Juarbe v. Jumbleberry Enterprises USA CA2/1 ( 2023 )

Filed 3/1/23 Juarbe v. Jumbleberry Enterprises USA CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ALBERTO JUARBE, B314040
Plaintiff, Cross-defendant (Los Angeles County
and Appellant, Super. Ct. No. 20STCP00545)
v.
JUMBLEBERRY ENTERPRISES
USA LTD.,
Defendant, Cross-complainant
and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Dennis J. Landin, Judge. Affirmed.
Law Office of Gary Kurtz and Gary A. Kurtz for Plaintiff,
Cross-defendant and Appellant.
Gordon Rees Scully Mansukhani and Christopher B.
Queally for Defendant, Cross-complainant and Respondent.
____________________
INTRODUCTION
Appellant Alberto Juarbe is the president of Nutri-burn,
LLC (Nutri-burn). Juarbe signed an agreement pursuant to
which Nutri-burn received marketing services from respondent
Jumbleberry Enterprises USA Ltd. (Jumbleberry). Juarbe
contends that he signed the agreement solely on behalf of Nutri-
burn as Nutri-burn’s corporate representative. Jumbleberry
contends that Juarbe signed the agreement both on behalf of
Nutri-burn and also on behalf of himself personally.
The agreement contained an arbitration provision, and
when a dispute arose over payment for services Jumbleberry had
rendered, Jumbleberry initiated an arbitration proceeding
against both Nutri-burn and Juarbe personally. Neither Nutri-
burn nor Juarbe participated in the arbitration. The arbitrator
ruled in favor of Jumbleberry, awarding it damages payable
jointly by Nutri-burn and Juarbe.
Juarbe later filed a petition in the superior court to vacate
the arbitration award against him personally on the ground he
was not bound by the contract between Nutri-burn and
Jumbleberry. Jumbleberry filed a cross-petition to confirm the
arbitration award. The superior court denied Juarbe’s petition to
vacate on two grounds—that it was untimely and, even if timely,
Juarbe was bound by the contract. The court granted
Jumbleberry’s petition to confirm the arbitration award and
entered judgment to that effect.
2
Juarbe now appeals.1 We affirm because the trial court
properly concluded that Juarbe’s petition to vacate the
arbitration award was untimely. As a consequence, the trial
court was statutorily precluded from considering Juarbe’s
challenge to the arbitration award and was required to confirm
the arbitration award.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Contract
Nutri-burn entered into an agreement with Jumbleberry
under which Jumbleberry provided Nutri-burn with access to
Jumbleberry’s online advertising network of marketing affiliates
to promote Nutri-burn’s products. The agreement was in two
parts, a “Master Service Agreement” (MSA) and a “Jumbleberry
Insertion Order” (Insertion Order). Both agreements identified
Nutri-burn as “Advertiser” and Juarbe as “Advertiser
Owner/Representative.” Juarbe signed both agreements.
1. The MSA
We summarize here those portions of the MSA relevant to
this appeal. The MSA states, on the first page, “This MSA,
together with the insertion orders executed between Jumbleberry
and Advertiser from time to time (‘IO’ or ‘IOs’), governs the rights
and obligations of Advertiser, Advertiser’s undersigned
representative or owner, and Jumbleberry (collectively, ‘the
parties’ and, individually, a/the ‘party’), comprise the entire
agreement between the parties with respect to the subject matter
1 Before the trial court, Juarbe represented that Nutri-burn
had no basis to object to the arbitration award, and Nutri-burn is
not a party to this appeal.
3
hereof (i.e., all of the terms and conditions relating to the
Advertiser’s use of the Network) and supersede and replace any
and all prior agreements entered into by and between
Jumbleberry and the Advertiser, understandings and
representations and warranties, whether written or oral.”
Regarding payment, the MSA states that “Advertiser
agrees to pay Jumbleberry for all advertising published by
Jumbleberry on a Cost per Acquisition (‘CPA’) or Cost per Lead
(‘CPL’) basis, as defined in the applicable [Insertion Order].” The
MSA further states with respect to payment, “Advertiser’s
undersigned signatory or owner, individually and as legal agent
of Advertiser, attests that they have the authority to bind
Advertiser to all Payment terms, and shall remain jointly and
severally liable for any unpaid invoices as well as Advertiser’s
other obligations under the terms of this Agreement.” The MSA
also states “Advertiser agrees that it and its undersigned
representative or owner shall be liable for payment of all invoices
to Jumbleberry.”
The MSA contains a section which lists several
representations and warranties made by the parties, and which
includes the statement “Advertiser’s undersigned representative
or owner provides the same representations and warranties made
by the Advertiser as set forth herein and accepts personal
liability for all obligations of the Advertiser as set forth herein.”
The MSA includes an arbitration provision, which provides
“With respect to any claim brought by Advertiser . . . , the parties
agree to mandatory, confidential, final and binding arbitration
with the sole and exclusive forum for such arbitration in the City
of Toronto, Canada. With respect to any claim brought by
Jumbleberry . . . , the parties agree that venue and personal
4
jurisdiction are proper in the City of Toronto, Canada, New York
City, New York, and/or any other forum in which a party is
subject to personal jurisdiction and that Jumbleberry may elect
in its discretion to bring its claim in mandatory, confidential,
final and binding arbitration or otherwise in a federal or state
court in such forum.” If the arbitration takes place in the United
States, then it “will be administered by the American Arbitration
Association (‘AAA’) according to the Commercial Rules,” while if
the arbitration takes place in Canada, it “will be administered by
the Simplified Arbitration Rules of the ADR Institute of Canada,
Inc.” Finally, “[t]he prevailing party in any claim between the
parties shall be entitled to an award of its costs and attorney’s
fees.”
2. The Insertion Order
As relevant to this appeal, the Insertion Order incorporates
the MSA and provides, in relevant part, that “Jumbleberry will
invoice Advertiser on a weekly basis each Monday for
commissions on CPA orders delivered during the prior seven (7)
day period (Monday to Sunday) to be paid in full within the
‘Payment Terms’ days of receipt of invoice.”2
Both the MSA and Insertion Order were signed and
effective on December 10, 2018. Jumbleberry thereafter
performed under these agreements, and invoiced Nutri-burn
2 As defined in both the MSA and Insertion Order, “CPA”
refers to “Cost per Acquisition”; the Insertion Order defines a
“[CPA a]ction . . . as an internet user clicking on a link tracked by
the Jumbleberry Network, landing on Advertiser’s web site . . .
and completing a purchase or submitting an order on Advertiser’s
website.”
5
$128,820.23 for marketing services. According to Jumbleberry,
no payment was received from either Nutri-burn or Juarbe for
these services.
B. The Dispute and Arbitration Proceeding
On June 5, 2019, Jumbleberry submitted a demand for
arbitration with the AAA to recover on the outstanding invoices.
The International Centre for Dispute Resolution (ICDR), which is
the international division of the AAA, undertook administration
of the arbitration. Attorney Kabir Duggal of Arnold & Porter
LLP in New York, New York was appointed as the arbitrator.
A preliminary hearing in the arbitration was scheduled for
August 14, 2019, and the ICDR sent notice of the hearing to
Juarbe and Nutri-burn by e-mail and overnight mail; however,
neither Nutri-burn nor Juarbe participated in the preliminary
hearing (which was held telephonically) or any other proceeding
in the arbitration. During the preliminary hearing, ICDR called
Nutri-burn and Juarbe at the phone number listed for them on
the Insertion Order without success to attempt securing their
participation in the hearing. The arbitrator and Jumbleberry
continued to send copies of all communications and other
documents related to the arbitration to Nutri-burn and Juarbe at
Juarbe’s e-mail address during the arbitration proceedings.
In his petition in this matter, Juarbe acknowledges that he
and Nutri-burn received notice of the arbitration; Juarbe asserts
he provided it to an attorney, whom he and Nutri-burn assumed
would represent them in the arbitration. Juarbe indicates in his
petition that he and Nutri-burn “disregarded any mail relating to
the arbitration” after it commenced and did not timely receive e-
mails about the arbitration because they were caught by his e-
mail system’s spam filter.
6
In a “[p]artial [f]inal [a]ward” issued on October 7, 2019,
the arbitrator concluded that Jumbleberry and Nutri-burn
entered into an agreement, comprised of the MSA and Insertion
Order, and that the agreement was guaranteed by Juarbe. The
arbitrator determined that Jumbleberry had provided Nutri-burn
with the services promised and had sent Jumbleberry invoices
from December 31, 2018, through February 7, 2019, in the total
amount of $128,820.23, which Nutri-burn had failed to pay.
Based on this, the arbitrator found Nutri-burn and Juarbe
“jointly or severally” liable to pay Jumbleberry $128,820.23.
The arbitrator issued a “[f]inal [a]ward” on November 5,
2019. This award required Nutri-burn and Juarbe to pay
Jumbleberry the $128,820.23, plus $2,025 for arbitration fees and
$6,000 for the arbitrator’s fee, for a total award of $136,845.23.
The arbitrator rejected Jumbleberry’s request for attorney’s fees.
The ICDR served the award on the parties on November 6,
2019, by Federal Express and e-mail.
C. Superior Court Proceedings
1. Juarbe’s Petition to Vacate
Juarbe filed a petition to vacate the arbitration award on
February 10, 2020. Juarbe filed the petition on behalf of himself
only, and not on behalf of Nutri-burn. Juarbe served his petition
by mailing Jumbleberry a notice and acknowledgment of receipt
of the summons and complaint on July 28, 2020; Jumbleberry’s
counsel executed the acknowledgment of receipt on August 4,
2020.
7
In his petition, Juarbe sought to have the arbitration award
vacated pursuant to Code of Civil Procedure3 section 1286.2,
subdivision (b)(4), on the ground the arbitrator “exceeded their
powers” because Juarbe “never agreed to be personally bound by
any contract with Jumbleberry, never agreed to arbitrate with
Jumbleberry, and never submitted to the jurisdiction of the
arbitration or the arbitrator.” Juarbe also asserted a cause of
action for declaratory relief regarding “(a) the identity of the
parties bound by the MSA; (b) the scope of the arbitration
provision in the MSA; (c) whether the arbitration provision in the
MSA is limited to require arbitration between Jumbleberry and
Nutri-[b]urn, exclusively; and (d) whether Mr. Juarbe engaged in
any action or omission that would submit him to the jurisdiction
of the arbitration proceeding initiated by Jumbleberry or the
arbitration award in favor of Jumbleberry.”
Juarbe submitted a declaration in support of his petition to
vacate the arbitration award,4 that acknowledged he signed the
MSA and Insertion Order but indicated that he did not think he
was signing for himself. Juarbe further stated that he did not see
some of the contract language upon which Jumbleberry was
relying to hold him personally liable, and that Jumbleberry’s
sales person “pressured me to immediately sign and return” the
agreements. He stated that “Nutri-[b]urn, LLC did not attend
the arbitration because it made a decision that it would be more
3Unspecified statutory references are to the Code of Civil
Procedure.
4 The copy of the declaration filed with the court
electronically is unsigned. For purposes of deciding this appeal,
we disregard that fact.
8
expensive to appear and defend the arbitration than to simply go
out of business and/or file a corporate bankruptcy.” The
declaration also discussed how, in Juarbe’s view, Jumbleberry’s
services were not as effective as promised, and claimed that
Nutri-burn lost money on the leads provided by Jumbleberry.
On August 14, 2020, Jumbleberry filed a demurrer arguing
that Juarbe’s petition was not timely served in compliance with
section 1288, which requires that a petition to vacate an
arbitration award be “served and filed not later than 100 days
after the date of the service of a signed copy of the award on the
petitioner.” (Ibid.) Jumbleberry requested the trial court take
judicial notice of the acknowledgment of receipt of the summons
and complaint which its counsel had signed on August 4, 2020;
Juarbe had filed the notice and acknowledgment of receipt on
August 6, 2020.
Juarbe opposed the demurrer, arguing his petition was
timely because the arbitration award had never been served in
the manner required by the applicable statute. Juarbe
acknowledged that the statute allowed for service “as provided in
the agreement,” but contended that he was not personally bound
by the MSA. Juarbe also argued, more generally, that the court
should vacate the arbitration award because he was not
personally bound by the MSA or Insertion Order and because the
agreements could not be enforced against him due to lack of
mutuality and consideration.
9
2. Jumbleberry’s Petition to Confirm
On August 19, 2020, Jumbleberry filed a petition to confirm
the arbitration award.5 Jumbleberry brought Nutri-burn into the
action by serving the petition on Nutri-burn through a notice and
acknowledgment of receipt which Juarbe signed and returned on
behalf of Nutri-burn.
Juarbe filed a demurrer to Jumbleberry’s petition, and
otherwise opposed it. Juarbe reiterated the arguments in his
petition to vacate, saying the court should dismiss Jumbleberry’s
petition as against him because he was not personally bound by
the MSA and Insertion Order and the agreements could not be
enforced against him because of lack of mutuality of obligation
and lack of consideration. Juarbe also cited section 1287.2, which
provides that “The court shall dismiss the proceeding under this
chapter as to any person named as a respondent if the court
determines that such person was not bound by the arbitration
award and was not a party to the arbitration.”
In response to these assertions, Jumbleberry argued that
Juarbe was personally bound by the MSA based on the plain
language of the agreement. Addressing Juarbe’s claims that the
contracts lacked mutuality and consideration, it argued those
claims failed because they were not raised in Juarbe’s petition
and also because the arbitrator’s finding that the contract was
5 Jumbleberry filed the declaration of its counsel and a
memorandum of points and authorities in support of the petition
the day before it filed the petition itself. Jumbleberry apparently
delayed filing the petition because it had difficulty filing the
document as a “cross petition,” and had to alter the caption to
refer to the pleading as a cross-complaint. We will refer to this
pleading as a petition.
10
enforceable against Juarbe was binding on the parties and not
reviewable by the court. Jumbleberry also argued that the
arbitration award was properly served according to the methods
set out in the MSA, and therefore Juarbe’s petition was not
timely served.
3. The Trial Court’s Ruling
The court held a hearing on both parties’ demurrers on
November 18, 2020, and took the matter under submission after
oral argument. The next day, the court issued a written order
sustaining Jumbleberry’s demurrer without leave to amend and
overruling Juarbe’s demurrer. The court concluded that Juarbe’s
petition had not been timely served within 100 days of service of
the arbitration award, as required by section 1288. In reaching
this conclusion, the court rejected Juarbe’s argument that the
notice provisions in the MSA did not apply to him.
The court also held that, even assuming Juarbe had timely
served his petition, Juarbe’s challenge to the arbitration award
failed because he was personally bound by the MSA. The court
stated on this point, “The plain language of the MSA expressly
provides that the MSA governs the rights and obligations of
Nutri-[b]urn, Nutri-burn’s ‘undersigned representative or owner’
and Jumbleberry and that ‘the parties’ agree to mandatory,
confidential, final and binding arbitration. . . . Under statutory
rules of contract interpretation, the [c]ourt finds that Juarbe is
bound by the plain language of the MSA’s terms.”
Finally, the court rejected Juarbe’s claim that the MSA was
unenforceable due to lack of mutuality or consideration because
“courts generally cannot review arbitration awards for errors of
fact or law, even when those errors appear on the face of the
award or cause substantial injustice to the parties.”
11
On January 13, 2021, the court held a hearing on
Jumbleberry’s petition to confirm and granted the petition. On
February 25, 2021, Jumbleberry filed a motion for attorney’s fees,
costs and interest pursuant to the terms of the MSA. Juarbe
opposed the motion on April 8, 2021. On May 4, 2021, the court
granted Jumbleberry’s motion for attorney’s fees, costs and pre-
judgment interest.
On May 10, 2021, the court entered judgment in favor of
Jumbleberry and against Nutri-burn and Juarbe, confirming the
arbitration award against both Nutri-burn and Juarbe and
holding Nutri-burn and Juarbe jointly and severally liable to
Jumbleberry in the total amount of $190,237.76, comprised of
$136,845.23 for the arbitration award, $20,574 in attorney’s fees,
$2,038.53 in costs, and $30,780 in pre-judgment interest.
On July 9, 2021, Juarbe timely appealed.
DISCUSSION
A. Legal Principles and Standard of Review
“California law favors alternative dispute resolution as a
viable means of resolving legal conflicts.” (Richey v. AutoNation,
Inc. (2015) 60 Cal.4th 909, 916.) “[I]t is the general rule that
parties to a private arbitration impliedly agree that the
arbitrator’s decision will be both binding and final.” (Moncharsh
v. Heily & Blase (1992) 3 Cal.4th 1, 9, fn. omitted.) “Because the
decision to arbitrate grievances evinces the parties’ intent to
bypass the judicial system and thus avoid potential delays at the
trial and appellate levels, arbitral finality is a core component of
the parties’ agreement to submit to arbitration.” (Id. at p. 10.)
“[J]udicial review of private, binding arbitration awards is
generally limited to the statutory grounds for vacating (§ 1286.2)
or correcting (§ 1286.6) an award.” (Moshonov v. Walsh (2000) 22
12
Cal.4th 771, 775, citing Moncharsh v. Heily & Blase, supra, 3
Cal.4th at pp. 8-28.) Thus, there are three types of petitions
available—to vacate, correct or confirm an award. (§ 1285.)
When any of type of petition is 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.” (§ 1286.) Pursuant to section 1287.4, “If an award is
confirmed, judgment shall be entered in conformity
therewith. . . .”
“We apply de novo review to an order sustaining a
demurrer.” (SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29
Cal.App.5th 146, 152.) In reviewing a trial court’s ruling on a
petition to confirm, correct or vacate an arbitration award,
“ ‘Issues of statutory interpretation and the application of that
interpretation to a set of undisputed facts are questions of law
subject to independent review . . . . [Citation.]’ [Citation.]” (Soni
v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1087.)
Furthermore, “We independently review the trial court’s
interpretation of a contract, including the resolution of any
ambiguity, unless the interpretation depends on the trial court’s
resolution of factual questions concerning the credibility of
extrinsic evidence. [Citation.]” (Dowling v. Farmers Ins.
Exchange (2012) 208 Cal.App.4th 685, 694.) “We apply the
substantial evidence test to the trial court’s determination of
disputed factual issues.” (Soni, supra, at p. 1087.)
B. Juarbe’s Challenge to the Arbitration Award Was
Untimely
There are different deadlines for a petition to vacate or
correct an arbitration award, on the one hand, and for a petition
13
to confirm an award, on the other. A petition to vacate or correct
an award “shall be served and filed not later than 100 days after
the date of the service of a signed copy of the award on the
petitioner.” (§ 1288.) A petition to confirm need not be filed and
served until up to four years after a signed copy of the award is
served. (Ibid.) Although a party may, in a response to another
party’s petition, “request the court to dismiss the petition or to
confirm, correct or vacate the award” (§ 1285.2), a response
requesting vacatur or correction is subject to the 100-day
deadline (§ 1288.2).6 The end result of these various deadlines is
6 Such a response “shall be served and filed not later than
100 days after the date of service of a signed copy of the award
upon: [¶] (a) The respondent if he was a party to the arbitration;
or [¶] (b) The respondent’s representative if the respondent was
not a party to the arbitration.” (§ 1288.2) “[S]ections 1288.2 and
1288 together establish a clear deadline of 100 days after which a
request to vacate is untimely.” (Law Finance Group, LLC v. Key
(2021) 67 Cal.App.5th 307, 319, 322, review granted Nov. 10,
2021, S270798.) While section 1290.6 provides that a response to
a petition “shall be served and filed within 10 days after service
of the petition,” “There is nothing in the statutory scheme
suggesting that the Legislature intended the procedural rule in
section 1290.6 governing all responses to take precedence over
the firm time limitation in section 1288.2 applicable to requests
to vacate.” (Law Finance Group, supra, at p. 319.) Thus, “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
after service of the petition to confirm.” (Darby v. Sisyphian, LLC
(2023) 87 Cal.App.5th 1100, 1111, citing Douglass v. Serenivision,
Inc. (2018) 20 Cal.App.5th 376, 384-385.)
14
that a party who seeks to have an arbitration award vacated or
corrected must file either a petition or a response to another
party’s petition within 100 days of being served with a signed
copy of the arbitration award. Pursuant to section 1286.4, a trial
court “may not vacate an award unless” a party has requested
vacatur or correction of the award in a petition or response that
“has been duly served and filed.”
Here, Juarbe filed a petition to vacate the arbitration
award. While he filed the petition within the 100-day period
following service of the arbitration award, he failed to timely
serve the petition within the 100 days. This is fatal because the
statute required both filing and service of Juarbe’s petition to
vacate within 100 days of the service of the arbitration award.
(§ 1288.) The arbitration award was served on the parties on
November 6, 2019. Adding two court days for electronic service
(§ 1010.6, subd. (a)(3)(B)), the 100-day period ended on
February 18, 2020.7 Juarbe filed his petition on February 10,
2020, but did not serve it until August 4, 2020, when
Jumbleberry’s counsel executed an acknowledgment of receipt of
the summons and complaint. Thus, Juarbe missed the deadline
to serve his petition by more than five months. Juarbe also
sought vacatur of the award in his response to Jumbleberry’s
petition, but that response was served on September 3, 2020, and
filed the next day, and was thus untimely under section 1288.2 to
the extent it sought to vacate the award.
7Juarbe acknowledges the “award was circulated by email
and Federal Express.” As we discuss below, service of the award
by e-mail was authorized under the MSA and, therefore, under
the applicable statute. However, it is unclear whether the service
by Federal Express here complied with the MSA.
15
Juarbe contends that his petition to vacate was timely
because the arbitration award was not properly served on him
and, as a result, the 100-day period set forth in section 1288
never began to run. Juarbe relies on section 1283.6, which
provides that “The neutral arbitrator shall serve a signed copy of
the award on each party to the arbitration personally or by
registered or certified mail or as provided in the agreement.”
Juarbe points out that he was not served personally or by
registered or certified mail.
Section 1283.6 allows for service “as provided in the
agreement,” meaning here the MSA and Insertion Order. (See
§ 1280, subd. (a) [defining “ ‘Agreement’ ”].) Jumbleberry points
out that the MSA allows for “notices, claims and other
communications” under the agreement to be delivered in various
ways, including “electronically” and “by overnight delivery
service.”
Juarbe responds with three arguments. First, he contends
that he is not personally bound by the MSA because he did not
sign it in his personal capacity. Second, he contends the
agreement is unenforceable because of a lack of mutuality of
obligation and lack of consideration. Third, he contends that,
even if he is bound by the MSA, it does not specify how the
arbitration award was to be served. As explained below, we do
not find these arguments persuasive.
1. Juarbe Was Personally Bound by the MSA
“The basic goal of contract interpretation is to give effect to
the parties’ mutual intent at the time of contracting. (Civ. Code,
§ 1636; [citation].) When a contract is reduced to writing, the
parties’ intention is determined from the writing alone, if
possible. (Civ. Code, § 1639.) ‘The words of a contract are to be
16
understood in their ordinary and popular sense.’ (Civ. Code,
§ 1644; [citation].)” (Founding Members of the Newport Beach
Country Club v. Newport Beach Country Club, Inc. (2003) 109
Cal.App.4th 944, 955 (Founding Members).) “ ‘Contract
formation is governed by objective manifestations, not the
subjective intent of any individual involved. [Citations.] The test
is “what the outward manifestations of consent would lead a
reasonable person to believe.” [Citation.]’ [Citation.]” (Allen v.
Smith (2002) 94 Cal.App.4th 1270, 1277.) Thus, “[t]he parties’
undisclosed intent or understanding is irrelevant to contract
interpretation. [Citations.]” (Founding Members, supra, at
p. 956.)
The clear, conspicuous, and plain terms of the MSA provide
that Juarbe was personally obligated under that agreement.
Juarbe acknowledges he signed the MSA but contends he did so
solely in his capacity as Nutri-burn’s president. The terms of the
MSA, however, refute this contention. First, the MSA indicates it
is an agreement between Jumbleberry “and the following,” and
what follows is the table reproduced below:
ADVERTISER INFORMATION
Advertiser Name Nutri-burn LLC
2118 Wilshire blvd #213
Advertiser Address
santa monica, california 90403
usa
Advertiser Owner
Alberto Juarbe Email alberto@verifiedmediagroup.com
/ Representative
Title Phone (949) 350-4448
The MSA then states, “This MSA, together with the insertion
orders executed between Jumbleberry and Advertiser from time
to time (‘IO’ or ‘IOs’), governs the rights and obligations of
Advertiser, Advertiser’s undersigned representative or
17
owner, and Jumbleberry (collectively, ‘the parties’ and,
individually, a/the ‘party’) . . . .” (Bold added.) Thus, under
the terms of the MSA, Juarbe is a “party” to the MSA, and the
agreement governs the rights and obligations of “Advertiser’s
undersigned representative or owner,” namely, Juarbe.
The MSA also states, in a section titled “Payment and
Deposit,” “Advertiser’s undersigned signatory or owner,
individually and as legal agent of Advertiser, attests that they
have the authority to bind Advertiser to all Payment Terms, and
shall remain jointly and severally liable for any unpaid
invoices as well as Advertiser’s other obligations under
the terms of this Agreement.” (Bold added.) This provision
makes clear that Juarbe was signing in both a personal and
representative capacity and is personally liable for payment on
the advertiser’s behalf and for advertiser’s other obligations
under the agreement.
In addition, in the contract section regarding
representations and warranties made by the parties, the MSA
states, “Advertiser’s undersigned representative or owner
provides the same representations and warranties made by the
Advertiser as set forth herein and accepts personal liability
for all obligations of the Advertiser as set forth herein.”
(Bold added.) This provision thus expressly states that Juarbe
was signing on his own behalf and would be personally liable
under the agreement.
Finally, the arbitration provision states “the parties agree”
that Nutri-burn will arbitrate its claims and that Jumbleberry
can elect to arbitrate its claims; as is noted above, the MSA
defines “parties” to include the “Advertiser’s undersigned
representative or owner,” namely, Juarbe.
18
In sum, the MSA clearly indicates the intent of the parties
(with Juarbe being one of those parties) that Juarbe will be
personally responsible under the agreement. The terms are not
hidden and are not ambiguous.8 “In the absence of fraud,
mistake, or another vitiating factor, a signature on a written
contract is an objective manifestation of assent to the terms set
forth there.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020,
1027.)
Juarbe points out that there is only one signature line for
the advertiser owner/representative, and the signature block does
not state that the signature is both on behalf of the advertiser
and the person signing. However, the contract terms discussed
above clearly indicate that the person signing on behalf of the
advertiser is also binding themself personally.9 Juarbe cites
cases for the proposition that a contract cannot be enforced
against a party who has not signed the contract. (E.g., Jones v.
Jacobson (2011) 195 Cal.App.4th 1, 17; Smith v. Microskills San
Diego L.P. (2007) 153 Cal.App.4th 892, 896.) This proposition is
8 Juarbe’s argument that the agreements must be
interpreted against Jumbleberry because Jumbleberry prepared
them fails because we do not find the agreements to be
ambiguous as to whether or not Juarbe is personally bound. This
rule of interpretation only applies where contract terms are
ambiguous. (Civ. Code, § 1654; Howe v. American Baptist Homes
of the West, Inc. (1980) 112 Cal.App.3d 622, 628.)
9 The fact that the MSA expressly imposes substantive
obligations on Juarbe distinguishes this case from Freedman v.
Brutzkus (2010) 182 Cal.App.4th 1065, 1070, in which the court
held that an attorney’s “signature approving the document as to
form and content was not an actionable representation to” the
opposing counsel.
19
inapt here because Juarbe did sign the MSA. Juarbe contends
that he signed only on behalf of Nutri-burn, but the terms of the
contract evince the parties’ intent that Juarbe be personally
bound. Thus, the cases Juarbe cites for the proposition that a
corporate officer or director who signs an arbitration agreement
solely in their representative capacity is not bound by the
agreement are also inapposite. (See Cohen v. TNP 2008
Participating Notes Program, LLC (2019) 31 Cal.App.5th 840,
865-867; Benasra v. Marciano (2001) 92 Cal.App.4th 987, 990.)
In a declaration submitted in support of his petition to
vacate, Juarbe acknowledged that he signed the MSA and
Insertion Order but stated that he “did not carefully read the
agreements” and did not see some of the contract language upon
which Jumbleberry was relying to hold him personally liable.
Juarbe’s appellate briefing does not make a similar argument.
Regardless, to the extent Juarbe suggests he should not be bound
by the MSA because he did not thoroughly review it before
signing, his claim fails because reasonable diligence requires a
party to read a contract before signing it. (Harris v. TAP
Worldwide, LLC (2016) 248 Cal.App.4th 373, 383; see Hulsey v.
Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 339 [“It is
well established, in the absence of fraud, overreaching or
excusable neglect, that one who signs an instrument may not
avoid the impact of its terms on the ground that he failed to read
the instrument before signing it”].) Juarbe’s declaration also
states that his “understanding of the documents and intention at
the time was that the contract was between Jumbleberry and
Nutri-[b]urn, LLC, not Jumbleberry and Alberto Juarbe.” Such
“undisclosed intent or understanding is irrelevant to contract
20
interpretation.” (Founding Members, supra, 109 Cal.App.4th at
p. 956.)
In conclusion, the terms of the MSA expressly and
unambiguously impose obligations on Juarbe and evince the
parties’ intent that Juarbe be personally bound by the agreement.
2. The MSA Is Enforceable Against Juarbe
Relying on Bleecher v. Conte (1981) 29 Cal.3d 345, Juarbe
contends the MSA is unenforceable as against him for lack of
mutuality of obligation. In Bleecher, the court addressed whether
an agreement “lacked mutuality of obligation and, therefore, was
unenforceable.” (Id. at p. 350.) It explained that “[a] bilateral
contract is one in which there are mutual promises given in
consideration of each other. [Citations.] The promises of each
party must be legally binding in order for them to be deemed
consideration for each other. [Citation.]” (Ibid.)
Juarbe argues that the MSA lacks mutuality of obligation
because Jumbleberry only owes obligations to Nutri-burn, not to
Juarbe, and because, under the terms of the MSA, he cannot
compel Jumbleberry to arbitrate whereas both Jumbleberry and
Nutri-burn can compel arbitration. Juarbe also argues that
consideration for his promise was lacking because he did not
personally benefit from the MSA or Insertion Order.
Juarbe’s arguments fail because while “a contract is
illusory where one party provides no legal consideration
whatsoever,” it is not true that “every individual promise in a
contract must be supported by new and different consideration.
Generally speaking, the rule is to the contrary: one promise in a
contract ‘may be consideration for several counter promises.’
(1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 215,
p. 224; accord, 2 Corbin on Contracts (rev. ed.1995) § 5.12, pp. 56-
21
57 [‘A single and undivided consideration may be bargained for
and given as the agreed equivalent of one promise or of two
promises or of many promises. The consideration is not rendered
invalid by the fact that it is exchanged for more than one
promise. If it could support each of the promises taken
separately it is consideration for all of them.’ (Fns. omitted.)]”
(Martin v. World Savings & Loan Assn. (2001) 92 Cal.App.4th
803, 809.)
There was mutuality of obligation here because each of the
three parties to the MSA made legally binding promises. Among
other promises, Jumbleberry agreed to provide access to its
online advertising network of marketing affiliates, Nutri-burn
agreed to pay for that access, and Juarbe agreed to be jointly
liable for payment. Juarbe benefitted from the MSA and
Insertion Order because his company, Nutri-burn, benefitted.
Even assuming for the sake of argument that Juarbe did
not receive any consideration personally, his agreement to be
jointly liable for payment qualifies him as a “surety or
guarantor,” which is defined as “one who promises to answer for
the debt, default, or miscarriage of another.” (Civ. Code, § 2787.)
Civil Code section 2792 provides that “Where a suretyship
obligation is entered into at the same time with the original
obligation, or with the acceptance of the latter by the creditor,
and forms with that obligation a part of the consideration to him,
no other consideration need exist. . . .” Here, Juarbe entered the
MSA at the same time as did Nutri-burn, and thus under Civil
Code section 2792 “no other consideration” is required for Juarbe
to be bound as a surety or guarantor. (Rancho Santa Fe
Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 878.)
22
Therefore, Juarbe’s claims that the MSA was unenforceable
against him for lack of mutual obligation and lack of
consideration fail.
3. The Parties’ Agreement Permitted Service of the
Arbitration Award by E-mail
Section 1283.6 governs service of the arbitration award and
allows service “on each party to the arbitration personally or by
registered or certified mail or as provided in the agreement.”
Juarbe contends that the MSA does not govern how the
arbitration award was to be served, and thus the award had to be
served personally or by registered or certified mail (which it was
not).
The term “agreement” for alternative forms of service, as
used in section 1283.6, includes the MSA at issue here. (§ 1280,
subd. (a) [defining “ ‘Agreement’ ”].) The MSA, which contains
the arbitration provisions between the parties, provides that
“[a]ll notices, claims and other communications hereunder will be
in writing and will be deemed to have been duly given if provided
electronically, personally delivered to an officer or mailed by
registered or certified mail, return receipt requested by overnight
delivery service to the parties at their respective addresses.”
This provision, which applies to “all” notices and other
communications related to the MSA, covers the arbitration
award, and clearly authorizes service by e-mail.10
10 The provision also authorizes delivery “by registered or
certified mail, return receipt requested by overnight delivery
service.” It is unclear whether this includes delivery by a private
service, such as Federal Express; if it does, it appears to require a
return receipt. It is unclear from the record whether the delivery
23
Juarbe does not dispute that the arbitration award was
served on him by e-mail. In his petition to vacate, Juarbe
indicates that he did not timely receive some e-mail notices
because they were caught in his e-mail system’s spam folder.
However, there can be no doubt that he had received the
arbitration award by the time he filed his petition to vacate, as a
copy of the award was attached to his petition. Yet, even starting
the 100-day period from the date Juarbe filed his petition on
February 10, 2020, he still delayed well over 100 days, until
August 4, 2020, before serving his petition. Under these
circumstances, Juarbe did not serve his petition within 100 days
of service as required by section 1288.
4. Conclusion
Based on the above, we conclude that Juarbe’s petition to
vacate was untimely and the trial court was thus precluded from
considering his challenge to the arbitration award. Juarbe’s
response to Jumbleberry’s petition was also untimely to the
extent it sought to vacate the arbitration award. Juarbe’s
“failure to timely [serve and] file a petition or response seeking to
vacate or correct [the arbitration] award before the trial court
deprives us of the ability to consider [his] arguments on appeal
seeking to vacate . . . that award.” (Darby v. Sisyphian, LLC,
supra, 87 Cal.App.5th at p. 1114, fn. omitted; see Soni v.
SimpleLayers, Inc., supra, 42 Cal.App.5th at pp. 1092-1093 [party
is barred from challenging confirmation of an arbitration award if
they fail to timely file and serve a petition, or a response to
another party’s petition, seeking vacatur or correction of the
of the arbitration award by Federal Express included a request
for a return receipt.
24
award].) Pursuant to section 1286.4, the trial court was
precluded from vacating the arbitration award because Juarbe
had not “duly served and filed” either a petition to vacate or
correct or a response seeking such relief.
C. Section 1287.2 Does Not Apply
Juarbe lastly argues that the trial court should have
dismissed Jumbleberry’s petition to confirm the arbitration
award under section 1287.2, which provides that “The court shall
dismiss the proceeding under this chapter as to any person
named as a respondent if the court determines that such person
was not bound by the arbitration award and was not a party to
the arbitration.”
A motion to dismiss under section 1287.2 is not subject to
the 100-day deadline which applies to petitions to vacate or
correct an arbitration award. However, given our conclusion that
Juarbe was a party to the arbitration, he cannot invoke section
1287.2. The phrase “party to the arbitration” is specially defined
in section 1280 as “a party to the arbitration agreement,
including any of the following:
“(1) A party who seeks to arbitrate a controversy pursuant
to the agreement.
“(2) A party against whom such arbitration is sought
pursuant to the agreement.
“(3) A party who is made a party to the arbitration by order
of the neutral arbitrator upon that party’s application, upon the
application of any other party to the arbitration, or upon the
neutral arbitrator’s own determination.” (§ 1280, subd. (h).)
Juarbe fits within this definition. First, he was a party to
the MSA and the arbitration provision included within the MSA.
As explained above, Juarbe was personally bound under the
25
MSA, and he was included in the term “parties” on the first page
of the MSA and the arbitration provision in which “the parties”
agreed that Jumbleberry could elect to arbitrate its claims.
Second, Jumbleberry sought to arbitrate its claim against Juarbe
by naming him as a respondent in its demand for arbitration.
Juarbe admitted in his petition to vacate that Jumbleberry
“started the process of initiating an arbitration” against him
personally and Nutri-burn, and that he and Nutri-burn received
notice of the arbitration. Thus, section 1287.2 does not apply to
Juarbe.
DISPOSITION
The judgment is affirmed. Jumbleberry is awarded its
costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
CHANEY, J.
BENDIX, Acting P. J.
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