Merritt v. Chase Bank







Filed 9/27/11 Merritt v. Chase Bank 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

PAUL MERRITT, Plaintiff and Appellant, v. CHASE BANK USA, N.A., Defendant and Respondent.

B230803 (Los Angeles County Super. Ct. No. GS012875)

APPEAL from an order of the Superior Court of Los Angeles County. Joseph F. De Vanon, Jr., Judge. Affirmed.
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Paul Merritt, in pro. per., for Plaintiff and Appellant.
Ropers, Majeski, Kohn & Bentley, George G. Weickhardt and Christopher W. Vincent for Defendant and Respondent.
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Paul Merritt appeals from an order dismissing as untimely his petition to vacate a contractual arbitration award. We affirm.
Merritt filed an arbitration claim with the National Arbitration Forum (NAF) against Chase Bank USA, N.A. (Chase), which he apparently named as “CHASE Fraud Detector CHASE BANK.” Chase apparently never responded to the arbitration claim. On April 21, 2010, the arbitrator ordered that the case be dismissed with prejudice and entered an award against Chase (not against Merritt) and in favor of the NAF for $1,268.00, “which includes the Administrative Fee and Commencement Fee.” The order and award were served on the same day they were issued, April 21.
Some time on or before May 20, 2010, Merritt submitted to the NAF a request for reopening and reconsideration. On July 14, 2010, the arbitrator issued and served an order denying Merritt’s request.
On October 12, 2010, Merritt filed in the superior court a petition to vacate the arbitration award. He served the petition on Chase on October 25, 2010. On November 24, 2010, Chase filed its response to the petition, arguing that the petition should be dismissed as untimely.
On January 7, 2011, the superior court entered an order dismissing the petition. Merritt timely appealed.
We review de novo the superior court’s order on a petition to vacate an arbitration award. (SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1198.)
Merritt contends that under Code of Civil Procedure section 1288 he had 100 days to file and serve his petition and that the time should run from July 14, 2010, when the denial of his request for reopening and reconsideration was served, rather than from the date the award was served. Chase contends that under the Federal Arbitration Act Merritt was required to file and serve his petition within three months after April 21, 2010, the date the award was issued and served. (See 9 U.S.C. § 12.) But even assuming that Merritt had 100 days from service of the denial of his request for reconsideration, his request was untimely.
The order denying Merritt’s request for reopening and reconsideration was issued and served on July 14, 2010. Assuming that was the proper start date for the limitations period, Code of Civil Procedure section 1288 required Merritt to file and serve his petition no more than 100 days later, by October 22, 2010. (See Klubnikin v. California Fair Plan Assn. (1978) 84 Cal.App.3d 393, 398.) He did not serve Chase, however, until October 25, 2010. His petition was therefore untimely and was properly dismissed.
Merritt’s only argument to the contrary is that because Chase did not appear in the arbitration proceeding, Chase has forfeited its right to contest this appeal. The argument is unavailing, however, because appellant bears the burden to demonstrate error even if the respondent does not appear in the appeal. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [appellant bears the burden of demonstrating error]; Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334 [even if no respondent’s brief is filed, the appellate court will reverse “only if prejudicial error is shown”].) Hence, even if Chase had not filed a respondent’s brief at all (or if we were to disregard the brief that Chase filed), Merritt’s failure to show that the trial court erred would require us to affirm the court’s dismissal order.
DISPOSITION
The order is affirmed. Respondent shall recover its costs of appeal.
NOT TO BE PUBLISHED.


ROTHSCHILD, J.

We concur:

MALLANO, P. J.

JOHNSON, J.


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