California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Law Office of Hodge and Bartoumian, Stanley W. Hodge, Arshak Bartoumian; Law Office of Stanley W. Hodge, Stanley W. Hodge and Arshak Bartoumian for Defendants and Appellants.
The Fox Firm and Melissa J. Fox for Plaintiff and Respondent.
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A homeowner proceeded to arbitration against a construction company and the individual contractor who was the qualifier for the construction company's license. An arbitration award was entered in favor of the homeowner. When the homeowner sought to confirm the arbitration award to judgment, the construction company and the individual contractor asserted that the trial court had no jurisdiction over either of them, for lack of proper service, and the individual contractor additionally claimed that the arbitrator could not issue an award against him because he was not a party to the construction contract containing the arbitration provision. The trial court confirmed the arbitration award to judgment.
The trial court did not err in so doing. The construction company and the individual contractor have not demonstrated a failure of proper service. Furthermore, the individual contractor forfeited his argument that he was not a proper party to the arbitration proceedings, by not raising it before those proceedings were concluded. We affirm the judgment.
I
FACTS
Russell Proctor (Proctor) hired Emperor Construction, Inc. (Emperor) to remodel his home in Laguna Niguel. The parties entered into a home improvement contract dated October 18, 2003. The contract contained a provision requiring disputes between the parties to be resolved by arbitration, under the Construction Industry Rules of the American Arbitration Association. The contract was signed by Christos Georgiades (Georgiades), in his capacity as the salesman who had negotiated the contract, and by Proctor. The record reflects that Georgiades was the qualifier for the license of Emperor.
Dissatisfied with the contractor's performance and practices, Proctor commenced arbitration proceedings through the Contractors State License Board Arbitration Program, naming both Emperor and Georgiades as respondents. Proctor obtained an arbitration award in the amount of $42,958.47.
On July 29, 2005, Proctor filed a petition to confirm the arbitration award. On August 26, 2005, he filed a notice of motion for an order confirming the award. Emperor and Georgiades filed an opposition on September 20, 2005. The court granted Proctor's petition and judgment was entered in favor of him on September 20, 2005. Emperor and Georgiades appeal.
II
DISCUSSION
A. Preliminary Matter – Timeliness of Appeal:
On December 15, 2005, Emperor and Georgiades filed a notice of appeal from an abstract of judgment. By order of December 28, 2005, this court informed them that it was considering dismissing the appeal as taken from a nonappealable order. On January 6, 2006, Emperor and Georgiades filed an amended notice of appeal, stating that the appeal was taken from the judgment entered in the case. That same date, they filed a supplemental letter brief requesting this court to accept the amended notice of appeal. By order of January 6, 2006, this court informed the parties that the appeal could proceed.
Thereafter, by order of November 28, 2006, this court informed Emperor and Georgiades that it was considering dismissing the appeal for a completely different reason than the one addressed previously. The November 28, 2006 order stated that the December 15, 2005 notice of appeal was filed more than 60 days after the entry of the September 20, 2005 judgment and that it could not be ascertained from the record on appeal whether the appeal was untimely under California Rules of Court, rule 2 (a), as then in effect.[1] Emperor and Georgiades were directed to submit a supplemental letter brief addressing whether the appeal was untimely and should be dismissed.
In response to this court's November 28, 2006 order, Emperor and Georgiades submitted a nonresponsive supplemental letter brief. In that December 6, 2006 supplemental letter brief, they indicated a belief that this court's prior ruling on the appealability issue somehow had resolved the current question as to whether the appeal is untimely. By our December 19, 2006 order, this court informed the parties that the January 6, 2006 order had resolved only the issue as to whether the appeal was taken from a nonappealable order. It did not preclude this court from raising the question of its own jurisdiction to proceed if the notice of appeal was untimely filed. This court also explained why the December 6, 2006 supplemental letter brief of Emperor and Georgiades was nonresponsive to the request for information as to the timeliness of the appeal. This court also informed Emperor and Georgiades that their appeal would be dismissed unless they filed a declaration under penalty of perjury addressing the facts that would trigger the application of the 60-day limitations period for filing a notice of appeal under California Rules of Court, rule 2(a).
In response to the December 19, 2006 order, this court received declarations from counsel for Emperor and Georgiades, as well as a declaration from an individual named Stefanie Georgiades.[2] The declaration from counsel provided that no service of either a notice of entry of judgment or a file-stamped copy of the judgment had been made upon the law firm more than 60 days prior to the December 15, 2005 filing of the notice of appeal. Stefanie Georgiades claimed that she lived with Christos Georgiades until his death and that she knew he had never been served himself prior to the December 15, 2005 filing date.[3]
Proctor filed a supplemental letter brief in response to these declarations. He challenged the declaration of Stephanie Georgiades as based on hearsay. However, he did not challenge the declaration of counsel for Emperor and Georgiades, other than to say that it did not address whether the clients themselves had been served directly. More importantly, Proctor made no claim that either Emperor, Georgiades, or their counsel, were ever served with a document that would have triggered the running of the 60-day limitations period of California Rules of Court, rule 2(a). What Proctor did instead was provide a copy of a September 20, 2005minute order. The minute order states: â€
Description
A homeowner proceeded to arbitration against a construction company and the individual contractor who was the qualifier for the construction company's license. An arbitration award was entered in favor of the homeowner. When the homeowner sought to confirm the arbitration award to judgment, the construction company and the individual contractor asserted that the trial court had no jurisdiction over either of them, for lack of proper service, and the individual contractor additionally claimed that the arbitrator could not issue an award against him because he was not a party to the construction contract containing the arbitration provision. The trial court confirmed the arbitration award to judgment.
The trial court did not err in so doing. The construction company and the individual contractor have not demonstrated a failure of proper service. Furthermore, the individual contractor forfeited his argument that he was not a proper party to the arbitration proceedings, by not raising it before those proceedings were concluded. Court affirm the judgment.
