Folke v. Pulliam

1

DUANE R. FOLKE, Plaintiff and Appellant, v. CAROL PULLIAM, Defendant and Respondent.

BV 033781

Superior Court of California, Appellate Division, Los Angeles

October 6, 2023

APPEAL from a judgment of the Superior Court of Los Angeles County Spring Street Trial Court No. 21STCP02576 Katherine Chilton Judge. Reversed.

Duane R. Folke, self represented, for Plaintiff and Appellant.

Carol Pulliam, self represented, for Defendant and Respondent.

OPINION

P McKay, P. J. Appellant Duane R. Folke appeals from the judgment entered after the trial court denied his petition to vacate an award following arbitration of an attorney-client fee dispute and granted respondent Carol Pulliam's petition to confirm the award. The court found it lacked jurisdiction due to Folke's failure to serve the petition to vacate pursuant to the Mandatory Fee Arbitration Act (Bus. &Prof. Code, 6200 et seq., hereafter "MFAA"), and it rejected Folke's plea for equitable relief from the statutory deadline. As explained below, we reverse the judgment and remand for the court to determine in the first instance whether equitable considerations excused Folke's failure to timely serve the petition.

BACKGROUND

Folke, an attorney, was retained by Pulliam to assist Attorney Wole Akinyemi in the prosecution of Pulliam's employment discrimination lawsuit. The written retainer agreement provided for Folke to perform specified tasks, and for Pulliam to pay Folke a retainer of $11,700, billable at the rate of $350 per hour. Pulliam paid the full amount and later sought return of the money paid. The dispute was presented to a nonbinding arbitration proceeding pursuant to the MFAA. According to the parties, Folke, who was being treated for cancer, unsuccessfully sought to postpone the arbitration hearing.^[1]

The matter was heard by the arbitrator on May 6, 2021, where Pulliam was represented by Akinyemi, and Folke was self-represented. All parties appeared via video conference, and both Folke and Pulliam provided their sworn testimony. On May 12, 2021, the arbitrator issued a statement of decision finding Pulliam was entitled to recover all fees paid to Folke. The decision was served upon the parties on May 12, 2021.

On August 9, 2021, Folke filed a petition to vacate the arbitration award and attached thereto various documentation. Pulliam filed a written opposition to the petition on November 29, 2021. A hearing on the petition took place on December 13, 2021, where both parties appeared as self-represented litigants. The hearing was continued to January 19, 2022, to afford Folke more time to provide proof of service of the petition.^[2]

On January 12, 2022, Folke filed a response concerning service of the petition. Folke asserted in his attached declaration that on August 17, 2021, after filing the petition, he sent a copy of the documents to Akinyemi's law office via first-class mail; on September 17, 2021, he learned that Akinyemi no longer represented Pulliam; he attempted to serve Pulliam using Federal Express at her last known address; and no further proof of service was necessary because Pulliam had actual notice of the action as revealed by her filing an opposition. Folke also provided to the court two proofs of service documents. The first document was a photocopy of a receipt dated August 17, 2021, with a tracking number for express delivery via the United States Postal Service, to an unspecified address in the City of Riverside. The second document was proof of service of summons by a registered process server showing service by personal delivery on September 15, 2021, at Akinyemi's office and in care of Pulliam. Alternatively, Folke requested the court balance the equities of the parties, deem the petition to be timely served, and adjudicate the merits of the petition.

At the January 19, 2022 hearing, Folke represented the summons was delivered to Akinyemi's office on August 18, 2021, at 12:25 p.m. The court continued the hearing again for Folke to submit a declaration regarding delivery of the mailing.

Prior to the March 28, 2022 hearing, Pulliam filed a declaration of Akinyemi.^[3] The court granted Folke's request to take judicial notice that a package sent by Folke was delivered to Akinyemi's office on August 18, 2022, but it declined to take notice that the package necessarily contained Folke's petition to vacate. The court denied Folke's motion to vacate and granted Pulliam's motion to confirm the award.^[4] The court did not reach the merits of the petition to vacate on the ground it lacked jurisdiction due to the petition not being timely served. The court found service of the petition was required to be completed no later than August 20, 2021, service by mail was unauthorized under the relevant statutes, and the purported personal service executed on September 15, 2021 plainly exceeded the jurisdictional deadline set by statute. The court also rejected Folke's plea that the balance of equities excused his failure to timely file the petition. Folke now appeals from the subsequent final judgment entered in favor of Pulliam.^[5]

DISCUSSION

Folke contends the court erred when it found no jurisdiction to decide the merits of the petition to vacate due to untimely service and rejected his plea for equitable relief. Resolution of the appeal involves questions of law subject to our independent review. (Loeb v. Record (2008) 162 Cal.App.4th 431, 441.)

The MFAA provides an expedient and inexpensive process for clients to resolve disputes concerning fees charged by an attorney. (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1083.) The MFAA procedures differ from disputes adjudicated under the California Arbitration Act (CAA). (Aguilar v. Lerner (2004) 32 Cal.4th 974, 984.) For example, a client may unilaterally invoke the MFAA and arbitrate a fee dispute, whereas arbitration under the CAA requires the parties' mutual agreement to arbitrate. (Ibid.; Bus. &Prof. Code, § 6200, subd. (c).) If an arbitration administered under the MFAA does not resolve the dispute, then either party may pursue judicial action. (Benjamin, Weill &Mazer v. Kors (2011) 195 Cal.App.4th 40, 55-56.)

An arbitration award under the MFAA automatically becomes final unless a party files, with the appropriate court, a request for trial de novo within 30 days after service of notice of the award. (Bus. &Prof. Code, § 6203, subd. (b).) "This procedure places the burden on the party dissatisfied with the arbitration award to take steps to prevent the award from becoming binding." (Loeb v. Record, supra, 162 Cal.App.4th at p. 443.)

A dissatisfied party may also initiate an action to correct or vacate an arbitration award, which is distinct from the procedure for requesting a trial de novo. (Bus. &Prof. Code, § 6203, subd. (b).) A petition to vacate "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." (Code Civ. Proc., § 1288, italics added.)^[6] Similarly, a response to a petition requesting that an arbitration award be vacated "shall be served and filed not later than 100 days after the date of service of a signed copy of the award" on the respondent or respondent's counsel of record. (§ 1288.2, italics added.)

In the case sub judice, the arbitrator's award was served upon the parties by first class mail on May 12, 2021. The parties had 30 days, or until June 11, 2021, to file with the trial court a request for trial de novo. (Bus. &Prof. Code, §§ 6203, subd. (b), 6204, subd. (c).) Neither party requested a trial de novo, making the award final as of June 12, 2021. (Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1473.) The parties had until August 20, 2021-or 100 days after service of the award-to file and serve a petition to confirm, correct, or vacate the award. (§ 1288.) It is undisputed Folke timely filed the petition to vacate on August 9, 2021, but there is a dispute as to whether the petition was timely served upon Pulliam.

Folke attempted service of the petition by sending it to Akinyemi's office, in care of Pulliam, via first-class mail on August 17, 2021.^[7] A tracking receipt from the United States Postal Service reflects delivery of an envelope to an unidentified address on August 18, 2021, and Folke submitted a declaration averring he timely mailed the petition to Akinyemi's office on the prior date. Folke also submitted a letter to Akinyemi bearing the same date, which explained the enclosed documentation was being provided until issuance of the official summons, and sought an acknowledgment of receipt.

When, as in this case, no judicial action is pending, an award issued under the MFAA may be vacated by petition to the appropriate court and service "shall be in the same manner as provided in Chapter 4 (commencing with Section 1285) of Title 9 of Part 3 of the Code of Civil Procedure." (Bus. &Prof. Code, § 6203, subd. (b).) Provisions in Chapter 4 of the Code of Civil Procedure specify a court may not vacate an arbitration award unless the petition is "duly served and filed" (§§ 1286, 1286.4, subd. (a)), but this chapter does not specify how a petition is to be "duly served."

The trial court relied upon section 1290.4-located in Chapter 5 of Title 9 of Part 3 of the Code, which governs service of a petition to vacate when the parties have an agreement to arbitrate. This statute provides, in pertinent part, "[i]f the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: [¶] (1) Service within this State shall be made in the manner provided by law for...