Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. RCV083468, J. Michael Gunn, Judge. Reversed.
Robert G. Schwartz for Plaintiff and Appellant.
Law Office of Frank J. Lizarraga, Jr. and Frank J. Lizarraga, Jr. for Defendants and Respondents.
OPINION
Gaut Judge
1. Introduction
Plaintiff Henry P. Voznick appeals from an order granting his motion for reconsideration but affirming the court’s earlier order granting defendants’ motion to vacate a judgment based on an arbitration award. (Cal. Rules of Court, rule 3.828, former rule 1615(d).)
Defendants object to using the current version of California Rules of Court. Beginning in 2007, the rules governing judicial arbitration were renumbered and changed slightly. We will refer both to the rule which was in effect on the relevant date and the subsequent new version.
The key issue involves whether defendants had notice of the judgment entered on the arbitrator’s award, thus triggering their statutory obligation to make a motion to vacate the judgment within six months. (Cal. Rules of Court, rule 3.828, former rule 1615(d).) We conclude the record demonstrates defendants had notice of the entry of judgment and the trial court erred when it granted defendants’ motion to vacate the judgment based on the arbitrator’s award. We reverse and reinstate the judgment entered on November 28, 2005.
2. Factual and Procedural Background
In October 2004, Voznick filed a complaint to recover $25,000 or more from defendants Montclair Yamaha, Inc. and Bill Mattox based on a written lease agreement. As stipulated to by the parties, the court ordered them to proceed to mandatory nonbinding statutory arbitration. (Code Civ. Proc., § 1141.2; Cal. Rules of Court, rule 3.811(a)(4), former rule 1601(a)(4).)
An arbitration hearing was attended by Robert Price, an associate of Frank Lizarraga, Jr., counsel for defendants. In October 2005, the arbitrator awarded $44,161 to Voznick. The award was served by mail on the parties on October 24 and filed in the superior court on October 25, 2005. On November 28, 2005, the court entered judgment based on the arbitration award. The court served the parties with notice of entry of judgment on December 22, 2005.
The record reflects confusion about the proper addresses for the attorneys for the parties. Robert Schwartz is Voznick’s attorney. Lizarraga is defendants’ attorney. Both attorneys have the same street address, 1131 West Sixth Street, Ontario, California, 91762. Presently it appears the proper suite number for Schwartz is 220 and the proper suite number for Lizaragga is 140. But, in the clerk’s transcript, Schwartz’s suite number is variously listed as 220, 255, and 300 and Lizarraga’s suite number is variously listed as 140, 150, and 300. Apparently, Lizarraga changed his address from suite 300 to suite 140 sometime between December 2004 and September 2005 but he never filed a change of address with the court. (Cal. Rules of Court, rule 2.200, former rule 385.) Unfortunately, the arbitrator served the copy of the arbitrator’s award on Lizarraga at 111 West Sixth Street, Suite 140, instead of 1131 West Sixth Street, Suite 140. Compounding this mistake, the court served both lawyers on December 22, 2005, with the notice of entry of judgment after arbitration using suite 300, which was the address listed on defendants’ answer.
In November 2006, Voznick began the process of executing on the judgment, prompting defendants to file a motion to vacate the judgment in January 2007. In their motion to vacate, defendants asserted that the arbitrator had postponed the arbitration in October 2005, contradicting the evidence of the arbitrator’s award filed with the court. Defendants’ assertion also belies a post-arbitration statement made by an attorney, specially appearing for Lizarraga, in which she told the court at a status conference on November 22, 2005, “They did arbitrate and—it took place and it didn’t settle.” Lizarraga also declared he had never received the arbitrator’s award served in October 2005 or the notice of entry of judgment served in December 2005. Defendants claim they did not know about the judgment until January 16, 2007, when Voznick caused the sheriff to levy on the writ of execution.
In January 2007, defendants made an ex parte application for stay of the levy. On February 2, 2007, the court granted defendants’ motion to vacate the judgment. Voznick filed a motion for reconsideration. The court granted the reconsideration motion but reaffirmed the order vacating the judgment.
Voznick appeals.
3. Discussion
Voznick argues defendants should have filed a motion to vacate the judgment based on the arbitration award within six months after its entry. (Cal. Rules of Court, rule 3.828(a), formerly rule 1615(d).) Defendants argue they did not receive timely notice of the entry of judgment because the arbitrator misaddressed his award, using the wrong street number, when he served it on their attorney and, further, the superior court used the wrong suite number when it served notice of entry of judgment. We conclude that, even though the arbitrator used the wrong street number, the superior court used the correct suite number as listed for defendants in the court file. Defendants should have filed their motion to vacate within six months and no later than June 2006. Defendants’ motion, filed in January 2007, was too late.
After a court-ordered statutory arbitration, the arbitrator “must file the award with the clerk, with proof of service on each party to the arbitration.” (Cal. Rules of Court, rule 3.825(b)(1), former rule 1615(b)(1).) In the present case, the arbitrator served and filed his award on October 25, 2005, but he used the wrong street number for defendants, 111 instead of 1131 West Sixth Street.
When defendants did not request a trial, the clerk of the court entered judgment on November 28, 2005. (Cal. Rules of Court, rules 3.826(a), and 3.827(a), former rules 1615(c)(1), and rule 1616(a).) On December 22, 2005, the clerk served defendants with notice of entry of judgment using suite 300, the address listed on defendants’ answer in the court file. (Cal. Rules of Court, rule 3.827, former rule 1615(c)(2).)
Although defendants contend suite 300 was the wrong address for their attorney, they offer no supporting citation to the record to demonstrate they ever supplied the court with a change-of-address notice after filing their answer. (Cal. Rules of Court, rule 2.200, former rule 385.) There is no evidence in the record to support the court’s comment at the hearing on the motion to vacate that “[t]he judgment was a mistake made by the Court.” Therefore, we conclude the court served notice of entry of judgment at the correct address. This case is not like Domingo v. Los Angeles County Metropolitan Transportation Authority (1999) 74 Cal.App.4th 550, 555, relied upon by defendants, in which the court held an arbitrator’s award was not properly served when it was misaddressed the first time and mailed to an old address the second time. Although defendants here may not have received the arbitrator’s award, they certainly may be deemed to have received actual notice of the entry of judgment served by the court on December 22, 2005. (Oats v. Oats (1983) 148 Cal.App.3d 416, 421.)
As Voznick observes, defendants’ respondents’ brief does not comply with the court rule requiring citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).)
Once defendants were served with notice of the entry of judgment it was incumbent on them to take action. California Rules of Court, rule 3.828, formerly rule 1615(d), governs a motion to vacate arbitration and requires the motion be made within six months after entry of judgment:
“(a) Motion to vacate
“A party against whom a judgment is entered under 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 Code of Civil Procedure sections 473 or 1286.2(a)(1), (2), and (3), and on no other grounds.
“(b) Notice and grounds for granting motion
“The motion must be heard upon notice to the adverse parties and to the arbitrator, and 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.”
In this case, the court entered judgment on November 28, 2005, and served defendants with notice on December 22, 2005. Defendants had to file a motion to vacate the judgment within six months of December 22, 2005, at the latest. Defendants’ motion filed in January 2007 was too late and should not have been considered by the trial court. As of June 22, 2006, the arbitration award and the subsequent judgment were final and not appealable. (Code Civ. Proc., § 1141.23; Cal. Rules of Court, rule 3.827(c), former rule 1615(c)(3).)
4. Disposition
We reverse the trial court’s order granting defendants’ motion to vacate the judgment. We order the judgment entered on November 28, 2005, to be reinstated. Voznick, the prevailing party, shall recover his costs on appeal.
We concur: Hollenhorst Acting P. J., King J.