Opinion
D074684
03-05-2020
DOUGLAS BUSER, Plaintiff and Appellant, v. MARTIN BUSER, as Trustee, etc., Defendant and Respondent.
Snyder & Hancock and Scott A. Hancock for Plaintiff and Appellant. Artiano Shinoff, Howard A. Kipnis and Steven J. Barnes for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2010-00150555-PR-TR-NC) APPEALS from a judgment and orders of the Superior Court of San Diego County, Julia C. Kelety, Judge. Affirmed. Snyder & Hancock and Scott A. Hancock for Plaintiff and Appellant. Artiano Shinoff, Howard A. Kipnis and Steven J. Barnes for Defendant and Respondent.
I.
INTRODUCTION
Douglas Buser (Douglas) is a beneficiary of a trust (Buser Trust or "the trust") established by his deceased parents for the benefit of their three sons: respondent and trustee, Martin Buser (Martin), Douglas, and respondent Burton Buser (Burton). In August 2017, an arbitrator issued a final award (Arbitration Award) denying numerous objections that Douglas raised pertaining to Martin's administration of the trust. After granting Martin's first amended petition to confirm the Arbitration Award, the trial court entered a judgment on the award. Douglas subsequently filed a motion to vacate the judgment. In his motion, Douglas claimed that he was entitled to vacatur of the judgment due to the arbitrator's failure to disclose the arbitrator's "significant professional and personal relationship with [Martin's counsel]." The trial court denied the motion to vacate (Vacatur Denial Order). The trial court also entered an order approving Martin's plan for a final distribution of the trust (Distribution Order).
Although Burton's counsel appeared in the proceedings in the trial court pertaining to the judgment and orders on appeal, Burton has not filed a brief or appeared in this court.
As will be discussed in part II.F and footnote 28, post, the precise nature of the relief that Douglas sought in the trial court was ambiguous. Specifically, it was unclear whether Douglas sought vacatur of the order and judgment confirming the Arbitration Award or vacatur of the Arbitration Award.
As discussed in footnote 17, post, it appears that, on appeal, Douglas seeks vacatur of both the Arbitration Award and the judgment confirming that award.
On appeal, Douglas contends that the trial court erred in denying his motion to vacate. Douglas contends that the Arbitration Award and the judgment confirming the award must be vacated due to the arbitrator's failure to disclose that he was "also employed as a neutral with [Martin's] attorney . . . in at least one current and thriving undisclosed relationship." Douglas also seeks reversal of the Distribution Order. We affirm the judgment, the Vacatur Denial Order, and the Distribution Order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior proceedings involving the Buser Trust
We take judicial notice of our two prior opinions pertaining to the Buser Trust, Buser v. Buser (Feb. 19, 2014, D064000) (Buser I) and Estate of Buser Trust (July 3, 2014, D063381) (Buser II). (See Evid. Code, §§ 459 ["The reviewing court may take judicial notice of any matter specified in [Evidence Code] [s]ection 452"], 452, subd. (d) [permitting a court to take judicial notice of the "[r]ecords of (1) any court of this state"].) This section is drawn in part from Buser I and Buser II.
In 1997, Floyd Buser (Floyd) and Donna Buser (Donna) established the Buser Trust for the distribution of their assets in equal shares upon their death to their sons, Martin, Douglas, and Burton. The trust's res included five real estate properties.
"In 2006 the parents amended the trust to accommodate a $186,000 loan they made to Burton that was not repaid." (Buser I, supra, D064000.) This amendment is not material to this appeal.
Martin was named as successor trustee upon Floyd and Donna's death or incapacity. In 2009, Donna died. Martin gradually assumed responsibility for the management of Floyd's financial affairs. In 2011, Martin took over as successor trustee due to Floyd's dementia. Floyd died in 2012.
Beginning in 2010, Douglas and Martin became embroiled in extensive litigation pertaining to the trust. Burton has also been involved in some of these disputes. In 2011, Martin, Douglas and Burton entered into a written settlement agreement that resolved their disputes regarding the trust. The settlement agreement contained an arbitration agreement requiring the arbitration of "[a]ny and all disputes between or among Martin, Douglas or Burton regarding the interpretation or enforcement of this Settlement Agreement, [or] the trust administration . . . ." (Italics & some capitalization omitted.)
The parties continued to have such disputes and in February 2012, Martin filed a request that the court appoint an arbitrator, pursuant to the arbitration agreement in the settlement agreement, to resolve the disputes. In April 2012, after the arbitrator named in the settlement agreement recused himself, the court appointed B. James Brierton as a successor arbitrator.
Prior to the Arbitration Award at issue in this appeal, Arbitrator Brierton issued two other arbitration awards related to the Buser Trust, one in 2012 and a second in 2016. The trial court entered a judgment confirming the 2012 award in February 2013 and entered a judgment confirming the 2016 award in October 2016. B. The Arbitration
In November 2016, Martin filed a petition for approval of his final accounting for the Buser Trust together with a proposed final distribution schedule. Douglas filed objections to Martin's petition. Those objections were the subject of the arbitration at issue in this appeal.
In March 2017, Douglas's counsel sent a letter to Arbitrator Brierton requesting that the arbitrator recuse himself from this matter for a number of reasons, including that Arbitrator Brierton had purportedly failed to disclose "his relationship with [Martin's counsel,] [Attorney] Howard Kipnis[,] in the case of the Trust of Ferreira Family [(Ferreira Trust)]." A few days later, Arbitrator Brierton denied Douglas's request that he disqualify himself from this matter.
In July and August 2017, Arbitrator Brierton issued three arbitration awards that collectively constitute the Arbitration Award. In the Arbitration Award, Arbitrator Brierton rejected nearly all of Douglas's objections to Martin's petition. Arbitrator Brierton's assistant served the parties with the three awards that comprised the Arbitration Award on July 18, 2017, August 24, 2017 and August 28, 2017. C. Douglas's motion to set aside two prior arbitrations and to disqualify the arbitrator
The awards include a July 18 interlocutory award, an August 24 final award, and an August 27 corrected award.
In June 2017, Douglas filed a motion to set aside the two prior arbitration awards that had been confirmed in November 2012 and August 2016 on the ground that they were "void" due to a "pre[v]iously undisclosed conflict of interest" involving Arbitrator Brierton and Attorney Kipnis. Douglas lodged a declaration in which he claimed that, in March 2017, he "discovered that [Attorney] Kipnis and [Arbitrator] Brierton were working together but representing different parties," in the Ferreira Trust matter. Douglas also requested that the court disqualify Arbitrator Brierton.
It appears that Douglas filed the motion on June 19, 2017, the same day of the arbitration hearing.
Attorney Kipnis and Arbitrator Brierton both filed declarations disclaiming having ever worked together on the Ferreira Trust matter.
In November 2017, the trial court denied Douglas's motion in its entirety. D. Martin's petition to confirm the Arbitration Award
In October 2017, Martin filed a petition to confirm the Arbitration Award. Martin filed a first amended petition to confirm the award in March 2018. Douglas did not oppose either the petition or the first amended petition. On April 26, 2018, the trial court entered an order confirming the Arbitration Award. E. The judgment
The amendment pertained to Martin's request for attorney fees and is not material to this appeal.
On May 15, 2018, the trial court entered a judgment confirming the Arbitration Award. In its judgment, the court referenced its April 26 order confirming the Arbitration Award, and noted that "the time for reconsideration of the Court's order," had expired. F. Douglas's motion to vacate the judgment
1. Douglas's motion
Two weeks later, on May 29, 2018, Douglas filed a pleading entitled, "Notice of Motion and Motion to Vacate Order Confirming Arbitration Award; To Disqualify Arbitrator B. James Brierton; Points and Authorities; Declaration of [Attorney] Scott A. Hancock." (Some capitalization omitted.) In the notice, Douglas maintained "that the Arbitration Award[ ] [is] void," due Arbitrator Brierton's "undisclosed conflict of interest."
In an accompanying declaration, Douglas's counsel stated that, "[o]n or about September 9, 2016," Arbitrator Brierton and Attorney Kipnis "began to work together in another arbitration known as the 'Keen Family Trust [(Keen Trust)]." In his brief, Douglas claimed that the trial court should vacate "the order confirming the Arbitration Award under Code of Civil Procedure section 473[,] subdivision (b)[] on the grounds [that Arbitrator Brierton] failed to disclose a conflict of interest." (Boldface & some capitalization omitted.) Douglas also argued that the court had "inherent equity power . . . to grant relief from a judgment when there has been extrinsic fraud, mistake or excusable neglect." In addition to seeking vacatur of order and judgment confirming the Arbitration Award, in portions of Douglas's motion, he argued that the trial court should vacate the Arbitration Award pursuant to California statutory law. On the merits, Douglas claimed that Arbitrator Brierton was required, under California law, to disclose that he had worked with Attorney Kipnis on the Keen Trust matter, and that Brierton had failed to do so.
Code of Civil Procedure section 473, subdivision (b) provides in relevant part, "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
Douglas contended that "[t]here is [sic] no time limitations on equitable motions for relief from a judgment."
For example, Douglas contended, "As to the vacatur of an arbitrator's award, under section 1286.2, subdivision (a)(6), the court 'shall vacate' an arbitrator[']s award if the court determines the arbitrator 'failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware.' " Douglas also stated, "The Court should issue an order setting aside and vacating the Arbitration Award[ ] entered against Douglas . . . on May 15, 2018 . . . ." (Italics added.) As noted in the text above, the judgment confirming the Arbitration Award was entered on May 15, 2018.
Douglas supported the motion with a May 2, 2018 disclosure statement in the Keen Trust matter from Attorney Brierton. The disclosure statement states in relevant part:
Douglas stated that his counsel had received the disclosure statement from counsel in the Keen Trust matter on or about May 4, 2018.
"I, B. James Brierton, Esq., hereby make the following disclosures for the past 5 years with respect to prior arbitrations and private trials and for the past 2 years with respect to prior mediations and references:
" Counsel:
"Howard A. Kipnis, . . . .
2 Mediations The Trust. 3/5/2018
The Keen Family Trust (MED). Settled 9/9/2016" (Italics omitted.)
Douglas noted that Arbitrator Brierton had failed in this matter to disclose his involvement with Attorney Kipnis in the Keen Trust matter.
2. Martin's opposition
Martin filed an opposition in which he contended that Douglas's motion should be denied as an untimely attack on the Arbitration Award. In support of this argument, Martin noted that a petition to vacate an arbitration award or a response seeking vacatur of an arbitration award must be filed within 100 days of the service of the award. (Citing §§ 1288, 1288.2.) Martin argued that the trial court lacked jurisdiction to vacate the award since Douglas's petition had not been filed within this 100-day time frame.
Martin also argued that there was no factual basis for Douglas's request for the trial court to exercise its inherent authority to set aside the judgment confirming the Arbitration Award. In support of this argument, Martin contended, "Even assuming the Arbitrator failed to make a required disclosure, that fact alone does not arise [sic] to the level of 'extrinsic fraud' such as would justify vacat[ ]ur of the judgment confirming the arbitration award."
Martin also maintained that, in any event, Attorney Brierton had not failed to make any required disclosure pertaining to the Keen Trust matter. Martin argued in part, "Notwithstanding the conclusory assertions in Douglas'[s] [p]ending [m]otion, there was no requirement that [Arbitrator] Brierton disclose [Attorney] Kipnis's representation of an interested party who was not a litigant to that arbitration before [Arbitrator] Brierton . . . ."
Martin supported his opposition with Attorney Kipnis's declaration. In his declaration, Attorney Kipnis provided a detailed description of his involvement in the Keen Trust matter, including the fact that Arbitrator Brierton had never made any rulings or awards as arbitrator involving any of Attorney Kipnis's clients in the Keen Trust matter. Attorney Kipnis's declaration stated in relevant part:
Attorney Kipnis also stated that "Douglas has made no less than nine previous attempts attacking the appointment of the Arbitrator and/or his prior awards."
"I currently represent Sue Holberg, one of the co-trustees of the Keen Family Trust. Sue Holberg was nominated and accepted the appointment as co-trustee of that trust in a settlement agreement, which was approved by this Court at a hearing on September 13, 2016. The dispute in that case arose shortly after the death of the trustor in mid-2012, when three of the five trust remainder beneficiaries (the "Contesting Beneficiaries") petitioned to remove the former trustee, U.S. Bank. That petition proceeded to trial before the Honorable Kevin A. Enright of this Court. During that trial, the matter was settled in a mediation before Mr. Brierton in September 2016. Under the settlement agreement, U.S. Bank resigned as trustee and my client was appointed as a successor co-trustee. I did attend that mediation on behalf of the other two trust remainder beneficiaries who were not parties to the disputes that were being tried between the Contesting Beneficiaries and U.S. Bank, the former trustee. And I never represented the Contesting Beneficiaries or U.S. Bank in that matter. Nonetheless, I and my former clients attended that mediation as interested trust beneficiaries and were parties to the settlement agreement.
". . . Shortly thereafter, disputes developed over the enforcement of the settlement agreement. On October 27, 2016, on behalf of my clients, the two non-Contesting Beneficiaries, I brought an ex parte request before Judge Enright to enforce the Settlement Agreement. Judge Enright denied the request and directed the parties to arbitrate their disputes before Mr. Brierton. It quickly became clear, however, that the primary dispute was between the Contesting Beneficiaries and U.S. Bank, the former trustee, over the validity of the settlement agreement. Indeed, that same day, the Contesting Beneficiaries filed a formal demand for arbitration against U.S. Bank for fraud/failure to disclose and declaratory relief, seeking to set aside the settlement agreement. Later, certain of the Contesting Beneficiaries demanded in writing that my client, the successor co-trustee, join with them in pursuing claims in arbitration on behalf of the Trust against the former trustee (U.S. Bank) for rescission of the Settlement Agreement. However, I rejected that demand and thereafter did not participate in any way in those arbitration proceedings. Moreover, I withdrew as counsel for the two non-Contesting Beneficiaries before that arbitration was commenced, and thereafter merely continued to monitor that proceeding on behalf of my client, Sue Holberg, the current successor co-trustee. At no time did Mr. Brierton issue any awards or rulings in any arbitration proceeding that I or my client (or former clients) had participated in.
". . . On March 17, 2017, Mr. Brierton as arbitrator noticed an arbitration hearing in the Contesting Beneficiaries v. U.S. Bank dispute over whether the settlement agreement should be set aside. That arbitration hearing eventually took place on June 27, 2017. Again, neither I nor my clients (or former clients) participated in any way in that arbitration hearing, and I took no position on behalf of my clients in that matter.
". . . It is true that in March 2017, Mr. Brierton also noticed an arbitration hearing on the Contesting Beneficiaries' demand for arbitration against my former clients, the two non-contesting beneficiaries. However, no such arbitration hearing ever took place. Shortly after that notice was sent, that matter was stayed pending the outcome of the disputes between the Contesting Beneficiaries and U.S. Bank, and again, shortly thereafter I advised all parties (as well as Mr. Brierton) that I had withdrawn as counsel for the two non-contesting beneficiaries and would only be representing the co-trustee from that point forward. At that time[,] I also made it clear that as counsel for the successor co-trustee, neither my client nor I would be participating in any of the arbitration matters, but would simply monitor them. Thereafter, I never participated in any arbitration hearings or mediations that may have taken place in the Keen Family Trust matter. Mr. Brierton never at any time made any rulings or awards as arbitrator involving my clients (or my former clients) in the Keen Family Trust matter."
3. Douglas's reply
Douglas filed a reply brief. In his reply brief, Douglas stated, "Martin . . . mischaracterizes this motion." Douglas continued, "This is not a motion to vacate the [A]rbitration [A]ward, but it is a motion to vacate this Court's order confirming the [A]rbitration [A]ward." Douglas also argued:
" '100 days' is not 'a get out of jail free card,' particularly where there was intentional non-disclosure of a material relationship. Where there is extrinsic fraud and evident partiality, under . . . [section]170.3,[] notice must be made at the earliest practical opportunity after facts supporting the grounds for disqualification are discovered. [Citation.] There are no time limitations on equitable motions for relief from a judgment. . . . [Douglas] submits that pursuant to the facts of this case, equity requires that the [A]rbitration [A]ward be set aside and [Arbtirator] Brierton be recused from further acts as [an] arbitrator in matters pertaining to the subject trust."
Section 170.3 pertains to the disqualification of a judge.
Douglas maintained that he did not know, and could not have known, of the "disqualifying facts" pertaining to Arbitrator Brierton prior to the trial court's confirmation of the Arbitration Award. Douglas further claimed that it was the responsibility of Attorney Kipnis as well as Arbitrator Brierton to disclose such facts, which, Douglas asserted, had been "actively concealed" from him. Douglas also reiterated his argument that California statutory law required Arbitrator Brierton to disclose "that [Attorney] Kipnis and [Arbitrator] Brierton ha[d] been engaged in another arbitration ([the Keen Trust]) since September 2016." G. The Vacatur Denial Order
The basis for the "active concealment," argument was that Douglas had "suspected the existence of a relationship between [Attorney] Kipnis and [Arbitrator] Brierton," as evidenced by Douglas's pleadings pertaining to the Ferreira Trust. Douglas suggested that Attorney Kipnis's and Arbitrator Brierton's "carefully worded declarations," disclaiming a relationship in the Ferreira Trust case constituted active concealment of their relationship in the Keen Trust matter.
On August 8, 2018, after a hearing, the trial court entered the Vacatur Denial Order. The Vacatur Denial Order states in part, "Douglas moves to set aside this court's order confirming the arbitration award pursuant to [section] 473[, subdivision] (b), on the basis that the arbitrator failed to disclose a conflict of interest which he was required to disclose under [section] 1281.9."
Section 1281.9 pertains to disclosure requirements for arbitrators.
In analyzing Douglas's claim, the trial court recognized that "a petition seeking to vacate an award must be served and filed within 100 days after the award was served on such party." (Citing § 1288.) However, the court rejected Martin's argument that Douglas's motion was untimely. The trial court based this conclusion on its determination that Douglas had "clarified" in his reply brief that he was not seeking to vacate the Arbitration Award:
"At the outset, the court notes that Douglas's request is to vacate this court's order confirming the [A]rbitration [A]ward; Douglas does not seek to vacate the award itself. Therefore, Martin's argument in re the passage of time under [section] 1288 are inapposite. (The Notice of Motion . . . stated a challenge to the award, but in his Reply . . . , Douglas clarified that he was not seeking to vacate the award.)"
On the merits of Douglas's motion, the trial court ruled that Douglas had made not showing that he was entitled to relief under section 473, subdivision (b):
"In apparent reliance on [section] 473[, subdivision] (b), Douglas seeks to set aside a final judgment on the order granting the petition to confirm the arbitrator's award. However, aside from referencing this code section in the heading, Douglas offers no analysis of it whatsoever and instead switches tactics, asking the court to instead use its 'inherent power.' He then goes on to generically reference judgments procured by fraud. [Section] 473[, subdivision] (b) permits the court to 'relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.' However, Douglas fails to state how any of these
factors pertain to him and fails to provide a declaration attesting to his own 'mistake, inadvertence, surprise, or excusable neglect.' "
The trial court also ruled that Douglas had not demonstrated that he was entitled to vacatur of the judgment or the order confirming the Arbitration Award on the basis of the existence of "extrinsic fraud," reasoning in part:
"Additionally, assuming, arguendo, that Douglas had properly framed a request for relief under [section] 473[, subdivision] (b), the court nonetheless finds that Douglas has failed to establish the existence of extrinsic fraud and thus failed to establish that he is entitled to equitable relief. Extrinsic fraud has been defined generally as conduct that deprives the defrauded party of the opportunity to present his or her claim or defense to the court, 'that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding.' [Citation.] . . .
"Douglas relies on three cases as a basis for his extrinsic fraud claim. However, in each of these cases the judgment sought to be set aside was taken by default. Here, the order of this court was not taken by default, indeed, Douglas was present in court when the petition to confirm the arbitration award was entered."
Finally, the trial court found that Arbitrator Brierton had not failed to make a mandatory disclosure. The court reasoned in part:
"Here, [A]ttorney Kipnis attended a mediation conducted by [Arbitrator] Brierton in the Keen matter while representing two beneficiaries who were not parties to the dispute being mediated. He withdrew from representing these two beneficiaries prior to the matter going to arbitration before Brierton in June 2017. This does not mean that Brierton and Kipnis were 'working together,' and the court finds that a reasonable person would not be led to doubt Brierton's impartiality because of this attenuated connection. Therefore, there was no duty to disclose on the part of Brierton and no basis for not confirming the award."H. The Distribution Order
The same day that the court entered its Vacatur Denial Order, the trial court entered the Distribution Order, approving Martin's final plan of distribution of the trust.
I. Douglas's appeals
In August 2018, Douglas timely appealed from the Vacatur Denial Order and the judgment. In October 2018, Douglas timely appealed from the Distribution Order.
While this appeal was pending, Douglas filed a motion for judicial notice. In his motion, Douglas requests that we take judicial notice of an April 13, 2017 "Pre-Hearing Order" in the Keen Trust arbitration, and accompanying proofs of service of that order. The Pre-Hearing Order states that it relates to "the Arbitration hearing on June 30, 2017 re the matter of Marlene McCoy, Sydney Taylor and Leslie Noblitt v. Frederick Holberg and Robert Holberg," and the accompanying proofs of service list Attorney Kipnis as a recipient of the order.
"Reviewing courts generally do not take judicial notice of evidence not presented to the trial court. Rather, normally 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' " (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Douglas presents no argument that "exceptional circumstances exist that would justify deviating from that rule" in this case. (Ibid.) Accordingly, we deny Douglas's motion for judicial notice.
III.
DISCUSSION
A. The trial court properly denied Douglas's motion to vacate
Douglas appears to contend that the trial court erred in failing to vacate the judgment confirming the Arbitration Award and in failing to vacate the Arbitration Award itself. We conclude that Douglas's challenge to the Arbitration Award is time barred and precluded by the fact that the Arbitration Award was reduced to a judgment before Douglas challenged it. We further conclude that Douglas has failed to demonstrate any basis for vacating the judgment confirming the Arbitration Award.
Douglas's brief is ambiguous with respect to the precise claims that he is raising and the basis for any relief. We give Douglas's brief the broadest possible reading and conclude that none of his arguments provides a basis for reversal. In part III.A.1, post, we consider Douglas's claim that the trial court erred in denying his motion to vacate the Arbitration Award. In part III.A.2, post, we consider Douglas's claim that the trial court erred in denying his motion to vacate the judgment.
1. Douglas's challenges to the Arbitration Award are time barred and precluded by the judgment
Douglas claims that the "Arbitration Award must be vacated." (Boldface & some capitalization omitted.) Douglas maintains that he demonstrated that Arbitrator Brierton failed to make certain statutory disclosures and that such failures required the trial court to vacate the Arbitration Award. We need not consider the merits of the trial court's finding that Arbitrator Brierton did not fail to make any required disclosures because we conclude that Douglas failed to timely file a petition to vacate the Arbitration Award and thus, the trial court lacked jurisdiction to vacate the Arbitration Award. In addition, because the Arbitration Award was confirmed as a judgment prior to Douglas's filing his motion to vacate, his challenge to the award in the trial court was untimely and he may not raise a challenge on appeal to the award.
a. Governing law
Section 1288 provides in relevant part, "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 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 upon:
"(a) The respondent if he was a party to the arbitration; or
"(b) The respondent's representative if the respondent was not a party to the arbitration."
Section 1286.4 provides in relevant part:
"The court may not vacate an award unless:
"(a) A petition or response requesting that the award be vacated has been duly served and filed; or
"(b) A petition or response requesting that the award be corrected has been duly served and filed . . . ."
In Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211 (Abers), the Court of Appeal held that "the 100-day limitation for a petition to vacate a[n] arbitration award is jurisdictional." The Abers court also explained that the "trial court's power to vacate an arbitration award is governed by statute, and the deadline for seeking such relief is mandatory." (Ibid.) Thus, "[i]n the absence of . . . service and filing [of a petition to vacate], the court has no option but to confirm the award if requested to do so within four years of its issuance." (Id. at pp. 1211-1222.)
In addition, the law is well established that a party's "failure to file a timely petition to vacate the arbitration award bars [the party] from challenging the judgment confirming the award on appeal. [Citations.]" (Berg v. Traylor (2007) 148 Cal.App.4th 809, 823 (Berg).)
b. Application
i. Douglas's challenges to the Arbitration Award are time barred and precluded by the judgment
Douglas was served with the last of the three arbitration awards comprising the Arbitration Award on August 28, 2017. Douglas filed his motion to vacate more than 100 days later, on May 29, 2018. Thus, Douglas's motion to vacate was untimely under section 1288. (§ 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"].) Further, since "the 100-day limitation for a petition to vacate a[n] arbitration award is jurisdictional," (Abers, supra, 217 Cal.App.4th at p. 1211), the trial court lacked jurisdiction to consider Douglas's motion to vacate insofar as it sought vacatur of the Arbitration Award. (Ibid.) Accordingly, we reject Douglas's argument that the "Arbitration Award must be vacated." (Boldface & some capitalization omitted.)
May 29, 2018 is 274 days after August 28, 2017.
Douglas's challenges to the Arbitration Award are also barred by the fact that, by the time Douglas filed his motion to vacate, the trial court had entered a judgment on the Arbitration Award. A judgment entered on a confirmed arbitration award "has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action." (§ 1287.4.) Having failed to timely file a petition to vacate the award, Douglas may not "challeng[e] the judgment confirming the award on appeal." (Berg, supra, 148 Cal.App.4th at p. 823; see also Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 659 (Louise Gardens) ["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"]; Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 394 (Knass) ["Knass waived his opportunity to challenge the award by allowing the 100-day period to expire. The fact the award was reduced to a judgment does not resurrect his opportunity to challenge it"].)
In Berg, a party filed an untimely petition to vacate an arbitration award. (Berg, supra, 148 Cal.App.4th at pp. 816, 823.) After the trial court denied the petition to vacate as untimely and entered a judgment on the award (id. a p. 816), the appellant attempted to challenge the award on appeal from the judgment (id. at p. 823). The Berg court rejected this attempt, reasoning, "[appellant's] failure to file a timely petition to vacate the arbitration award bars her from challenging the judgment confirming the award on appeal." (Ibid., citing Louise Gardens and Knass.)
Louis Gardens and Knass involved attempts by a party to challenge a judgment confirming an arbitration award for the first time on appeal. (Louise Gardens, supra, 82 Cal.App.4th at p. 660; Knass, supra, 228 Cal.App.3d at p. 394.) While Douglas filed an untimely motion to vacate the Arbitration Award in the trial court, thus challenging the award prior to the filing of his appeal, we are aware of no case law that would permit a trial court to vacate an arbitration award after having confirmed the award and entered a judgment thereon. In our view, the same principles that preclude a party from challenging, for the first time on appeal, an arbitration award that has been confirmed to judgment, also preclude a party from prevailing on a motion to vacate the arbitration award that is filed after that award that has been confirmed to judgment. As the Louis Gardens court stated, " 'An appeal of the judgment confirming the award may not be used to circumvent the prescribed time allowed to petition for vacation or correction of award.' " (Louise Gardens, supra, a p. 660.) Similarly, as the Berg court recognized, an untimely motion to vacate in the trial court may not be used to circumvent the prescribed time allowed to petition for vacatur of the award. (Berg, supra, 148 Cal.App.4th at p. 823.)
As noted in part II.G, ante, Douglas indicated in his reply brief in the trial court that he had not filed a motion to vacate the Arbitration Award, and that he sought vacatur of the judgment only, and not the award.
In part III.A.2, post, we consider Douglas's motion to vacate insofar as it constituted a motion to vacate the judgment.
ii. Douglas's arguments in favor of timeliness are without merit
Douglas's arguments as to timeliness are unpersuasive. In his opening brief, Douglas asserts, "The petition to vacate the September 15, 2017 Arbitration Award satisfies the statutory requirements of §§ 1285, 128.7, and [ ]1286.4, was duly served and filed on all parties on May 29, 2018 with reasonable notice, and all parties were heard before the trial court on August 8, 2018." Sections 1285 and 128.7 do not relate to timeliness of a motion to vacate. As discussed in part III.A.1.a, ante, section 1286.4, provides that a court may not vacate an award unless "[a] petition or response requesting that the award be vacated has been duly served and filed." (§ 1286.4, subd. (a), italics added.) Since, Douglas failed to file or serve his motion to vacate the Arbitration Award within 100 days of "the service of a signed copy of the award," (§ 1288), his petition was not duly served and filed.
Section 1285 provides: "Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award."
Section 128.7 contains signature and certification requirements for pleadings in civil actions generally.
Douglas also suggests that his challenge is timely because he "unmistakably objected to [Arbitrator] Brierton's jurisdiction." Even assuming that Douglas did object to Attorney Brierton's jurisdiction, Douglas fails to present a reasoned legal argument as to how his purported objection to Attorney Brierton's jurisdiction rendered his vacatur petition timely. Accordingly, the argument is forfeited. (See, e.g., DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 674 [appellant forfeits argument "by failing to adequately support it with argument and relevant legal authority"].)
In support of this contention, Douglas cites his March 17 letter to Arbitrator Brierton requesting that he disqualify himself, and the June 2017 disqualification motion that he filed in the trial court.
Douglas did cite Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376 (Douglass) in his brief, but failed to present any meaningful argument concerning the case. In Douglass, the appellant cited National Union Fire Ins. Co. v. Stites Prof. Law Corp. (1991) 235 Cal.App.3d 1718, 1723 (National Union) in support of his contention that he could prevail on an untimely motion to vacate an arbitration award because he was "challenging the arbitrator's jurisdiction and such a jurisdictional challenge may be raised at any time, including for the first time on appeal." (Douglass, supra, at p. 385.) However, the Douglass court "disagree[d] with National Union," and concluded that the party's petition to vacate was untimely. (Id. at p. 386.)
Douglas also asserts in his opening brief that his motion to vacate was timely under California Rules of Court, rule 3.828. California Rules of Court, rule 3.828 applies to judicial arbitrations, not to the contractual arbitration at issue in this case. (See California Rules of Court, rule 3.810; § 1141.30.) In Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332 (Mercury Insurance), the Supreme Court outlined the distinctions between judicial and contractual arbitration:
California Rules of Court, rule 3.828 provides:
"(a) Motion to vacate
"A party against whom a judgment is entered under an arbitration award may, within six months after its entry, move to vacate the judgment on the ground that the arbitrator was subject to a disqualification not disclosed before the hearing and of which the arbitrator was then aware, or upon one of the grounds set forth in Code of Civil Procedure sections 473 or 1286.2(a)(1), (2), and (3), and on no other grounds.
"(b) Notice and grounds for granting motion
"The motion must be heard upon notice to the adverse parties and to the arbitrator, and may be granted only upon clear and convincing evidence that the grounds alleged are true, and that the motion was made as soon as practicable after the moving party learned of the existence of those grounds."
California Rules of Court, rule 3.810 provides, "The rules in this chapter (commencing with this rule) [including California Rules of Court, rule 3.828] apply if Code of Civil Procedure, part 3, title 3, chapter 2.5 (commencing with section 1141.10) is in effect."
Section 1141.10 et seq. sets out a series of statutory provisions mandating the arbitration of "small civil cases." For example, section 1141.11, subdivision (a) provides: "In each superior court with 18 or more judges, all nonexempt unlimited civil cases shall be submitted to arbitration under this chapter if the amount in controversy, in the opinion of the court, will not exceed fifty thousand dollars ($50,000) for each plaintiff."
Section 1141.30 provides, "This chapter shall not be construed in derogation of Title 9 (commencing with Section 1280) of Part 3, and, to that extent, this chapter and that title, other than Section 1280.1, are mutually exclusive and independent of each other."
Section 1280 et. seq. specifies the law governing contractual arbitrations, including section 1288, which outlines the time within which a party must file a petition to vacate an arbitration.
"The law functions as a comprehensive scheme regulating contractual arbitration. [Citation.] Contractual arbitration generally results in a binding and final decision. [Citation.] The purpose of this law is to promote contractual arbitration, in accordance with a 'strong public policy' in favor thereof [citation], as a more expeditious and less expensive means of resolving disputes than litigation. . . .
"[¶] . . . [¶]
"Similar to the contractual arbitration law in name, but not in substance, is the judicial arbitration law, which appears at Code of Civil Procedure section 1141.10 et seq., and is implemented as to 'practice and procedure' (Code Civ. Proc., § 1141.14) by [former] California Rules of Court, rule 1600 et seq. [current section 3.810.]
"[¶] . . . [¶]
"In Code of Civil Procedure section 1141.30, it is declared that the judicial arbitration law and the contractual arbitration law differ the one from the other in their respective spheres. To quote the provision, they are 'mutually exclusive and independent of each other.' " (Id. at pp. 342-344.)
The Mercury Insurance court explained numerous distinctions between the two systems, the most fundamental of which is that "contractual arbitration arises solely out of an arbitration agreement, specifically, a written arbitration agreement [citation], between the parties thereto [citations], whereas judicial arbitration may be imposed on the parties . . . , whether or not they agree, in writing or otherwise (see Code Civ. Proc., § 1141.11)." (Mercury Insurance, supra, 19 Cal.4th at p. 344.)
As noted in footnote 25, ante, section 1141.11 specifies the types of cases subject to judicial arbitration.
The contractual arbitration in this case arose from the arbitration agreement contained in the settlement agreement. There is nothing in the record indicating that the matter was a case subject to judicial arbitration pursuant to section 1141.11. Thus, Douglas's motion to vacate was subject to California law governing contractual arbitrations, including section 1288. The Rules of Court pertaining to judicial arbitration are entirely inapplicable. Accordingly, we reject Douglas's contention that his petition was timely pursuant to California Rules of Court, rule 3.828.
The parties' 2012 settlement agreement provides in relevant part, "Any and all disputes between or among Martin, Douglas or Burton regarding the interpretation or enforcement of this Settlement Agreement, the trust administration . . . shall be referred to Judge Moon for mandatory mediation, and if not resolved at mediation, to be then referred to Judge Moon for binding arbitration in accordance with AAA Arbitration Rules." (Some capitalization omitted.) As noted in part II.A, ante, the trial court appointed Arbitrator Brierton as a successor arbitrator pursuant to this provision. We reject Douglas's argument that the fact that the trial court, appointed Arbitrator Brierton as successor arbitrator (Buser II, supra, D063381), converted this contractual arbitration into a judicial arbitration.
Douglas also raises several arguments for the first time in his reply brief in support of his contention that his motion to vacate the award was timely, including that the "100-day . . . period should be tolled . . . due to equitable estoppel." Without intending to suggest that these arguments have any merit, we need not, and do not, consider them since they were raised for the first time in reply without any persuasive reason for Douglas having failed to raise them in his opening brief. (See, e.g., Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].)
Douglas states that his "[o]pening [b]rief did not address the [section] 1288 timeliness notice period because the trial court rejected" Martin's contention that Douglas's motion to vacate was untimely. However, the trial court's conclusion in this regard was based on Douglas's statement in his briefing in the trial court that he was not seeking to vacate the Arbitration Award.
In one portion of his opening brief in the trial court, Douglas stated that he sought vacatur of the underlying August 2017 "[a]rbitration [a]ward." (Italics added.) However, in his reply brief in the trial court, Douglas stated, "Martin . . . mischaracterizes this motion. This is not a motion to vacate the arbitration award." (Italics added.) The trial court relied on this statement from Douglas's reply brief in stating in its order that "Douglas does not seek to vacate the award itself." (Italics added.) While the trial court concluded that Martin's argument based on section 1288 was "inapposite," the trial court's conclusion was based on Douglas's affirmative representation that he had not filed a motion to vacate Arbitration Award. We therefore reject Douglas's argument that he may raise arguments pertaining to the timeliness of his motion to vacate the Arbitration Award for the first time in reply. Further, in light of our conclusion that Douglas's challenge to the Arbitration Award was untimely and precluded by the judgment, we need not determine whether Douglas should be estopped from raising a challenge to the Arbitration Award on appeal given his statement in the trial court that he had not filed "a motion to vacate the arbitration award."
2. The trial court did not err in denying Douglas's motion to vacate the judgment confirming the Arbitration Award
In addition to challenging the Arbitration Award, Douglas appears to contend that the trial court erred in denying his motion to vacate the judgment based on Arbitrator Brierton's purported failure to disclose his involvement in the Keen Trust matter, in which Attorney Kipnis was also involved. (See fn. 17, ante.)
The bulk of the legal argument of Douglas's brief addresses Arbitrator Brierton's purported failure to make certain statutory disclosures that Douglas claims required vacatur of the Arbitration Award. For the reasons explained in part III.A.1, ante, we conclude that Douglas may not prevail on these claims given his failure to file a timely petition to vacate the Arbitration Award.
Since a judgment entered on a confirmed arbitration award has the same force and effect as an ordinary civil judgment (§ 1287.4), we assume, without deciding, that even where a party fails to timely file a petition to vacate an arbitration award, a trial court may vacate a judgment confirming an arbitration award pursuant to its inherent authority to guard against extrinsic fraud. (Cf. Department of Industrial Relations v. Davis Moreno Construction, Inc. (2011) 193 Cal.App.4th 560, 570 (Department of Industrial Relations) ["A motion to vacate a judgment for extrinsic fraud is not governed by any statutory time limit, but rather is addressed to the court's ' " 'inherent equity power' " ' to grant relief from a judgment procured by extrinsic fraud"]; Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 640 ["Apart from statutory authority, the trial court has inherent power to correct its judgment or to vacate a void judgment"]; People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 582 ["The court had inherent equitable authority, separate and apart from section 473, to set aside the judgment based on extrinsic fraud or mistake"].)
" 'Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: . . . failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). [Citation.] The essence of extrinsic fraud is one party's preventing the other from having his day in court.' " (Department of Industrial Relations, supra, 193 Cal.App.4th at p. 570.)
We need not decide the precise contours of such equitable authority in this case because it is clear, as the trial court determined, that, "Douglas has failed to establish the existence of extrinsic fraud and thus failed to establish that he is entitled to equitable relief." While Douglas suggests that the judgment is "void on its face," he points to nothing in the record pertaining to Attorney Brierton's involvement in the Keen Trust matter that would support such a conclusion.
In the trial court, Douglas contended that the "[c]ourt has inherent equity power under which, apart from its statutory authority, it has the power to grant relief from a judgment where there has been extrinsic fraud . . . ." Nevertheless, on appeal he contends that the trial court "erred in requiring extrinsic fraud" (boldface & capitalization omitted) and contends that "a finding of extrinsic fraud is unnecessary under California Rules of Court[, rule] 3.828." As we explained in the text, California Rules of Court, rule 3.828 is inapplicable in this case.
We have described that evidence in part II.G, ante.
Accordingly, we conclude that the trial court did not err in denying Douglas's motion to vacate the judgment confirming the Arbitration Award. B. Douglas has not demonstrated that he is entitled to reversal of the Distribution Order
Douglas contends that the Distribution Order should be reversed for two reasons. First, he restates his contentions that Arbitrator Brierton's failure to disclose his involvement in the Keen Trust matter resulted in a miscarriage of justice. We reject those arguments for the reasons stated in part III.A, ante. Second, Douglas raises challenges to the merits of the Arbitration Award, which were incorporated into the Distribution Order, including challenges to the trustee's valuation of real estate properties in the Buser Trust, the trustee's distribution methodology, and the arbitrator's award of attorney's fees. The challenges to the merits of an arbitration award are " 'not subject to judicial review' "; California law is clear that "courts will not review the validity of the arbitrator's
reasoning." (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11 (Moncharsh).) Thus, we reject Douglas's challenges to the merits of the Arbitration Award, as incorporated into the Distribution Order, as barred by Moncharsh and the principle that the merits of arbitral awards are not subject to judicial second guessing.
This includes an arbitrator's determination of the " ' "ancillary" question of costs, including attorney fees.' " (Safari Associates v. Superior Court (2014) 231 Cal.App.4th 1400, 1409.)
Accordingly, we conclude that Douglas has not demonstrated that he is entitled to reversal of the Distribution Order.
IV.
DISPOSITION
The trial court's May 15, 2018 judgment is affirmed. The trial court's August 8, 2018 Vacatur Denial Order and the trial court 's August 8, 2018 Distribution Order are affirmed. Douglas is to bear costs on appeal.
AARON, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.