Darby v. Sisyphian, LLC ( 2023 )

Filed 1/26/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
AISHA DARBY, B314968
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC691081)
v.
SISYPHIAN, LLC,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael L. Stern, Judge. Affirmed.
Law Offices of Jeffrey M. Cohon, Jeffrey M. Cohon, and
Kristina S. Keller for Defendant and Appellant.
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication as to all parts
except Part II of the Discussion.
Mouton Law and Stacey Y. Mouton; Law Firm of Clifford
H. Young and Clifford H. Young for Plaintiff and Respondent.
******
Under the California Arbitration Act (Code Civ. Proc.,
§ 1280 et seq.) (the Act),1 a party seeking to vacate or correct an
arbitration award must do so prior to the expiration of the Act’s
statutory deadlines (§§ 1288.2, 1290.6). Sometimes, the party
seeking such relief misses those deadlines. If another party to
the arbitration has filed a competing petition to confirm that
award, is the trial court allowed to consider any of the objections
to confirmation raised in untimely filings seeking to vacate or
correct the award? And if the judgment confirming the award is
appealed, may the party who untimely sought to vacate or correct
the award renew on appeal their challenges to the award’s
confirmation? We conclude that the answer to both questions is
“no.” Because well-settled law dictates the finding that the
appealing party in this case did not meet the Act’s deadlines for
vacating or correcting the arbitration award, we affirm the
judgment confirming that arbitration award and grant the
prevailing party her attorney fees on appeal.
FACTS AND PROCEDURAL BACKGROUND
I. Plaintiff Signs an Employment Contract
Between June 2016 and May 2017, Aisha Darby (plaintiff)
worked as an exotic dancer at the Xposed Gentlemen’s Club in
Canoga Park, California (“the club”). In her “Entertainment
Agreement,” plaintiff agreed to arbitrate “any controversy,
1 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
dispute, or claim . . . arising out of this agreement.” At that time,
the club was owned and operated by Sisyphian, LLC (Sisyphian).
II. Plaintiff Initiates Litigation
In January 2018, plaintiff sued Sisyphian for (1) failure to
pay minimum wage (in violation of Labor Code sections 1194,
1194.2, 1197 and 1197.1), (2) failure to pay overtime wages (in
violation of Labor Code sections 226.7 and 512), (3) failure to pay
wages for missed meal periods (in violation of Labor Code section
512), (4) failure to pay wages for missed rest breaks (in violation
of Labor Code sections 512 and 1194), (5) waiting time penalties
(in violation of Labor Code sections 202 and 203), (6) failure to
provide accurate wage statements (in violation of Labor Code
sections 223, 1194, 1194.2, and 1197), and (7) unfair competition.2
Plaintiff’s complaint alleged the relief she sought—which
included attorney fees—in three different places for each of the
above-listed claims: (1) in the section describing each claim, and
(2) two times in the complaint’s “prayer” section, once in a
subsection of the “prayer” corresponding with each claim and a
second time under a catch-all subsection called “As To All Causes
of Action.”
2 Plaintiff also asserted a cause of action for conversion,
which the arbitrator dismissed.
Plaintiff additionally sued Brad Barnes on the ground that
Sisyphian was his “alter ego.” The arbitrator rejected that claim
and awarded Barnes $1,037.50 in costs. Although Barnes is
named on the notice of appeal in this case, he has made no
separate appearance and no argument is offered attacking any
ruling with regard to Barnes.
3
III. The Matter Is Arbitrated
In reliance on the arbitration clause in the Entertainment
Agreement, the trial court in May 2018 granted Sisyphian’s
motion to compel arbitration of plaintiff’s claims.
A. First interim arbitration award (on liability)
1. Motion to strike
In September 2018, Sisyphian moved to strike four discrete
portions of plaintiff’s complaint, and specifically sought to strike
the allegations requesting attorney fees listed in the section
describing the unfair competition claim, in the subsection of the
“prayer” corresponding to that claim, and in the subsection listing
the relief sought “As To All Causes of Action.” The arbitrator
granted the motion to strike those allegations, including those in
the catch-all “As To All Causes of Action” section because
plaintiff, in her opposition, “ma[de] no effort to defend” them.
2. Hearing on the merits
After three days of hearings in October 2019 as well as
fulsome briefing, the arbitrator issued an “interim arbitration
award.” The arbitrator ruled that plaintiff was an “employee”
(rather than an independent contractor) of Sisyphian; that
Sisyphian had not complied with its duties under the Labor Code
to pay her the minimum wage and overtime wages, to give her
rest and meal breaks, and to provide her accurate wage
statements; and that Sisyphian owed her $23,347.25 in damages
and penalties for its noncompliance. However, the arbitrator
declined to award plaintiff the nearly $40,000 she sought as
alleged customer gratuities or any restitution. The interim
4
award invited the parties to file motions seeking attorney fees
and costs.3
B. Attorney fees order
1. Initial briefing and initial attorney fees order
Because plaintiff did not prevail on all of her claims,
plaintiff and Sisyphian filed competing motions for attorney fees
and costs. After more fulsome briefing, the arbitrator in
September 2020 issued an order denying both requests for
attorney fees and costs. As pertinent here, the arbitrator cited
two reasons for denying plaintiff’s request for attorney fees: (1)
the arbitrator accepted Sisyphian’s representation—to which
plaintiff did not respond in her reply brief—that plaintiff’s
requests for attorney fees in her complaint had been stricken in
their entirety, and (2) the arbitrator found that plaintiff had made
no attempt to apportion her attorney fees between the claims on
which she had prevailed and those on which she had not. The
arbitrator asked Sisyphian to prepare a final arbitration award.
2. Plaintiff seeks reconsideration
Eight days after the arbitrator issued the initial attorney
fee order, plaintiff filed a motion asking him to use his “inherent
authority” to reconsider the order on the ground that Sisyphian’s
representation that all attorney fees allegations had been
stricken from her complaint was inaccurate.4 After considering
3 Sisyphian filed a motion to correct the first interim award,
which the arbitrator denied except as to clerical errors.
Sisyphian does not attack that ruling on appeal.
4 Plaintiff’s motion also accused the arbitrator of
“misinterpret[ing] or conveniently forget[ting]” the terms of the
order striking portions of her complaint, condescendingly offered
to “refresh [the arbitrator’s] memory,” implied that the arbitrator
5
further briefing, the arbitrator granted plaintiff’s motion, citing
Sisyphian’s inaccurate representations and plaintiff’s lassitude in
not pointing out the inaccuracy. Specifically, the arbitrator found
that his prior order striking allegations in plaintiff’s complaint
had not stricken the attorney fees allegations from the sections
describing each Labor Code claim or from the “prayer” subsection
corresponding with each claim. Thus, the arbitrator concluded,
plaintiff’s complaint still contained a viable prayer for attorney
fees for the claims on which she prevailed. The court then
ordered “[a]n entirely new round of briefing.”
3. The new round of briefing and revised attorney
fee order
As the arbitrator requested, the parties filed a new round of
briefing. Although plaintiff’s renewed motion neglected to
address the issue of apportionment that had supported the
arbitrator’s prior order completely denying attorney fees, the
arbitrator issued a revised order that awarded plaintiff $82,800
in attorney fees (out of the $283,941.25 she sought).
C. The final arbitration award
On March 5, 2021, the arbitrator issued his “final
arbitration award.”
did not “take its promises to act neutrally seriously,” and
asserted that “[i]t [was] hard to assume anything other than bias”
against her by the arbitrator. Apart from exhibiting Herculean
levels of hubris for lambasting the arbitrator for not
remembering details of an 11-month-old order that plaintiff
elected not to address in her briefing, the tone exhibited in that
motion was discourteous and disrespectful to a degree that
transgresses the standards lawyers should exhibit toward the
arbiter of any tribunal in which they appear.
6
III. Postarbitration Judicial Proceedings
On March 24, 2021, plaintiff filed in the trial court a
petition to confirm the final arbitration award. Plaintiff served
the petition on Sisyphian, via e-mail, on April 1, 2021.
On May 3, 2021, Sisyphian filed and served two
documents—namely, (1) a response to plaintiff’s petition to
confirm, and (2) a petition to vacate or correct the award. In each
of the nearly identical filings, Sisyphian argued that the
arbitrator had exceeded his powers by reconsidering his initial
attorney fees award, so the final award giving plaintiff $82,800 in
such fees had to be vacated.
After further briefing and a hearing, the trial court issued a
ruling (1) denying Sisyphian’s petition to vacate or correct the
award, and (2) confirming the award. In its order, the trial court
explicitly found that Sisyphian’s “papers” were not “timely”
because they missed the statutory deadline. Without making any
finding that Sisyphian had “good cause” to excuse its untimely
filings, the court nevertheless went on to explain why, on the
merits, “the result [of its order] would be the same” “[e]ven if
[Sisyphian’s] papers were timely”; specifically, the court found no
merit to Sisyphian’s argument that the arbitrator made an error
of fact or law that exceeded his powers.
V. Appeal
Following the entry of judgment for plaintiff in the amount
of $105,109.75,5 Sisyphian timely filed this appeal.
5 This amount was calculated as the sum of the amounts
Sisyphian owed plaintiff ($23,347.25 in damages and $82,800 in
attorney’s fees) less what plaintiff owed Barnes for his costs
($1,037.50).
7
DISCUSSION
I. Sisyphian’s Challenge to the Final Arbitration
Award
Sisyphian argues that the trial court erred in confirming
the final arbitration award because, in reconsidering its initial
attorney fees order, the arbitrator exceeded his powers. Whether
we may consider this argument on the merits turns on two
questions: (1) Were Sisyphian’s challenges seeking to vacate or
correct the final arbitration award timely filed, and (2) if they
were untimely, may the trial court or this court consider those
challenges—or is the trial court obligated to confirm the award
and are we obligated to affirm? These questions turn on our
interpretation of the Act as well as the application of the Act to
undisputed facts; consequently, our review is de novo.6
(Guardianship of Saul H. (2022) 13 Cal.5th 827, 846-847; Lopez
v. Ledesma (2022) 12 Cal.5th 848, 857.)
A. Were Sisyphian’s efforts to vacate or correct the
final arbitration award timely?
Once an arbitrator issues an “award” within the meaning of
the Act, the “torch of jurisdiction” passes “from the arbitrator to
the trial court.” (§ 1283.4 [defining “award”]; Lonky v. Patel
(2020) 51 Cal.App.5th 831, 843 (Lonky).)
Once that torch has passed, the parties to the arbitration
can petition the trial court to issue one of two orders with regard
6 That the arbitration provision in the Entertainment
Agreement states that the final award is subject to review under
the Federal Arbitration Act does not affect our analysis because
the procedural provisions of the California Arbitration Act apply
in these state court proceedings. (Rodriguez v. American
Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1120; Valencia v.
Smyth (2010) 185 Cal.App.4th 153, 174.)
8
to the arbitration award: (1) an order confirming the arbitration
award (§ 1285), which converts the arbitrator’s unchanged award
into an enforceable judgment (§ 1287.4; Caro v. Smith (1997) 59
Cal.App.4th 725, 737), or (2) an order vacating or correcting the
arbitration award (§§ 1285, 1285.2, 1285.8), which alters the
award’s substantive findings and may be issued only upon one of
the six bases for vacating an award set forth in section 1286.2 or
one of the three bases for correcting an award set forth in section
1286.6.
The Act explicitly prescribes deadlines for filing either type
of petition. The deadline for filing a petition to confirm an
arbitration award is four years (from the date the petitioner was
served with the award). (§ 1288.) The deadline for seeking to
vacate or correct an arbitration award is less straightforward
because the Act prescribes two ways to seek an order vacating or
correcting an award, each with its own deadline. A party may
seek an order vacating or correcting an award in a standalone
petition (§ 1285), and the default deadline for filing such a
petition is 100 days (from the date the petitioner was served with
the award). (§§ 1288, 1288.2.) A party may also seek an order
vacating or correcting an award in its response to a prior-filed
petition to confirm that award (§ 1285.2), and the default
deadline for filing that response is 10 days (from the date the
responding party is served with the petition to confirm). (§
1290.6.)
How do these two deadlines interact?
When no petition to confirm the award is filed, the deadline
is easy—namely, 100 days after the award was served on the
party petitioning to vacate or correct the award.
9
But when a petition to confirm is filed, the question
becomes which deadline controls—the absolute deadline of 100
days after the award is served, or the relative deadline of 10 days
after a petition to confirm the award is served? The answer is:
Whichever deadline is the shorter. If a petition to confirm the
award is filed fewer than 90 days after an award is served, a
competing request to vacate or correct the award—whether styled
as a response to the petition to confirm or as a standalone
petition7—must be filed and served within 10 days of service of
the petition to confirm, even if that due date is less than 100 days
after service of the award. (Law Finance Group, LLC v. Key
(2021) 67 Cal.App.5th 307, 319 (Law Finance), review granted
Nov. 10, 2021, S270798; Rivera v. Shivers (2020) 54 Cal.App.5th
82, 93-94; Coordinated Construction, Inc. v. Canoga Big “A,” Inc.
(1965) 238 Cal.App.2d 313, 317; Oaktree Capital Management,
L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66-68.) But if a
petition to confirm is filed more than 90 days after an award is
served, a competing request to vacate or correct the award—no
matter how styled—must still have been filed within 100 days of
the service of the award, even if that due date is less than 10 days
7 Sisyphian invites us to draw a distinction between filings
styled as responses (which would be subject to the Act’s 10-day
deadline) and filings styled as standalone petitions (which would
be subject solely to the Act’s 100-day deadline and could ignore
the 10-day deadline). We decline this invitation, as it would
elevate form over substance, would effectively negate the 10-day
deadline since any party who missed the 10-day deadline could
simply restyle their untimely response as a standalone petition,
and would be inconsistent with the Act’s policy to decide
postarbitration petitions “expeditious[ly].” (Knass v. Blue Cross
of California (1991) 228 Cal.App.3d 390, 399 (Knass).)
10
after service of the petition to confirm. (Douglass v. Serenivision,
Inc. (2018) 20 Cal.App.5th 376, 384-385.)
Are these deadlines subject to extension? It depends.
Both the 100-day and 10-day statutory deadlines are
“jurisdictional” (Santa Monica College Faculty Assn. v. Santa
Monica Community College Dist. (2015) 243 Cal.App.4th 538,
544-545; Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1203), so
neither may be extended via equity-based motions such as
motions to vacate under section 473. (Abers, at pp. 1211-1212.)
We disagree with cases that have dicta to the contrary. (E.g.,
DeMello v. Souza (1973) 36 Cal.App.3d 79, 85-86 (DeMello) [as to
both deadlines]; Eternity Investments, Inc. v. Brown (2007) 151
Cal.App.4th 739, 746 (Eternity) [as to 100-day deadline].) The
100-day deadline is otherwise immovable, as the statute setting
that deadline brooks no exceptions. (§ 1288.) The 10-day
deadline, however, is a little more flexible, as the Act itself
authorizes an extension of the 10-day deadline in two
situations—namely, (1) when “the parties to the court
proceeding” “agree[] in writing” to an extension, or (2) when the
court, either explicitly or implicitly, finds “good cause” to extend
the deadline and where such an extension would not unduly
prejudice the other party (§ 1290.6; Correia v. NB Baker Electric,
Inc. (2019) 32 Cal.App.5th 602, 613; Ruiz v. Moss Bros. Auto
Group, Inc. (2014) 232 Cal.App.4th 836, 847; MJM, Inc. v. Tootoo
(1985) 173 Cal.App.3d 598, 603; Travelers Indemnity Co. v. Bell
(1963) 213 Cal.App.2d 541, 544-545).8
8 Indeed, the Legislature’s decision to create an express,
equity-based “good cause” standard for the 10-day deadline but
not the 100-day deadline would seem to rebut the usual
presumption that jurisdictional deadlines are subject to equitable
11
Applying these deadlines, Sisyphian’s standalone petition
and its response to plaintiff’s petition to confirm were untimely.
Plaintiff’s petition to confirm the arbitration award was served on
Sisyphian on April 1, 2021. Under the above-stated rules,
Sisyphian had 10 days to ask the trial court to vacate or correct
that award. But Sisyphian waited 32 days—until May 3, 2021—
to file its standalone petition and its response to plaintiff’s
petition. These filings were untimely. Neither statutory
exception to the 10-day deadline was invoked here. The parties
did not agree to extend the deadline. The trial court also did not
find “good cause” to extend the deadline; instead, the court found
that Sisyphian’s filings had been “untimely.”
Sisyphian’s sole response is to object that it has been
caught in a “procedural gotcha,” citing People v. Matthews (2019)
32 Cal.App.5th 792, 798 and Clark v. Superior Court (2021) 62
Cal.App.5th 289, 293. But a party’s failure to follow a statutory
deadline that has been interpreted consistently for years by the
courts does not amount to an unfair “gotcha.” What is more,
neither Matthews nor Clark has anything to do with the Act’s
deadlines or otherwise sanctions ignoring statutory deadlines of
jurisdictional import.
tolling. (See Saint Francis Memorial Hospital v. State Dept. of
Public Health (2020) 9 Cal.5th 710, 719-720.) However, even if
we assume it existed as a doctrine, equitable tolling applies only
if there is a showing of reasonable and good faith conduct by the
party seeking tolling (id. at p. 724), and Sisyphian has proffered
no reason why its late filings should be excused. Because
equitable tolling does not matter to this case, the pendency of the
issue before our Supreme Court in Law Finance is of no
consequence.
12
B. What are the consequences for missing the Act’s
filing deadlines when seeking to correct or vacate an
arbitration award?
1. In the trial court
A petition to confirm an arbitration award, if procedurally
proper, “shall” be confirmed unless the trial court (1) vacates or
corrects the award, or (2) dismisses the petition to confirm. (§
1286.) A petition to confirm is procedurally proper as long as it
(1) sets forth a copy of the agreement to arbitrate, the names of
the arbitrator(s), and a copy of the arbitration award (§ 1285.4;
Eternity, supra, 151 Cal.App.4th at p. 745), and (2) is timely filed
(which, as noted above, means it must be filed within four years
of service of the award on the petitioner). Dismissal of a petition
to confirm is appropriate if the petition to confirm is procedurally
improper under the Act, if the trial court erred in compelling
arbitration in the first place, or if the petition is subject to
dismissal on “‘any procedural basis’” that would “‘justify
dismissal of any other civil action.’” (§ 1287.2 [dismissal
appropriate “if the [trial] court determines that [the party
seeking dismissal] was not bound by the arbitration award and
was not a party to the arbitration”]; Maplebear, Inc. v. Busick
(2018) 26 Cal.App.5th 394, 399-400; Law Offices of David S.
Karton v. Segreto (2009) 176 Cal.App.4th 1, 8, fn. 12 (Segreto).)
In other words, dismissal is warranted if there is a defect with
the petition to confirm or with the underlying order compelling
arbitration itself. (Accord, Maaso v. Signer (2012) 203
Cal.App.4th 362, 370 [time limits applicable to petitions to vacate
or correct do not apply where party, in effect, is challenging an
13
earlier trial court order remanding matter for rearbitration
rather than the substance of the award itself].)9
Where, as here, the petition to confirm is procedurally
proper, dismissal of that petition is not sought, and there is no
timely filing seeking to vacate or correct the arbitration award, is
the trial court obligated to confirm the arbitration award? The
answer is “yes.”
This answer is dictated by two principles.
First, a court may not vacate or correct an arbitration
award unless “[a] petition or response requesting that the award
be corrected” or “vacated has been duly served and filed.” (§
1286.8, subds. (a) & (b); DeMello, supra, 36 Cal.App.3d at p. 84;
Eternity, supra, 151 Cal.App.4th at p. 745; United Firefighters of
Los Angeles v. City of Los Angeles (1991) 231 Cal.App.3d 1576,
1581.)
Second, in the absence of a properly served and filed
petition or response seeking to vacate or correct an award, a trial
court “shall” confirm the award. (§ 1286; Eternity, supra, 151
Cal.App.4th at p. 745 [“confirmation of an award is the
mandatory outcome absent the correction or vacatur of the award
or the dismissal of the petition”]; Louise Gardens of Encino
Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82
Cal.App.4th 648, 660 (Louise Gardens) [“if a court does not vacate
or correct an award (or dismiss the proceeding), it must confirm
it”]; Segreto, supra, 176 Cal.App.4th at pp. 8-9 [same]; Tutti
Mangia Italian Grill, Inc. v. American Textile Maintenance Co.
9 If a petition to confirm is dismissed, the unconfirmed award
functions as a contract between the parties to the arbitration
(rather than as a judgment). (§ 1287.6.)
14
(2011) 197 Cal.App.4th 733, 741-742 [same]; Law Finance, supra,
67 Cal.App.5th at p. 325 [same].) Put differently, vacating or
correcting an arbitration award is the flip side of the same coin as
confirming that award: If it isn’t heads, it has to be tails; if an
award cannot be vacated or corrected, it must be confirmed.10
This is the outcome dictated by the plain text of section 1286, by
the solid wall of precedent cited above, by the fact that “the
allegations of a petition are deemed to be admitted” if no
response “is duly served and filed” (§ 1290), and by the policy
behind the Act, which views the postarbitration litigation in the
trial court as a mere coda to the main score of dispute resolution
in the arbitral forum—and a coda that is meant to be
“expeditious.” (Knass, supra, 228 Cal.App.3d at p. 399
[“Arbitration is designed to provide expeditious resolution of
disputes”]; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10
[“The arbitrator’s decision should be the end, not the beginning,
of this dispute,” such that “judicial intervention in the arbitration
process [should] be minimized”].)
Because plaintiff’s petition to confirm was procedurally
proper, because no party sought dismissal of plaintiff’s petition,
10 The inverse is not also true, however: The absence of a
properly filed petition to confirm an arbitration award does not
obligate a trial court to vacate or correct that award. That is
because the party seeking to vacate or correct an award bears the
burden of proving one of the various grounds for vacation or
correction. (§§ 1286.2, 1286.6.) The absence of a competing
petition to confirm admits at most the factual allegations in
support of the petition to vacate or correct; it does not admit the
legal conclusions necessary to justify vacation or correction.
(Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal.App.4th
956, 960-965; see also § 1290.)
15
and because Sisyphian’s filings seeking to vacate or correct the
arbitration award were not timely filed, the trial court in this
case was obligated to confirm the final arbitration award. The
trial court’s observations in the alternative rejecting Sisyphian’s
arguments were superfluous to its ruling and could not have
altered the outcome of the proceedings before that court.
2. In the appellate court
Although we have appellate jurisdiction because Sisyphian
has appealed the “judgment” confirming the arbitration award (§
1294, subd. (d)), Sisyphian’s failure to timely file a petition or
response seeking to vacate or correct that award before the trial
court deprives us of the ability to consider its arguments on
appeal seeking to vacate or correct that award.11 There are two
reasons for this rule. First, this rule preserves the integrity of
the Act’s statutory deadlines by preventing parties from
circumventing them. A party who has missed the Act’s carefully
crafted deadlines has sacrificed its right to seek to vacate or
correct the arbitration award before the trial court; were we
permitted to consider the arguments in support of vacating or
correcting the award on appeal, we would empower parties to
resurrect that right by the simple expedient of appealing from the
judgment confirming the award. (Knass, supra, 228 Cal.App.3d
at pp. 395-396 [“An appeal of the judgment confirming the award
11 Even if no timely petition to vacate or correct an arbitration
award had been filed before the trial court, an appellate court
may still consider the merits of arguments that would support
dismissal of the petition seeking confirmation, such as on the
ground that arbitration should never have been compelled in the
first place. (E.g., Peleg v. Neiman Marcus Group, Inc. (2012) 204
Cal.App.4th 1425, 1437-1438; Giorgianni v. Crowley (2011) 197
Cal.App.4th 1462, 1471.)
16
may not be used to circumvent the prescribed time allowed to
petition for vacation or correction of an award”]; Berg v. Traylor
(2007) 148 Cal.App.4th 809, 823 [“[party’s] failure to file a timely
petition to vacate the arbitration award bars her from
challenging the judgment confirming the award on appeal”]; Soni
v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1092-1094
[appellant “is barred from opposing confirmation of the award”
“because [appellant] did not file a petition or response . . . within
100 days of service of the award”]; Louise Gardens, supra, 82
Cal.App.4th at p. 658 [appellant “cannot avoid the consequences
of its failure to file a timely petition to vacate by appealing from
the postconfirmation judgment”]; Gordon v. G.R.O.U.P., Inc.
(1996) 49 Cal.App.4th 998, 1010 [“Statutory grounds for
correction of an arbitrator’s award cannot be asserted for the first
time on appeal from the judgment confirming the award”].)
Second, were we to sanction this power to resurrect, we would be
creating a blueprint for prolonging postarbitration litigation in
derogation of the Act’s purpose of minimizing—not maximizing—
such litigation.
Because Sisyphian forfeited its right to seek to vacate or
correct the final arbitration award before the trial court, we may
not consider its arguments to do so on appeal. We are
accordingly obligated to affirm the judgment confirming the final
arbitration award.
II. Attorney Fees on Appeal
Plaintiff argues that she is entitled to recover the attorney
fees she incurred in this appeal.
Although parties in California are required to bear their
own attorney fees unless a statute or contract provides otherwise
(§ 1021; Tract 19051 Homeowners Assn. v. Kemp (2015) 60
17
Cal.4th 1135, 1142), plaintiff here prevailed in arbitration on her
Labor Code claims seeking payments for violations of the
minimum wage and overtime statutes as well as violations of the
accurate wage statement statute. The Labor Code statutes
authorizing those payments also provide for the “employee” to
recover her “reasonable attorney’s fees.” (Lab. Code, §§ 1194,
subd. (a) [so authorizing, for violations of the minimum wage and
overtime laws], 226, subd. (e)(1) [so authorizing, for violations of
the accurate wage statement law].) Because it is “beyond
question” that a party’s entitlement to attorney fees includes
those incurred on appeal as well as before the trial court
(Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48
Cal.App.4th 260, 263; Morcos v. Board of Retirement (1990) 51
Cal.3d 924, 927; Villinger/Nicholls Development Co. v. Meleyco
(1995) 31 Cal.App.4th 321, 329), plaintiff is entitled to the
attorney fees she incurred in this appeal defending the judgment
awarding her relief for the overtime, minimum wage, and
accurate wage statement violations.
Sisyphian resists this conclusion, pointing out that the
Labor Code does not authorize an award of reasonable attorney
fees for violation of the meal and rest break laws. This is both
true and irrelevant. It is true because attorney fees are not
available for violations of the Labor Code’s meal and rest break
provisions. (Kirby v. Immoos Fire Protection, Inc. (2012) 53
Cal.4th 1244, 1248, 1251.) It is irrelevant because, as noted
above, attorney fees are available for violations of its overtime,
minimum wage, and accurate wage statement provisions;
because plaintiff incurred attorney fees on appeal defending the
judgment confirming the arbitration award that rested on
violations of the overtime, minimum wage, and accurate wage
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statement provisions; and because the violations of those
provisions were due to her working nearly 100 hours per week
rather than mere restatements of violations of the meal and rest
break provisions.
In light of our conclusion that plaintiff is entitled to her
attorney fees on appeal pursuant to the Labor Code, we need not
address whether plaintiff is also entitled to recover attorney fees
under the Entertainment Agreement.
DISPOSITION
The judgment is affirmed. Plaintiff is entitled to her costs
and reasonable attorney fees incurred in this appeal, in an
amount to be determined by the trial court.
CERTIFIED FOR PARTIAL PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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