The rules which govern how a party petitions the court to vacate an arbitration award contain a potential jurisdictional trap. Specifically, Code of Civil Procedure section 1288 requires that a petition to vacate an arbitration award shall be both served and filed not later than 100 days after the date of service of a signed copy of the award on petitioner. Failure to serve within the statutory period is jurisdictional and fatal.
The service copy of the petition must contain written notice of the time and place of the hearing. Service is accomplished “in the manner provided in the arbitration agreement for the service of such petition and notice.” Or, “[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 . . . (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.” [See, Code of Civil Procedure 1290.4 for exact and other particulars.]
A petition to vacate an award may be filed in a pending proceeding or in an entirely new proceeding. Unless the arbitration agreement provides for service of the petition and notice of hearing in a different manner, service must be accomplished in the same manner as service of a summons. Service upon a party’s attorney is insufficient to confer jurisdiction, unless the party served and the party’s attorney have appeared in the proceeding and another manner of service is not specified in the agreement.
This distinction with a difference, between service upon a party’s attorney who has already appeared in a pending action on behalf of that party and service upon the party, was highlighted in Abers v. Rohrs.
In that case the petition to vacate the arbitration award was timely filed but not timely served. For perceived procedural reasons, petitioner filed a separate action to vacate the award, as opposed to filing the petition in a pending declaratory relief action between the parties, and served respondent’s counsel with a copy of the petition and notice of hearing by mail. The notice was mailed within the 100-day statutory period but no attempt was made to serve the respondent.
Since service of the petition and notice by mail upon the party’s attorney was not authorized by the party’s agreement, the attempted service by mail upon the party’s attorney was ineffective to confer jurisdiction over respondent in the newly filed action. Thus, service was fatally defective. In absence of service and filing, the court had no jurisdiction to vacate the award.
The fact the respondent had actual notice of the petition to vacate in a timely fashion did not alter the result. The obligation to serve a party with process is not coextensive with merely providing the party with notice. Actual notice of the proceeding does not substitute for proper service of process.
Caveat: The court strictly construed the notice provisions in the underlying agreement finding the general notice provision, which did not specify the manner of giving notice of a petition to vacate an arbitration award, inapplicable. Relief was not available under Code of Civil Procedure section 473 based upon mistake, inadvertence, surprise, or excusable neglect because the 100-day limitation for service and filing is jurisdictional.
Best Practices: File and serve a petition and notice of hearing to vacate an arbitration award upon respondent in the manner specified in the agreement between the parties within 100 days of the date of service of a signed copy of the award. If there is any ambiguity, i.e., the agreement does not specifically mention the manner of service of a petition and notice to vacate an award, personally serve respondent within that same time period. Service by mail upon a party’s attorney is effective only if the party and the party’s attorney have already appeared in the proceeding in which the petition is filed and the agreement between the parties does not otherwise specify the manner of service of such petition and notice.
I consult with clients and accept cases involving arbitration, interpretation of arbitration agreements, and the vacation, confirmation, and correction of arbitration awards. For other types of cases I accept, please scroll my “Home” and “My Practice” pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude