Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles County Superior Court No. BS105105, Jane Johnson Judge. .
Ursula Hubner, in pro. per., for Appellant.
Moskowitz Law Group, and Karen Moskowitz for Respondent Judith Shapiro.
RUBIN, J.
SUMMARY
Appellant Ursula Hubner appeals from an order dismissing her petition to vacate an arbitration award based on Hubner’s untimely service of the petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
For over two decades, Hubner was involved in extremely contentious litigation with her wealthy ex-husband regarding spousal and child support. For most of that time, Hubner was represented by the law partnership of Lurvey & Shapiro, until Ira Lurvey passed away and the representation was continued by respondent Judith Salkow Shapiro. On several occasions over the course of the litigation, Hubner’s ex-husband was ordered to pay Hubner’s attorney fees. In October 2005, pursuant to an order of court finally resolving the family law action, Hubner’s ex-husband delivered approximately $906,600 to Shapiro in satisfaction of his support and fee obligations. A fee dispute arose between Hubner and Shapiro. With Hubner’s permission, Shapiro withheld approximately $179,000 of that amount pending resolution of the dispute. In December 2005, Hubner elected to submit the fee dispute to binding arbitration, which was set for May 25, 2006.
In mid-May Hubner sought an indefinite continuance of the arbitration, on the grounds she was still searching for counsel to represent her at the hearing, and was under the influence of pain medications her doctor said altered her perception and memory to the point that he felt “any activity that would require her full capacity from a mental point of view . . . should be reasonably delayed.” The doctor anticipated Hubner could be weaned from her medications by mid-November 2006. Shapiro opposed the request to continue the hearing.
The State Bar’s Presiding Arbitrator found Hubner failed to make an adequate showing to justify the prolonged continuance she sought, and denied the request. He reasoned she failed to demonstrate good cause to permit her an indefinite extension of time to retain counsel. He also concluded interests of fairness as well as timeliness in resolving fee disputes militated in favor of proceeding on the schedule to which the parties and arbitration panel had earlier agreed, as did the fact that, notwithstanding her medical problems, Hubner was quite “able to compose and transmit cogent and appropriate letters and marshal evidence in support of her application” to continue the hearing.
The arbitration hearing was held on May 25, 2006, with Hubner fully participating. Shapiro was awarded $171,360 of the approximately $854,000 in fees she sought. The parties were served with copies of the Arbitration Award on June 28, 2006.
On September 11, 2006, Hubner filed a Petition to Vacate the Attorney-Client Fee Arbitration Award with the superior court (petition). The petition was personally served on Shapiro, on her own behalf and on behalf of Lurvey & Shapiro, on November 7, 2006.
On November 30, 2006, Shapiro moved to dismiss the petition. She asserted the trial court lacked jurisdiction to consider the action on the ground Hubner had failed to both file and serve the petition to vacate within 100 days of the date on which she was served with the arbitration award, as required by Code of Civil Procedure section 1288, or no later than October 6, 2006. Shapiro argued that, although Hubner timely filed the petition, she failed to serve it until a month after the time within which to do so had expired. The trial court agreed, and dismissed the petition. Hubner appeals.
DISCUSSION
Hubner asserts this matter should not have gone to arbitration when it did, and the arbitrators erred by refusing to grant her request for a continuance of the hearing. Shapiro correctly contends Hubner’s substantive complaints may not be considered because she failed to both timely file and serve her petition to have the arbitration award vacated, and thus the trial court lacked the power to vacate the award. Hubner does not deny she failed to serve her petition on time. But, she insists that, because she is a pro per litigant, who received bad advice from an attorney friend she retained to advise her (who purportedly misinformed Hubner as to the time limits for filing and serving the petition to vacate, and then refused to accept responsibility for his mistake), the trial court erred by dismissing her petition, and should have exercised its equitable power to grant her relief and consider the petition on its merits.
[ We reject Shapiro’s assertion that Hubner’s appeal is taken from a nonappealable order. Code of Civil Procedure section 1294 unequivocally states that “[a]n aggrieved party may appeal from: [¶] (b) An order dismissing a petition to . . . vacate an award.”
A party to an arbitration may petition the superior court to confirm, correct or vacate the award. (Code Civ. Proc., § 1285.) When vacation of an arbitration award is sought, the petition must “be served and filed not later than 100 days after the date of service of a signed copy of the award on the petitioner.” (§ 1288.)
Unless noted otherwise, all statutory references are to the Code of Civil Procedure.
Hubner was served with a copy of the signed arbitration award on June 28, 2006. Her petition to vacate had to be filed and served no later than October 6, 2006. Although Hubner’s petition was filed on September 11, 2006, it was not served until November 7, 2006, a month after the 100 day period provided for by section 1288 expired.
The petition was properly dismissed. Section 1286.4, subdivision (a) prohibits a trial court from vacating an arbitration award unless the petition to vacate has been filed and served. Section 1288 requires a petition requesting vacation be “filed and served . . . not later than 100 days after the date of service” of the award. (Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658.) The statute’s 100-day time limit for challenging an award is absolute. (Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 395 (Knass) [“In order to comply with the purpose of expeditious resolution of disputes through arbitration, time limits in which to challenge arbitration awards must be strictly enforced”].) The trial court appropriately relied on Knass and, more directly, on Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, in which the court held a petitioner could not avoid the time bar of section 1288 simply by timely filing a petition to vacate. Rather, “[s]ection 1288 requires that a petition to vacate . . . also be served within the 100-day period.” (Id. at p. 398, italics added; see also Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745 [“If the party who lost in the arbitration does not serve and file a petition to vacate . . . within the 100-day period from the date of service of the award, the award must be treated as final”].)
Hubner argues her untimely service should be excused because she is a pro per litigant and cannot be expected to understand or comply with “a highly technical rule of court.” She is mistaken.
Hubner may not rely on her pro per status to excuse compliance with the statutory deadline. We appreciate the difficulties pro per litigants face, particularly in an area of law as complex as that involving the grounds for seeking judicial relief after arbitration. (See Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [acknowledging judicial awareness that pro per “litigants often do not have an attorney’s level of knowledge about the legal system and are more prone to misunderstanding the court’s requirements”].) But, it is a well-established rule that an individual representing herself is held to the same standard as a party with legal counsel. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210; accord Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [“as is the case with attorneys, pro. per. litigants must follow correct rules of procedure”].) Hubner is entitled to the same consideration as, but no greater consideration than, other litigants. “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
At the same time she claims to have appeared pro per, Hubner also asserts her petition should have been considered because she mistakenly relied on an attorney’s bad advice regarding the statutory deadlines. She insists equitable tolling principles and the principles underlying section 473’s provisions for “excusable neglect” should apply to toll the 100-day deadline and further the policy that matters be decided on their merits. Again, we disagree.
The policy underlying section 473 does favor dispositions on the merits. However, Hubner failed to blame her attorney or to raise this potentially plausible argument for “excusable neglect” below. She may not do so for the first time on appeal. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [the right to complain on appeal may be waived if an issue is not raised in the trial court].)
We assume for this discussion that, in the proper case, a party may invoke section 473 to excuse failure to comply with section 1288’s time requirements. (Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at p. 746.)
Section 473, subdivision (b), gives the trial court the power to grant relief to a party “ ‘from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’ ” If an application for relief is accompanied by an affidavit of fault from the party’s attorney, relief is mandatory. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681.) However, when, as here, there is no attorney affidavit of fault, the granting of relief lies in the trial court’s sound discretion. (Ibid.; Iott v. Franklin (1988) 206 Cal.App.3d 521, 527.) Although relief is liberally granted, the moving party nonetheless bears the burden of demonstrating adequate grounds for relief. (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276.) On appeal from the denial of discretionary relief under section 473, subdivision (b), “we indulge all legitimate and reasonable inferences to uphold the judgment and reverse only upon a showing that the trial court exceeded the bounds of reason in light of all the circumstances.” (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44.)
Hubner attempts to lay the blame for untimely service squarely on the shoulders of her attorney who was not of record. However, the attorney -- who represented Hubner at the hearing on Shapiro’s motion to dismiss -- never filed an affidavit of fault or accepted responsibility for the untimely service, and the record contains no evidentiary support for Hubner’s accusations. Mandatory relief was thus not in order.
Hubner’s alternative assertion that the untimely service constituted excusable neglect on her own part is premised, in part, on the revival of her claim she was unable to properly prepare for the arbitration hearing or to timely serve the petition to vacate, because of medical problems and an addiction to pain medication that caused her to be “bedridden much of the time,” and to serve the petition late, “based on the wrong information provided by” the attorney. However, she concedes she retained the attorney precisely because of her medical problems and inexperience, to help her prepare, file and serve the petition to vacate and represent her at the hearing. Hubner also asserts the rules of court allow the trial court to relieve the party from “case disposition” time constraints in exceptional circumstances, including the difficulty a party encounters “in identifying, locating and serving parties.” (Cal. Rules of Court, rules 3.714(a)(2), 3.715(a)(6).) However, Hubner did not serve the petition herself; it was served by her agent on Shapiro who keeps regular business hours at the same address she used during the decades she represented Hubner. Hubner failed to show any “excusable neglect” of her own that would have justified a judicial exercise of discretion to extend the time for her to serve the petition. The trial court did not err.
We have considered – and reject – Hubner’s argument that the trial court should have applied the doctrine of equitable tolling. One prerequisite for application of the rule of equitable tolling in this state is that the plaintiff be left without a forum for resolution of her claims due to forces beyond her control. (See Wood v. Elling Corp. (1977) 20 Cal.3d 353, 361-362.) For reasons discussed above, Hubner cannot satisfy this requirement.
DISPOSITION
The order dismissing Hubner’s petition to vacate the arbitration award is affirmed. Respondents are to recover their costs on appeal.
We concur: COOPER, P.J., FLIER, J.