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Abers v. Rohrs

California Court of Appeals, Fourth District, Third Division

June 13, 2013

RUTH E. ABERS et al., Plaintiffs and Appellants,
VERA C. ROHRS, as Cotrustee, etc., et al., Defendants and Respondents.

Pub. Order 7/15/13 (see end of opn.)

Appeal from a judgment of the Superior Court No. 30-2012-00546927 of Orange County, Nancy Wieben Stock, Judge.

Snell & Wilmer, Richard A. Derevan, Todd E. Lundell and Christopher B. Pinzon for Plaintiffs and Appellants.

Palmieri, Tyler, Wiener, Wilhelm & Waldron, Michael H. Leifer, Erin Balsara Naderi; Bullard, Brown & Beal and Timothy W. Brown for Defendants and Respondents.



The owners of 57 homes in a condominium development (the homeowners) appeal from an order dismissing their petition to vacate an arbitration award setting the allowable increases in monthly rent charged by the trust that owns the property on which their homes are situated. The trial court’s dismissal order was based on the homeowners’ failure to properly serve the respondent trustees with their petition to vacate within 100 days of service of the award, as required by Code of Civil Procedure section 1288. (All further statutory citations are to this code unless otherwise indicated.)

The homeowners argue the trial court erred in dismissing their petition because: (1) the petition was served in accordance with the requirements of the parties’ lease agreements, and thus was properly served under section 1290.4; (2) the court abused its discretion by refusing to treat the petition as part of a previously filed and still pending declaratory relief action between the parties; (3) the court abused its discretion by refusing to find that the trustees were estopped from asserting service was improper; and (4) the homeowners were entitled to relief from the dismissal pursuant to section 473. We find none of these contentions persuasive and affirm the order.

The homeowners’ reliance on section 1290.4 fails because the lease provisions they rely upon as specifying the method for serving the petition to vacate apply only to the manner in which notices respecting the leases may be sent. Those provisions say nothing about the manner in which a party may be served with process in connection with a petition to vacate an arbitration award, to establish the court’s personal jurisdiction over the party. Merely providing a party with notice that a petition has been filed does not establish personal jurisdiction.

Further, the court did not abuse its discretion by refusing to treat the petition as though it had been filed under the still-pending declaratory relief case number, because the homeowners themselves acknowledge they made a deliberate, strategic decision not to do that. Equity certainly does not obligate the court to pretend the homeowners made the opposite strategic decision. Likewise, equity does not compel a finding that the trustees are estopped from claiming service was improper. The requirements for service are established by statute, and equity does not prohibit a party from demanding adherence to those legal requirements.

And finally, we agree with the trustees that section 473 cannot be relied upon to relieve a party from its failure to comply with the 100-day deadline for filing and serving a petition to vacate an arbitration award. That deadline operates in the same manner as the deadline for filing an appeal, and the court loses jurisdiction to vacate the award if the petition is not timely served and filed. Once jurisdiction is lost, it cannot be retroactively reinstated.


This case involves a dispute over a provision in a series of identical ground leases underlying a condominium development. The property is owned by the trustees of the John and Vera B. Rohrs Trust, Dated May 16, 1961, and the terms of the leases specify payment of a fixed monthly rent for the land under each unit for initial 30 years and six months of the 70-year lease term, but thereafter allow the rents to be adjusted based on a re-valuation of the “leased land.” If the parties are unable to agree on the proper amount of a rent adjustment, the issue was to be resolved by arbitration.

Unfortunately, the parties could not even agree on the definition of the “leased land” to be valued, and thus initially sought declaratory relief from the court to resolve that issue. In a published opinion, this court declared that the leased land to be valued was defined as “each lessee’s interest in his or her individual condominium unit... and his or her undivided fractional interest in the common areas within parcel one or parcel three, depending upon whether the unit is located in first or second phase of the project.” (Abers v. Rounsavell (2010) 189 Cal.App.4th 348, 363-364.)

The parties thereafter participated in the arbitration, and the arbitrators announced their decision on December 13, 2011. According to the homeowners, the arbitrators’ decision was inconsistent with both this court’s interpretation of the pertinent lease provisions and its declaration of the parties’ rights in connection therewith. The homeowners claim the arbitrators’ decision resulted in a “27-fold increase” in their average lease payments, and required each of them to make a retroactive lease payment of between $70, 000 and $90, 000. They characterize the award as “devastating” to them.

Two days after the arbitrators issued their decision, the trustees filed an ex parte application with the trial court which had presided over the declaratory relief action, seeking an order “vacat[ing] further proceedings under this case number” because “some of the lessees may attempt to file papers in this action seeking to vacate... the award.” The homeowners opposed the ex parte application, arguing the court properly retained “vestigial jurisdiction” over the matter submitted to arbitration, which included jurisdiction to confirm, correct or vacate the award. (Citing SWAB Financial, LLC. v. E*Trade Securities LLC. (2007) 150 Cal.App.4th 1181, 1200-1201.) The court denied the motion on the ground the issue was not ripe until someone actually attempted to file such a petition.

On February 17, 2012, the homeowners filed their petition to vacate, choosing to do so under a new case number, rather than in the still-pending declaratory relief case. According to their opening brief on appeal, they did so because the court’s refusal to issue a definitive ruling on whether it was proper to file the petition under the old case number “left uncertainty about whether the trial court understood the nature of its vestigial jurisdiction over the arbitration and meant that further litigation over that issue was inevitable.” Consequently, “[t]o avoid spending the ...

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