Demello v. Souza

• Decision Date: 18 December 1973
• Citation: 111 Cal.Rptr. 274,36 Cal.App.3d 79
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy DeMELLO, Individually and as Administratrix with the Will Annexed and as Special Administratrix of the Estate of William Lawrence McMillan, aka W. L. McMillan and William L. McMillan, Deceased, Plaintiff and Appellant, v. Arthur SOUZA et al., Defendants and Respondents. Civ. 31217.

Page 274

111 Cal.Rptr. 274

36 Cal.App.3d 79

Dorothy DeMELLO, Individually and as Administratrix with the Will Annexed and as Special Administratrix of the Estate of William Lawrence McMillan, aka W. L. McMillan and William L. McMillan, Deceased, Plaintiff and Appellant, v. Arthur SOUZA et al., Defendants and Respondents.

Civ. 31217.

Court of Appeal, First District, Division 2, California.

Dec. 18, 1973.

Hearing Denied Feb. 27, 1974.

Raymond H. Hawkins, Berkeley, for plaintiff-appellant.

Brundage, Neyhart, Grodin & Beeson, Peter Loring Adomeit, San Francisco, for defendants-respondents.

KANE, Associate Justice.

In this case we are confronted with strongly competing considerations--one springing from basic equitable principles, the other from pragmatic, legal policies which are essential to the efficient procedural administration of justice.

For reasons which follow, we are persuaded that the latter must prevail, necessitating a reversal of the judgment correcting and confirming an arbitration award.

Appellant Dorothy DeMello is the administratrix of, and a claimant under, the will of William McMillan, deceased, who as a member of the Alameda County Electrical Workers' Pension Trust, was entitled to retirement and death benefits under said pension trust. After his death, a dispute arose between appellant and the pension trust respondents ('Respondents') over the entitlement to death benefits. Pursuant to the pension plan agreement, the controversy was submitted to an arbitrator appointed by the American Arbitration Association. The arbitrator heard the matter or November 24, 1969, and the arbitration award signed by him was transmitted to the parties on March 27, 1970. Although the record is undisputed that pursuant to the stipulation of the parties the death benefits due under the pension plan totaled $5,430 ($90.50 per month for a period of 60 months), the arbitrator mistakenly awarded appellant the sun of $7,950 ($132.50 per month for 60 months (paragraph 3 of the award)), and denied appellant's request for interest, administrative fees and expenses (paragraphs 4 and 5 of the award). While Respondents showed complete satisfaction with the award, appellant requested of the arbitrator that paragraphs 4 and 5 of the award be corrected, which request, however, was denied by inaction (Code Civ.Proc. ¹ § 1284).

Appellant filed a petition for confirmation of the arbitration award on April 26, 1971. The petition and notice of hearing thereon were served on Respondents on May 3, 1971. A response to the petition was filed on June 17, 1971, in which Respondents claimed--for the first time--that the amount due had been erroneously determined and requested that the award be corrected in accordance with the stipulation of the parties. The trial court found for Respondents, corrected the arbitration award by reducing the sum payable thereunder to $5,430, and confirmed the award as corrected.

Appellant contends on appeal that the correction of the award was erroneous and the judgment confirming the corrected award cannot stand. We agree.

Statute of Limitations

Under a well delineated statutory scheme the parties to an arbitration may seek correction of the award first by filing an application to the arbitrator within 10 days after the service of award (§ 1284). ² As a second step, the parties may petition the court to confirm, correct or vacate the award (§ 1285). Vacation or correction of an award may also be requested from the court by way of a response filed to a petition to confirm the award. However, while a petition to confirm an award may be served and filed within four years, the petition to vacate or correct an award Must be served and filed within 100 days after the service of the award on the petitioner (§ 1288; Archuleta v. Grand Lodge etc. of Machinists (1968), 262 Cal.App.2d 202, 68 Cal.Rptr. 694). The same 100-day limitation applies when vacation or correction of the award is sought by response. Section 1288.2 provides in part that '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 . . ..' (Emphasis added.) To this latter rule there is only one exception. When the party petitions the court to confirm the award before the expiration of the 100-day period, respondent may seek vacation or correction of the award by way of response only if he serves and files his response within 10 days after the service of the petition (§ 1290.6). Unless the response is duly served and filed, under section 1290 the allegations of the petition are deemed to be admitted by respondent (Coordinated Construction, Inc. v. Canoga Big 'A,' Inc. (1965), 238 Cal.App.2d 313, 316--318, 47 Cal.Rptr. 749).

When viewed in the light of the foregoing rules, the conclusion is inescapable that Respondents violated both the 100-day statute of limitation set forth in section 1288.2 and the 10-day statute of limitation contained in section 1290.6. Thus, the record reveals without equivocation that while the award was served on Respondents on March 27, 1970, their response seeking correction was not filed until June 17, 1971, almost a full year beyond the 100-day limitation. The record is equally clear that Respondents failed to comply with the 10-day limitation. Although the petition to confirm the award was served on them May 3, 1971, Respondents did not file their response until June 17, 1971.

Pursuant to section 1286.8, the court may not correct an arbitration award unless a response requesting that the award be corrected or vacated has been Duly served and filed. Since Respondents failed to duly serve and file their response seeking correction under both sections 1288.2 and 1290.6, the trial court as a matter of law was barred from correcting the award in question.

Relying mainly on dictum in Goossen v. Adair (1960), 185 Cal.App.2d 810, 8 Cal.Rptr. 855, Respondents contend that the above mentioned statutes of limitation are not jurisdictional and as a consequence the trial court was empowered to disregard them in order to prevent fraud. We disagree.

Primarily, we point out that although the Goossen court concededly makes a broad, general statement that it would be overly artful to deprive a party to a legal proceeding of a hearing because, after his adversary has commenced such proceedings, his answer thereto is not filed within some statute of limitation (p. 822, 8 Cal.Rptr. 855), it is obvious that this statement does not give blanket authority to grant relief from effective statutes of limitation. Quite to the contrary, such relief may be granted only under section 473 and/or pursuant to the inherent equitable power of the court, and only in strict compliance with the requirements outlined therein. Therefore, we examine whether relief from the statutes of limitation in question could be given under either section 473 and/or the equity power of the court.

(i) The 100-day limitation: Section 473 provides in relevant part that the court may, upon such terms as may be just, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. Application for such relief, however, must be made within a reasonable time, in no case exceeding six months after the judgment, order or proceeding. Since in the case at bench the application for the relief, if any, was made more than one year after the proceeding (rendition of the arbitration award), it is unquestionable that relief from the 100-day limitation could not be granted under section 473 as a matter of law.

Turning to the other potential basis, we emphasize that under well established law the court may grant relief under its inherent equitable power only if, due to the fraud of the opponent or by his own mistake, the aggrieved party was deprived of a fair adversay hearing and was prevented from presenting his claim or defense, or as the authorities put it, if the fraud or mistake was 'extrinsic' (Hammell v. Britton (1941), 19 Cal.2d 72, 83, 119 P.2d 333; Harpke v. Lankershim Estate (1950), 101 Cal.App.2d 49, 50, 224 P.2d 899; 5 Witkin, Cal. Procedure (2d ed.), §§ 183, 187, at pp. 3752, 3757). In the case at bench Respondents fully participated in the arbitration proceeding, were not prevented from presenting their case to the arbitrator, and the mistake was not occasioned by appellant but was the result of an oversight on the part of the arbitrator. Thus, it becomes crystal clear that the mistake here complained of was 'intrinsic' rather than 'extrinsic' and could not, therefore, constitute a valid basis for relief under this theory either.

Even assuming Arguendo that, as a matter of legal policy, Respondents should be permitted to invoke the equitable power of the court in order to obviate a patently unjust result (cf. 5 Witkin, Cal. Procedure (2d ed.), § 187, supra,) they still cannot prevail. It is blackletter...