Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CPF 06-506473
Swager, J.
In this appeal from a judgment that confirmed an arbitration award, appellant claims that he was prevented from presenting his petition to vacate the arbitration award and opposing respondent’s petition to confirm the award. We conclude that appellant’s failure to timely serve his petition to vacate the arbitration award precludes consideration of any grounds in opposition to confirmation of the award, and appellant has not affirmatively demonstrated error in the trial court proceedings. We therefore affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Respondent Spire Systems, Inc., is a company which provides temporary programming, engineering and other specialized technology personnel services to third party users for a finder’s fee. On September 5, 2003, pursuant to a written agreement for third party consulting services (the agreement), appellant was placed as an independent contractor with a company known as BioReliance. After appellant performed services for BioReliance, a dispute arose over the amount of compensation he was due under the agreement. Appellant and respondent engaged in negotiations to resolve the dispute, which ultimately proved unsuccessful. According to an arbitration provision in the agreement, appellant filed a demand for arbitration on March 12, 2004, which sought $10,400 as the balance due for the work he performed for BioReliance. Appellant subsequently refused to accept an offer from respondent for the full amount of his claim along with travel expenses and interest. In an amended claim appellant added demands for lost income, medical fees, attorney fees, and emotional and punitive damages.
The matter proceeded to an arbitration hearing, at which exhibits and testimony were received in evidence by the arbitrator. The arbitrator awarded appellant the contractual amount of $10,400 owed to him for the employment services he performed with BioReliance, plus interest, but found that absent any evidence of a “principal/agency relationship” between respondent and BioReliance he is not entitled to any further tort damages. Respondent was found by the arbitrator to be the prevailing party in the action, and on that basis was awarded attorney fees in the amount of $18,000. The arbitrator’s final award was entered and served on the parties on April 5, 2006.
Appellant filed a petition to vacate the arbitration award on July 3, 2006. No notice of the petition was filed by appellant; the matter was not placed on the trial court’s calendar; and the petition was not served on respondent until July 27, 2006.
On August 1, 2006, respondent filed a cross-petition to confirm the arbitration award, and the following day filed a response to the petition, both of which were personally served on appellant’s counsel. The hearing on the cross-petition to confirm the award was set for August 24, 2006, at 9:30 a.m. Counsel for respondent received a voice mail message on August 15, 2006, advising him that appellant’s counsel “would appear ex parte on August 17, 2006 at 11 AM in Dept (sic.) 301 for this application to continue the hearing.” On August 17, 2006, appellant filed an ex parte application for a two-month continuance of the hearing on respondent’s petition to confirm the arbitration award. Appellant’s counsel asserted that he had a conflict with the scheduled hearing date of August 24, 2006, and had not yet “been able to file an opposition to respondent’s petition to confirm,” because he had received the reporter’s transcript of the arbitration hearings only the day before. The record before us is rather confusing and incomplete, but it appears that counsel for appellant was not present at the ex parte calendar on at least one scheduled date to argue in support of the request for a continuance. On August 18, 2006, the court denied the request for continuance.
The transcript was completed in January of 2006, and received upon request by respondent’s counsel in February of 2006.
On August 22, 2006, appellant filed a request to voluntarily dismiss without prejudice his petition to vacate the arbitration award. On the same date, the trial court issued a tentative ruling to grant respondent’s cross-petition to confirm the arbitration award. At a hearing two days later, again without appearance from appellant’s counsel, the court confirmed the tentative ruling and granted the cross-petition to confirm the arbitration award. Notice of entry of judgment in favor of respondent in the amount of $6,492 was filed on August 30, 2006. This appeal from the judgment that granted the petition to confirm the arbitration award was filed on October 16, 2006.
The amount of the judgment represented the attorney fees awarded to respondent by the arbitrator, $18,000, less the amount awarded to appellant by the arbitrator for the employment services he performed for BioReliance, the $10,400 plus interest.
DISCUSSION
Appellant presents numerous assertions of error in this appeal, which relate both to his own petition to vacate the arbitration award and respondent’s petition to confirm the arbitration award. He complains that the trial court “blocked” him from “even presenting his petition to vacate” the arbitration award. Appellant adds that if he had been given the opportunity to “have his own petition to vacate heard,” he “could have demonstrated that the arbitration award was totally erroneous.” He also claims that he had the “absolute right to dismiss” his petition to vacate the arbitration award before trial under Code of Civil Procedure section 581, subdivision (b)(1), and therefore the ruling in the present case cannot be res judicata in any “new action” in which he refiles the petition. As to the petition to confirm the arbitration award, appellant argues that the trial court erroneously denied his ex parte request to continue the hearing, and “refused to allow him to file an opposition” to the petition. He complains that he was thus “deprived [of] any evidentiary hearing” in violation of his “due process rights.” Finally, he challenges the trial court’s confirmation of the award of attorney fees to respondent.
I. The Petition to Vacate the Arbitration Award .
For several reasons, we need not resolve any issues related to appellant’s petition to vacate the arbitration award. First, no ruling on appellant’s petition was made, and the present appeal was expressly taken only from the “Order Granting the Cross-Petition to Confirm Arbitration Award” filed on August 24, 2006. Even if we employ the rule of liberal construction of notices of appeal, we cannot under the facts before us treat the present appeal from the judgment on respondent’s petition to encompass appellant’s entirely separate petition, particularly where no ruling on the latter was ever made. (See In re Gonsalves (1957) 48 Cal.2d 638, 642–643; D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361; Lancaster Security Inv. Corp. v. Kessler (1958) 159 Cal.App.2d 649, 656–657; Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 739–740.)
Second, appellant voluntarily dismissed his petition to vacate the arbitration award, and therefore we have nothing to review on appeal in connection with that petition. (Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 121; see also Okoro v. City of Oakland (2006) 142 Cal.App.4th 306, 313.) “It is well established that a voluntary dismissal under Code of Civil Procedure section 581 is not appealable. ‘The entry [of a request for dismissal] is a ministerial, not a judicial, act, and no appeal lies therefrom.’ [Citation.] ‘A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review’ ” any rulings made prior to the dismissal. (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 975, fn. omitted, citing Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761.) Appellant can also hardly now complain that he was “blocked” from presenting his petition when he voluntarily dismissed it in the trial court.
Further, we agree with respondent that appellant’s petition to vacate the arbitration award was not timely. “The parties to an arbitration may petition the court to confirm, correct or vacate the award. (Code Civ. Proc., § 1285.) However, such a petition must be served and filed ‘not later than 100 days after the date of the service of a signed copy of the award.’ (Code Civ. Proc., § 1288.) If a party requests confirmation, within the 100 days specified in section 1288, a response may be filed seeking vacation of the award. Any such response must, however, be filed within 10 days of the date the petition to confirm is served. (Code Civ. Proc., § 1290.6.)” (Elden v. Superior Court (1997) 53 Cal.App.4th 1497, 1511.) The record indicates that appellant filed the petition within 100 days of service of the signed copy of the award on April 5, 2006, but did not also serve the petition upon respondent within the 100-day time limit. According to the only evidence before us, the petition was served by mail on respondent on July 27, 2006, which was at least 12 days late. A “petition to vacate or correct an award must be served and filed within 100 days after the service of the award on the petitioner . . . .” (DeMello v. Souza (1973) 36 Cal.App.3d 79, 83, original italics omitted, italics added.) The filing of the petition “alone . . . does not avoid the time bar” of Code of Civil Procedure section 1288; the statute also “requires that a petition to vacate or modify also be served within the 100-day period.” (Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 398.)
Code of Civil Procedure section 1288 reads: “A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Italics added.) Code of Civil Procedure section 1288.2 similarly reads: “A response requesting that an award be vacated or that an award be corrected shall be served and filed not later than 100 days after the date of service of a signed copy of the award upon: [¶] (a) The respondent if he was a party to the arbitration; or [¶] (b) The respondent’s representative if the respondent was not a party to the arbitration.” (Italics added.)
The envelope was postmarked July 26, 2006.
Any claim of error associated with appellant’s petition to vacate the arbitration award was therefore neither properly before the trial court nor may be considered by us in this appeal. The court may not correct or vacate an arbitration award unless a petition or response requesting that the award be corrected or vacated has been duly served and filed. (DeMello v. Souza, supra, 36 Cal.App.3d 79, 83–84.) No petition to vacate having been served by appellant within the time period allowed for such application, it is too late for any issues raised by that petition to be presented in this proceeding. (Retail Clerks Union v. Food Employers Council, Inc. (1978) 85 Cal.App.3d 286, 290.)
We also note that appellant obviously cannot file a timely petition in any other proceeding to seek to vacate or correct the arbitration award.
II. The Petition to Confirm the Arbitration Award .
We turn to the judgment in favor of respondent on the petition to confirm the arbitration award, from which this appeal was taken. As a threshold matter we conclude that the effect of the late service of the petition to vacate the arbitration award is to preclude any challenge to the confirmation of the award on grounds that may have been presented in a timely petition. “A party who fails to timely file a petition to vacate under [Code of Civil Procedure,] section 1286 may not thereafter attack that award by other means on grounds which would have supported an order to vacate.” (Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 659.) “ ‘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. . . .’ [Citation.]” (Ibid.) “ ‘The requirement that a petitioner challenge an award within the 100-day limit “places a burden upon those who would attack the award to act promptly or acquiesce in its enforcement.” [Citation.]’ [Citation.]” (Ibid.) “ ‘Although section 1287.4[] allows an appeal from a judgment confirming an arbitrator’s award, we find no indication that the section contemplates allowing a party to bypass the procedures which provide for limited review by the superior court. . . . [¶] The arbitration statute is clear. A party to an arbitration proceeding must challenge an award under [Code of Civil Procedure] section 1288 by a petition to vacate or correct the award within 100 days of service of the award. An appeal of the judgment confirming the award may not be used to circumvent the prescribed time allowed to petition for vacation or correction of award.’ [Citations.]” (Id. at p. 660. fn. omitted.)
Thus, not only are we precluded from considering any objection to the arbitration award presented in appellant’s petition, but we must treat the award as confirmed. Appellant’s “remedy if he was dissatisfied with the award was a proceeding pursuant to Code of Civil Procedure sections 1286.2, 1286.4, 1286.6, and 1286.8 to vacate or correct it. [Citation.] If [appellant] did not serve and file a petition to vacate or a response to [the] petition to confirm within the 100-day period from the date of service of the award as prescribed in Code of Civil Procedure sections 1288 and 1288.2, the award must be treated as final.” (Klubnikin v. California Fair Plan Assn., supra, 84 Cal.App.3d 393, 398; see also DeMello v. Souza, supra, 36 Cal.App.3d 79, 83–84.)
Finally, the fact that appellant voluntarily dismissed his petition does not negate the final, binding effect given to the arbitration award as confirmed by the judgment, despite the rule that “a voluntary dismissal without prejudice is not a final judgment on the merits.” (Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 879.) As we have observed, the petition was untimely, and was barred for that reason alone even if it had not been dismissed. More importantly, while we do not dispute appellant’s assertion that a party has the absolute right to voluntarily dismiss an action before trial under Code of Civil Procedure section 581, subdivision (b)(1), the dismissal by appellant was ineffective to terminate the action once respondent filed the cross-petition to confirm the award. “ ‘A plaintiff is precluded from voluntarily dismissing an action without prejudice under various circumstances short of a full trial. . . .’ [Citations.]” (Mid-Century Ins. Co. v. Superior Court (2006) 138 Cal.App.4th 769, 776.) “The right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute. Code of Civil Procedure section 581 recognizes exceptions to the right; other limitations have evolved through the courts’ construction of the term ‘commencement of trial.’ ” (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402; see also Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409.) As pertinent here, “Subdivision (i) of section 581 of the Code of Civil Procedure provides in pertinent part that, ‘[n]o dismissal of an action may be made or entered or both, under paragraph (1) of subdivision (b) where affirmative relief has been sought by the cross-complaint of a defendant. . . .’ The ‘controlling factor’ in determining whether a plaintiff has the right to dismiss under Code of Civil Procedure section 581 has been held to be whether the other party has requested affirmative relief, regardless of the form of the pleading.” (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 869.) Once respondent requested affirmative relief in the form of a petition to confirm the arbitration award, appellant was precluded from terminating respondent’s action by voluntarily dismissing his own petition. (Ibid.)
Section 581, subdivision (i) reads in full: “No dismissal of an action may be made or entered, or both, under paragraph (1) of subdivision (b) where affirmative relief has been sought by the cross-complaint of a defendant or if there is a motion pending for an order transferring the action to another court under the provisions of Section 396b.”
In any event, upon consideration of appellant’s challenges to the judgment that confirmed the arbitration award, we discern no merit in any of them. We find no basis in the evidence before us to support appellant’s complaints that he was denied the opportunity to present opposition to respondent’s petition or to seek a continuance of the hearing. Appellant’s counsel apparently did not make a timely appearance on the hearing date for his own ex parte application for a continuance; nor did he appear at the hearing on the petition to confirm the arbitration award. As far as we know from the record, he also did not file any opposition to the petition to confirm the arbitration award. Appellant has not presented us with any evidentiary support for his claim that the trial court in any way “blocked” him from pursuing his own petition or properly contesting respondent’s petition. “Judgments and orders are presumed correct, and the party attacking a judgment or order has the burden of affirmatively demonstrating error. [Citation.] The appellant has the burden of furnishing an appellate court with a record sufficient to consider the issues on appeal. [Citation.] An appellate court’s review is limited to consideration of the matters contained in the appellate record.” (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.) Appellant has not produced a record on appeal that shows he was denied his rights to a hearing and to present evidence. Moreover, any response by appellant would not have been filed within the 100-day time limit, and hence would not have been given any consideration. (Thibodeau v. Crum (1992) 4 Cal.App.4th 749, 758–759; MacDonald v. San Diego State University (1980) 111 Cal.App.3d 67, 80–81.) Finally, we find no abuse of discretion in the trial court’s award of attorney fees to respondent.
Appellant’s counsel may have actually received the reporter’s transcript of the arbitration hearing on August 16, 2006, as he asserted, but the record indicates that he could have obtained it much earlier, as respondent’s attorney did.
DISPOSITION
Accordingly, the judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: Marchiano, P. J., Stein, J.