Abers v. Rohrs

 

 

 

 

 

 

 

 

 

 

Filed 6/13/13  Abers v. Rohrs CA4/3

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE

 

 
>

RUTH E. ABERS et al.,         Appellants,                     v.   VERA C. ROHRS et al.,         Respondents.

G047034            (Super. Ct. No. 30-2012-00546927)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Nancy Wieben Stock, Judge.  Affirmed.

                        Snell & Wilmer,
Richard A. Derevan, Todd E. Lundell and Christopher B. Pinzon for Appellants.

                        Palmieri, Tyler, Wiener,
Wilhelm & Waldron, Michael H. Leifer, Erin Balsara Naderi; Bullard, Brown
& Beal and Timothy W. Brown for Respondents.

 

 

                        The owners of 57 homes
in a condominium development (the homeowners) appeal from an order dismissing
their petition to vacate an arbitration
award setting the allowable increases in monthly rent charged by the trust
that owns the property on which their homes are situated.  The trial court’s dismissal order was based
on the homeowners’ failure to properly serve the respondent trustees with their
petition to vacate within 100 days of service of the award, as required by Code
of Civil Procedure section 1288.  (All
further statutory citations are to
this code unless otherwise indicated.)

                        The homeowners argue the
trial court erred in dismissing their petition because:  (1) the petition was served in accordance
with the requirements of the parties’ lease agreements, and thus was properly
served under section 1290.4; (2) the court abused its discretion by refusing to
treat the petition as part of a previously filed and still pending href="http://www.mcmillanlaw.com/">declaratory relief action between the
parties; (3) the court abused its discretion by refusing to find that the
trustees were estopped from asserting service was improper; and (4) the
homeowners were entitled to relief from the dismissal pursuant to section
473.   We find none of these contentions
persuasive and affirm the order.

                        The homeowners’ reliance
on section 1290.4 fails because the lease provisions they rely upon as
specifying the method for serving the petition to vacate apply only to the
manner in which notices respecting
the leases may be sent.  Those provisions say nothing about the manner
in which a party may be served >with process in connection with a
petition to vacate an arbitration award, to establish the court’s personal
jurisdiction over the party.  Merely
providing a party with notice that a petition has been filed does not establish
personal jurisdiction.

                        Further, the court did
not abuse its discretion by refusing to treat the petition as though it had
been filed under the still-pending declaratory relief case number, because the
homeowners themselves acknowledge they made a deliberate, strategic decision not to do that. 
Equity certainly does not obligate
the court to pretend the homeowners made the opposite strategic decision.  Likewise, equity does not compel a finding
that the trustees are estopped from claiming service was improper.  The requirements for service are established
by statute, and equity does not prohibit a party from demanding adherence to
those legal requirements.

                        And finally, we agree
with the trustees that section 473 cannot be relied upon to relieve a party
from its failure to comply with the 100-day deadline for filing and serving a
petition to vacate an arbitration award. 
That deadline operates in the same manner as the deadline for filing an
appeal, and the court loses jurisdiction to vacate the award if the petition is
not timely served and filed.   Once
jurisdiction is lost, it cannot be retroactively reinstated.

 

FACTS

 

                        This case involves a
dispute over a provision in a series of identical ground leases underlying a
condominium development.  The property is
owned by the trustees of the John and Vera B. Rohrs Trust, Dated May 16, 1961,
and the terms of the leases specify payment of a fixed monthly rent for the
land under each unit for initial 30 years and six months of the 70-year lease
term, but thereafter allow the rents to be adjusted based on a re-valuation of
the “leased land.”  If the parties are
unable to agree on the proper amount of a rent adjustment, the issue was to be
resolved by arbitration.

                        Unfortunately, the
parties could not even agree on the definition of the “leased land” to be
valued, and thus initially sought declaratory relief from the court to resolve
that issue.  In a published opinion, this
court declared that the leased land to be valued was defined as “each lessee’s
interest in his or her individual condominium unit . . . and his or her
undivided fractional interest in the common areas within parcel one or parcel
three, depending upon whether the unit is located in first or second phase of
the project.”  (Abers v. Rounsavell (2010) 189 Cal.App.4th 348, 363-364.)

                        The parties thereafter
participated in the arbitration, and the arbitrators announced their decision
on December 13, 2011.   According to the homeowners, the
arbitrators’ decision was inconsistent with both this court’s interpretation of
the pertinent lease provisions and its declaration of the parties’ rights in
connection therewith.  The homeowners
claim the arbitrators’ decision resulted in a “27-fold increase” in their
average lease payments, and required each of them to make a retroactive lease
payment of between $70,000 and $90,000. 
They characterize the award as “devastating” to them.

                        Two days after the
arbitrators issued their decision, the trustees filed an ex parte application
with the trial court which had presided over the declaratory relief action,
seeking an order “vacat[ing] further proceedings under this case number”
because “some of the lessees may attempt
to file papers in this action seeking
to vacate . . . the award.”  The
homeowners opposed the ex parte application, arguing the court properly
retained “vestigial jurisdiction” over the matter submitted to arbitration,
which included jurisdiction to confirm, correct or vacate the award.  (Citing SWAB
Financial, LLC. v. E*Trade Securities LLC. (2007) 150 Cal.App.4th 1181,
1200-1201.)  The court denied the motion
on the ground the issue was not ripe until someone actually attempted to file
such a petition. 

                        On February 17, 2012, the homeowners filed their
petition to vacate, choosing to do so under a new case number, rather than in
the still-pending declaratory relief case. 
According to their opening brief on appeal, they did so because the
court’s refusal to issue a definitive ruling on whether it was proper to file
the petition under the old case number “left uncertainty about whether the
trial court understood the nature of its vestigial jurisdiction over the
arbitration and meant that further litigation over that issue was
inevitable.”  Consequently, “>[t]o avoid spending the homeowners’ limited
resources litigating over such a tangential issue, the homeowners filed the
petition to vacate under a new case number.” (Italics
added.)    

                        Unfortunately, despite
their decision to file the petition as a separate case, the homeowners
purported to serve it on the trustees in the manner that would normally be used
for a motion in a pending case – by overnight delivery to the trustees’
counsel, one of whom they explain is also a successor trustee.  On March 22, the homeowners served an amended
petition to vacate, again by overnight delivery on the same counsel.  Four days later, on the 100th day after the
arbitration award was served, the trustees’ counsel informed the homeowners he
was not authorized to accept service of the petition by mail.  The following day, the attorney identified as
successor counsel who informed the homeowners he would not accept mail
service.   

                        Shortly thereafter, the
trustees moved to quash service and sought an order dismissing the petition on
the ground the homeowners failed to properly serve the petition within 100 days
of the arbitrator’s award as required by section 1288.  Over the homeowners’ strenuous opposition,
the court granted the motion.

                       

DISCUSSION

 

>1. 
Service of Petition by Mail was Insufficient to Confer Jurisdiction over
Trustees          Section 1288
requires that “[a] petition to vacate an [arbitration] award

.
. . shall be served and filed not later than 100 days after the date of
service of a signed copy of the award on petitioner.”  Section 1286.4 limits the court’s power to
vacate an award, stating that a “court may
not vacate an award unless:  [¶]  (a) A petition or response requesting the
award be vacated has been duly served and
filed; or [¶]  (b) A petition or
response requesting that the award be corrected has been duly served and filed and: 
[¶] . . . [¶]  (2)  All petitioners and respondents have been
given reasonable notice that the court will be requested at the hearing to vacate
the award or that the court on its own motion has determined to vacate the
award and all petitioners and respondents have been given an opportunity to
show why the award should not be vacated.” 
(Italics added.)

                        The requirements for
serving a petition to vacate an arbitration award are governed by section
1290.4, which specifies that “[a] copy of the petition and a written notice of
the time and place of the hearing thereof and any other papers upon which the
petition is based shall be served in the
manner provided in the arbitration agreement for the service of such petition
and notice.”  (§ 1290.4, subd. (a),
italics added.)  However,> “[i]f the arbitration agreement does not
provide the manner in which such service shall be made and the person upon
whom service is to be made has not previously appeared in the proceeding and
has not previously been served in accordance with this subdivision: [¶]
(1)  Service
within this State shall be made in the
manner provided by law for the service of summons in an action.”  (§ 1290.4, subd. (b), italics added.)

                        The homeowners first
argument is that their service of the petition by overnight mail was
appropriate under section 1290.4, subdivision (a), because it substantially
complied with Paragraph 16 of the ground leases which includes a provision
stating that “written notice[s] . . . respecting this Lease” may be “sent by
certified or registered mail” to a specified address.  Their argument fails because it conflates the
concept of providing notice with the
concept of serving process. 

                        Proper
service of process of a petition or
complaint is the means by which a court obtains personal jurisdiction over a
party.  (In re Jennifer O. (2010) 184 Cal.App.4th 539, 547 [“a court
acquires jurisdiction over a party by proper service of process or by that
party’s general appearance”].) 

                        The obligation to serve
a party with process is not coextensive with merely providing the party with >notice of the proceeding.  Even undisputed actual notice of a proceeding does not substitute for proper >service of the petition or
complaint.  (Honda Motor Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1049
[“The fact that the person served ‘got the word’ is irrelevant”]; >In re Abrams (1980) 108 Cal.App.3d 685,
693 [“Mere knowledge of the action is not a substitute for service, nor does it
raise any estoppel to contest the validity of service”].)

                        Paragraph 16 of the
parties’ leases, which governs only the manner in which “notices” may be
“sent,” says nothing at all about the manner in which a petition to vacate an
arbitration award must be served.  The homeowners’ compliance with that provision
would consequently demonstrate nothing more than that the trustees were aware
both that the petition had been filed, and of the date of the hearing.  Significantly, however, it would not
demonstrate the court had gained jurisdiction
over the trustees so as to permit it to render a binding decision with respect
to the petition.  “Actual notice of the
action alone . . . is not a substitute for proper service and is not sufficient
to confer jurisdiction.”  (>American Express Centurion Bank v. Zara
(2011) 199 Cal.App.4th 383, 392; see also, Summers
v. McClanahan (2006) 140 Cal.App.4th 403, 414 [“No California appellate
court has gone so far as to uphold a service of process solely on the ground
the defendant received actual notice when there has been a complete failure to
comply with the statutory requirements for service”].)

                        Because Paragraph 16 of
the parties’ leases governs only notice,
and not service it does not qualify
as a provision which specifies the manner in which a petition to vacate an
arbitration award may be served.  Consequently, the homeowners’ reliance on
those notice provisions as a means of demonstrating proper service of the
petition necessarily fails.

                        Nor can the homeowners
rely on Estate of Moss (2012) 204
Cal.App.4th 521 (Moss), as precedent
demonstrating mail service of their petition was appropriate here.  In Moss,
a probate case was initiated by the decedent’s wife when she filed a petition
to probate decedent’s will.  Decedent’s
son and grandson later filed a separate petition seeking removal of the will
from probate, which would ordinarily require service in the manner of a
summons.  However, they filed their
separate petition under the same case number as the wife’s original petition,
and served it on her attorney of record as the functional equivalent of a
cross-complaint.  (See § 465
[“Except with leave of the court, all pleadings subsequent to the complaint,
together with proof of service unless a summons need be issued, shall be filed
with the clerk or judge, and copies thereof served upon the adverse party or
his or her attorney”].) 

                        Although the trial court
agreed with the wife’s assertion that service in such a manner had been
inadequate to establish the court’s jurisdiction over her in connection with
the second petition, the Court of Appeal did not.  It concluded instead that “in circumstances
such as exist in this case, in which a party and her attorney >have already appeared in the action, . .
. proper service of process on the party’s attorney of record in that same case
is sufficient as a matter of law under Code of Civil Procedure section 416.90.”
(Moss, supra, 204 Cal.App.4th at p.
534, italics added.)

                        However, the court in >Moss took pains to “emphasize the
narrowness of our holding” (Moss, supra,
204 Cal.App.4th at p. 533), explaining that it was expressly limited to
circumstances in which the party to be served with the new petition had already
appeared in the action.  Unfortunately
for the homeowners here, this case is distinguishable on that very point.  Because the homeowners chose to file their
petition to vacate as a separate action, rather than as part of the existing
declaratory relief case in which the trustees had previously appeared, >Moss is of no assistance to them.

                        Nor could we extend the
rationale of Moss to these distinct
circumstances without running afoul of statute. 
As we have already noted, section 1290.4 sets forth the procedures to be
followed in serving a petition to vacate an arbitration award, and the narrow
rule set forth in Moss is exactly
consistent with those required procedures. 
Specifically, section 1290.4, subdivision (b)(1) creates an exception
from the general requirement that the petition be served within this state “in
the manner provided by law for the service of summons” in the case of service
on a person who has “previously appeared
in the proceeding.”  (§ 1290.4,
subd. (c).)  Because the homeowners chose
to file their petition to vacate as a new proceeding, that exception could not
be applied.

>2. 
Trial Court’s Refusal to Grant Equitable Relief

                        Appellants next argue
the trial court was essentially obligated to either “deem the petition to
vacate to have been filed under the original [declaratory relief] case number,”
so as to bring it within the exception of section 1290.4, subdivision (c), or
hold that the trustees were estopped from asserting that service of the
petition by certified mail had been improper. 
These are, to say the least, difficult arguments to make.  The trial court’s discretion to grant or deny
equitable relief is broad, and we must indulge all inferences in favor of its
decision.  “Equity or chancery law has
its origin in the necessity for exceptions to the application of rules of law
in those cases where the law, by reason of its universality, would create injustice
in the affairs of men.”  (>Estate of Lankershim (1936) 6 Cal.2d
568, 572-573.)  Thus, “[f]rom the very
nature of equity, a wide play is left to the conscience of the chancellor in
formulating his decrees . . . .  It is of
the very essence of equity that its powers should be so broad as to be capable
of dealing with novel conditions.”  (>Bechtel v. Wier (1907) 152 Cal. 443,
446.)

                        The homeowners’
assertion that they are entitled to have their petition treated as though it
had been filed within the declaratory relief action is apparently based on the
notion they had the right to proceed in that fashion, despite the trustees’
contrary contention and the trial court’s equivocal ruling on the point.  In support of their position, the homeowners
have requested we take judicial notice of documents reflecting that the court
which presided over the declaratory relief action was kept apprised of the
arbitration’s progress.  We deny that
request.

                        Whatever theoretical
right the homeowners may have had to pursue their petition within the framework
of the existing declaratory relief case is irrelevant, since they have frankly
acknowledged making a deliberate, strategic decision not to do that.  Instead, despite the homeowners’ awareness of
that option, and their emphatic belief in its propriety, they >chose to file their petition to vacate
as a separate proceeding rather than waste resources arguing about whether it
might properly be filed as part of the existing case.  That deliberate choice precludes any
determination that the court abused its discretion by refusing to pretend they
had done the opposite.  Stated simply,
holding the homeowners to the consequences of their voluntary election creates
no injustice. 

                        As to the assertion that
the trustees should be estopped to deny that service was proper, we agree with
the trial court.  There is no basis in
equity to estop the trustees from demanding compliance with legal requirements
for service of process.  As our Supreme
Court has repeatedly emphasized, a finding of estoppel requires some act or
representation by the party to be estopped, on which the party seeking estoppel
has relied to its detriment:  “[t]he
doctrine of equitable estoppel is founded on concepts of equity and fair
dealing.”  (Strong v. County of Santa Cruz (1975) 15 Cal.3d 720, 725.)  “The essence of an estoppel is that the party
to be estopped has by false language or conduct ‘led another to do that which
he [or she] would not otherwise have done and as a result thereof that he [or
she] has suffered injury.’”  (>State Compensation Ins. Fund v. Workers’
Comp. Appeals Bd. (1985) 40 Cal.3d 5, 16; Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1315.)

                        Here, the homeowners
base their estoppel argument on the parties’ “course of dealing over seven
years of litigation in which counsel accepted mail service on behalf of the
[trustees],” and the trustees’ failure to alert
the homeowners that their service of the petition to vacate did not comply with
the requirements of law before the 100-day deadline passed.  The homeowners’ claim this “lull[ed]” them
into a “false sense of security” and “induced” them into believing their
service effort had been adequate.  We
reject the argument.

                        Significantly, the
homeowners’ conclusory characterization of the parties’ long “course of dealing
. . . in which counsel accepted mail service on behalf of the [trustees]” is
unsupported by any examples of the trustee’s counsel agreeing to accept initial
service of process by mail on behalf
of the trustees.  The mere fact that once
the trustees had appeared in
litigation, future notices and documents filed in the case were served on them
via their counsel of record establishes nothing.  After a party has appeared in litigation and
designated a counsel of record, the general rule is that future pleadings and
notices may be served on that counsel. 
(See, §§ 465, 1010 [“Notices and other papers may be served upon
the party or attorney in the manner prescribed in this chapter, when not
otherwise provided by this code”].) 
Again, initial service of process on a party and the mere provision of
notice are not the same thing. 

                        Moreover, whatever prior
course of conduct may have been followed, the trustees’ ex parte effort, in the
immediate wake of the arbitration award, to obtain a court order requiring that
any petitions to vacate the award would have to be filed as a separate action
(rather than under the case number of the existing declaratory relief action)
probably should have been a tip-off that the trustees had no intention of
cooperating in an effort to vacate that award. 
Under these circumstances, we could not conclude the trial court erred
by rejecting the homeowner’s claim they were reasonably misled by the parties’
past practice of serving documents on counsel.

                        As for the homeowners’
claimed reliance on the trustees’ failure to point out their error in service, that assertion is undercut by the
fact the homeowners were at all times represented by counsel.  “[T]he law ‘particularly’ disfavors estoppels
‘where the party attempting to raise the estoppel is represented by an attorney
at law.’”  (Steinhart v. County of Los Angeles, supra, 47 Cal.4th at p.
1316.)  This is so because “[f]or
purposes of analyzing estoppel claims, attorneys are ‘charged with knowledge of
the law in California.’”  (>Ibid.) 
Thus, in Tubbs v. Southern Cal.
Rapid Transit Dist. (1967) 67 Cal.2d 671, 679, our Supreme Court flatly
rejected the notion that a plaintiff who was at all relevant times represented
by counsel, could have been “induced to delay the filing of her complaint in
reliance” on defendant’s acts.  We apply
the same reasoning here as well.  It was
the responsibility of the homeowners’ counsel to determine the legal
requirements for serving their petition to vacate, and they could not reasonably
rely on their opponents to apprise them when that effort fell short.   

>3. 
Appellants Right to Relief under Section 473

                        The homeowners’ final
contention is that the court erred by refusing to grant them relief under
section 473, subdivision (b), which provides the court with >discretionary power to “relieve a party
or his or her legal representative from a judgment, dismissal, order, or other
proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect,” and also requires
the court “whenever an application for relief is made no more than six
months after entry of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake, inadvertence,
surprise, or neglect, [to]> vacate any . . . resulting default judgment
or dismissal entered against his or her client, unless the court finds that
the default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.”  (>Ibid., italics added.)

                        Section 473’s provision
for mandatory relief from a dismissal based upon a declaration of attorney
error does not require a determination the error was excusable.  It applies even when the attorney has no
excuse.  “‘Relief is mandatory when a
complying affidavit is filed, even if the attorney’s neglect was
inexcusable.’”  (SJP Limited Partnership v. City of Los Angeles (2006) 136
Cal.App.4th 511, 516-517.)

                        However,
respondents counter that section 473 is inapplicable here, because the 100-day
limitation for a petition to vacate a arbitration award is jurisdictional and
section 473 cannot be relied upon to excuse a party’s failure to comply with a
jurisdictional statute of limitations. 
We agree. 

                        “Notwithstanding the
broad construction afforded section 473, subdivision (b), the statute does not
offer relief from mandatory deadlines deemed jurisdictional in nature.”  (Maynard
v. Brandon (2005) 36 Cal.4th 364, 372 (Maynard).)  Generally, section 473 does not apply “to a
party’s failure to comply with the applicable limitations period in which to
institute an action,” nor can it “extend the time in which a party must move
for a new trial.”  (Ibid.)  “The time limits that
are not subject to relief under section 473, subdivision (b), include, among
others, statutes of limitations (Castro
v. Sacramento County Fire Protection Dist. (1996) 47 Cal.App.4th 927, 933
[Code Civ. Proc., § 340.5]; Hanooka v.
Pivko (1994) 22 Cal.App.4th 1553, 1563 [same]; Kupka v. Board of Administration (1981) 122 Cal.App.3d 791,
794-795 [Gov. Code, § 11523]) and the time to file a notice of intention to
move for a new trial (Union Collection
Co. v. Oliver (1912) 162 Cal. 755, 756-759; Kisling v. Otani (1962) 201 Cal.App.2d 62, 67-68, 71) or to set
aside a judgment under section 663 (Advanced
Building Maintenance v. State Comp. Ins. Fund (1996) 49 Cal.App.4th 1388,
1394).”  (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344.)

                        The same rule applies to
the deadline for filing an appeal.  “The
requirement as to the time for taking an appeal is mandatory, and the court is
without jurisdiction to consider one which has been taken subsequent to the
expiration of the statutory period.  In
the absence of statutory authorization, neither the trial nor appellate courts
may extend or shorten the time for appeal, even to relieve against mistake,
inadvertence, accident, or misfortune.” 
(Stuart Whitman, Inc. v. Cataldo
(1986) 180 Cal.App.3d 1109, 1113.)

                        The rule must be applied
here as well.  The trial court’s power to
vacate an arbitration award is governed by statute, and the deadline for
seeking such relief is mandatory.  In the
absence of some other statutory
authority, the court simply cannot extend that deadline.

                        Moreover, the mere fact
the homeowners actually filed their
petition to vacate in a timely fashion does not alter the analysis.  Section 1286.4 specifically limits the
court’s authority to vacate an award to situations where a petition to vacate
or correct the award has been “duly
served and filed.”  (§ 1286.4,
subds. (a), (b), italics added.)  In the
absence of such service and filing, the court has no option but to confirm the
award if requested to do so within four years of its issuance.  (§ 1286.)  And in Bernasconi
Commercial Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57
Cal.App.4th 1078, 1081-1082, the court held that section 473 is equally
inapplicable to a claim for relief from a litigant’s failure to timely >serve a properly filed complaint, as
mandated by statute.

                        As the >Bernasconi court explained, the problem
with applying section 473 relief in a case where a party has failed to timely
serve a complaint, is that it would “effectively abrogate the . . . dismissal
statutes, since few if any dismissals under those statutes would ever be
final.”  (Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare
System, supra, 57 Cal.App.4th at p. 1082.) 
Of course, the same is true here. 
In nearly every case where a party is represented by counsel, a failure
to timely serve a petition to vacate an arbitration award would be attributable
to counsel’s error.  And if section 473
relief were extended to provide relief for such an error, then it follows that
relief would be mandated in nearly
every case, without regard to the excusability of counsel’s conduct.  The result would be an effective
nullification of the statutory 100-day limitation on filing and serving a
petition to vacate.  We cannot endorse
such a result.

                        We recognize, of course,
that the homeowners cite two cases, De
Mello v. Souza (1973) 36 Cal.App.3d 79 (De
Mello), and Elden v. Superior Court
(1997) 53 Cal.App.4th 1497, as support for the proposition that section 473
does provide relief from a party’s failure to comply with the 100-day deadline
for filing and serving a petition to vacate and arbitration award.  A third case, Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739,
746, states the same proposition:  “Of
course, a party with a reasonable excuse for failing to comply with the 100-day
time limit may obtain relief in a trial court under section 473, subdivision
(b).”  We find none of those cases
persuasive, however, for the simple reason that none of them makes any effort
to persuade.  De Mello simply states, without explanation, that relief from the
100-day limitation “may be granted only under section 473 and/or pursuant to
the inherent equitable power of the court, and only in strict compliance with
the requirements outlined therein.  (>De Mello, supra, 36 Cal.App.3d at p.
84.)  The other cases merely repeat the
notion, but again without analysis.  None
of the cases actually accords a party relief under section 473, because in each
case the request was deemed untimely under that
section.  In our view, these cases are
simply inconsistent with the rule announced by the Supreme Court in >Maynard, and must be rejected on that
basis.

                        In light of the
foregoing, we conclude the trial court did not err in refusing to grant the
homeowners relief under section 473 from their failure to properly serve their
petition to vacate the arbitration award.

 

DISPOSITION

 

                        The judgment is
affirmed.  Respondent trustees are
entitled to their costs on appeal.

 

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

MOORE, J.

 

 

 

ARONSON, J.