Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald M. Sohigian, Judge. Los Angeles County Super. Ct. No. BS107012
Law Offices of Kenneth F. Weston and Kenneth F. Weston for Defendant and Appellant.
Humphrey, Berger & Associates, Clark H. Cameron and Kenneth S. Humphrey for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Taylor Billingslea (Billingslea) appeals from a judgment confirming an arbitration award in favor of plaintiff and respondent Amwest Surety Insurance Company (Amwest). We affirm the judgment.
BACKGROUND
Amwest was a Nebraska corporation licensed to issue bail bonds in California. Amwest and Billingslea entered into a written contract authorizing Billingslea to issue bail bonds in Amwest’s name. The parties’ contract contains an indemnity provision that provides in relevant part: “Agent [Billingslea] will indemnify Company [Amwest] and any other guarantors, indemnitors, co-sureties and reinsuring companies which may be obtained by Company independently of the action of Agent, and save them and each of them harmless from any and all liability, loss, costs, damages, claims, suits, attorneys’ fees and expenses of whatever kind or nature which any of them may sustain or incur as the result of or in connection with the execution of any bond delivered to Agent, or delivered at the request of Agent or written by Agent.” The contract also contains a provision requiring arbitration of disputes related to the contract and a provision allowing the prevailing party in any arbitration or litigation concerning the contract to recover its attorney fees and costs.
In May 1997, Billingslea caused a bail bond in the amount of $150,000 to be issued by Amwest for the benefit of a criminal defendant named Larry James Lomax. When Lomax failed to appear for his criminal trial on January 5, 1998, the Los Angeles County Superior Court (County) ordered the bond forfeited. After various extensions, the County demanded payment of the $150,000 bond. When this demand was not met, the County filed a motion for summary judgment pursuant to Penal Code section 1306. The motion was granted and summary judgment was entered against Amwest in the amount of $150,192 on July 12, 1999.
Penal Code section 1306, subdivision (a) provides in part: “When any bond is forfeited and the period of time specified in Section 1305 has elapsed without the forfeiture having been set aside, the court which has declared the forfeiture, regardless of the amount of the bail, shall enter a summary judgment against each bondsman named in the bond in the amount for which the bondsman is bound.”
On June 7, 2001, Amwest was placed into liquidation by the Nebraska Insurance Commissioner. The County filed a proof of claim in the liquidation proceedings within the time allowed under Nebraska law, but more than two years after the date on which summary judgment was entered against Amwest. On December 21, 2003, the liquidator allowed the County’s claim in the amount of $153,048.13.
Amwest was ordered into liquidation by the Department of Insurance for the State of Nebraska on June 7, 2001. The order of liquidation authorizes the liquidator to maintain this action in the name of the liquidating company.
Amwest demanded that Billingslea indemnify it for the County’s claim. When Billingslea failed to do so, Amwest initiated an arbitration proceeding before the American Arbitration Association. The arbitration hearing was held on April 27, 2006, before Arbitrator David P. Dapper pursuant to a joint stipulation of facts entered into by the parties. At the hearing Billingslea argued, among other things, that the County’s claim on the bond, and therefore Amwest’s claim for indemnity, was barred by Penal Code section 1306, subdivision (f), which provides: “The right to enforce a summary judgment entered against a bondsman pursuant to this section shall expire two years after the entry of the judgment.” Billingslea maintained that the statute barred any claim on the bond because the County filed its proof of claim in the Nebraska liquidation proceedings more than two years after judgment had been entered against Amwest.
The arbitrator found that the two-year statutory period set forth in Penal Code section 1306, subdivision (f) expired on July 12, 2001; that Amwest had been placed into liquidation 35 days before that date; that the liquidation order enjoined all persons, including the County, from instituting proceedings against Amwest; and that the County’s rights against Amwest became “fixed” under Nebraska law on June 7, 2001, the date Amwest was placed in liquidation. The arbitrator concluded that because Nebraska law precluded the County from pursuing its claim against Amwest during the liquidation proceedings, the two-year statute of limitations prescribed by Penal Code section 1306 was tolled during this period, and neither the County’s claim nor Amwest’s claim was time-barred. On December 19, 2006, the arbitrator issued a final award in favor of Amwest in the amount of $182,961.36, consisting of the principal sum of $153,048.13, $17,960.19 in attorney fees, and $11,953.04 in costs.
On January 23, 2007, Amwest filed a petition to confirm the arbitration award. Billingslea filed an “objection to confirmation” on March 26, 2007. After hearing argument from the parties, the trial court granted the petition and confirmed the arbitration award. Judgment was entered on May 15, 2007. This appeal followed.
DISCUSSION
I. Timeliness of Billingslea’s Response
A party to an arbitration may ask the court to confirm, correct, or vacate the arbitration award. This is done by petitioning for such relief or by requesting such relief in response to a petition to confirm the award. In either case, the request must be made within 100 days of the date that a signed copy of the award is served on the party. (Code Civ. Proc., §§ 1288, 1288.2.)
All further statutory references are to the Code of Civil Procedure, unless stated otherwise.
If a party petitions the court to confirm an arbitration award, a response must be filed within 10 days of service of the petition. (§ 1290.6.) If a response is not filed within 10 days of service of the petition, then the allegations of the petition are deemed to be admitted, and a request to vacate or correct the award cannot thereafter be made. (§ 1290; Hirsch v. Ensign (1981) 122 Cal.App.3d 521, 531, disapproved on another ground in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 27-28 (Moncharsh); Coordinated Constr., Inc. v. Canoga Big “A,” Inc. (1965) 238 Cal.App.2d 313, 316-318.) Under section 1286, “confirmation of an award is the mandatory outcome absent the correction or vacatur of the award or the dismissal of the petition: ‘If a petition or response . . . is duly served and filed, the court shall confirm the award as made . . . unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.’ (§ 1286, italics added.) A petition to confirm need only set forth (1) the names of the arbitrators, (2) the arbitration agreement (by description or attached copy), and (3) the award and written opinion of the arbitrators (by description or attached copy). (§ 1285.4.)” (Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 744-745 (Eternity).)
In this case, Amwest filed its petition to confirm the arbitration award on January 23, 2007. The petition was served on Billingslea by personal delivery on February 7, 2007. Billingslea’s response to Amwest’s petition was not filed until March 26, 2007, more than 10 days later. The response was therefore untimely. (§ 1290.6; Evans Prods. Co. v. Millmen’s Union No. 550 (1984) 159 Cal.App.3d 815, 819.) Because there was no timely response, the allegations of the petition are deemed admitted. (§ 1290; Hirsch v. Ensign, supra, 122 Cal.App.3d at p. 531.) Because the allegations of the petition are sufficient to support confirmation of the arbitration award, the trial court had no choice but to confirm the award. (§ 1286; Eternity, supra, 151 Cal.App.4th at p. 745.)
During oral argument, Billingslea’s counsel suggested that a timely response to Amwest’s petition would have been filed had Amwest served the petition on counsel, rather than on Billingslea personally. Billingslea did not object to the manner of service, however, nor did Billingslea seek an extension of the time for serving and filing a response, as the statute allows, by agreement with Amwest or by order of the trial court. (§ 1290.6.) Personal service of the petition on Billingslea was proper, in any event. (§§ 1290.4, subd. (c), 1011.)
II. The Merits of Billingslea’s Response
Because Billingslea failed to file a timely response to Amwest’s petition, thus compelling the trial court to confirm the arbitration award, we need not address Billingslea’s specific objections to the award. Those objections lack merit, in any event.
When addressing objections to an arbitration award, courts must be mindful of the rule that an “arbitrator’s decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties.” (Moncharsh, supra, 3 Cal.4th at p. 6.) Judicial review of arbitration awards is limited to the statutory grounds set forth in sections 1286.2 (grounds for vacating an award) and 1286.6 (grounds for correcting an award). (Moncharsh, at pp. 27-28; Moshonov v. Walsh (2000) 22 Cal.4th 771, 775.) Unless one of the enumerated grounds exists, a court may not vacate or correct an award. (Moshonov, at p. 775; Moncharsh, at pp. 11, 25, 28.) The party attacking an arbitration award bears the burden of affirmatively establishing the existence of error by a proper record. (Lopes v. Milsap (1992) 6 Cal.App.4th 1679, 1685.)
“An award may be corrected if: (1) there is an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property; (2) the arbitrators exceeded their powers, but the award may be corrected without affecting the merits of the decision; or (3) the award is imperfect in form, not affecting the merits of the controversy. (§ 1286.6.) An award may be vacated if: (1) it was procured by corruption, fraud, or other undue means; (2) any arbitrator was corrupt; (3) a neutral arbitrator engaged in prejudicial misconduct; (4) the arbitrators exceeded their powers, and the award cannot be corrected without affecting the merits of the decision; (5) a party was prejudiced by the arbitrators’ refusal to postpone the hearing after a showing of sufficient cause therefor or by their refusal to hear material evidence; or (6) the arbitrators violated applicable rules regarding disqualification. (§ 1286.2, subd. (a)(1)-(6).)” (Eternity, supra, 151 Cal.App.4th at p. 744, fn. 1.)
Here, Billingslea failed to establish any valid legal basis for vacating the arbitration award in this case. His argument that Amwest acted in “bad faith” by not asserting a statute of limitations defense in the County’s action to enforce the bond is not a valid ground for vacating the award. That argument, moreover, was considered and rejected by the arbitrator, and the arbitrator’s determination of the issue is not subject to judicial review. (Moncharsh, supra, 3 Cal.4th at pp. 11, 25, 28.) Billingslea’s argument that the arbitrator “misconstrued the effect of the Court’s ruling” in the County’s Penal Code section 1306 action that the two-year statutory period had run is also not a basis for vacating the award. (Moncharsh, at p. 33 [existence of an error of law on the face of an arbitration award does not provide grounds for judicial review].) Billingslea did not meet his burden of establishing a valid basis for vacating or correcting the arbitration award.
III. Attorney Fees
Amwest requests recovery of attorney fees it incurred in this appeal. Under the parties’ agreement, Amwest, as the prevailing party in this appeal, is entitled to its attorney fees. (Ajida Techs. v. Roos Instruments (2001) 87 Cal.App.4th 534, 552.)
The parties’ agreement provides in part: “In the event of litigation or arbitration arising out of or relating to this Agreement, or any bond written by Agent, Company shall, if it prevails, be entitled to receive from Agent its attorney’s fees, costs and expenses.”
DISPOSITION
The judgment is affirmed. Amwest is awarded its costs and attorney fees on appeal. We remand the matter to the trial court to determine the amount of attorney fees Amwest reasonably incurred in defending this appeal.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.