Darby v. Sisyphian, LLCDarby v. Sisyphian, LLC
Law Offices of Jeffrey M. Cohon, Jeffrey M. Cohon, and Kristina S. Keller for Defendant and Appellant.
* Pursuant to
Mouton Law and Stacey Y. Mouton; Law Firm of Clifford H. Young and Clifford H. Young for Plaintiff and Respondent.
* * * * * *
Under the California Arbitration Act (
FACTS AND PROCEDURAL BACKGROUND
I. Plaintiff Signs an Employment Contract
Between June 2016 and May 2017, Aisha Darby (plaintiff) worked as an exotic dancer at the Xposed Gentlemen‘s Club in Canoga Park, California (“the club“). In her “Entertainment Agreement,” plaintiff agreed to arbitrate
dispute, or claim . . . arising out of this agreement.” At that time, the club was owned and operated by Sisyphian, LLC (Sisyphian).
II. Plaintiff Initiates Litigation
In January 2018, plaintiff sued Sisyphian for (1) failure to pay minimum wage (in violation of
Plaintiff‘s complaint alleged the relief she sought—which included attorney fees—in three different places for each of the above-listed claims: (1) in the section describing each claim, and (2) two times in the complaint‘s “prayer” section, once in a subsection of the “prayer” corresponding with each claim and a second time under a catch-all subsection called “As To All Causes of Action.”
III. The Matter Is Arbitrated
In reliance on the arbitration clause in the Entertainment Agreement, the trial court in May 2018 granted Sisyphian‘s motion to compel arbitration of plaintiff‘s claims.
A. First interim arbitration award (on liability)
1. Motion to strike
In September 2018, Sisyphian moved to strike four discrete portions of plaintiff‘s complaint, and specifically sought to strike the allegations requesting attorney fees listed in the section describing the unfair competition claim, in the subsection of the “prayer” corresponding to that claim, and in the subsection listing the relief sought “As To All Causes of Action.” The arbitrator granted the motion to strike those allegations, including those in the catch-all “As To All Causes of Action” section because plaintiff, in her opposition, “ma[de] no effort to defend” them.
After three days of hearings in October 2019 as well as fulsome briefing, the arbitrator issued an “interim arbitration award.” The arbitrator ruled that plaintiff was an “employee” (rather than an independent contractor) of Sisyphian; that Sisyphian had not complied with its duties under the
award invited the parties to file motions seeking attorney fees and costs.3
B. Attorney fees order
1. Initial briefing and initial attorney fees order
Because plaintiff did not prevail on all of her claims, plaintiff and Sisyphian filed competing motions for attorney fees and costs. After more fulsome briefing, the arbitrator in September 2020 issued an order denying both requests for attorney fees and costs. As pertinent here, the arbitrator cited two reasons for denying plaintiff‘s request for attorney fees: (1) the arbitrator accepted Sisyphian‘s representation—to which plaintiff did not respond in her reply brief—that plaintiff‘s requests for attorney fees in her complaint had been stricken in their entirety, and (2) the arbitrator found that plaintiff had made no attempt to apportion her attorney fees between the claims on which she had prevailed and those on which she had not. The arbitrator asked Sisyphian to prepare a final arbitration award.
2. Plaintiff seeks reconsideration
Eight days after the arbitrator issued the initial attorney fee order, plaintiff filed a motion asking him to use his “inherent authority” to reconsider the order on the ground that Sisyphian‘s representation that all attorney fees allegations had been stricken from her complaint was inaccurate.4 After
further briefing, the arbitrator granted plaintiff‘s motion, citing Sisyphian‘s inaccurate representations and plaintiff‘s lassitude in not pointing out the inaccuracy. Specifically, the arbitrator found that his prior order striking allegations in plaintiff‘s complaint had not stricken the attorney fees allegations from the sections describing each
3. The new round of briefing and revised attorney fee order
As the arbitrator requested, the parties filed a new round of briefing. Although plaintiff‘s renewed motion neglected to address the issue of apportionment that had supported the arbitrator‘s prior order completely denying attorney fees, the arbitrator issued a revised order that awarded plaintiff $82,800 in attorney fees (out of the $283,941.25 she sought).
C. The final arbitration award
On March 5, 2021, the arbitrator issued his “final arbitration award.”
III. Postarbitration Judicial Proceedings
On March 24, 2021, plaintiff filed in the trial court a petition to confirm the final arbitration award. Plaintiff served the petition on Sisyphian, via e-mail, on April 1, 2021.
On May 3, 2021, Sisyphian filed and served two documents—namely, (1) a response to plaintiff‘s petition to confirm, and (2) a petition to vacate or correct the award. In each of the nearly identical filings, Sisyphian argued that the arbitrator had exceeded his powers by reconsidering his initial attorney fees award, so the final award giving plaintiff $82,800 in such fees had to be vacated.
After further briefing and a hearing, the trial court issued a ruling (1) denying Sisyphian‘s petition to vacate or correct the award, and (2) confirming the award. In its order, the trial court explicitly found that Sisyphian‘s “papers” were not “timely” because they missed the statutory deadline. Without making any finding that Sisyphian had “good cause” to excuse its untimely filings, the court nevertheless went on to explain why, on the merits, “the result [of its order] would be the same” “[e]ven if [Sisyphian‘s] papers
V. Appeal
Following the entry of judgment for plaintiff in the amount of $105,109.75,5 Sisyphian timely filed this appeal.
DISCUSSION
I. Sisyphian‘s Challenge to the Final Arbitration Award
Sisyphian argues that the trial court erred in confirming the final arbitration award because, in reconsidering its initial attorney fees order, the arbitrator exceeded his powers. Whether we may consider this argument on the merits turns on two questions: (1) Were Sisyphian‘s challenges seeking to vacate or correct the final arbitration award timely filed, and (2) if they were untimely, may the trial court or this court consider those challenges—or is the trial court obligated to confirm the award and are we obligated to affirm? These questions turn on our interpretation of the Act as well as the application of the Act to undisputed facts; consequently, our review is de novo.6 (Guardianship of Saul H. (2022) 13 Cal.5th 827, 846-847; Lopez v. Ledesma (2022) 12 Cal.5th 848, 857.)
A. Were Sisyphian‘s efforts to vacate or correct the final arbitration award timely?
Once an arbitrator issues an “award” within the meaning of the Act, the “torch of jurisdiction” passes “from the arbitrator to the trial court.” (
Once that torch has passed, the parties to the arbitration can petition the trial court to issue one of two orders with regard
to the arbitration award: (1) an order confirming the arbitration award (
The Act explicitly prescribes deadlines for filing either type of petition. The deadline for filing a petition to confirm an arbitration award is four years (from the date the petitioner was served with the award). (
How do these two deadlines interact?
When no petition to confirm the award is filed, the deadline is easy—namely, 100 days after the award was served on the party petitioning to vacate or correct the award.
But when a petition to confirm is filed, the question becomes which deadline controls—the absolute deadline of 100 days after the award is served, or the relative deadline of 10 days after a petition to confirm the award is served? The answer is: Whichever deadline is the shorter. If a petition to confirm the award is filed fewer than 90 days after an award is served, a competing request to vacate or correct the award—whether styled as a response to the petition to confirm or as a standalone petition7—must be filed and served within 10 days of service of the petition to confirm, even if that due date is less than 100 days after service of the award. ( Law Finance Group, LLC v. Key (2021) 67 Cal.App.5th 307, 319 (Law Finance), review granted Nov. 10, 2021, S270798; Rivera v. Shivers (2020) 54 Cal.App.5th 82, 93-94; Coordinated Construction, Inc. v. Canoga Big “A,” Inc. (1965) 238 Cal.App.2d 313, 317; Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66-68.) But if a petition to confirm is filed more than 90 days after an award is served, a competing request to vacate or correct the award—no matter how styled—must still have been filed within 100 days of the service of the award, even if that due date is less than 10 days
after service of the petition to confirm. (Douglass v. Serenivision, Inc. (2018) 20 Cal.App.5th 376, 384-385.)
Are these deadlines subject to extension? It depends. Both the 100-day and 10-day statutory deadlines are “jurisdictional” (Santa Monica College Faculty Assn. v. Santa Monica Community College Dist. (2015) 243 Cal.App.4th 538, 544-545; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1203), so neither may be extended via equity-based motions such as motions to vacate under
Sisyphian‘s sole response is to object that it has been caught in a “procedural gotcha,” citing People v. Matthews (2019) 32 Cal.App.5th 792, 798 and Clark v. Superior Court (2021) 62 Cal.App.5th 289, 293. But a party‘s failure to follow a statutory deadline that has been interpreted consistently for years by the courts does not amount to an unfair “gotcha.” What is more, neither Matthews nor Clark has anything to do with the Act‘s deadlines or otherwise sanctions ignoring statutory deadlines of jurisdictional import.
B. What are the consequences for missing the Act‘s filing deadlines when seeking to correct or vacate an arbitration award?
1. In the trial court
A petition to confirm an arbitration award, if procedurally proper, “shall” be confirmed unless the trial court (1) vacates or corrects the award, or (2) dismisses the petition to confirm. (
earlier trial court order remanding matter for rearbitration rather than the substance of the award itself].)9
Where, as here, the petition to confirm is procedurally proper, dismissal of that petition is not sought, and there is no timely filing seeking to vacate or correct the arbitration award, is the trial court obligated to confirm the arbitration award? The answer is “yes.”
This answer is dictated by two principles.
First, a court may not vacate or correct an arbitration award unless “[a] petition or response requesting that the award be corrected” or “vacated has been duly served and filed.” (
Second, in the absence of a properly served and filed petition or response seeking to vacate or correct an award, a trial court “shall” confirm the award. (
(2011) 197 Cal.App.4th 733, 741-742 [same]; Law Finance, supra, 67 Cal.App.5th at p. 325 [same].) Put differently, vacating or correcting an arbitration award is the flip side of the same coin as confirming that award: If it isn‘t heads, it has to be tails; if an award cannot be vacated or corrected, it must be confirmed.10 This is the outcome dictated by the plain text of
Because plaintiff‘s petition to confirm was procedurally proper, because no party sought dismissal of plaintiff‘s petition,
and because Sisyphian‘s filings seeking to vacate or correct the arbitration award were not timely filed, the trial court in this case was obligated to confirm the final arbitration award. The trial court‘s observations in the alternative rejecting Sisyphian‘s arguments were superfluous to its ruling and could not have altered the outcome of the proceedings before that court.
2. In the appellate court
Although we have appellate jurisdiction because Sisyphian has appealed the “judgment” confirming the arbitration award (
may not be used to circumvent the prescribed time allowed to petition for vacation or correction of an award“]; Berg v. Traylor (2007) 148 Cal.App.4th 809, 823 [“[party‘s] failure to file a timely petition to vacate the arbitration award bars her from challenging the judgment confirming the award on appeal“]; Soni v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1092-1094 [appellant “is barred from opposing confirmation of the award” “because [appellant] did not file a petition or response . . . within 100 days of service of the award“]; Louise Gardens, supra, 82 Cal.App.4th at p. 658 [appellant “cannot avoid the consequences of its failure to file a timely petition to vacate by appealing from the postconfirmation judgment“]; Gordon v. G.R.O.U.P., Inc. (1996) 49 Cal.App.4th 998, 1010 [“Statutory grounds for correction of an arbitrator‘s award cannot be asserted for the first time on appeal from the judgment confirming the award“].) Second, were we to sanction this power to resurrect, we would be creating a blueprint for prolonging postarbitration litigation in derogation of the Act‘s purpose of minimizing—not maximizing—such litigation.
Because Sisyphian forfeited its right to seek to vacate or correct the final arbitration award before the trial court, we may not consider its arguments to do so on appeal. We are accordingly obligated to affirm the judgment confirming the final arbitration award.
II. Attorney Fees on Appeal
Plaintiff argues that she is entitled to recover the attorney fees she incurred in this appeal.
Although parties in California are required to bear their own attorney fees unless a statute or contract provides otherwise (
Labor Code claims seeking payments for violations of the minimum wage and overtime statutes as well as violations of the accurate wage statement statute. The
Sisyphian resists this conclusion, pointing out that the
statement provisions; and because the violations of those provisions were due to her working nearly 100 hours per week rather than mere restatements of violations of the meal and rest break provisions.
In light of our conclusion that plaintiff is entitled to her attorney fees on appeal pursuant to the
DISPOSITION
The judgment is affirmed. Plaintiff is entitled to her costs and reasonable attorney fees incurred in this appeal, in an amount to be determined by the trial court.
CERTIFIED FOR PARTIAL PUBLICATION.
HOFFSTADT, J.
We concur:
ASHMANN-GERST, Acting P. J.
CHAVEZ, J.
Notes
Plaintiff also asserted a cause of action for conversion, which the arbitrator dismissed.
Plaintiff additionally sued Brad Barnes on the ground that Sisyphian was his “alter ego.” The arbitrator rejected that claim and awarded Barnes $1,037.50 in costs. Although Barnes is named on the notice of appeal in this case, he has made no separate appearance and no argument is offered attacking any ruling with regard to Barnes.