Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County, Super. Ct. No. 07CECG00188, Donald S. Black, Judge.
Robert J. Rosati, for Plaintiff and Appellant.
Jerry R. Lowe, for Defendant and Respondent.
Ardaiz, P.J.
Appellant Thomas J. Richardson is an attorney who was ordered by a panel of three arbitrators to refund $40,000 to respondent Enedina Ceja in a dispute over attorney fees. The Mandatory Fee Arbitration Act (MFAA, Bus. & Prof. Code, § 6200 et seq.) allows the parties to a fee dispute to agree in writing to be bound by the award of the arbitrators. (§ 6204, subd. (a).) If they do not so agree, then “either party shall be entitled to a trial after arbitration ….” (Ibid.) “If no action is pending, the trial after arbitration shall be initiated by the commencement of an action in the court having jurisdiction over the amount of money in controversy within 30 days after mailing of notice of the award.” (§ 6204, subd. (c).) In this case, a proof of service attached to the arbitration award declared that the award was mailed on December 19, 2006 to appellant at his correct address. The address on the actual envelope containing the award, however, omitted the suite number from appellant’s address and misspelled his last name as “Ricardson.” Appellant nevertheless received the mailed award, according to his own declaration, not later than “on or about Saturday, December 23, 2006.” Appellant commenced this action by filing his complaint on January 19, 2007, the 31st day after December 19, 2006. The superior court ruled that appellant’s complaint was not timely, and granted respondent’s petition to confirm the arbitration award. The court entered a judgment confirming the award of the arbitrator, and Richardson appeals from that judgment.
Further statutory references are to the Business and Professions Code unless otherwise stated.
Appellant contends that statutory requirements for service by mail were not met, that the 30-day period within which this action had to be commenced did not begin running until sometime after the December 19, 2006 date stated in the proof of service as the date of mailing, and that therefore his court action filed on January 19, 2007 was timely. As we shall explain, we see no error in the trial court’s ruling, and we will affirm the judgment.
FACTS
Respondent Ceja requested arbitration under the Fresno County Bar Association Fee Arbitration Program of a fee dispute she had with appellant Richardson. The panel of three arbitrators ruled that appellant should refund $40,000. The proof of service on the Award of Arbitrator stated that the award was mailed to the parties on December 19, 2006, and particularly that it was mailed to appellant addressed as follows:
Thomas J. Richardson, 2950 Mariposa, Suite 200, Fresno, California 93721
The proof of service was signed by Mysti Mendoza, and stated that Mendoza’s “business address is Fresno County Bar Association – 1221 Van Ness Ave., Ste. 300 – Fresno, CA 93721.”
Appellant sought a “trial after arbitration” (§ 6204, subd. (a)) by filing this action in the superior court on January 19, 2007. After Ceja filed an answer to the complaint, she filed a petition to confirm the arbitration award. The petition alleged that “more than 30 days have passed since notice of the award was mailed, and no party has filed a rejection of the award and request for trial.” Richardson’s written opposition to the petition argued that the 30-day period within which he was required to request a “trial after arbitration” (§ 6204, subd. (a)) did not begin to run on December 19, 2006 because (1) service by mail of the arbitration award did not comply with the requirements of Code of Civil Procedure section 1013 in that the address on the envelope (omitting the suite number) did not match the address on the proof of service (which included the suite number) and (2) he “did not receive the envelope by ordinary mail delivery.” Richardson’s opposition to the petition included his declaration, which stated in pertinent part:
Prior to the filing of respondent’s petition to confirm the arbitration award, appellant filed a motion to vacate the arbitration award. Appellant’s motion to vacate the award was opposed by respondent, whose opposition to the motion included a “Request to Confirm Arbitration Award.” The court denied appellant’s motion to vacate the arbitration award, and denied without prejudice respondent’s request to confirm the award.
This allegation was on a standardized form pleading used for petitions to confirm attorney-client fee arbitration awards. The allegation appears at paragraph “8.b” of the form pleading, next to a box checked by respondent. The allegation was of course not quite accurate – appellant had already filed this action requesting a trial after arbitration, but appellant had done so on the 31st day (Jan. 19, 2007) after the date on which the arbitration award’s proof of service said the award had been mailed (Dec. 19, 2006.).
“3. In my mailings to the Fresno County Bar Association, I utilized suite No. 200 in my address. Attached hereto as Exhibit ‘A’ is a true and correct copy of ‘Attorney’s Reply to Client’s Request for Arbitration,’ which on the proof of service, page four, identifies my address as: 2950 Mariposa St., Ste. 200, Fresno, CA 93721.
“4. I am a co-owner of 2950 Mariposa, Fresno, California, which is occupied by no less than five suites, including mine at Ste. 200, attorney Jack Revvill (Ste. 140), attorney James Homola (Ste. 250), as well as Pipkin Detective Agency and associated businesses.
`”5. Mail is delivered at my suite by the carrier setting the mail on a ledge inside the office (to be collected by me or someone from my staff) or through a common mail slot at 2950 Mariposa.
“6. I did not receive the subject envelope among other mail delivered to my office.
“7. I believe that the envelope was either hand-delivered or, more likely, delivered to another suite within 2950 Mariposa where it was redelivered by one of the building’s tenants to his office.
“8. Based on my personal inspection of the envelope, it does not carry the bar-code cancellation in use by the U.S. Postal Service as of the alleged date of mailing, December 19, 2006. A copy of the envelope is attached hereto as Exhibit ‘B.’ I or my counsel, Thornton Davidson, will also provide the original of the envelope to the Court at the time of the hearing on this matter.”
The copy of the envelope attached as Exhibit B to Richardson’s declaration clearly shows that the address on the envelope omitted Richardson’s suite number. Exhibit B also contains what appears to be a faint circular marking resembling a postmark, but the mark contains no legible or even visible writing of any kind.
The court granted the petition and entered judgment in favor of Ceja. The court’s order granting the petition stated in pertinent part:
“In the case at bench, despite the opposing party’s claim that he ‘did not receive the subject envelope among other mail delivered to his office’, he must have received notice of the award because he did file a request for trial de novo. Despite the circumstances surrounding the manner in which the envelope was delivered, the plaintiff fails to state when he did receive the notice of the award. Most importantly, he offers no evidence that the envelope, which included a correct street address and only omitted a suite number, was not mailed on December 19, 2007, which triggered the running of the 30 day period. (Bus. & Prof. Code, § 6203(b).) Because it only omitted a suite address, the address on the envelope subsequently conformed to the requirements of Code of Civil Procedure § 1013 (Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58), particularly when evidence of how mail is collected and distributed at plaintiff’s law office is considered.”
THE MANDATORY FEE ARBITRATION ACT
The California Supreme Court in Maynard v. Brandon (2005) 36 Cal.4th 364 described the MFAA (§ 6200 et seq.) as follows:
“ … Arbitration under the MFAA is limited to disputes concerning legal fees, costs, or both. (… § 6200, subd. (a).) In the absence of written consent to arbitration, only one party to a fee dispute – the client – can compel submission of the controversy to an MFAA arbitration panel. (Id., subd. (c).) Attorneys may invite, but cannot require, clients to participate in MFAA arbitration. (Ibid.) Fee arbitration may occur either before an attorney files a complaint seeking recovery of fees, or after such an action has been initiated but before the client files an answer. (Id., § 6201, subd. (b).) The filing and service of a request for arbitration automatically stays a pending lawsuit pertaining to fees, which remains stayed until the arbitrators issue their decision or the arbitration is otherwise terminated. (… 6201, subd. (c).) An MFAA arbitration award is not binding unless the parties agree otherwise. (Id., § 6204, subd. (a).) Yet the MFAA also provides that ‘[e]ven if the parties to the arbitration have not agreed in writing to be bound, the arbitration award shall become binding upon the passage of 30 days after mailing of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration .…’ (Id., § 6203, subd. (b).) This trial after arbitration is conducted de novo, essentially as if no arbitration had occurred. (Id., § 6204, subd. (e); Aguilar v. Lerner [2004] 32 Cal.4th [974], 985.)
“The MFAA’s provisions for trial after arbitration were incorporated into the statute in response to attorney concerns that compulsory arbitration would otherwise deny them a jury trial on their claims relating to fees. (Special Com. on Resolution of Attorney Fee Disputes, letter to Bd. of Governors, State Bar of Cal., Apr. 29, 1976, p. 7.) Absent stipulation to binding fee arbitration, ‘either party shall be entitled to a trial after arbitration if sought within 30 days’ after mailing of notice of the arbitration award. (… 6204, subd. (a).) As explained by the chairman of the State Bar committee that proposed what would become the MFAA, ‘If a trial de novo is desired, the party seeking the trial de novo must do so within thirty days of the mailing of notice of the arbitration award’ (Frank E. Farella, letter to Hon. Peter M. Behrre Sen. bill No. 1351 (1977-1978 Reg. Sess.) Mar. 28, 1978, p. 2.) ‘If there is an action pending, the trial after arbitration shall be initiated by filing a rejection of arbitration award and request for trial after arbitration in that action within 30 days after mailing of notice of the award.’ (… § 6204, subd. (b).) ‘If no action is pending, the trial after arbitration shall be initiated by the commencement of an action in the court having jurisdiction over the amount of money in controversy within 30 days after mailing of notice of the award.’ (Id., subd. (c).)” (Maynard v. Brandon, supra, 36 Cal.4th at pp. 373-374, fns. omitted.)
“If there is no request for a trial following arbitration, the arbitration award may be confirmed, corrected, or vacated in the manner provided by the California Arbitration Act (§ 1280 et seq.).” (Maynard v. Brandon, supra, 36 Cal.4th at p. 374, fn. 4; see also § 6203, subd. (b).) In Maynard the court stated that the 30-day time limit for seeking a trial following fee arbitration was “inflexible” and that “the Legislature did not intend for the 30-day deadline for seeking a trial after fee arbitration to be subject to extension through the invocation of section 473, subdivision (b).” (Maynard v. Brandon, supra, 36 Cal.4th at pp. 382, 369.) The court held that “[Code of Civil Procedure] section 473, subdivision (b) cannot remedy a failure to meet the 30-day deadline for seeking a trial following arbitration under the MFAA.” (Maynard v. Brandon, supra, 36 Cal.4th at p. 369.)
We note that McAvoy v. Harvey L. Lerer, Inc. (1995) 35 Cal.App.4th 1128, held that “Code of Civil Procedure section 12a, which extends the time period for performing an act when the last day falls on a holiday, is applicable to the 30-day time limit within which to file a complaint after service of an arbitration award in an attorney fee dispute.” (McAvoy v. Harvey L. Lerer, Inc., supra, 35 Cal.App.4th at p. 1129, fn. omitted.) This section is not in issue in the case before us. The 30th day following December 19, 2006 was January 18, 2007, a Thursday.
Section 6200, subdivision (d) provides:
“The board of governors shall adopt rules to allow arbitration and mediation of attorney fee and cost disputes under this article to proceed under arbitration and mediation systems sponsored by local bar associations in this state. Rules of procedure promulgated by local bar associations are subject to review by the board to insure that they provide for a fair, impartial, and speedy hearing and award.”
(See also Rules and Regs. of State Bar, tit. III, div. 4, ch. 2 (“Rules of Procedure for Fee Arbitration and the Enforcement of Awards by the State Bar of California”), rules 11.0 & 12.0.) The arbitration involved in the present case was conducted pursuant to the “Rules of Procedure for the Hearing of Fee Arbitration by Fresno County Bar Association.” (hereinafter the “Fresno County Rules”). Rule 40.9 of the Fresno County Rules states in pertinent part that “the Program shall serve a copy of the award by mail on each party ….” Rule 42.2 states in pertinent part: “Unless otherwise specifically stated in these rules, service on an individual attorney shall be at the latest address shown on the official membership records of the State Bar.” Rule 42.4 states: “The service is complete at the time of deposit. The time for performing any act shall commence on the date service is completed and shall not be extended by reason of service by mail.”
APPELLANT’S ACTION WAS UNTIMELY
Section 6204, subdivision (c) states that “[i]f no action is pending, the trial after arbitration shall be initiated by the commencement of an action in the court having jurisdiction over the amount of money in controversy within 30 days after mailing of notice of the award.” Appellant argues that if an attorney fee arbitration award is mailed to a party at the party’s correct street address but omits the party’s suite number, we should conclude as a matter of law that there was no “mailing of notice of the award” (§ 6204, subd. (c)) notwithstanding the fact that the award was placed in the mail, and was delivered by the U.S. Postal Service, and received by the party to whom it was addressed. We see nothing in the language of the MFAA which would compel or even suggest such a conclusion, and we decline to so hold. Appellant relies on Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, where the court stated:
“Code of Civil Procedure section 1012 authorizes service by mail. (All subsequent statutory references are to the Code of Civil Procedure unless otherwise indicated.) In setting forth the requirements for such service, section 1013, subdivision (a), provides that the notice must be mailed ‘in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; ...’ (Italics added.) This subdivision applies to mailings by the court clerk. (Triumph Precision Products, Inc. v. Insurance Co. of North America (1979) 91 Cal.App.3d 362, 365[].)
“Successful service by mail requires strict compliance with all statutory requirements, including those set forth in section 1013; the failure to comply deprives a court of jurisdiction to act. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 []; Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 921 []; Triumph Precision Products, Inc. v. Insurance Co. of North America, supra, 91 Cal.App.3d at p. 365; Valley Vista Land Co. v. Nipomo Water & Sewer Co. (1967) 255 Cal.App.2d 172, 174 [].)” (Id. at pp. 508-509.)
There is substantial authority, however, that “[t]he provisions of sections 1012, 1013 and 1013a of the Code of Civil Procedure … only apply to service of notices in a pending action upon a party who has appeared or has been served in the action.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 198.) “Section 1012 of the Code of Civil Procedure, providing for service by mail relates to actions and proceedings provided for in the Code of Civil Procedure, and does not apply generally to all cases where notice is required to be given, independent of any action ….” (Colyear v. Tobriner (1936) 7 Cal.2d 735, 743. See also Donnellan v. City of Novato (2001) 86 Cal.App.4th 1097, 1104-1105; Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 827; Alphonzo E. Bell Corp. v. Listle (1942) 55 Cal.App.2d 300, 306; and White v. De Martini (1960) 183 Cal.App.2d 665, 668.)
“In other situations, section 1013, subdivision (a), has been found to apply only if the language of the statute requiring the notice so provides.” (Walters v. Myers (1990) 226 Cal.App.3d Supp.15, 18.) See, for example, Pesce v. Dept. of Alcoholic Bev. Control (1958) 51 Cal.2d 310, a case in which the Business and Professions Code statute there in issue stated “[i]f made by mail, service shall be made in the manner prescribed by Section 1013 of the Code of Civil Procedure.” (Pesce v. Dept. of Alcoholic Bev. Control, supra, 51 Cal.2d at p. 312.) We see nothing in the MFAA stating or suggesting that Code of Civil Procedure section 1013, subdivision (a) should apply to the mailing of notice of an arbitration award. Indeed, the language of the MFAA itself appears to us to evince a legislative intent that Code of Civil Procedure section 1013 should not apply to the “mailing of notice of the award.” (§ 6204, subds. (b) & (c).) If there is a civil action pending, a party wishing to reject the arbitration award and proceed to trial may file, in the court action, a “rejection of arbitration award.” (§ 6204, subd. (b).) There must be “service and filing of the rejection of arbitration award” (§ 6204, subd. (b)), and “[s]ervice may be made by mail on any party who has appeared.” (Ibid.) On the other hand, the arbitration award is independent of the court proceeding. The very same subdivision (b) of the very same section 6204 requires “mailing of the arbitration award” and not “service of the arbitration award by mail pursuant to C.C.P. §1013.” The Legislature thus appears to have drawn a distinction between the service of a document in a pending court proceeding and the mailing of an arbitration award in arbitration proceeding held pursuant to the MFAA. Furthermore, if the phrase “within 30 days after mailing of notice of the award” in section 6204, subdivisions (b) and (c), were intended to mean “within 30 days after service of the award by mail pursuant to C.C.P. §1013(a),” a filing made on the 31st day after mailing would be timely anyway, regardless of whether the address on the envelope complied with requirements of Code of Civil Procedure section 1013, subdivision (a), because section 1013, subdivision (a) would then extend by an additional five days appellant’s time within which to file his civil action. The words “within 30 days after mailing of notice of the award” appear to have been used precisely to avoid any reference to service by mail pursuant to Code of Civil Procedure section 1013 and to provide certainty of the deadline by which a dissatisfied party to the arbitration must request a trial after arbitration, either by filing and serving a rejection of the arbitration award (if there is an action pending) or by commencing a civil action (if there is no action pending). We do observe and readily acknowledge that the last sentence of the first of section 6203, subdivision (a) states: “The State Bar, or the local bar association delegated by the State Bar to conduct the arbitration, shall deliver to each of the parties with the award, an original declaration of service of the award.” (§ 6203, subd. (a).) When the “mailing of notice of the award” (§ 6204, subds. (b) & (c)) is accomplished by mailing the award itself, the “declaration of service of the award” (§ 6203, subd. (a)) would thus be a declaration that the award was served by mail. We decline to read into this statute, however, any unexpressed incorporation of Code of Civil Procedure section 1013, subdivision (a).
At oral argument appellant emphasized the case of Triumph Precision Products, Inc. v. Insurance Co. of North America, supra, 91 Cal.App.3d 362 (Triumph Precision). Triumph Precision is another of the many cases, like Lee v. Placer Title Co., supra, 28 Cal.App.4th 503, involving the service of a notice in a civil action. It did not involve the mailing of notice of an MFAA arbitration award. In Triumph Precision, Triumph obtained a judgment against Insurance Company of North America (“INA”) in municipal court. INA moved for a new trial. The court granted INA’s motion for a new trial in a minute order dated September 23, 1977. The court’s notice of that order was mailed to Triumph’s counsel, but that notice was “returned to the court by the Postal Service as undeliverable at the address stated thereon.” (Triumph Precision, supra, 91 Cal.App.3d at p. 364.) “The envelope containing the notice had been addressed to Triumph’s attorney at the correct street address, but had omitted the name of his law firm.” (Ibid., fn. omitted.) Counsel for Triumph learned of the new trial order on October 28, 1977 when he saw it referred to in a letter from opposing counsel. On November 2 Triumph filed a notice of appeal in the appellate department of the superior court from the September 23 minute order granting a new trial. The applicable rule of the California Rules of Court required the notice of appeal to be “filed within 30 days after the date of the mailing of notice” by the court clerk. (Triumph Precision, supra, 91 Cal.App.3d at p. 364.) The appellate department dismissed the notice of appeal as untimely, but certified the case for transfer to the Court of Appeal pursuant to rules 62 and 63 of the California Rules of Court. The Court of Appeal relied on Code of Civil Procedure section 1013 to conclude that the court clerk’s September 23, 1977 mailing of notice of the new trial order was ineffective.
“Section 1013, subdivision (a) provides that the mailing of a notice is complete when it is posted in an envelope ‘addressed to the person on whom it is to be served, at his office address as last given by him on any document which he has filed in the cause and served on the party making service by mail; otherwise at his place of residence.…’ (Italics added.) This subdivision is applicable to the mailing by a court clerk of notice announcing the entry of an appealable judgment or order. (See Valley Vista Land Co. v. Nipomo Water & Sewer Co. (1967) 255 Cal.App.2d 172, 174[].)
“An inspection of all the documents filed by Triumph in the instant case prior to the September 23, 1977, order granting a new trial discloses that the name of the law firm representing Triumph was designated on each one. Accordingly, the correctly addressed envelope should have included the firm name.
“Where the envelope containing the notice is improperly addressed, it is as though notice were never mailed by the clerk. (Valley Vista Land Co. v. Nipomo Water & Sewer Co., supra, at pp. 173-174.)” (Triumph Precision, supra, 91 Cal.App.3d at p. 365.)
We view Triumph Precision as distinguishable from and inapplicable to the case presently before us because here we are dealing with notice of an arbitration award resulting from an arbitration conducted pursuant to the MFAA. No civil action had yet been filed when notice of the arbitration award was mailed. The notice here was “independent of any action” (Colyear v. Tobriner, supra, 7 Cal.2d at p. 743) and thus Code of Civil Procedure section 1013 did not apply. We also note that in this case appellant actually received the notice whereas the addressee in Triumph Precision did not.
In the present case, the arbitration award was (according to the declaration of Mysti Mendoza) mailed on December 19, 2006. The action was not filed until 31 days later on January 19, 2007. The Fresno County Rules state that “the Program shall serve a copy of the award by mail on each party ….” (Fresno County Rules, rule 40.9.) “Unless indicated otherwise, reference to the program means the Mandatory Fee Arbitration Program of the Fresno County Bar Association.” (Fresno County Rules, rule 1.12.) “Unless otherwise specifically stated in these rules, service on an individual attorney shall be at the latest address shown on the official membership records of the State Bar.” (Fresno County Rules, rule 42.2.) Appellant presented no evidence of his “latest address as shown on the official membership records of the State Bar” as of December 19, 2006. Even if we assume, however, that this address included the reference to “Suite 200,” we would find no error in the trial court’s ruling in this case. The evidence presented to the superior court showed that (1) the award was mailed to appellant at 2950 Mariposa, (2) he received it at that address, and (3) notwithstanding the fact that the award included the declaration of Mysti Mendoza stating that the award was mailed on December 19, 2006, and notwithstanding the fact that appellant was in possession of that award and its accompanying Mendoza declaration no later than December 23, 2006, appellant did not file his civil action until January 19, 2007. The action was not filed until 31 days after the date of mailing and therefore was not timely filed. (Maynard v. Brandon, supra, 36 Cal.4th 364.)
Appellant also cites Oats v. Oats (1983) 148 Cal.App.3d 416, but nothing in this case appears to us to be of any help to appellant. Oats involved a civil personal injury action which was ordered into judicial arbitration. (See Code Civil Proc., § 1141.10 et seq., and Oats v. Oats, supra, 148 Cal.App.3d at p. 419.) The civil action was filed in April of 1977. The case was ordered into judicial arbitration in July of 1981 and was arbitrated in November of 1981. An arbitration award in favor of the plaintiff was filed with the court on November 13, 1981, but was not served on the parties at that time. Rule 1516(c) of the California Rules of Court required the court clerk to enter the arbitration award as a judgment “‘forthwith upon the expiration of 20 days after the award is filed if no party has, during that period, served and filed a request for trial ….’” (Oats v. Oats, supra, 148 Cal.App.3d at p. 421.) No party knew of the existence of the award within 20 days after the award was filed because the superior court arbitration clerk did not serve copies of the award on the parties until December 4, 1981, i.e., after the 20 days had passed. On December 15 the superior court clerk served the parties by mail with a notice of entry of a judgment. On December 17 the defendant “submitted … to the superior court” a request for trial de novo, and the request was filed on December 21. (Oats v. Oats, supra, 148 Cal.App.3d at p. 419.) The defendant moved to set aside the judgment on the ground that he had requested trial de novo within 20 days after service of the arbitration award, but the motion was denied. The appellate court found that this was error. Rule 1615(b) of the Rules of Court required the arbitrator to “file his award with the clerk, with proof of service on each party to the arbitration.” (Oats v. Oats, supra, 148 Cal.App.3d at p. 420.) The court held that the judicial arbitration award was not “filed” with the clerk within the meaning of this rule until it was filed with proof of service on each party. This did not happen until December 4, 1981, and thus the defendant’s request for trial de novo filed within 20 days of this date was timely.
“Since the superior court is without jurisdiction to act further in the matter until the parties are served or otherwise obtain actual notice of the award (City etc. of San Francisco v. Carraro [(1963)] 220 Cal.App.2d 509, 513), the filing of the arbitration award must be deemed ineffective until such time as service is made. To construe rule 1615(b) in any other way than to require proof of service (or alternatively, evidence of actual service) for an effective (i.e., jurisdictional) filing of an arbitration award would be to abrogate constitutional guarantees of due process. Whether judged by the ‘proof of service’ or ‘evidence of actual service’ test, the result is the same in the instant matter; defendant was not served with the arbitration award until December 4.
“California Rules of Court, rule 1616(a) permits any party to an arbitration to request a trial by filing a written request with the clerk within 20 days after the arbitration award is filed. Rule 1615(c) requires the clerk to enter the arbitration award as a judgment ‘forthwith upon the expiration of 20 days after the award is filed if no party has, during that period, served and filed a request for trial as provided in [rule 1616(a)].’ Although neither of the above provisions mentions service of the award on the parties, they must be read in harmony with rule 1615(b). (People v. Comingore (1977) 20 Cal.3d 142, 147 [].)
“In that the jurisdictional function of service renders a filing of the arbitration award ineffective until such time as service is made, the 20-day period within which a party may file a request for trial de novo must be deemed to commence with service of the award. The clerk is without authority to enter the award as a judgment until expiration of that 20-day period. (Usher v. Soltz (1981) 123 Cal.App.3d 692, 697 [].)” (Oats v. Oats, supra, 148 Cal.App.3d at p. 421.)
The Oats case did not address what constitutes adequate service of a judicial arbitration award. It was a case in which a judgment was entered against the defendant before he even had notice of the existence of the arbitration award, and before any notice whatsoever of the award had been served. Oats involved an interpretation of Rule 1615 of the California Rules of Court, a rule which has nothing to do with the case presently before us.
Appellant also cites Domingo v. Los Angeles County Metropolitan Transportation Authority (1999) 74 Cal.App.4th 550 (Domingo), another judicial arbitration case similar to Oats. In Domingo the arbitrator made an award in favor of the plaintiff, but mailed the defendant’s copy of the award to “8655 South Figueroa, Los Angeles, instead of the correct address at 865 South Figueroa, Los Angeles.” (Domingo, supra, 74 Cal.App.4th at p. 552.) “The post office returned the misaddressed envelope to the arbitrator, who, instead of correcting his typographical error, remailed the award to appellant’s attorneys at their former address at 221 North Figueroa Street, Los Angeles.” (Ibid.) The arbitration award was served with the first incorrect address on June 24, 1998, and filed with the court the next day. The opinion does not mention the date on which the award was mailed the second time (to the defendant’s former and second incorrect address). The defendant’s attorneys learned of the award on July 24, 1998 (a Friday) when it was “received that day at their old offices” and they “immediately retrieved it.” (Ibid.) The defendant attempted to file a request for trial de novo on Tuesday, July 28, but the court rejected it because the court had already entered a judgment on the award. The defendant’s motion to set aside the judgment was denied by the trial court. By the time of the Domingo case the time within which to request a trial de novo had been increased from 20 days to 30 days. But the legal concepts were the same. The arbitration award “was never properly served.” (Id. at p. 555.) The first mailing was returned to the sender, and the second mailing was delivered to an address that was no longer the address of the defendant’s attorneys. Both the first mailing of the award and the second mailing were to an incorrect address. “[W]e find that in the absence of proper service, appellant’s 30 days for filing a request for trial de novo did not begin until appellant received actual notice of the arbitrator’s award.… Here, appellant’s attorneys did not receive actual notice of the award until they picked up their mail at their former offices on July 24, 1998. Because appellant filed its request for trial de novo four days later, its request was well within thirty days.” (Id. at p. 554.) The trial court thus “erred in denying appellant’s motion to vacate the judgment and grant a trial de novo.” (Id. at pp. 554-555.) Nothing in Domingo stands for the proposition that notice of an arbitration award sent to a party at an address the party actually occupies, and received by the party at that address, constitutes an “absence of proper service.”
Given the uncontradicted evidence that all mail delivered to 2950 Mariposa was delivered either to appellant’s suite “or through a common mail slot at 2950 Mariposa,” and that appellant personally received it not later than four days after it was mailed during the Christmas mailing season, we can find no error in the superior court’s conclusion that the award was mailed to appellant. Appellant’s artfully worded declaration does not say whether the “end table” on which he found the award was or was not located in his own office. Even if we assume that the end table was located in a common area, appellant’s declaration makes no assertion that he received any other mail in any other manner on Saturday, December 23, or that his suite was open so that mail could be delivered to the “ledge inside the office” on Saturday, December 23, or that he had any employees there that day to collect the mail. It is silent as to what happened whenever mail sent to 2950 Mariposa was “delivered … through a common mail slot” there. If a tenant simply picked mail up off the floor in a common area and placed it on an end table located in the common area, we fail to see how the lack of a suite number on the envelope would make any difference whatsoever in the delivery of the envelope.
DISPOSITION
The judgment is affirmed. Costs to Respondent.
WE CONCUR: Wiseman, J., Levy, J.