Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS123284, Helen I. Bendix, Judge.
Kalcheim Law Group and Mitch Kalcheim for Defendant and Appellant.
Paul A. Blechner for Plaintiff and Respondent.
TURNER, P.J.
I. INTRODUCTION
Defendant, Thom Barry, appeals from a December 17, 2009 judgment confirming an arbitration award in favor of plaintiff, Innovative Artists and Literary Agency, Inc. We affirm the judgment.
II. BACKGROUND
Defendant, an actor, entered into a talent agency contract and an arbitration agreement with plaintiff. The parties agreed to final and binding arbitration of “[a]ll disputes and controversies of every kind and nature whatsoever... including but not limited to commission disputes.” The parties expressly agreed to use the American Arbitration Association rules. A dispute arose as to commissions due plaintiff from defendant’s employment on a television show. An arbitration took place under the auspices of the American Arbitration Association and pursuant to its Commercial Arbitration Rules. Defendant did not appear at the arbitration and presented no evidence. The arbitrator issued a July 9, 2009 award in plaintiff’s favor. On October 19, 2009, 102 days after the award was issued, plaintiff filed a petition to confirm the award. On November 19, 2009, defendant filed a petition to vacate the award. The trial court found defendant’s petition was not timely filed; further, defendant had not shown any grounds for Code of Civil Procedure section 473 relief.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
III. DISCUSSION
A. Defendant’s Petition Was Not Timely Filed
Defendant’s petition to vacate the award was not timely filed. A petition to vacate an arbitration award, whether or not filed in response to a request to confirm, must be filed within 100 days after the arbitration award is served on the petitioning party. (§§ 1288, 1288.2; Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745; Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 395-396; DeMello v. Souza (1973) 36 Cal.App.3d 79, 83.) This time-limit must be strictly enforced. (Maynard v. Brandon (2005) 36 Cal.4th 364, 377; Knass v. Blue Cross of California, supra, 228 Cal.App.3d at p. 395.) The trial court found defendant was served on July 9, 2009. Substantial evidence supported that finding. (See MJM, Inc. v. Tootoo (1985) 173 Cal.App.3d 598, 603; Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 398; Davis v. Calaway (1975) 48 Cal.App.3d 309, 310-311.) On July 9, 2009, the American Arbitration Association transmitted a signed copy of the arbitration award to defendant by both regular and certified mail at an address in Sherman Oaks. Defendant had confirmed that the Sherman Oaks address was his mailing address and never denied having received mail there. The manner of service was authorized under section 1283.6 and rule R-45 of the American Arbitration Association’s Commercial Arbitration Rules, pursuant to which the arbitration was conducted. This was prima facie proof of service. (Davis v. Calaway, supra, 48 Cal.App.3d at pp. 310-311 & fn. 1.)
One hundred days after July 9, 2009, was October 17, 2009. Hence, the trial court properly concluded defendant’s petition to vacate the arbitration award, filed on November 19, 2009, was untimely. (Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at p. 746; In re Marriage of Bereznak (2003) 110 Cal.App.4th 1062, 1066 & fns. 5, 6; Davis v. Calaway, supra, 48 Cal.App.3d at p. 311; Coordinated Construction, Inc. v. Canoga Big “A, ” Inc. (1965) 238 Cal.App.2d 313, 316.) Moreover, it is well-established that a party who fails to act within the 100-day limit is precluded from attacking the arbitration award. (§ 1286.4, subd. (a); Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at p. 745; Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 659; United Firefighters of Los Angeles v. City of Los Angeles (1991) 231 Cal.App.3d 1576, 1581; Humes v. Margil Ventures, Inc. (1985) 174 Cal.App.3d 486, 497; MacDonald v. San Diego State University (1980) 111 Cal.App.3d 67, 79-81; Klubnikin v. California Fair Plan Assn., supra, 84 Cal.App.3d at p. 398; Davis v. Calaway, supra, 48 Cal.App.3d at p. 311; Coordinated Construction, Inc. v. Canoga Big “A, ” Inc., supra, 238 Cal.App.2d at p. 318.)
B. Defendant Has Not Shown Any Abuse Of Discretion As To Section 473 Relief
Defendant has not shown that the trial court abused its discretion in denying him section 473 relief from the failure to comply with the 100-day deadline. The Courts of Appeal have held a party may seek relief under section 473 from the failure to comply with the 100-day deadline to seek to vacate an arbitration award. (Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at p. 746; Humes v. Margil Ventures, Inc., supra, 174 Cal.App.3d at pp. 498-499; MJM, Inc. v. Tootoo, supra, 173 Cal.App.3d at p. 604; DeMello v. Souza, supra, 36 Cal.App.3d at p. 84; Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2006) ¶ 5:510, p. 5-350 (rev. #1. 2008); see Maynard v. Brandon, supra, 36 Cal.4th at p. 380, fn. 11 [noting but not endorsing the view that section 473 relief is available in nonjudicial arbitration proceedings].) The party seeking relief must show a satisfactory excuse for the failure and diligence in seeking relief. Our review is for an abuse of discretion. (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598; MJM, Inc. v. Tootoo, supra, 173 Cal.App.3d at pp. 603-604.) As the Supreme Court explained in Marriage of Connolly:“In reviewing the evidence in support of a section 473 motion, we extend all legitimate and reasonable inferences to uphold the judgment. The disposition of such a motion rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion. Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] We have said that when two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)” (In re Marriage of Connolly, supra, 23 Cal.3d at pp. 597-598.)
Defendant contends he was entitled to section 473 relief because he lacked notice of the arbitration and never had an opportunity to present a defense. In the trial court, defendant presented evidence he received plaintiff’s arbitration demand but did not respond to it because he thought it was without merit. He admitted the Sherman Oaks address was his “mail box address, ” but denied that he lived or worked there. He said he was not personally served with notice of the arbitration hearing and was unaware an arbitration had occurred until on or shortly after October 19, 2009, when he was personally served with the petition to confirm the award. However, there was substantial evidence defendant had received repeated notice of the arbitration proceedings at mail and e-mail addresses, both of which he had confirmed as correct. There was evidence he knew the arbitration hearing had been scheduled for June 8, 2009. Further, defendant never denied: the Sherman Oaks address was correct; and receiving mail at that address. Defendant never provided plaintiff with a different mail address. The trial court found defendant made a conscious decision to ignore the arbitration proceedings and the award with knowledge thereof, chose not to attend the arbitration, to present any witnesses, or to raise any affirmative defenses. Substantial evidence in the record supported those conclusions. Defendant has not shown that the trial court abused its discretion.
IV. DISPOSITION
The judgment is affirmed. Plaintiff, Innovative Artists Talent and Literary Agency, Inc., is to recover its costs on appeal from defendant, Thom Barry.
We concur:
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.