the time in writing. CCP § 2030.300 (c). Failure to file within 45 days divests the trial court of jurisdiction to order further responses. Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685.
Regarding the RPODs, a demand for production may request access to “documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control” of another party. A party to whom a document demand is directed must respond to each item in the demand with an agreement to comply, a representation of inability to comply, or an objection. CCP § 2031.210(a). If only part of an item or category demanded is objectionable, the response must contain an agreement to comply with the remainder, or a representation of the inability to comply. CCP § 2031.240(c)(1). If a responding party is not able to comply with a particular request, that party “shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.” CCP § 2031.230. “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party” and “[t]he statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” Id. CCP § 2031.240(c)(1) provides that when asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.”
Upon receipt of a response to a request for production, the propounding party may move for an order compelling further response if the propounding party deems that a statement of compliance with the demand is incomplete; a representation of inability to comply is inadequate, incomplete, or evasive; or an objection in the response is without merit or too general. CCP § 2031.310(a). Motions to compel further responses to RPODs must be filed within 45 days of receipt of response unless the parties agree to extend the time in writing. CCP § 2031.310(c). Failure to file within that time divests the court of jurisdiction over the issue. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1428.
III. There is no Evidence the Court has Jurisdiction to Compel Responses
Stonecushion’s motion was filed 140 days after receipt of responses, making it untimely under the code. CCP §§ 2030.300(c), 2031.310(c). There is no evidence that there was a stipulation to extend the time for Stonecushion to move to compel, and the Court is therefore without jurisdiction over the discovery responses. Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685; New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1428.
The Motion to Compel is DENIED.
Aguilera’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
9. SCV-266395 Berg v Drug Abuse Alternatives Center
Defendant Drug Abuse Alternatives Center (DAAC)’s unopposed motion to vacate the default judgment entered against it is GRANTED pursuant to CCP § 473.5.
CCP § 473.5(a) provides,
When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.
The motion shall be accompanied by a sworn affidavit showing that the party’s lack of actual notice was not caused by his or her avoidance of service or inexcusable neglect. (CCP § 473.5(b).) It shall also be accompanied by a copy of the answer, motion, or other pleading proposed to be filed in the action. (Ibid.) The motion shall be filed and served “within a reasonable time,” but in no event exceeding the earlier of either two years after entry of the default judgment, or 180 days after service on the defaulting party of a written notice that the default judgment has been entered. (Id., subdivision (a).)
In this matter, the proof of service of the summons and complaint states that process was served upon “Cynthia Martinez, authorized agent” by personal service at 2403 Professional Dr suite 101, Santa Rosa, CA 95403 on August 23, 2021. Defendants have provided a sworn affidavit signed by Cinthia Martinez, who is employed by Defendant as the front desk receptionist, stating that she was never served with the summons and complaint. Furthermore, Defendant has provided that Ms. Martinez is not its authorized agent for service. The address listed on the service is also not the correct address for Defendant.
The first notice Defendant received of the pendency of this action was in December 2021 when Defendant received copies of Plaintiff’s request for default and statement of damages from Defendant’s insurance company. At this point in time, Defendant had still not received the summons and complaint. Defendant also learned that the notice of acknowledgement and receipt that Plaintiff had filed with his request to enter default against Defendant had been signed by Plaintiff’s process server, not by an authorized agent of Defendant. After this, Defendant reviewed the Court docket and learned that none of the parties had been properly served with process, evidenced by the Court’s issuance of an order for Plaintiff to show cause based on Plaintiff’s failure to serve process. On April 18, 2022, Defendant received Plaintiff’s amended statement of damages and a notice of receipt and acknowledgment in the mail. At this time, Defendant had still not received the summons and complaint. After obtaining a complete Court file and seeing that Plaintiff had filed the proof of service alleging personal service on Defendant, Defendant attempted to file an answer to the complaint in June of 2022. However, the answer was rejected because default had already been entered against Defendant in May. Upon learning this, Defendant promptly filed the instant motion to vacate the default judgment on the basis of lack of actual knowledge. The Court finds that service of process was ineffective and Defendant did not have actual notice of its inclusion in this matter. Defendant acted promptly and diligently upon learning of this case. Accordingly, the default judgment entered against Defendant is vacated.
Defendant argues a number of alternative theories why the default judgment should be vacated. The Court need not engage in a discussion of these additional arguments because it is clear that process was not effectuated at the outset. Defendant shall file the proposed answer which was submitted with its moving papers within 15 days of this hearing. If no oral argument is requested, the Court will sign the proposed order lodged with the moving papers.
Matter is calendared for a case management conference on February 7, 2023, at 3:00 p.m. in Department 18. Case management statements shall be filed no later than 15 days before the hearing.
10. SCV-267406 Brilliant v Black
Defendants’ counsel, Mitchell Greenberg’s unopposed motion to be relieved as counsel is GRANTED. Counsel has represented that there has arisen a conflict of interest in his representation of the three defendants. Counsel also represented that the relationship with Defendant Mitchell Black has broken down, making it unreasonably difficult for counsel to effectively represent his client. “An attorney may be allowed to withdraw without offending the rule against corporate self-representation.” (Thomas G. Ferruzzo, Inc. v. Superior Ct. (1980) 104 Cal.App.3d 501, 504.) The trial in this matter is set on February 24, 2023, and there are no other pending hearings at this time. Accordingly, Defendants will have sufficient time to obtain new counsel. If no hearing is requested, the Court will sign the proposed order lodged with the moving papers.
11. SCV-268068 Re: Tanner 221, LLC
Petitioner’s unopposed motion to vacate the order approving the petition for approval of the transfer of structed settlement payments is GRANTED. Petitioner submits that the parties no longer wish to proceed with the agreed upon transfer. Petitioner requests the petition be dismissed without prejudice. This request is also granted. If no oral argument is requested, the Court will sign the proposed order lodged with the moving papers.
12. SCV-269641 Davin v Kaiser Foundation Health Plan, Inc.
Respondents’ motion to quash/dismiss Petitioners’ petition to vacate arbitration award is GRANTED. Respondents’ unopposed request for judicial notice is GRANTED. Respondents’ counsel shall submit a written order consistent with this tentative ruling and in compliance with CRC Rule 3.1312.
This matter previously came before the Court for determination of a motion to quash service of the petition to vacate the arbitration award. The Court granted the motion to quash because the Court determined that service was not properly effectuated through electronic means. The Court refers the parties to the Court’s April 20, 2022 Minute Order. Petitioners argued at the time that the 100 day deadline for service set forth in CCP § 1288 had not yet passed because it had not begun to accrue. Petitioners argued this was because the arbitration award was served upon them electronically, not personally; thus, the clock did not begin to run upon service. The Court declined to address this argument at the time because the Court determined that the issue was not yet ripe for determination. The issue has now become ripe for determination by the Court because whether the Court has jurisdiction to hear the instant petition to vacate the arbitration award turns on whether service of the arbitration award was effective to commence the running of the 100 day deadline for service. Based on the analysis below, the Court finds that service of the arbitration award was effective, that the 100 day deadline passed before valid service was effectuated, and that the Court does not have personal jurisdiction over Respondents in order to hear the instant petition.
CCP § 1283.6 provides, “The neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” The arbitration agreement between the parties provided that the arbitration will be conducted by the rules of the Office of the Independent Administrator (OIA). (Respondents’ RJN 1(a), Decl. of Ross Lampe, Ex. A.) OIA Rule 39 requires the arbitrator to serve the award by mail. However, as a result of the pandemic, the OIA enacted a temporary amendment in 2020 permitting arbitrators to serve awards “electronically rather than by mail as required by OIA Rule 39.” This amendment was in effect at the time the arbitration award was served in this matter (July 29, 2021).
Petitioners cite to Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710 in arguing that the Court should find that the 100 day deadline was equitably tolled because the arbitration award was served electronically. First, the Saint Francis Court discusses whether Government Code § 11523 (regarding writs of mandate) may be tolled. Unlike CCP § 1288, failure to comply with the deadline of Government Code § 11523 does not divest the Court of personal jurisdiction over any party. Therefore, the case is distinguished. Second, service by electronic means was not improper based on the parties’ agreement and the OIA rules. Furthermore, equitable tolling is also not warranted given the fact that there is no evidence that Petitioners objected to service of the award by electronic means. Based on the record before the Court, the Petitioners did not raise an objection to this type of service until their response to Respondents’ motion to quash service. Even if, for the sake of argument only, equitable tolling did apply, the Court cannot say the conduct of Petitioners was objectively reasonable, particularly given the delay in proper service after the issue was immediately raised by opposing counsel after the ineffective service attempt, and the further delay after the issue was brought into focus as a result of the prior motion to quash.
The Court finds that service of the arbitration award was proper. The 100 day deadline began to run on July 29, 2021. Petitioners did not properly serve the petition to vacate the arbitration award on Respondents until May 11, 2022, well beyond the 100 day deadline. Accordingly, this Court does not have personal jurisdiction over Respondents. (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1203 [Proper service of the petition to vacate arbitration award establishes the Court’s personal jurisdiction over the respondent.].) Pursuant to CCP § 1286.4, the Court may not vacate an arbitration award unless the petition requesting that it be vacated “be duly served and filed.”
Petitioners also argue in opposition that their failure to comply with CCP § 1288 should be excused pursuant to CCP § 473. Petitioners raised this argument in opposition to Respondents’ previous motion and the Court explained that CCP § 473 “cannot be relied upon to relieve a party from its failure to comply with the 100–day deadline for filing and serving a petition to vacate an arbitration award.” (Abers, supra, at 1203.) “That 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. Once jurisdiction is lost, it cannot be retroactively reinstated.” (Ibid.) The authorities cited by Petitioners on this point are each distinguished. Sant Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710 is discussed above and Rockefeller Technology Investments (Asia) VII v. Changshou Sino Type Tech. Co., Ltd. (2020) 9 Cal.5th 125 addresses the “narrow question” of whether the Hague Service Convention preempts the notice provision in the parties’ agreement if the Convention provides for a different method of service. (Id. at 132.)
Accordingly, for the reasons stated above, Respondents’ motion to vacate/dismiss the petition for vacate the arbitration award is GRANTED.
*This is the end of the Tentative Rulings*