Surjit P. Soni v. Simplelayers, Inc.

This case involves the deadlines to set aside an

arbitration award after arbitration of an attorney-client fee

dispute under the Mandatory Fee Arbitration Act (MFAA)

(Bus. & Prof. Code, § 6200 et seq.)1 by requesting a trial or

filing a pleading to vacate the award. A client filed a request

for arbitration under the MFAA with the Los Angeles

County Bar Association (LACBA). The attorney objected to

the arbitrator that the request for arbitration was untimely,

and therefore, the client had waived the right to arbitrate.

Arbitration proceedings were held, and the arbitrator issued

an award of $2.50 in favor of the attorney. Thirty-three days

after the arbitration award was served on the parties by

mail, the attorney filed an action in the trial court to recover

the full amount of the disputed fees. The client filed a

petition in the pending action to confirm the arbitration

award on the ground that the award became binding when

the attorney did not file an action within 30 days after

service of the award. The attorney filed a response to the

petition, more than 100 days after service of the award,

asserting that the request for trial was timely and the

arbitrator lacked jurisdiction. The trial court concluded that

the attorney’s action was timely, because Code of Civil

Procedure section 1013 extended the attorney’s time to file

by five days for service of the award by mail; the trial court

denied the client’s petition to confirm the arbitration award.

At trial, the court issued an award of $2,890 in favor of the

1 All further statutory references are to the Business

and Professions Code unless otherwise stated.

3

attorney, and also awarded $79,898 in attorney fees to the

attorney as the prevailing party.

On appeal, the client contends the trial court erred in

concluding that Code of Civil Procedure section 1013 extends

the 30-day time to file an action under section 6204, and the

attorney’s untimely filing means the arbitrator’s award must

be confirmed. The attorney contends that the trial court’s

ruling that he had an additional five days to file should be

affirmed. Alternatively, the attorney contends a tolling

provision in section 6206 means his action was timely.

Finally, the attorney contends that even if his time to file an

action was not extended, the arbitrator never had

jurisdiction over the fee dispute, because the client failed to

request arbitration within 30 days of receiving notice of

arbitration rights.

We conclude that under LACBA’s Rules for Conduct of

Mandatory Arbitration of Fee Disputes Pursuant to Business

& Professions Code Section 6200 et seq. (the LACBA rules),

service is complete at the time of deposit in the mail and not

extended for service by mail. The arbitration award became

binding when the attorney did not file an action within 30

days after service. Section 6206 did not extend this 30-day

deadline. The attorney is barred under Code of Civil

Procedure section 1288 from asserting a ground that

supports vacating the award, because the attorney did not

file a petition or a response within 100 days of service of the

award. Even if the attorney were not barred from raising

arbitrability issues, however, the LACBA rules provide that

4

the arbitrator has the authority to determine jurisdiction

and the arbitrator’s ruling that the fee dispute was

arbitrable is not reviewable for errors of law or fact. We

reverse, with directions.

FACTUAL AND PROCEDURAL HISTORY

Attorney-Client Relationship

Respondent attorney Surjit P. Soni, doing business as

The Soni Law Firm (collectively Soni), operates his legal

practice as a sole proprietorship and hires attorneys to work

for him. Appellant Timothy Tierney was an acquaintance of

attorney Ron Perez, who performed work for Soni. In 2009,

Tierney engaged Soni, through Perez, to work on publicity

claims and patent prosecution. Tierney and Soni executed

an attorney-client agreement. Tierney signed the agreement

as an individual and provided an email address at his

company Cartograph, Inc.2

2 Soni provides office space and resources to the

attorneys associated with his business, assigns work to the

attorneys, bills clients based on the time reflected in the

attorneys’ records, and compensates the attorneys who

worked on the client matters at a rate lower than the rate

billed to clients. Soni also supplies benefits to the attorneys,

including paying a portion of their bar dues, and provides W-

2 forms. The attorney-client agreement used plural

pronouns as well. For example, the agreement stated, “On

rare occasion we have trouble collecting payment for our

5

Correspondence from the United States Patent and

Trademark Office required responses in August and

September 2013. On June 18, 2013, Tierney called and

learned Perez was no longer working with Soni. Soni offered

that Tierney could: (1) keep his legal matters with Soni; (2)

terminate the relationship with Soni and engage Perez

directly; or (3) find a different law firm for his legal work.

Tierney said he would think about it and let Soni know his

decision. He instructed Soni to do no further work on

Tierney’s legal matters until hearing from Tierney.

Soni asked attorney Michael Long to review Tierney’s

files and complete the work indicated. On July 17, 2013,

Long began reviewing the work performed on Tierney’s

patent cases over the prior four years. On July 25, 2013,

Long wrote an e-mail to Tierney introducing himself as the

attorney handling Tierney’s patent and trademark matters

under Soni’s direction. Long analyzed the next steps for

Tierney’s applications.

On July 31, 2013, Tierney responded that he planned

to stay with Perez for continuity. He confirmed that he

would pay the outstanding balance owed to Soni, which he

believed was $4,941. On August 8, 2013, a legal assistant to

Soni sent invoices to Tierney by e-mail, which included

charges for Long’s legal services. On October 8, 2013,

Tierney wrote an e-mail to Soni with instructions and asked

Soni to adjust the time that Long billed on July 17, 19, and

services. Since our firm is a law office and not a bank,

unpaid bills work a substantial hardship on us.”

6

25, 2013, because Tierney had not authorized the legal

services performed by Long.

On October 14, 2013, Long wrote a letter to Tierney

stating, “As I notified you previously, you are entitled to your

file. Ron is welcome to coordinate with Cassandra to obtain

the file. [¶] I understand that you spoke with Mr. Soni and

that you promised to pay $1,000 by the end of the week and

to sign this letter. Please countersign and return signed

copy to The Soni Law Firm the following letter [sic]: [¶] I,

Timothy Tierney, and the president of Cartograph, Inc. [sic]

I acknowledge that The Soni Law Firm has provided services

to Cartograph Inc. And that there is an outstanding balance

of $7,211.00 less a check payment of $100.00 which will

presumably clear. After discussing the matter, I agree to

personally guarantee the debts of Cartograph, Inc. for the

full amount owed, less any accommodation The Soni Law

Firm may permit, by paying no later than November 30,

2013. By signing below, I agree to the above terms without

reservation.” Tierney signed the letter on October 15, 2013,

and returned it to Soni.

On November 18, 2013, Tierney sent a letter to Soni

with a check in the amount of $3,531. He referred to

adjustments that he was asking Soni to consider on the basis

that he did not authorize Long or Soni to perform legal

services on Tierney’s behalf after he was told that Perez was

no longer employed by Soni.

On December 18, 2013, Soni prepared a “Notice of

Client’s Right to Fee Arbitration” for an outstanding balance

7

of $3,580. The notice of arbitration rights did not list the

post office box in Tierney’s address. That day, Soni’s legal

assistant sent an e-mail to Tierney at

“tierney@cartograph.com” with the subject line “Tierney –

Notice of Arbitration.” The text of the e-mail stated, “On

behalf of The Soni Law Firm, please see the attached

documents.” The attachment was the notice of arbitration

rights.

Arbitration

Tierney submitted a petition for fee arbitration under

LACBA’s attorney-client arbitration services on February 19,

2014. On February 25, 2014, Tierney sent a letter to Soni on

letterhead for SimpleLayers, Inc., asking for a tax form.

Tierney noted that his company’s name had changed, and he

provided new contact information. His post office box

number was the same, but his new email address was

“tim@simplelayers.com.”

On January 5, 2015, attorney Long sent a letter to the

arbitrator stating that he was representing Soni. He

requested dismissal of the arbitration on the ground that it

was untimely, and therefore waived under section 6201,

subdivision (a). Tierney had been given notice of his right to

arbitrate on December 18, 2013. Failure to request

arbitration within 30 days after receipt of the notice from an

attorney was deemed a waiver under section 6201, and

Tierney had initiated arbitration more than 30 days after

8

receipt of the notice, thereby waiving his right to arbitration.

As a result, the arbitration should be dismissed for lack of

jurisdiction.3

3 On January 9, 2015, Long wrote the arbitrator the

following letter: “Mr. Soni respectfully requests

reconsideration of the ruling re: jurisdiction. In response to

Mr. Tierney’s letter of January 8, 2015 and the recent ruling:

[¶] First, via U.S. mail, the Notice of Client’s Right to Fee

Arbitration was provided to Mr. Tierney’s last known

mailing address. Our records confirm service by mail was

also performed on December 18, 2013. This satisfies the

requisite notice. [¶] Second, via email, the Notice was also

provided to Mr. Tierney’s last known email address. Mr.

Tierney used that same email address just two days before

the notice, so his claim of ‘disuse’ is not credible. (Exhibit C

– December 16, 2013 Email from Tierney via

tierney@cartograph.com). It matches the email address used

to provide him with the Notice two days later. (Exhibit D –

December 18, 2013 Email to Tierney at

tierney@cartograph.com). No change or ‘disuse’ message

was received from Mr. Tierney. Mr. Tierney admits he

received the notice in his email inbox, again confirming the

December 18, 2013 notice. Mr. Tierney used the email, and

by checking it, he cannot fairly disclaim its use under the

circumstances. A ‘read receipt’ is not required by Section

6201(a). In addition, Mr. Tierney never established the date

range when he stopped checking his email. Simply

abandoning his email makes no sense when he was never

locked out of his email, and still clearly had access to it.

Indeed, Mr. Tierney seizes artificially on the lack of read

receipt, which a response thereof could likely be denied in

any event. The email was sent and no ‘undeliverable’ return

9

On January 16, 2015, Long submitted Soni’s reply to

the petition for arbitration, stating that Soni was “specially

appearing” and reserving jurisdictional objections.

An arbitration hearing was conducted on January 30,

2015. Tierney challenged billing charges of $3,720, because

he had not authorized Long or Soni to perform legal services

on his behalf after being informed that Perez was no longer

employed by Soni. Soni and Long testified that although

they had not received further directions from Tierney, they

believed they had a duty to continue to represent Tierney,

including handling his cases with the United States Patent

and Trademark Office, until instructed otherwise. In light of

the fact that Tierney clearly stated that he needed to think

about his legal representation and get back to Soni on the

next steps, the arbitrator was not persuaded that Soni had a

duty to continue working on Tierney’s case until Tierney

definitively terminated the attorney-client relationship.

Nothing needed to be done in the immediate future on

Tierney’s matters. Furthermore, Soni or Long could have

easily contacted Tierney by telephone or e-mail to inquire

whether Tierney was going to continue to be represented by

Soni or terminate the relationship. Soni unilaterally

proceeded with additional legal work that Tierney had not

authorized based on their most recent conversation. Even if

email was received. [¶] Therefore, notice is met under

California Bus. & Prof. Code, Section 6201(a). Mandatory

arbitration cannot be compelled and the case should be

dismissed for lack of jurisdiction.”

10

the deadlines in Tierney’s cases necessitated quick action,

waiting a day or two for clear instructions from Tierney

would have been reasonable and not jeopardized the pending

cases.

The arbitrator concluded Tierney was not liable for the

fees charged by Long under two rationales. First, Tierney

had not authorized the fees charged by Long and was not

responsible for paying them, regardless of the personal

guarantee that Soni had Tierney sign. Second, Long’s

charges to review Tierney’s matters were duplicative billing.

When the attorney responsible for the matters left the firm,

it was a staffing issue and the costs associated with taking

over the case should have been absorbed as a cost of

business. The subsequent lawyer’s review of the file

duplicated work that had been previously performed by the

initial lawyer, and the client cannot be billed for the

duplicative work. In addition, Soni had attempted to charge

fees for collection activities to Tierney, which the arbitrator

found should not have been billed to Tierney and were

duplicative.

During the arbitration, Tierney agreed not to dispute

charges totaling $380 associated with transferring his file.

The parties stipulated that with respect to undisputed fees,

Tierney had a credit balance of $140. The arbitrator

allocated the initial arbitration fee of $242.50 to Soni and the

amended arbitration filing fee of $26 to Tierney. The

arbitrator awarded net fees to Soni of $2.50. The arbitrator

11

signed the award on February 11, 2015. The arbitration

award was served by mail on February 13, 2015.

Lawsuit

On March 18, 2015, attorneys who were associated

with Soni, including Long, filed a complaint on Soni’s behalf

against Tierney for breach of contract, quantum meruit,

money had and received, book account, fraudulent and

negligent misrepresentation, fraudulent inducement to enter

into a contract, and breach of guaranty. Soni sought $3,580

in fees and $23,898 for collection expenses.

Tierney filed an answer. On June 30, 2015, Tierney

filed a petition in the pending action to confirm the

arbitration award. The petition alleged that no party had

rejected the award and requested trial within 30 days after

notice of the arbitration award was mailed, and as a result,

the arbitration award was binding.

On July 24, 2015, Soni filed an “opposition” to the

motion to confirm the arbitration award, and a request to

dismiss the petition, or in the alternative, correct the award

to reflect the amount of attorney fees Soni sought in the

complaint. Soni’s arguments relied on the arbitrator’s lack

of jurisdiction and Soni’s lack of proper notice of the

arbitration award. Soni stated that he had objected twice in

January 2015 that the arbitrator lacked jurisdiction. He

added, “Mr. Tierney’s assertion that he did not receive email

notice despite the parties’ ongoing prior communications

12

amounts to procuring the arbitration by fraud.

Nevertheless, Mr. Soni participated in the arbitration

proceeding under objection to the arbitration as untimely

and fraudulently invoked, and elected non-binding

arbitration.”

Soni argued that the arbitration award was invalid,

because there was no evidence that three signed copies of the

award were provided to the Arbitration Committee Office, no

notice was provided of the parties’ post-arbitration rights as

required under rule 35 of the LACBA rules, the award failed

to decide all of the issues submitted to the arbitration, and

the award improperly construed the language of the

attorney-client fee agreement.

Soni also argued that the action was timely, because

section 6206 and rule 48 of the LACBA rules tolled the time

to file a civil action until 30 days after receipt of the

arbitration award. He argued that the time for filing a civil

action was based on the date that the arbitration award was

received, not the date that the arbitration award was mailed,

and Soni had received the award on February 17, 2015. In

addition, the time to file an action was extended by five days

under Code of Civil Procedure section 1013 based on service

of the arbitration award by mail.

Soni submitted his declaration in support of his

opposition. He provided the e-mail sent by his legal

assistant on December 18, 2013, with the notice of the right

to arbitration. He also submitted Tierney’s letter providing

new contact information in February 2014. He provided one

13

of his January 2015 letters to the arbitrator objecting that

Tierney’s request for arbitration was untimely. Soni

declared that during the arbitration proceeding in January

2015, Tierney stated that he did not check his old email

address and did not receive the notice of his right to

arbitration.

Tierney filed a reply on July 31, 2015, arguing that the

arbitration award became binding 30 days after service

under section 6204, subdivision (b). In addition, Soni had

failed to exercise his opportunity to vacate or correct the

arbitration award by raising his claims within 100 days after

service of the arbitration award. The arbitration award was

served on February 13, 2015, and Soni did not petition the

court to vacate or correct the award within the 100-day time

limit that expired on May 24, 2015. The time limits in

sections 6203 and 6204 controlled over the tolling provisions

of section 6206. Tierney requested an award of attorney

fees.

The trial court issued a tentative ruling finding the

arbitration award was not binding, because Code of Civil

Procedure section 1013 extended the time to file an action by

five days for service of the arbitration award by mail, and

Soni had commenced a civil action within the required time

period. The trial court acknowledged case law that held the

30-day time period began to run from the date that the

award was mailed, but the Legislature had subsequently

amended sections 6203 and 6204 to replace the term

“mailing” with “service,” and thereby altered the law.

14

Tierney filed a supplemental reply on August 31, 2015,

arguing that the existing case law and the LACBA rules

provided that the time for filing an action was not extended

under Code of Civil Procedure section 1013 for service by

mail. Soni filed a supplemental response arguing that the

action was timely and the trial court had jurisdiction,

because Code of Civil Procedure section 1013 extended the

time to file an action by five days based on service of the

award by mail.

A hearing was held on September 4, 2015. Tierney

argued that under the case law, the State Bar rules, and the

LACBA rules, there was no extension of the time period in

which an arbitration award became binding for service by

mail. The trial court denied the motion to confirm the

arbitration award and set a date for trial.

A bench trial was held over four days in January and

February of 2017. On March 21, 2017, the trial court issued

a tentative ruling. The court stated that an attorney

proceeds at his peril if work is suspended without written

instructions in the face of an impending deadline. Tierney’s

matter was an open case, and it was a universal practice

among competent attorneys to review open client files

periodically, typically monthly. The court concluded that

professional and fiduciary duties bound someone to look at

the file. Soni and Long were not aware of Perez’s practice to

contact Tierney for authorization to perform further work.

Long needed to prepare to answer a broad range of questions

that Tierney might ask. In addition, the court found the

15

amount that Tierney guaranteed was the outstanding

balance of $7,211. Soni argued that he was entitled to an

award of attorney fees, because Soni was not selfrepresented

during the action. The court found Soni’s W-2

employees represented Soni in the trial court action as

independent contractors, as if Soni hired a firm across the

street or down the hall, and Soni was entitled to an award of

attorney fees.

Judgment was entered on May 19, 2017, in the amount

of $2,890 in favor of Soni, plus pre-judgment interest,

attorney fees, and costs to be determined. On July 28, 2017,

Tierney filed a notice of appeal from the May 19, 2017

judgment and all intermediate rulings. Soni filed a motion

requesting an award of $281,191.65 in attorney fees and

costs. The trial court awarded attorney fees of $79,898.

Tierney filed a notice of appeal from the post-judgment order

awarding attorney fees, and this court consolidated Tierney’s

appeals.4

DISCUSSION

Statutory Scheme

The MFAA is a statutory scheme for the arbitration of

attorney-client disputes over legal fees, costs, or both.



4 Tierney’s request for judicial notice of a post office

address and the legislative history of section 6203, filed with

this court on July 3, 2019, is granted.

16

(Rosenson v. Greenberg Glusker Fields Claman &

Machtinger LLP (2012) 203 Cal.App.4th 688, 692–693

(Rosenson).) The MFAA has its own rules and limitations,

distinct from the framework of the California Arbitration Act

(CAA) (Code Civ. Proc., § 1280 et seq.), which governs

private contractual agreements to arbitrate. (Aguilar v.

Lerner (2004) 32 Cal.4th 974, 983–984.) “The MFAA

arbitration is voluntary for the client, but mandatory for the

attorney if commenced by the client.” (Rosenson, supra, 203

Cal.App.4th at p. 693.)

Section 6200 directed the State Bar to adopt rules for

local bar associations to sponsor systems for arbitration and

mediation of fee disputes under the MFAA. The rules of

procedure that are adopted by local bar associations are

subject to review by the State Bar. (§ 6200, subd. (d).)

An attorney is required to provide notice of the client’s

right to fee arbitration prior to, or at the same time as,

serving an action or commencing a proceeding against the

client to recover fees and costs. (§ 6201, subd. (a); Rules of

State Bar, rule 3.501(B) [“attorney must provide the

mandatory State Bar Notice of Client’s Right to Fee

Arbitration form”].) If the client does not request arbitration

within 30 days after receipt of the notice, the right to

arbitration under the MFAA is deemed waived. (§ 6201,

subd. (a).)

The arbitration award is not binding, although the

parties can agree to be bound by the award at any time after

the dispute arises. (§§ 6203, subd. (b), 6204, subd. (a).) Even

17

absent an agreement between the parties, however, the

arbitration award becomes binding 30 days after service of

notice of the award, unless a party requests a trial de novo

within the 30 days. (§ 6203, subd. (b).)

Judicial Review of Arbitration Awards

“California has a long-established and well-settled

policy favoring arbitration as a speedy and inexpensive

means of settling disputes.” (Hightower v. Superior Court

(2001) 86 Cal.App.4th 1415, 1431 (Hightower).) An

arbitration award is not independently enforceable; it has

the force and effect of a contract between the parties to the

arbitration until it is confirmed or vacated. (Code of Civ.

Proc., § 1287.6; Cinel v. Christopher (2012) 203 Cal.App.4th

759, 765.)

The MFAA borrows the procedures of the CAA to

confirm, correct or vacate an arbitration award. (Levinson

Arshonsky & Kurtz LLP v. Kim (2019) 35 Cal.App.5th 896,

906.) A party may petition to the court where an action is

pending, or to the court having jurisdiction over the amount

of the award if no action is pending, to confirm, correct or

vacate the award “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.” (§ 6203, subd. (b).)

A party to an arbitration may petition the court to

confirm, correct or vacate the award. (Code of Civ. Proc.,

18

§ 1285.)5 A response to a petition may request that the court

dismiss the petition or confirm, correct or vacate the award.

(Code of Civ. Proc., § 1285.2.) A petition or a response

requesting that the court correct or vacate an award must

set forth the grounds for the relief. (Code of Civ. Proc,

§ 1285.8.)

When a party files a petition under Code of Civil

Procedure section 1285, the trial court has only four choices

under Code of Civil Procedure section 1286: (1) confirm the

award, (2) correct the award and confirm it as corrected, (3)

vacate the award, or (4) dismiss the proceeding.6 (Glassman

v. McNab (2003) 112 Cal.App.4th 1593, 1598 (Glassman);

Law Offices of David S. Karton v. Segreto (2009) 176

Cal.App.4th 1, 8 (Karton).)

The exclusive grounds for vacating an arbitration

award are provided in Code of Civil Procedure section

5 The petition must name all the parties to the

arbitration as respondents and may name any other people

bound by the arbitration award. (Code of Civ. Proc., § 1285.)

6 Code of Civil Procedure section 1286 provides: “If a

petition or response under this chapter is duly served and

filed, the court shall confirm the award as made, whether

rendered in this state or another state, unless in accordance

with this chapter it corrects the award and confirms it as

corrected, vacates the award or dismisses the proceeding.”

19

1286.27 (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 27–

28 (Moncharsh)), including that the trial court shall vacate

an award when “[t]he arbitrators exceeded their powers and

the award cannot be corrected without affecting the merits of

the decision upon the controversy submitted.” (Code of Civ.

Proc., § 1286.2, subd.(a)(4)) The exclusive grounds for

7 The grounds provided in Code of Civil Procedure

section 1286.2, subdivision (a), for vacating an award are as

follows: “Subject to Section 1286.4, the court shall vacate

the award if the court determines any of the following: [¶]

(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.”

20

correcting an arbitration award are contained in Code of

Civil Procedure section 1286.6.8 (Moncharsh, supra, 3

Cal.4th at p. 28.) The court must dismiss the proceeding as

to respondent if the court determines the person “was not

bound by the arbitration award and was not a party to the

arbitration.” (Code of Civ. Proc., § 1287.2.) Courts have

suggested additional circumstances exist that would allow

the court to dismiss the proceeding. (Karton, supra, 176

Cal.App.4th at p. 8, fn. 12 [stating in dicta that other

procedural bases may exist for dismissal of a proceeding,

such as when a petition is filed after the four year statute of

limitations set forth in Code of Civil Procedure section 1288,9

8 The grounds for correction of an award are as follows:

“Subject to Section 1286.8, the court, unless it vacates the

award pursuant to Section 1286.2, shall correct the award

and confirm it as corrected if the court determines that: [¶]

(a) There was an evident miscalculation of figures or an

evident mistake in the description of any person, thing or

property referred to in the award; [¶] (b) The arbitrators

exceeded their powers but the award may be corrected

without affecting the merits of the decision upon the

controversy submitted; or [¶] (c) The award is imperfect in a

matter of form, not affecting the merits of the controversy.”

(Code Civ. Proc., § 1286.6.)

9 “A petition to confirm an award shall be served and

filed not later than four years after the date of service of a

signed copy of the award on the petitioner. A petition to

vacate an award or to correct an award shall be served and

filed not later than 100 days after the date of the service of a

21

a party to a non-binding arbitration award filed a timely

request for trial de novo, or any procedural basis that would

justify dismissal of any other civil action]; Cinel v.

Christopher, supra, 203 Cal.App.4th at p. 767 [dismissal was

proper when there was no “award” within the meaning of

Code of Civil Procedure section 1283.4]; Maplebear, Inc. v.

Busick (2018) 26 Cal.App.5th 394, 399–401 [concluding from

case law that Code of Civil Procedure section 1287.2 does not

contain exclusive grounds for dismissal of proceeding].)

Judicial review of the arbitrator’s award is limited to

the grounds set forth in Code of Civil Procedure sections

1286.2 (to vacate) and 1286.6 (to correct). (Moncharsh,

supra, 3 Cal.4th at p. 33.) “Under this rule, courts will not

review the arbitrator’s reasoning or the sufficiency of the

evidence supporting the award. (Moncharsh, supra, 3

Cal.4th at pp. 10–11.)” (Cooper v. Lavely & Singer

Professional Corp. (2014) 230 Cal.App.4th 1, 12 (Cooper).)

“[Even] the existence of an error of law apparent on the face

of the award that causes substantial injustice does not

provide grounds for judicial review.” (Moncharsh, supra, 3

Cal.4th at p. 33.) “Thus, it is the general rule that, with

narrow exceptions, an arbitrator’s decision cannot be

reviewed for errors of fact or law.” (Id. at p. 11.)

We subject the trial court’s ruling on a petition under

Code of Civil Procedure section 1285 to a different standard

of review than the underlying arbitration award. (Cooper,

signed copy of the award on the petitioner.” (Code of Civ.

Proc., § 1288.)

22

supra, 230 Cal.App.4th at p. 11.) We apply the substantial

evidence test to the trial court’s determination of disputed

factual issues. (EHM Productions, Inc. v. Starline Tours of

Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063 (EHM).)

“Issues of statutory interpretation and the application of

that interpretation to a set of undisputed facts are questions

of law subject to independent review by this court. (Twedt v.

Franklin (2003) 109 Cal.App.4th 413, 417.)” (Loeb v. Record

(2008) 162 Cal.App.4th 431, 441.)

No Extension of Time to Request Trial Based on

Service by Mail

Tierney contends the time to file an action seeking a

trial after arbitration under section 6204 is not extended

under Code of Civil Procedure section 1013 when the

arbitration award is served by mail. We agree.

Prior to January 1, 2010, former section 6203,

subdivision (b), stated that an arbitration award under the

MFAA became binding “30 days after mailing of notice of the

award,” unless a party sought a trial de novo within 30 days

as provided under section 6204. Former section 6204,

subdivision (c), similarly measured the time to file an action

from the date of mailing of the notice: “If no action is

pending, the trial after arbitration shall be initiated by the

commencement of an action in the court having jurisdiction

over the amount of money in controversy within 30 days

after mailing of notice of the award. After the filing of such

23

an action, the action shall proceed in accordance with the

provisions of Part 2 (commencing with Section 307) of the

Code of Civil Procedure, concerning civil actions generally.”

Code of Civil Procedure section 1013, subdivision (a),

provides in relevant part that “Service is complete at the

time of the deposit, but any period of notice and any right or

duty to do any act or make any response within any period

or on a date certain after service of the document, which

time period or date is prescribed by statute or rule of court,

shall be extended five calendar days, upon service by mail, if

the place of address and the place of mailing is within the

State of California, . . . but the extension shall not apply to

extend the time for filing notice of intention to move for new

trial, notice of intention to move to vacate judgment

pursuant to Section 663a, or notice of appeal. This extension

applies in the absence of a specific exception provided for by

this section or other statute or rule of court.”

In Simpson v. Williams (1987) 192 Cal.App.3d 285,

286–287 (Simpson), the appellate court considered whether

Code of Civil Procedure section 1013 extended the time for

filing an action under sections 6204. The Simpson court

concluded from the express language of the statute that the

date of mailing of an arbitration award commenced the

period for requesting a trial de novo, not the date of service

of the award. (Id. at pp. 288–289.) Because the statutory

language did not refer to service of the award, Code of Civil

Procedure section 1013 did not apply to extend the time to

act. (Ibid.) However, the Simpson court concluded relief

24

was available under Code of Civil Procedure section 473.

(Id. at p. 291.)

“[T]he cases have consistently held that where a

prescribed time period is commenced by some circumstance,

act or occurrence other than service then section 1013 will

not apply. [Citations.] [¶] On the other hand, where a

prescribed time period is triggered by the term ‘service’ of a

notice, document or request then section 1013 will extend

the period. [Citations.]” (Citicorp North America, Inc. v.

Superior Court (1989) 213 Cal.App.3d 563, 567–568,

fn. omitted.)

We note that former rule 732 of the State Bar Rules of

Procedure for Fee Arbitration provided that service was to be

made by personal delivery or by mail, and “[t]he service is

complete at the time of deposit. The time for performing any

act shall commence on the date service is complete and shall

not be extended by reason of service by mail.”

The California Supreme Court in Maynard v. Brandon

(2005) 36 Cal.4th 364, 369 (Maynard), overruled Simpson as

to the availability of relief under Code of Civil Procedure

section 473, holding instead that “section 473, subdivision (b)

cannot remedy a failure to meet the 30-day deadline for

seeking a trial following arbitration under the MFAA.” Code

of Civil Procedure section 473, subdivision (b) cannot provide

relief from deadlines that are jurisdictional, such as the time

to move for a new trial, the applicable limitations period to

institute an action, and the time for filing of a notice of

appeal. (Maynard, supra, at pp. 372–373.) The Maynard

25

court found the MFAA’s procedure for a trial de novo

following arbitration was like a conventional appeal, because

it allows a court to determine a dispute previously decided in

another forum. (Id. at p. 374.) “As a general rule, section

473, subdivision (b) cannot extend the period in which a

party must file a notice of appeal. No persuasive

justification exists for departing from this well-established

principle here, as the MFAA’s terms, policy goals, and

legislative history all indicate that the Legislature did not

intend for the 30-day deadline for seeking a trial after fee

arbitration to be subject to extension through invocation of

section 473, subdivision (b).” (Id. at p. 369.)

In 2009, the Legislature enacted an omnibus bill

containing several provisions that the Senate Committee on

Judiciary characterized as “technical and clarifying

changes.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No.

544 (2009–2010 Reg. Sess.) as amended May 4, 2009.)

Among these revisions, the Legislature replaced the word

“mailing” with “service” in sections 6203 and 6204, effective

January 1, 2010. (Stats. 2009, ch. 54, §§ 2, 3, pp. 287–289.)

The Senate Committee on Judiciary explained, “Under

existing law, two sections of the Business and Professions

Code that relate to mandatory fee arbitration refer to the

‘mailing’ of documents by the arbitration program. (Bus. &

Prof. Code Secs. 6203, 6204.) This provision would clarify

those sections by replacing ‘mailing’ with ‘service.’ [¶] The

State Bar, sponsor of this provision, states that the use of

the word mailing ‘has occasionally created confusion for

26

parties and may jeopardize the rights of parties in ways that

the statutes did not intend.’ Accordingly, the substitution of

‘service’ for ‘mailing’ is intended to eliminate confusion.”

(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 544, supra,

at p. 6.)

As a result, section 6203, subdivision (b) currently

provides: “Even if the parties to the arbitration have not

agreed in writing to be bound, the arbitration award shall

become binding upon the passage of 30 days after service of

notice of the award, unless a party has, within the 30 days,

sought a trial after arbitration pursuant to Section 6204. . . .

If no action is pending in any court, the award may be

confirmed, corrected, or vacated by petition to the court

having jurisdiction over the amount of the arbitration

award, but otherwise 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.”

Section 6204 provides: “(a) The parties may agree in

writing to be bound by the award of arbitrators appointed

pursuant to this article at any time after the dispute over

fees, costs, or both, has arisen. In the absence of such an

agreement, either party shall be entitled to a trial after

arbitration if sought within 30 days, pursuant to

subdivisions (b) and (c), . . . [¶] (b) If there is an action

pending, the trial after arbitration shall be initiated by filing

a rejection of arbitration award and request for trial after

arbitration in that action within 30 days after service of

notice of the award. . . . [¶] (c) If no action is pending, the

27

trial after arbitration shall be initiated by the

commencement of an action in the court having jurisdiction

over the amount of money in controversy within 30 days

after service of notice of the award. After the filing of such

an action, the action shall proceed in accordance with the

provisions of Part 2 (commencing with Section 307) of the

Code of Civil Procedure, concerning civil actions generally.”

Although the Legislature’s substitution of the term

“service” in sections 6203 and 6204 could appear to resurrect

the issue of whether Code of Civil Procedure section 1013

extends the time to seek a trial, the LACBA rules refer to

Code of Civil Procedure section 1013 and clearly state that

no extension of time is provided for service of an arbitration

award by mail. Rule 45(a) of the LACBA rules provides,

“Unless expressly stated in these Rules to the contrary,

service of any notice or other paper shall be by personal

delivery or by deposit in the United States mail, . . . The

service is complete at the time of deposit in the mail (Code

Civ. Proc. § 1013 (a)). The timing for performing any act

shall commence on the date of service is complete [sic] and

shall not be extended by reason of service by mail.”

Rule 3.513 of the State Bar Rules of Procedure for Fee

Arbitrations and the Enforcement of Awards (the State Bar

rules) similarly provides: “(A) Unless these rules provide

otherwise, service is by personal delivery or by mail

pursuant to Code of Civil Procedure section 1013(a). . . . [¶]

(B) Service by mail is complete at the time of deposit in the

United States mail or in a business facility used to collect

28

and process correspondence for mailing with the United

States Postal Service. The time for performing any act

commences on the date service is complete and shall not be

extended by reason of service by mail.”

The deadline for seeking a trial after arbitration under

the MFAA, like the time to file a motion for new trial or a

notice of appeal, is jurisdictional. The LACBA rules state

that the time for initiating a trial de novo begins to run on

the date that service is complete, without extension for

service by mail. Since the rules enacted by LACBA and the

State Bar at the direction of the Legislature provide a

specific exception to the extension of Code of Civil Procedure

section 1013, the extension does not apply.

Our conclusion is supported by the legislative history of

the amendments to sections 6203 and 6204, which reflects

that the amendments were proposed to clarify existing law.

At the time, the existing case law and the State Bar

arbitration rules clearly stated that the time limit to seek a

trial was not extended for service of the award by mail, but

the use of the term “mailing” in the statutes was ambiguous

if a different method of service was employed. There is no

indication that the State Bar or the Legislature intended the

statutory amendments to change the time limit applicable to

service of an arbitration award by mail.10

10 The Senate Committee on Judiciary Analysis does

not specify the nature of the “confusion” that SB 544

intended to correct. Soni argues on appeal that the change

could only have been intended to clear up confusion over

29

Since Soni did not file the complaint within 30 days of

service of the award, the award became binding and the

petition to confirm the award should have been granted.

Tolling Statute

Soni contends section 6206 tolled the time to file a civil

action until 30 days after receipt of the notice of the

arbitration award, and therefore, his civil action was timely.

We conclude section 6206 tolled the statutes of limitation

applicable to his claims, but did not affect the date that the

arbitration award became binding.

Section 6206 provides in relevant part: “The time for

filing a civil action seeking judicial resolution of a dispute

subject to arbitration under this article shall be tolled from

the time an arbitration is initiated in accordance with the

rules adopted by the board of trustees until (a) 30 days after

receipt of notice of the award of the arbitrators, or (b) receipt

whether the time for challenging an arbitral award was

extended by Code of Civil Procedure section 1013, otherwise

the change would be superfluous. Soni’s premise is not

correct. Because the State Bar rules of procedure for fee

arbitrations provided that service was to be made by

personal delivery or by mail, use of the word “mailing” as the

trigger for commencing the 30-day period could create

confusion about whether and when personal delivery might

start the clock running. The amendment of Section 6203(b)

to replace the word “mailing” with “service” eliminates any

confusion over the commencement of the 30-day period.

30

of notice that the arbitration is otherwise terminated,

whichever comes first.”

Section 6206 encourages arbitration by tolling the

applicable statutes of limitation during arbitration

proceedings. A party will not lose the right to file a civil

action due to the statute of limitations running while the

parties are engaged in arbitration. But section 6206 does

not affect the time in which an arbitration award becomes

binding under sections 6203 and 6204. In this case, the

statutes of limitation on Soni’s claims for breach of contract,

quantum meruit, money had and received, book account,

fraudulent and negligent misrepresentation, fraudulent

inducement to enter into a contract, and breach of guaranty

were tolled during the arbitration of the fee dispute and did

not resume again until 30 days after Soni received notice of

the award. For example, if Soni had two years to file a civil

action within the statute of limitations when the arbitration

was initiated, then 30 days after his receipt of notice of the

award, the statute of limitations began to run again and he

had two years to file a civil action within the statute of

limitations from that date, regardless of the length of the

arbitration proceedings. However, 30 days after service of

the award, unless a civil action had been filed, the

arbitration award became binding. Once the award became

binding, it had the force and effect of a contract between the

parties.

The structure of section 6206, read in isolation, is

arguably confusing, and it may present a trap for the

31

unwary.11 Our interpretation of section 6206, however,

operating in conjunction with the other provisions of the

MFAA, is supported by the legislative history of Assembly

Bill No. 3475 (1983–1984 Reg. Sess.), which amended section

6206 to add the tolling language. (Stats. 1984, ch. 825, § 6,

p. 2855.) The legislative reports state that among other

changes, the bill specifies the procedure to request a trial

within 30 days after mailing of notice of the arbitration

award, and “provides that the statute of limitation for filing

a civil action to resolve an attorney fee dispute would be

tolled from the time the arbitration procedure is initiated

until (a) 30 days after receipt of notice of the arbitration

award or (b) receipt of notice that the arbitration is

otherwise terminated.” (Assem. Com. on Judiciary, Analysis

of Assem. Bill No. 3475 (1983–1984 Reg. Sess.) as amended

Apr. 23, 1984, p. 2; see Sen. Com. on Judiciary, Analysis of

Assem. Bill No. 3475 (1983–1984 Reg. Sess.) as amended

Apr. 23, 1984, p. 6.) When Soni filed his action against

Tierney, the claims were not barred by the statute of

limitations, but the arbitration award that determined the

claims was binding.

Alternate Grounds

Soni contends there are alternate grounds to support

the trial court’s order. He asserts that Tierney’s request for

11 To the extent the current statutory language may

cause confusion, it is up to the Legislature to clarify it.

32

arbitration was untimely, and as a result, the arbitrator

lacked jurisdiction to conduct the arbitration. Lack of

jurisdiction is a ground to vacate an arbitration award. We

conclude that Soni is barred from opposing confirmation of

the award on this ground, because Soni did not file a petition

or a response raising this ground within 100 days of service

of the award.

A. Time Limit to Assert Grounds to Vacate

One of the statutory grounds to vacate an arbitration

award is that “[t]he arbitrators exceeded their powers and

the award cannot be corrected without affecting the merits of

the decision upon the controversy submitted.” (Code of Civ.

Proc., § 1286.2, subd. (a)(4).) Code of Civil Procedure section

1286.2, subdivision (d), allows a trial court to vacate an

arbitrator’s implied or express finding of jurisdiction when

the award is outside the scope of statutes providing for

arbitration. (National Union Fire Ins. Co. v. Stites Prof. Law

Corp. (1991) 235 Cal.App.3d 1718, 1724.) If the court

determines that the arbitrators exceeded their power and

the award cannot be corrected without affecting the merits,

the plain language of Code of Civil Procedure section 1286.2,

subdivision (a)(4), requires the court to vacate the

arbitration award.

A petition or a response seeking to vacate or correct an

arbitration award must be filed within 100 days after service

of the award. (Code of Civ. Proc., § 1288.) A petition to

33

confirm the award, however, may be filed within four years

after service of the award. (Ibid.)

“A party who fails to timely file a petition to vacate

under section 1286 may not thereafter attack that award by

other means on grounds which would have supported an

order to vacate. (Knass v. Blue Cross of California (1991)

228 Cal.App.3d 390, 393–396.)” (Louise Gardens of Encino

Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000)

82 Cal.App.4th 648, 659 (Louise Gardens).) “‘Although

section 1287.4 allows an appeal from a judgment confirming

an arbitrator’s award, we find no indication that the section

contemplates allowing a party to bypass the procedures

which provide for limited review by the superior court. . . .

[¶] The arbitration statute is clear. A party to an

arbitration proceeding must challenge an award under

section 1288 by a petition to vacate or correct the award

within 100 days of service of the award. An appeal of the

judgment confirming the award may not be used to

circumvent the prescribed time allowed to petition for

vacation or correction of the award.’ (Knass v. Blue Cross of

California, supra, 228 Cal.App.3d at pp. 395–396; see also

Davis v. Calaway (1975) 48 Cal.App.3d 309, 311.)” (Louise

Gardens, supra, 82 Cal.App.4th at p. 660, fn. omitted.)

“If the rule were otherwise, a party who missed the

initial 100-day deadline would be able to resurrect any

otherwise time-barred challenge by filing a timely response

to a petition to confirm.” (Douglass v. Serenivision, Inc.

(2018) 20 Cal.App.5th 376, 385 (Douglass).)

34

Soni did not file a petition to vacate the arbitration

award, and Soni’s response to the petition to confirm the

award was filed more than 100 days after service of the

award. As a result, Soni was barred from asserting that the

arbitrator exceeded his powers as a ground to prevent

confirmation of the petition.

B. Authority to Determine Jurisdiction under

the MFAA

Even if we were to conclude that Soni could raise

issues concerning the arbitrator’s jurisdiction, we would

conclude that the arbitrator did not exceed his powers and

his ruling on the issue of arbitrability is not subject to review

for legal or factual errors.

Section 6201, subdivision (a), requires the rules

adopted by the board of trustees to provide that “the client’s

failure to request arbitration within 30 days after receipt of

notice from the attorney shall be deemed a waiver of the

client's right to arbitration under the provisions of this

article.” Rule 8(c) of the LACBA rules provides that a

client’s right to request or maintain arbitration is waived if

“[t]he client fails to submit a request for arbitration in

writing that is either postmarked or actually received by the

Los Angeles County Bar Association 30 days or less after the

client’s receipt of the ‘Notice of Client’s Right to Arbitration’

(Bus. & Prof. Code § 6201 (a)).”

35

An arbitration award must include a determination of

all the questions submitted to the arbitrators which were

necessary to decide in order to determine the controversy.

(§ 6203.) The LACBA rules give the arbitrator authority to

determine whether a request for arbitration is timely. Rule

12(b) of the LACBA rules provides, “Each sole arbitrator or

panel shall have the authority to determine jurisdiction and

shall decline to act if it determines that it lacks jurisdiction.”

Under the LACBA rules, arbitrators have the authority to

determine their own jurisdiction over fee disputes between

client and the client’s attorney, including a determination of

whether the client’s conduct constitutes a waiver of

arbitration under the MFAA. (Manatt, Phelps, Rothenberg

& Tunney v. Lawrence (1984) 151 Cal.App.3d 1165, 1170–

1171 [LACBA rules gave arbitration panel authority to

determine whether conduct waived arbitration rights,

terminating arbitration].)

The arbitrator in this case had the authority to rule on

the issue of arbitrability, and implicitly or expressly found

the request for arbitration was timely. We do not review the

substance of the arbitrator’s ruling for legal or factual errors.

The judgment and the order denying the petition to confirm the arbitration award are reversed. The trial court is directed to enter a new and different order granting the petition to confirm the arbitration award. Appellant Timothy Tierney and his company SimpleLayers, Inc., formerly known as Cartograph, Inc., are awarded their costs on appeal.