Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 70086
DAVIS, Acting P.J.
In this appeal from the denial of his third attempt to vacate a judgment entered on an unfavorable arbitration award, Robert Sukelis contends the trial court erred in finding that his motion was untimely. We disagree and shall affirm the judgment.
Although Sukelis’s wife Janina and Tigue’s wife Pamela are also parties, for convenience we refer to Sukelis and Tigue in the singular.
Background
This case has its genesis in an easement dispute between neighbors. Sukelis filed a complaint seeking to quiet title to a 20-foot driveway, alleging he had acquired a prescriptive easement across property belonging to Tigue. Tigue cross-complained, seeking a declaration that Sukelis had no right to the easement and to quiet title to his property.
The trial court referred the matter to judicial arbitration. The arbitrator found in favor of Tigue, quieting title and finding that the 20-foot easement at issue had not been acquired by Sukelis. The arbitrator filed his award with the trial court on June 2, 2005; the court entered judgment on the award on July 6, 2005, and gave notice of the entry of judgment on the same day.
On August 5, 2005, Sukelis moved to vacate the judgment on the grounds of mistake, inadvertence, surprise or excusable neglect (Code Civ. Proc., § 473) and misconduct by the arbitrator (“first motion to vacate”). Sukelis asserted that the arbitrator failed to properly serve him with the award; that his lawyer’s oral request for trial de novo constituted substantial compliance with the statutory notice requirement; and that his attorney’s “simpl[e] belie[f] that the verbal request in court[] for a new trial at the mandatory settlement conference . . . had been received and acknowledged[] and granted” constituted more than mere inadvertence or excusable neglect.
Hereafter, undesignated section references are to the Code of Civil Procedure.
The trial court denied Sukelis’s motion on September 21, 2005. It ruled that there was no misconduct on the arbitrator’s part, and that Sukelis had failed to show excusable mistake or neglect in his failure to file a written request for trial de novo following the arbitration.
On November 18, 2005, Sukelis appealed from the order denying the first motion to vacate.
In January 2006, while the appeal from the order denying Sukelis’s first motion to vacate was pending, Sukelis filed a second motion to vacate the judgment. The trial court denied the motion on the ground that it had no jurisdiction to proceed while the appeal from the denial of Sukelis’s first motion to vacate was pending. Sukelis did not appeal the court’s denial of his motion.
On February 28, 2006, Sukelis voluntarily dismissed his appeal from the order denying the first motion to vacate. On March 1, 2006, the clerk of this court issued a remittitur to the trial court clerk.
Sukelis then filed a third motion to vacate the arbitrator’s award, which was “essentially identical” to the second motion. Framed as a motion for reconsideration under section 1008, he argued that the arbitrator’s award was void because the trial court had no power to order to arbitration an action seeking only equitable relief; the arbitrator had no jurisdiction to arbitrate a case seeking only equitable relief; and Sukelis discovered after the arbitration that Tigue falsely testified to the arbitrator that he had no notice of the claimed easement. He also argued that “with jurisdiction restored” following remittitur, the trial court should grant his motion to vacate because “new and different facts discovered post[]arbitration” established the existence of the prescriptive easement and demonstrated that the arbitrator’s award was based on fraud and, because the case was improperly ordered to arbitration, the award was void. In his moving papers, Sukelis indicated that he was offering nine declarations in support of his motion; however, only one appears in the record on appeal. Neither the moving papers, nor the sole declaration--that of Sukelis’s counsel--submitted in support of his motion, assert that Sukelis acted with diligence in discovering the new facts and/or bringing them to the court’s attention.
The trial court again denied Sukelis’s motion to vacate. Its “Order Denying [Sukelis’s Third] Motion to Vacate Arbitrator’s Award” states: “. . . The facts stated in [Sukelis’s] declarations in support of this motion show they had knowledge of facts on which their motion is based prior to the time of their appeal. To the extent these facts would support vacation of the arbitrator’s award, the existence of these facts should have been raised in the appeal.
“Where the moving parties had facts purportedly supporting their appeal before they filed the appeal, the pendency of the appeal did not toll the time they had to file their motion to vacate. Principles of res judicata apply. When [Sukelis] dismissed [his] appeal, [he] lost any rights to attack the judgment based on facts or legal theories available to [him] at the time [he] filed [his] appeal. Under these circumstances, the time to bring a third motion to vacate was not ‘tolled.’
“Even assuming the within motion was timely, it is not meritorious on other grounds. The fact that an equitable cause of action is excluded from arbitration does not mean that a judgment resulting from arbitration of that cause of action is void. It is not a question of subject-matter jurisdiction, but whether the court acted in excess of its jurisdiction. [Sukelis’s] failure to claim the exemption constituted an estoppel to complain that the court acted in excess of its jurisdiction. . . .
“Finally, there is no question that [Sukelis] did not request a trial de novo in a proper or timely manner. For all of these reasons, the court denies the motion to vacate.”
Discussion
Any party whose case has been submitted to judicial arbitration “may elect to have a de novo trial, by court or jury, both as to law and facts.” (§ 1141.20, subd. (b).) That election is made by filing a request for a trial de novo within 30 days after the date the arbitrator files the award with the court. (§ 1141.20, subd. (a).) California Rules of Court, rule 3.826(c) provides that after a timely request for trial and restoration of the action to the calendar, “[t]he case must be tried as though no arbitration proceedings had occurred.” (See former rule 1616 (b), (c).) On the other hand, if no party has served and filed a request for a trial de novo within 30 days of the award being filed, then the clerk must enter the award as a judgment immediately upon expiration of the 30-day period. (§ 1141.23; Cal. Rules of Court, rule 3.827(a) [former rule 1615(c)].)
The California Rules of Court have been extensively renumbered over the past two years. A reference to a “former” rule relates to the rule in effect at the time of the trial court proceedings herein.
The trial court here found Sukelis failed to make a timely request for a trial de novo and the arbitration award was entered as a judgment.
Relief from a judgment entered following judicial arbitration is available as authorized by statute and the California Rules of Court (§§ 473, 1141.23; Cal. Rules of Court, rule 3.828(a) [former Rule 1615(d)].) Section 473, subdivision (b), allows the trial court “upon any terms as may be just,” to “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Section 1286.2 requires an arbitrator’s award to be vacated if the court determines (among other things) that it was obtained by corruption, fraud or “other undue means,” that the arbitrator was corrupt or exceeded his powers in a way that cannot be corrected without affecting the merits of the decision. (§ 1286.2, subd. (a); see Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 844-845 (Ovitz).)
Section 473 also allows a second distinct type of relief. “The second part of section 473[, subdivision ](b) provides: ‘Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.’ This is often referred to as the mandatory provision because it is said that ‘[w]here there is an attorney’s affidavit of fault, the relief is mandatory unless it is determined that the attorney was not actually the cause . . . .’ [Citations].” (Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1069-1070; accord, Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124.)
Section 1286.2 states: “(a) Subject to Section 1286.4, the court shall vacate the award if the court determines any of the following:
The California Rules of Court set forth the time frame within which a motion to vacate a judgment based on an arbitration award must be brought. At the time of these proceedings, former rule 1615(d)(1) provided that “[a] party against whom a judgment is entered pursuant to an arbitration award may, within six months after its entry, move to vacate the judgment on the ground that the arbitrator was subject to a disqualification not disclosed before the hearing and of which the arbitrator was then aware, or upon one of the grounds set forth in sections 473 or subdivisions (a)(1), (2), and (3) of section 1286.2 of the Code of Civil Procedure, and upon no other grounds.” Relief may be granted “only upon clear and convincing evidence that the grounds alleged are true, and that the motion was made as soon as practicable after the moving party learned of the existence of those grounds.” (Former rule 1615(d)(2).)
These provisions are now found, without material change, in rule 3.828.
Division Three of the Court of Appeal, Second Appellate District, has indicated that the proper avenue for defendant to pursue the trial court’s “correcting or modifying orders based on new information not previously considered”--including an order confirming an arbitration award--is a motion for reconsideration pursuant to section 1008. (Ikerd v. Warren T. Merrill & Sons (1992) 9 Cal.App.4th 1833, 1845; see id. at pp. 1844-1845.) Sukelis’s third challenge to the arbitrator’s award was brought as a motion for reconsideration.
On appeal, Sukelis’s chief contention is that the trial court erred in denying as untimely his third motion to vacate (via a motion for reconsideration). Sukelis contends that his appeal from the denial of his first motion to vacate under section 473 “tolled” the six-month time period for more than 100 days while that appeal was pending. According to Sukelis, as a result of this tolling, his dismissal of the appeal effectively “restart[ed] the six[-]month time” period for seeking to set aside the judgment on the arbitration award. Sukelis is mistaken.
The trial court concluded that there was no tolling, and Sukelis has failed to provide any authority to the contrary. The trial court’s judgment is presumed to be correct, and the burden is on the appellant to demonstrate error in the court’s reasoning. (Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1337-1338.) “In a challenge to a judgment, it is incumbent upon an appellant to present argument and authority on each point made. Arguments not presented will generally not receive consideration.” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.)
Sukelis’s argument runs contrary to the general rule that the six-month time limit for setting aside a judgment is jurisdictional. (See, e.g., Maynard v. Brandon (2005) 36 Cal.4th 364, 372; Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345; Beresh v. Sovereign Life Ins. Co. (1979) 92 Cal.App.3d 547, 554 (Beresh) [“A motion for relief from a judgment, renewed after denial of a prior motion for similar relief, must be made within the six-month statutory period prescribed by section 473”].)
His other challenges to the trial court’s reasons for denying the motion to vacate fare no better.
The portion of his brief that appears under the heading “No Forfeiture and no Res Judicata Effect” suggests a challenge to the trial court’s finding that, by dismissing the appeal from the denial of his first motion to vacate, Sukelis “lost any right” to attack the judgment based on facts or legal theories available to him when he filed the appeal. According to Sukelis, the court erred when it “ignored the fact” that the grounds upon which Sukelis based his second and third motions were discovered after judgment was entered on the award. Again, because Sukelis fails to provide any authority in support of his assertion, we may decline to consider his argument. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 594, p. 627.)
Sukelis’s brief states that support for this statement can be found in “Exhibit 2 attached hereto, declarations of Robert Sukelis and Janina Sukelis.” No such exhibits are appended to his brief. The memorandum of points and authorities in support of the third motion to set aside the arbitrator’s award asserts variously that Sukelis discovered evidence “[w]eeks after the arbitration occurred . . . that Tigue h[ad] committed fraud on the arbitrator” by falsely testifying that he had no actual or constructive notice of an existing road when he told the arbitrator his alleged search of the public record and the property revealed no easement. In fact, Sukelis argued, “[s]everal months after the arbitration,” Sukelis learned from third parties that Tigue “had walked and driven many times . . . to plaintiffs[’] property using the very road Tigue said didn’t exist and that they did not notice”; and sometime thereafter, still other witnesses told Sukelis that Tigue had “sketched out the road claimed as a prescriptive easement . . . on a plat map” and described it as a “‘technical easement.’”
However, our review of the available authority shows that Sukelis cannot prevail in this argument. Tigue states the general, well-established rule in his respondent’s brief: parties generally are not permitted to “withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Sutphin v. Speik (1940) 15 Cal.2d 195, 202, italics omitted.) Here, the court found Sukelis had knowledge of the facts on which he based his third motion to vacate before he appealed from the denial of his first, and possibly even before filing his first motion. Sukelis does not dispute that finding on appeal.
However, even if the trial court was not correct in its determination that the matter was res judicata, Sukelis would not prevail. As noted, Sukelis’s third motion to vacate was framed as a motion for reconsideration, brought pursuant to section 1008. But to succeed on a motion for reconsideration under that section, a person affected by the order must show not only “‘new or different facts, circumstances, or law,’” but also must present a “‘satisfactory explanation’” for failing to provide the new evidence at the original proceeding. (Ovitz, supra, 133 Cal.App.4th at p. 847; accord, Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1199.) Indeed, a trial court has no jurisdiction to reconsider a prior order on the basis of different facts in the absence of a satisfactory explanation for the failure to present them earlier. (Baldwin, supra, at p. 1200.) Sukelis would not have been entitled to section 1008 relief because he failed to meet the prerequisites for relief under that section. The affidavit of counsel submitted in support of Sukelis’s motion identifies four categories of “new or different facts”: “[a]riel [sic] photographs taken by a local business”; “[d]ocuments, including photographs, generated and kept as public records”; a map drawn by Tigue, which counsel describes as “outlining the very prescriptive easement claimed by plaintiffs” and denied by Tigue; and declarations provided by friends of Tigue indicating that they have walked over the easement with Tigue, which was “clearly visible.” But counsel does not state when these alleged facts were discovered or to explain why they could not have been discovered prior to the arbitration. (See Baldwin, supra, 59 Cal.App.4th at p. 1199 [“If counsel need not explain the failure to earlier produce pertinent legal authority that was available, the ability of a party to obtain reconsideration would expand in inverse relationship to the competence of counsel”].)
As stated ante, these declarations are not in the record.
The trial court also rejected the argument in Sukelis’s third motion to vacate that the court exceeded its jurisdiction by referring to arbitration an equitable claim over which it had no subject matter jurisdiction. The court was correct: Sukelis voluntarily participated in the arbitration, failed to preserve the objection for appeal, and is now estopped to assert that the court lacked jurisdiction to refer the matter to arbitration. (See Cabrera v. Plager (1987) 195 Cal.App.3d 606, 613, fn. 8.)
Sukelis has not renewed on appeal his assertion in the trial court that the judgment based on the arbitration award is void because the court had no power to refer the matter to arbitration.
Finally, the court did not err in implicitly rejecting Sukelis’s third motion to vacate on the ground that Tigue testified falsely. If the losing party discovers facts following a contested proceeding which lead him to believe that his opponent offered less than truthful testimony he does not have grounds to invoke the court’s power to grant equitable relief from a judgment procured by extrinsic fraud. (Beresh, supra, 92 Cal.App.3d at p. 553 [“‘deliberate, intentional misrepresentations, untruths, half truths, and deceitfully misleading affidavits, arguments and declarations’” constitute intrinsic, not extrinsic, fraud and do not justify setting aside the judgment].)
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
We concur: ROBIE, J., CANTIL-SAKAUYE, J.
However, mandatory relief under section 473 is not available to set aside a judgment entered following adjudication on the merits by an arbitrator. (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 43-44.)
“(1) The award was procured by corruption, fraud or other undue means.
“(2) There was corruption in any of the arbitrators.
“(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.
“(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
“(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.
“(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.
“(b) Petitions to vacate an arbitration award pursuant to Section 1285 are subject to the provisions of Section 128.7.”