Ali v. Cadena Creek Mobile Home Park

Filed 9/24/07 Ali v. Cadena Creek Mobile Home Park CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Christopher J. Warner, Judge. Affirmed as to case No. E038626. Reversed as to case No. E039992.

Berger Kahn and Arthur Grebow for Defendants and Appellants.

Stuart M. Parker for Plaintiffs and Respondents.

BACKGROUND AND SYNOPSIS OF OPINION

In these consolidated appeals, we address multiple issues arising from an arbitration between a mobilehome park and residents of the park. The residents, the Alis, sued the mobilehome park for unfair business practices (Bus. & Prof. Code, 17200 et seq.) and conspiracy to violate statutory duties in connection with rental agreements which they contended violated the state Mobilehome Residency Law (Civ. Code, 798 et seq.) and the City of Coltons rent control ordinance. They sought restitution and injunctive relief. In their cause of action for unfair business practices, they sued on behalf of themselves and of the public at large.

The arbitrator awarded the Alis the relief they sought in their individual capacities, and awarded restitution to 16 unnamed residents of the mobilehome park. The trial court confirmed both awards, and Cadena Creek Mobile Home Park et al. (hereafter collectively Cadena) appealed.

In case No. E038626, which is the appeal from the judgment based on the award as to the Alis in their individual capacity, we determine that although Cadenas appeal is not barred for failure to file a timely and legally adequate challenge to the award below, as the Alis contend, the substance of their appeal is without merit. In case No. E039992, which is the appeal from the judgment based on the award to the 16 unnamed residents, we conclude that the Alis lost standing to pursue that claim following passage of Proposition 64, which amended the unfair business practices statutes, effective November 3, 2004.

THE ARBITRATION PROCEEDINGS^[1]

In 1999, the Alis entered into a 10-year lease agreement with Cadena for space 240 in the Cadena Creek Mobile Home Park in Colton. The lease, including an addendum of the same date, provided for a monthly rent of $119 per month for the first year, $219 per month for the second year and $319 per month for the third year. Thereafter, increases were calculated pursuant to a formula set forth in the lease. The lease recited that it was exempt from the City of Coltons rent control ordinance in effect at the time.

Civil Code section 798.17 provides that mobilehome rental agreements are exempt from rent control ordinances, if they meet the following criteria: (1) The rental agreement shall be in excess of 12 months duration. [] (2) The rental agreement shall be entered into between the management and a homeowner for the personal and actual residence of the homeowner. [] (3) The homeowner shall have at least 30 days from the date the rental agreement is first offered to the homeowner to accept or reject the rental agreement. [] (4) The homeowner who executes a rental agreement offered pursuant to this section may void the rental agreement by notifying management in writing within 72 hours of the homeowners execution of the rental agreement. (Civ. Code, 798.17, subds. (a), (b).)

Civil Code section 798.17 further provides, If, pursuant to paragraph (3) or (4) of subdivision (b), the homeowner rejects the offered rental agreement or rescinds a signed rental agreement, the homeowner shall be entitled to instead accept, pursuant to Section 798.18, a rental agreement for a term of 12 months or less from the date the offered rental agreement was to have begun. In the event the homeowner elects to have a rental agreement for a term of 12 months or less, including a month-to-month rental agreement, the rental agreement shall contain the same rental charges, terms, and conditions as the rental agreement offered pursuant to subdivision (b), during the first 12 months, except for options, if any, contained in the offered rental agreement to extend or renew the rental agreement. (Civ. Code, 798.17, subd. (c).)

The arbitrator found that Cadena violated Civil Code section 798.17, subdivision (c) because the Alis were not offered a 12-month lease at the same rent. Rather, to obtain a 12-month lease or a month-to-month tenancy, they would have been required to pay $390 per month instead of $119 per month, as provided in the lease for the first year.

Citing the benefits the Alis had derived from the long-term lease, the arbitrator chose not to rescind the rental agreement. Rather, he deemed all terms of the Lease Agreement that attempt to exempt it from the provisions of the City of Coltons ordinances on rent control or to calculate increases in rent inconsistent therewith modified to comply with Coltons ordinances. He found the fair initial rent for the first year for the 33 new mobilehomes moved into the park in 1999 to be $133.03 per month, and calculated restitution to the Alis and the 16 unnamed tenants based on that figure.^[2] He awarded the Alis and the 16 unnamed tenants a total of $146,843.82 as restitution through July 1, 2004. The Alis share of that award was $8,084.48.

As to the Alis, the arbitrator also issued a permanent injunction, prohibiting Cadena from charging rent in excess of the amount allowed under the Colton rent control ordinance. He awarded them prejudgment interest in the amount of $1,665.36; $50,300 in attorney fees incurred through December 31, 2004; and $8,602.12 in costs through that date. He denied their request for treble damages pursuant to the Colton rent control ordinance and for penalties pursuant to Civil Code section 798.86, subdivision (a).

On May 18, 2005, the trial court confirmed the award as to the Alis in their individual capacity and entered judgment accordingly. The judgment included additional attorney fees and costs, as found by the arbitrator.

On October 11, 2005, the court confirmed the award as to the Alis acting in their capacity as representatives of the 16 unnamed tenants. Judgment was entered accordingly, including an award of prejudgment interest and attorney fees.

LEGAL ANALYSIS

Case No. E038626

CADENAS RESPONSE TO THE PETITION TO CONFIRM THE AWARD WAS TIMELY AND LEGALLY SUFFICIENT

Background and Standard of Review

We first address the Alis contention that Cadenas appeal is barred because Cadena failed to file a timely request in the trial court to vacate or correct the award.

Code of Civil Procedure section 1286.4 provides that a trial court may vacate an arbitration award if a party files and serves either a petition to vacate or correct the award or a response [to a petition to confirm the award] requesting that the award be vacated . . . or . . . corrected.^[3] ( 1286.4, subds. (a), (b).) Both a petition to vacate or correct the award and a response to a petition to confirm the award, in which the opponent requests vacation or correction of the award, must be filed within 100 days after a signed copy of the award is mailed to the parties. ( 1288, 1288.2.)^[4] In addition, a response to a petition to confirm must be filed within 10 days after service of the petition. ( 1290.6.) If the party who lost the arbitration does not serve and file a petition or a response asking the court to correct or vacate the award within the 100-day period allowed in sections 1288 and 1288.2, the trial court must confirm the award. (Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 398.) If no petition or response asking the court to vacate or correct the award is filed, the party is also precluded from challenging the award on appeal. (Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 393-396.)

Cadena did not file a petition to vacate or correct the award, but it did file a timely response to the Alis petition to confirm the March 18 award (i.e., within 10 days after service of the petition to confirm and within 100 days after the March 18 award was mailed to the parties). The Alis contend that the response was not a timely request to vacate or correct the award because it was filed more than 100 days after the Phase I award was mailed on November 4, 2004.^[5] They also contend that the response was not legally sufficient because, instead of seeking to vacate or correct the award as provided for in section 1285.2, Cadenas response asked the court to deny the Alis petition.^[6] Cadena asserts that the Phase I award was merely an interim award and not subject to confirmation. Therefore, a request to vacate the Phase I award was unnecessary, and its opposition to the Alis petition to confirm the March 18 award constituted a timely and sufficient challenge to the final award, which incorporated the Phase I award.

Because the material facts are undisputed, we review the issue de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.) We conclude that Cadenas response to the motion to confirm the March 18 award was both timely and legally sufficient.

Timeliness

The Alis contention that Cadenas appeal is barred rests on the premise that Cadenas response was not timely because it was filed more than 100 days after the Phase I award was mailed. They contend that the Phase I award was final with respect to all of the issues Cadena raises on appeal, except for the issues of attorneys fees, pre-judgment interest, and injunction, and that Cadena was therefore required to file a timely request to vacate the Phase I award. We disagree.

An arbitration award is final if it resolves all of the issues necessary to determine the controversy. ( 1283.4.) An award may be deemed final if it resolves all issues on the merits of the controversy but reserves determination of the amount of attorney fees found to be due to the prevailing party. (Rosenquist v. Haralambides (1987) 192 Cal.App.3d 62, 68-69.) However, an arbitrator may also issue an interim decision which resolves all matters except those issues, such as an award of costs or attorney fees, which are more appropriately decided after the arbitrator has reached a decision on the merits of the dispute. The final award would then issue only after the arbitrator has determined those issues. (See Knight et al., Cal. Practice Guide: Alternative Dispute Resolution (The Rutter Group 2006) 5:422.5 to 5:422.6, p. 5-277.) The interim decision, not being an award, cannot be confirmed. (Id. at 5:422.5, p. 5-277.)

Here, the Phase I award appears to be a final award, in that the arbitrator purported to resolve all issues except the Alis motion to fix attorney fees and costs and their motion for statutory treble damages. The arbitrator referred to those motions as the Phase II issues. However, the March 18 award, which was not entitled Phase II award but Arbitration Award, did not decide only those two issues. Rather, it also determined that the Alis were entitled to prejudgment interest. It awarded them $1,665.36 in prejudgment interest. More significantly, it issued a permanent injunction prohibiting Cadena from charging rents in excess of those allowed under the City of Coltons rent control ordinance and setting the current amount Cadena could charge the Alis. The injunction is one of the remedies sought in the first amended complaint. Thus, although the Phase I award as written has the appearance of being a final award, subject only to determination of fees and costs, it did not in reality determine the merits of all issues submitted to the arbitrator.

The parties do not explain how an essential issue on the merits of the dispute which was omitted from the Phase I award came to be decided in the March 18 award. However, Cadena did not seek to vacate the award on the ground that the arbitrator had lost jurisdiction to decide that issue by virtue of having issued a final award. Nor did the Alis seek to confirm the Phase I award. Rather, they waited until the arbitrator issued the March 18 award before filing a petition to confirm that award. Taken all together, these circumstances indicate that the parties were aware that issues remained to be resolved on the merits of the dispute and viewed the Phase I award as an interim decision only. Moreover, the March 18 award incorporated all of the issues set forth as resolved in the Phase I award as to the Alis as individuals, as well as granting additional relief. This further supports the conclusion that the parties and the arbitrator viewed the Phase I award as interim only.

As Cadena notes, Hightower v. Superior Court (2001) 86 Cal.App.4th 1415, relied upon by the trial court, does not compel a different conclusion. Hightower merely holds that under appropriate circumstances, an arbitrator may make a final disposition in more than one award, where, for example, resolution of all issues requires the completion of incremental steps which may, in themselves, give rise to additional issues which must be resolved before the entire controversy between the parties can be resolved. Where multiple incremental or successive awards are necessary or useful in reaching a final disposition, a partial final award may be confirmed. (Id. at pp. 1433-1434 & fn. 29.) The Phase I award does not involve such incremental steps, and Hightower therefore does not assist us in determining whether it was an interim decision or a final award.

We conclude that the Phase I award was merely an interim decision and that the March 18 award was the final award in this case.^[7]Cadenas response to the Alis petition to confirm the March 18 award was therefore filed within the time limits specified in sections 1288, 1288.2 and 1290.6.

Sufficiency of the Response

In our request for supplemental briefing, we suggested to the parties that Cadenas response, although timely, might nevertheless not be legally sufficient to preserve Cadenas right to appeal because Cadena did not ask the superior court to vacate or correct the award, but instead asked the court to deny the petition to confirm the award. Both parties responded with supplemental briefing. For the following reasons, we conclude that Cadenas opposition to the petition to confirm the award substantially complied with the statutory requirements, and that substantial compliance, rather than strict compliance, is sufficient.

The Code of Civil Procedure provides that, upon a timely and duly served request, a trial court may vacate or correct an arbitration award, or it may dismiss the proceeding. ( 1286-1286.8.) The proceedingi.e., the petition to confirm the awardmay be dismissed only if any person named as a respondent was not bound by the arbitration and was not a party to the arbitration. ( 1287.2.) The code does not provide for an order denying a petition to confirm an award. Thus, according to the express language of the pertinent statutes, a court has only three options in ruling on a petition to confirm an arbitration award with respect to the parties bound by the award: confirm, vacate or correct the award. The Alis contend, therefore, that a response to a petition to confirm an award which requests that the petition be denied is a legal nullity.

Cadena contends that it substantially complied with the applicable statutes, in that its response asserted the statutory grounds for vacating an arbitration award. Relying on MacDonald v. San Diego State University (1980) 111 Cal.App.3d 67, it contends that substantial compliance suffices, especially where neither the court nor the Alis could have harbored any doubt that Cadena sought to vacate the award.

In MacDonald v. San Diego State University, supra, 111 Cal.App.3d 67, the university filed a response to MacDonalds petition to confirm an arbitration award, praying that the petition be denied and the action dismissed as improvidently filed. The trial court corrected the award to delete any monetary award and confirmed the award as corrected. MacDonald appealed. (Id. at pp. 70, 79.) The Court of Appeal held that while the universitys prayer for dismissal could not be deemed a request to correct the award, it could, if liberally construed, be deemed a request to vacate the award. The court held that section 1286.8, which requires a request for correction as prerequisite to an order correcting an award, therefore did not bar correction of the award.^[8] However, the court held that the request was not timely. Accordingly, it reversed the judgment insofar as it deleted the monetary award. (MacDonald v. San Diego State University, supra, at pp. 79-81.)

We agree with MacDonald v. San Diego State University,although for different reasons, that a timely response to a petition to confirm an arbitration award should be construed liberally. It should be deemed to be legally sufficient if it substantially complies with either section 1286.2, which states the grounds for vacating an award, or with section 1286.6, which states the grounds for correcting an award. Statutes relating to arbitration are regarded as remedial in nature. They are therefore to be construed liberally. (See, e.g., Accito v. Matmor Canning Co. (1954) 128 Cal.App.2d 631, 633-634; Horn v. Gurewitz (1968) 261 Cal.App.2d 255, 261.) Accordingly, substantial compliance with arbitration statutes is sufficient (Accito v. Matmor Canning Co., supra, at pp. 633-634; Horn v. Gurewitz, supra, at p. 261), at least in the absence of prejudice to the opposing party.

Here, Cadenas response was based on section 1286.2, subdivision (a)(4). That section provides that the court shall vacate the award if the court finds that [t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. ( 1286.2, subd. (a)(4).) The basis for that argument was thoroughly explained in Cadenas response.Therefore, despite the fallacy of requesting that the court deny the petition to confirm rather than asking that the court vacate the award, neither the Alis nor the court were misled as to what Cadenas contentions were or the relief it was actually seeking. Thus, Cadenas response substantially complied with section 1286.4, and was legally sufficient to preserve its right to appeal. (Knass v. Blue Cross of California, supra, 228 Cal.App.3d at pp. 393-396.)

THE ARBITRATOR DID NOT EXCEED HIS POWER

An arbitration award can be vacated on the statutory ground that the arbitrator exceeded his power. ( 1286.2; Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 366, 375 (hereafter Advanced Micro).) A judgment entered after confirmation of an arbitration award can be challenged on the same ground. (Mid-Wilshire Associates v. OLeary (1992) 7 Cal.App.4th 1450, 1454-1455.) Whether an arbitrator exceeded his powers is generally a question of law, which we review de novo. (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 945.) In doing so, however, we must accord substantial deference to the arbitrator[s] own assessment[] of [his] contractual authority. (Advanced Micro, supra, 9 Cal.4th at p. 373.)

Cadena contends that the arbitrator exceeded his power because he arbitrarily remade the rental agreement and awarded a remedy allowed neither by the parties arbitration agreement nor by law, and because he awarded attorney fees in contravention of the terms of the arbitration agreement.

Reformation of the Contract

Cadena contends that the award violates the rental agreement because it remakes the contract to bring it into compliance with the Colton rent control ordinance. The award effectively rewr[ote] [the lease] retroactive to September 1, 1999[,] with a starting rent of $133, and required any increases over that base rent to comply with the Colton rent control ordinance. It contends that the arbitrator had no authority to do so, because the rental agreement provided that if any portion of the agreement pertaining to its ability to charge for or increase the amount of rent was found to be unenforceable, Cadena had the option, in its sole discretion, to terminate the contract or to convert the residents tenancy to a month-to-month tenancy. It also contends that the arbitrator could not award a remedy which was not authorized by law.

The Alis respond that these contentions are not cognizable on appeal because Cadena did not assert them below in its response seeking to vacate the award. Cadena does not address this contention in its reply brief. The Alis are correct that, as a general rule, an appellant may not rely on a different theory on appeal to obtain the relief it sought below. (Cinnamon Square Shopping Center v. Meadowlark Enterprises (1994) 24 Cal.App.4th 1837, 1844.) However, an appellate court has the discretion to consider a new issue which involves only a question of the application of law to undisputed facts. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6.) Because the issues Cadena raises do not involve resolution of disputed facts, we will exercise our discretion to address them.

The Alis suit was not based on breach of contract, but on violation of the Colton rent control ordinance and of the Mobilehome Residency Law. (Civ. Code, 798 et seq.) Their first amended complaint also alleged fraud and deceit, and unfair business practices in violation of Business and Professions Code section 17200 et seq. The arbitrator was therefore not limited to remedies afforded by the rental agreement. (See People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 133-134 [action for unfair business practices based on a rental contract which violates a local rent control ordinance and/or the Mobilehome Residency Law is not a contract action].)

The issue is thus not whether the rental agreement provides for the remedy fashioned by the arbitrator, but whether that remedy is within the scope of the authority conferred on the arbitrator by the parties arbitration agreement. Our review of that issue is strictly limited: [U]nless expressly restricted by the [arbitration] agreement or the submission to arbitration, [arbitrators] have substantial discretion to determine the scope of their contractual authority to fashion remedies, and . . . judicial review of their awards must be correspondingly narrow and deferential. (Advanced Micro, supra, 9 Cal.4th at p. 376.)

Unless the arbitration agreement specifically requires the arbitrator to act in conformity with rules of law, the arbitrator may base his decision upon broad principles of justice and equity. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10-11.) Here, the parties arbitration agreement provides that the arbitrators decision shall comply with all legal standards and rules of evidence and the arbitrator shall make no ruling or decision that a court of law could not make. However, it also provides expressly that the award may include equitable relief. Based on the express language of the agreement, the arbitrator clearly had the authority to apply equitable remedies. The award is therefore unquestionably within the scope of the authority conferred on the arbitrator by the parties.^[9]

Attorney Fees

Finally, Cadena contends that the award of attorney fees was not authorized by the arbitration agreement.

The agreement provides that attorney fees and costs shall be awarded to the prevailing party to the extent that those fees and costs were incurred in any action to compel arbitration or seek injunctive relief the responding party would not in advance stipulate to, to abate subsequent dispute(s), or to confirm the arbitration award . . . . Otherwise, attorneys fees and costs shall not be awarded to any party but shall be borne by each party separately. The Alis first amended complaint sought an injunction, and the arbitrator issued an injunction. In addition, the Alis opposed Cadenas motion to compel arbitration and filed a motion to confirm the award. The award of attorney fees and costs was therefore authorized by the agreement.

Case No. E039992

THE ALIS LACK STANDING TO PURSUE THE REPRESENTATIVE ACTION ON BEHALF OF UNNAMED RESIDENTS

On November 2, 2004, the electorate approved Proposition 64, which amended portions of the unfair business practices statutes. (Bus. & Prof. Code, 17200 et seq.) The amendments became effective on November 3, 2004. (Californians For Disability Rights v. Mervyns, LLC (2006) 39 Cal.4th 223, 227 (hereafter CDR).) Cadena contends that the amendments, which eliminated the provisions granting a private person standing to sue for unfair business practices on behalf of the public, apply to this case, which was not yet final on the effective date of Proposition 64. We agree.

As noted above, the Alis first amended complaint sought relief for injuries to themselves, to other residents of the park similarly affected and to the general public for Cadenas alleged unfair business practices. At the time this action was filed, former Business and Professions Code section 17204 authorized any person acting for the general public to sue for such relief. (CDR, supra, 39 Cal.4th at p. 228.) As amended by Proposition 64, Business and Professions Code section 17204 now provides that actions on behalf of the general public must be brought by the Attorney General, a district attorney or a city attorney. Although an individual has standing to sue, pursuant to Business and Professions Code section 17204, if he or she has suffered actual injury from the alleged unfair business practice, Business and Professions Code section 17203, as amended by Proposition 64, provides that an individual can pursue representative claims only if he or she has both suffered injury in fact and has complied with the class action requirements of Code of Civil Procedure section 382. (CDR, supra,39 Cal.4th at pp. 232-233; see Bus. & Prof. Code, 17203 [Any person may pursue representative claims or relief on behalf of others only if the claimant meets the standing requirements of [Business and Professions Code] Section 17204 and complies with Section 382 of the Code of Civil Procedure].) The court held that the new standing requirements apply in all cases not yet final upon the effective date of Proposition 64. Thus, a party who had standing under the former statutes can lose standing to pursue the claim under the statutes as amended by Proposition 64. (CDR, supra, at pp. 232-233.)

The Alis have not complied with the requirements of Code of Civil Procedure section 382 with respect to identifying and certifying a class of persons injured by Cadenas unfair business practices.^[10]Accordingly, they lost their standing to pursue any representative claims on November 3, 2004, and the judgment based on those claims must be reversed.^[11]

Having reached this conclusion, we need not address any other issues raised in case No. E039992.

SANCTIONS MOTION

The Alis filed a motion in case No. E038626 for sanctions for filing a frivolous appeal. (Cal. Rules of Court, rule 8.276(e).) The motion is based on the Alis contention that the appeal was barred by Cadenas failure to file a timely request to vacate or correct the award and on the contention that the substantive issues Cadena raised in that appeal are not reviewable because they were not raised below or because they are not within the scope of reviewable issues as established in Moncharsh v. Heily & Blase, supra, 3 Cal.4th 1. We have rejected those contentions. The motion for sanctions is therefore denied.

DISPOSITION

The judgment filed May 31, 2005, is affirmed. The judgment filed December 9, 2005, is reversed. Costs are awarded to Zulu Ali and Charito Ali in case No. E038626, and to Cadena Creek Mobile Home Park in case No. E039992.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ King

J.

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^[1]In case No. E038626, Cadena filed a request for judicial notice, which included multiple documents filed in the arbitration proceedings which it failed to include in its appendix. The Alis filed no objection. We grant the request with respect to any document contained in the request for judicial notice to which we refer in this opinion. We deny the Alis request that we take judicial notice of the City of Coltons rent control ordinance, in that the provisions of the ordinance are not material to our decision.

^[2]In his tentative award, the arbitrator requested briefing concerning the appropriate remedy. In their response to Cadenas brief, the Alis asserted, apparently for the first time, that the tenants of 16 specified spaces were identically situated and were also entitled to restitution and damages pursuant to Business and Professions Code section 17204.

^[3]All statutory citations herein refer to the Code of Civil Procedure unless another code is specified.

Section 1286.4 provides that an award may not be vacated unless such a petition or response was filed; it does not say that an award may not be corrected unless such a petition or response was filed. ( 1286.4.) The distinction, if any was intended by the Legislature, is not pertinent here.

^[4]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 signed copy of the award on the petitioner. ( 1288, italics added.) A response requesting that an award be vacated or that an award be corrected 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 respondents representative if the respondent was not a party to the arbitration. ( 1288.2, italics added.)

^[5]The Phase I award was mailed on November 4, 2004. The March 18 award was mailed on March 21, 2005. The Alis filed and served their petition to confirm the award on March 22, 2005. Cadena filed its response on March 30, 2005.

^[6]The Alis did not raise this issue in their original response brief, but took this position in response to our request for supplemental briefing on the sufficiency of Cadenas response, as opposed to its timeliness.

^[7]In light of our resolution of the issues in consolidated case No. E039992, we need not decide whether the Phase I award was a final award as to the 16 unnamed residents.

^[8]We fail to comprehend how a request which cannot be construed as a request to correct the award but which can be construed as a request to vacate the award permits the court to correct, rather than vacate, the award. However, that issue is not before us.

^[9]Because we have determined that the award is within the scope of the parties arbitration agreement, we need not reach the Alis contention that the exclusive option to rescind or remake the contract relied upon by Cadena violates both the Colton rent control ordinance and the Mobilehome Residency Law.

^[10]Code of Civil Procedure section 382 provides: If the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. We have held that [s]ection 382 . . . authorizes class suits in California. . . . The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members. [Citation.] (CDR, supra, 39 Cal.4th at p. 233, fn. 4.)

^[11]The parties have not briefed the question whether the Alis may seek leave to amend their complaint to comply with Business and Professions Code section 17203 and Code of Civil Procedure section 382. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 240-243.)