RUTH E. ABERS еt al., Plaintiffs and Appellants, v. VERA C. ROHRS, as Cotrustee, etc., et al., Defendants and Respondents.
No. G047034
Fourth Dist., Div. Three
June 13, 2013
217 Cal. App. 4th 1199 | 159 Cal. Rptr. 3d 314
Snell & Wilmer, Richard A. Derevan, Todd E. Lundell and Christopher B. Pinzon for Plaintiffs and Appellants.
Palmieri, Tyler, Wiener, Wilhelm & Waldron, Michael H. Leifer, Erin Balsara Naderi; Bullard, Brown & Beal and Timothy W. Brown for Defendants and Respondents.
OPINION
RYLAARSDAM, Acting P. J.—The owners of 57 homes in a condominium development (the homeowners) appeal from an order dismissing their petition to vacate an arbitration award setting the allowable increases in monthly rent charged by the trust that owns the property on which their homes are situated. The trial court‘s dismissal order was based on the homeowners’ failure to properly serve the respondent trustees with their petition to vacate within 100 days of service of the award, as required by
The homeowners argue the trial court erred in dismissing their petition because (1) the petition was served in accordance with the requirements of the parties’ lease agreements, and thus was properly served under
The homeowners’ reliance on
Further, the court did not abuse its discretion by refusing to treat the petition as though it had been filed under the still-pending declaratory relief case number, because the homeowners themselves acknowledge they made a deliberate, strategic dеcision not to do that. Equity certainly does not obligate the court to pretend the homeowners made the opposite strategic decision. Likewise, equity does not compel a finding that the trustees are estopped from claiming service was improper. The requirements for service are established by statute, and equity does not prohibit a party from demanding adherence to those legal requirements.
And finally, we agree with the trustees that
FACTS
This case involves a dispute over a provision in a series of identical ground leases underlying a condominium development. The property is owned by the trustees of the John and Vera B. Rohrs Trust, dated May 16, 1961, and the terms of the leases specify paymеnt of a fixed monthly rent for the land under each unit for the initial 30 years and six months of the 70-year lease term but thereafter allow the rents to be adjusted based on a revaluation of the “leased land.” If the parties are unable to agree on the proper amount of a rent adjustment, the issue is to be resolved by arbitration.
The parties thereafter participated in the arbitration, and the arbitrators announced their decision on December 13, 2011. According to the homeowners, the arbitrators’ decision was inconsistent with both this court‘s interpretation оf the pertinent lease provisions and its declaration of the parties’ rights in connection therewith. The homeowners claim the arbitrators’ decision resulted in a “27-fold increase” in their average lease payments and required each of them to make a retroactive lease payment of between $70,000 and $90,000. They characterize the award as “devastating” to them.
Two days after the arbitrators issued their decision, the trustees filed an ex parte application with the trial court which had presided over the declaratory relief action, seeking an order “vacat[ing] further proceedings under this case number” because “some of the lessees may attempt to file papers in this action seeking to vacate . . . the award.” The homeowners opposed the ex parte application, arguing the court properly retained “vestigial jurisdiction” over the matter submitted to arbitration, which included jurisdiction to confirm, correct or vacate the award. (Citing SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1200-1201 [58 Cal.Rptr.3d 904].) The court denied the motion on the ground the issue was not ripe until someone actuаlly attempted to file such a petition.
On February 17, 2012, the homeowners filed their petition to vacate, choosing to do so under a new case number, rather than in the still-pending declaratory relief case. According to their opening brief on appeal, they did so because the court‘s refusal to issue a definitive ruling on whether it was proper to file the petition under the old case number “left uncertainty about whether the trial court understood the nature of its vestigial jurisdiction over the arbitration and meant that further litigation over that issue was inevitable.” Consequently, “[t]o avoid spending the homeowners’ limited resources litigating over such a tangential issue, the homeowners filed the petition to vacate under a new case number.” (Italics added.)
Shortly thereafter, the trustees moved to quash service and sought an order dismissing the petition on the ground the homeowners failed to properly serve the petition within 100 days of the arbitrators’ award as required by
DISCUSSION
1. Service of Petition by Mail Was Insufficient to Confer Jurisdiction over Trustees
The requirements for serving a petition to vacate an arbitration award are governed by
The homeowners’ first argument is that their service of the petition by overnight mail was appropriate under
Proper service of process of a petition or complaint is the means by which a court obtains personal jurisdiction over a party. (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547 [108 Cal.Rptr.3d 846] [“a court acquires jurisdiction over a party by proper service of process or by that party‘s general appearance . . .“].)
The obligation to serve a party with prоcess is not coextensive with merely providing the party with notice of the proceeding. Even undisputed actual notice of a proceeding does not substitute for proper service of the petition or complaint. (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1049 [12 Cal.Rptr.2d 861] [“The fact that the person served ‘got the word’ is irrelevant.“]; In re Abrams (1980) 108 Cal.App.3d 685, 693 [166 Cal.Rptr. 749] [“Mere knowledge of the action is not a substitute for service, nor does it raise any estoppel to contest the validity of service . . . .“].)
Paragraph 16 of the parties’ leases, which governs only the manner in which “notices” may be “sent,” says nothing at all about the manner in which a petition to vacate an arbitration award must be served. The homeowners’ compliance with that provision would consequently demonstrate nothing more than that the trustees were aware both that the petition had been filed and of the date of the hearing. Significantly, however, it would not demonstrate the court had gained jurisdiction over the trustees so as to permit it to render a binding decision with respect to the petition. “Actual notice of the action alone . . . is not a substitute for proper service and is nоt sufficient to confer jurisdiction.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 392 [131 Cal.Rptr.3d 99]; see Summers v. McClanahan (2006) 140 Cal.App.4th 403, 414 [44 Cal.Rptr.3d 338] [“[N]o California appellate court has gone so far as to uphold a service of process solely on the ground the defendant received actual notice when there has been a complete failure to comply with the statutory requirements for service.“].)
Because paragraph 16 of the parties’ leases governs only notice, and not service, it does not qualify as a provision which specifies the manner in
Nor can the homeowners rely on Estate of Moss (2012) 204 Cal.App.4th 521 [139 Cal.Rptr.3d 94] (Moss) as precedent demonstrating mail service of their petition was appropriate here. In Moss, a probate case was initiated by the decedent‘s wife when she filed a petition to probate decedent‘s will. Decedent‘s son and grandson later filed a separate petition seeking removal of the will from probate, which would ordinarily require service in the manner of a summons. However, they filed their separate petition under the same case number as the wife‘s original petition and served it on her attorney of record as the functional equivalent of a cross-complaint. (See
Although the trial court agreed with the wife‘s assertion that service in such a manner had been inadequate to establish the court‘s jurisdiction over her in connection with the second petition, the Court of Appeal did not. It concluded instead that “in circumstances such as exist in this case, in which a party and her attorney have already appeared in the action, . . . proper service of process on the party‘s attorney of record in that same case is sufficient as a matter of law under
However, the court in Moss took pains to “emphasize the narrowness of our holding” (Moss, supra, 204 Cal.App.4th at p. 533), explaining that it was expressly limited to circumstances in which the party to be served with the new petition had already appeared in the action. Unfortunately for the homeowners here, this case is distinguishable on that very point. Because the homeowners chose to file their petition to vacate as a separate action, rather than as part of the existing declaratory relief case in which the trustees had previously appeared, Moss is of no assistance to them.
Nor could we extend the rationale of Moss to these distinct circumstances without running afoul of statute. As we have already noted,
2. Trial Court‘s Refusal to Grant Equitable Relief
Appеllants next argue the trial court was essentially obligated to either “deem the petition to vacate to have been filed under the original [declaratory relief] case number,” so as to bring it within the exception of
The homeowners’ assertion that they are entitled to have their petition treated as though it had been filed within the declaratory relief action is apparently based on the notion they had the right to proceed in that fashion, despite the trustees’ contrary contention and the trial court‘s equivocal ruling on the point. In support of their position, the homeowners have requested we take judicial notice of documents reflecting that the court which presided over the declaratory relief action was kept apprised of the arbitration‘s progress. We deny that request.
Whatever theoretical right the homeowners may have had to pursue their petition within the framework of the existing declaratory relief case is irrelevant, since they have frankly acknowledged making a deliberate, strategic decision not to do that. Instead, despite the homeowners’ awareness of that option, and their emphatic belief in its propriety, they chose to file their petition to vacate as a separate proceeding rather than waste resources arguing about whether it might properly be filed as part of the existing case. That deliberate chоice precludes any determination that the court abused its discretion by refusing to pretend they had done the opposite. Stated simply, holding the homeowners to the consequences of their voluntary election creates no injustice.
Here, the homeowners base their estoppel argument on the parties’ “course of dealing over seven years of litigation in which counsel accepted mail service on behalf of the [trustees],” and the trustees’ failure to alert the homeowners that their service of the petition to vacate did not comply with the requirements of the law before the 100-day deadline passed. The homeowners claim this “lull[ed]” them into a “false sense of security” and “induced” them into believing their service effort had been adequate. We reject the argument.
Significantly, the homeowners’ conclusory characterization of the parties’ long “course of dealing . . . in which counsel accepted mail service on behalf of the [trustees]” is unsupported by any examples of the trustee‘s counsel agreeing to accept initial service of process by mail on behalf of the trustees. The mere fact that once the trustees had appeared in litigation, future notices and documents filed in the case were served on them via their counsel of record establishеs nothing. After a party has appeared in litigation and designated a counsel of record, the general rule is that future pleadings and notices may be served on that counsel. (See
Moreover, whatever prior course of conduct may have been followed, the trustees’ ex parte effort, in the immediate wake of the arbitration award, to obtain a court order requiring that any petitions to vacate the award would have to be filed as a separate action (rather than under the case number of the existing declaratory relief action) probably should have been a tipoff that the
As for the homeowners’ claimed reliance on the trustees’ failure to point out their error in service, that assertion is undercut by the fact the homeowners were at all times represented by counsel. “[T]he law ‘particularly’ disfavors estoppels ‘where the party attempting to raise the estoppel is represented by an attorney at law. ’ ” (Steinhart v. County of Los Angeles, supra, 47 Cal.4th at p. 1316.) This is so because “[f]or purposes of analyzing estoppel claims, attorneys are ‘charged with knowledge of the law in California. ’ ” (Ibid.) Thus, in Tubbs v. Southern Cal. Rapid Transit Dist. (1967) 67 Cal.2d 671, 679 [63 Cal.Rptr. 377, 433 P.2d 169], our Supreme Court flatly rejected the notion that a plaintiff who was at all relevant times represented by counsel, could have been “induced to delay the filing of her complaint in reliance” on the defendant‘s acts. We apply the same reasoning here as well. It was the responsibility of the homeowners’ counsel to determine the legal requirements for serving their petition to vacate, and they could not reasonably rely on their opponents to apprise them when that effort fell short.
3. Appellants’ Right to Relief Under Section 473
The homeowners’ final contention is that the court erred by refusing to grant them relief under
“Notwithstanding the broad construction afforded
The same rule applies to the deadline for filing an appeal. “The requirement as to the time for taking an appeal is mandatory, and the court is without jurisdiction to consider one which has been taken subsequent to the expiration of the statutory period. In the absence of statutory authorization, neither the trial nor appellate courts may extend or shorten the time for appeal, even to relieve against mistake, inadvertence, accident, or misfortune.” (Stuart Whitman, Inc. v. Cataldo (1986) 180 Cal.App.3d 1109, 1113 [226 Cal.Rptr. 42].)
The rule must be applied here as well. The trial court‘s power to vacate an arbitration award is governed by statute, and the deadline for seeking such relief is mandatory. In the absence of some other statutory authority, the court simply cannot extend that deadline.
Moreover, the mere fact the homeowners actually filed their petition to vacate in a timely fashion does not alter the analysis.
As the Bernasconi court explained, the problem with applying
We recognize, of course, that the homeowners cite two cases, De Mello v. Souza (1973) 36 Cal.App.3d 79 [111 Cal.Rptr. 274] (De Mello) and Elden v. Superior Court (1997) 53 Cal.App.4th 1497 [62 Cal.Rptr.2d 322], as support for the proposition that
In light of the foregoing, we conclude the trial court did not err in refusing to grant the homeowners relief under
The judgment is affirmed. Respondent trustees are entitled to their costs on appeal.
Moore, J., and Aronson, J., concurred.
Appellants’ petition for review by the Supreme Court was denied October 16, 2013, S212291.