Tuesday, July 16, 2013

New Case, New Summons, New Service. No Exceptions.

Abers v. Rohrs, No. G047034 (D4d3 July 13, 2013).

Nothing like getting things started with a dispute over the sufficiency of service. It would seem that trial counsel for the plaintiff here violated ALAS rule number one: Do Not Blow Jurisdictional Deadlines. Having done so, nothing in law or equity could save him or his client.
Abers and 56 other owners of condos sitting on land owned by a trust controlled Rohrs got into a dispute over the rent due under a ground lease. The lease provided for a rent formula dependent on the definition of "leased land" and required that any rental adjustments be resolved in arbitration. The parties litigated the meaning of "leased land" in a declaratory relief case OC Superior and then on appeal. They would arbitrate the adjustment based on the definitions resolved by the court.

Arbitration ensued. Abers et al. were not happy with the result. Anticipating that Abers was likely to run into court to vacate the award, Rohrs preemptively filed an ex parte application in the still pending (although dormant) dec relief case preemptively asking that the court refuse to entertain a petition to vacate the arbitration. The court denied the application as unripe, given that no petition had been filed.

Attempting to sidestep the issue of the dec relief court's jurisdiction to entertain the petition to vacate, Abers filed his petition as a separate action. Unfortunately (for Abers, as we will see) Abers served the petition by FedExing it to opposing counsel. Rohrs's lawyer waited till the hundredth day after the arbitration award was served and then called Abers attorney to let him know that she was not authorized to take service by mail. Rohrs thereafter moved to quash service and to dismiss the petition as untimely under Code of Civil Procedure § 1288, which requires a petition to vacate to be "served and filed not later than 100 days after the date of service" of an arbitral award. The trial court agreed and dismissed the petition.

Abers appealed arguing: (1) that he did not need to serve the petition in the manner of a complaint and summons; (2) that the superior court should have provided "equitable relief" and deemed the petition filed in the bending declaratory relief case; (3) that the court should have given relief from default due to attorney mistake under § 473. The court of appeal, in a characteristically footnote-free opinion by Justice Rylaarsdam, made short shrift of the arguments.

First, it found that under the statutory scheme, it lacked jurisdiction absent service of the petition as with a complaint and summons. The court reasoned that § 1286.4 conditions the court's jurisdiction on a properly served and complaint, § 1288 requires filing and service within 100 days of the notice of the arbitral award and § 1290.4(b) requires, in the absence of a contractual provision on service in the arbitration agreement, that the petition be served in the manner of a summons in a civil action. The court also rejected that abiding by a contractual requirement for notice was not a provision addressing service of process governed by § 1290.4(a).

The court rejected the equity argument, finding that Abers made a tactical choice in filing a separate action, and was stuck with the consequences of doing so. The court also held that Rohrs's attorney's laying in wait for Abers to miss the deadline did not create an estoppel, given that Abers was represented by counsel.

Finally, the court held that the mandatory "attorney falls on his sword" relief from default available under § 473(b) was unavailable because, even if such relief was generally mandatory, it could not be used to sweep aside a mandatory jurisdictional deadline. In coming to its decision, it swept aside three previous published cases that had, in dicta, suggested that § 473(b) could apply to relieve a party from a default based on the 100 day deadline in § 1288, finding them unpersuasive, "for the simple reason that none of them makes any effort to persuade."

As an interesting side-note, this order was initially unpublished, but the Court granted the respondent's publication request under Rule of Court 8.1120. Why an order that disagrees with three published cases, albeit dicta in them, did not satisfy Rule 8.1105(c)(5)'s standard for initial publication is a little perplexing.  But it is satisfying to see the court grant an 8.1105 request.


1 comment:

  1. You know you're in trouble when 473(b) can't even bail you out.