Filed 8/5/26 Contract Decor v. Icon West CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
CONTRACT DÉCOR, INC., et al., B348708
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No.25STCP00689)
v.
ICON WEST, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard L. Fruin, Judge. Reversed in part and
affirmed in part.
Law Office of Jonathan M. Bowne and Jonathan M. Bowne,
for Plaintiffs and Appellants.
Law Offices of Abdulaziz, Grossbart & Rudman, Bruce D.
Rudman for Defendant and Respondent.
_________________________
Icon West, Inc. and Contract Décor, Inc. made an
agreement containing an arbitration provision. After a dispute
arose, Icon West initiated arbitration against Contract Décor and
its officer, David Stewart.1 Neither Contract Décor nor David
Stewart (Stewart) participated in the arbitration, and the
arbitrator found against them. Plaintiffs then petitioned the trial
court to vacate the arbitration award. The trial court denied the
petition on the ground it was untimely, rejecting (1) plaintiffs’
requests for equitable relief from the statutory deadline to file
and serve a petition and (2) plaintiffs’ argument that the award
was void as to Stewart because he did not sign the agreement.
We hold that the award was void as to Stewart and reverse as to
him. We affirm the judgment as to Contract Décor.
BACKGROUND
I. The subcontract between Icon West and Contract Décor
Icon West was the primary contractor on a project to
construct a sheriff’s substation for Santa Monica Community
College District, referred to as “Owner.” Icon West subcontracted
with Contract Décor to install window shades.
The subcontract contained two relevant provisions. The
first, section 6, required Contract Décor to execute a bond. But
there was an exception for the bond requirement: If Icon West in
writing waived the bond for Contract Décor, Contract Décor, on
request, had to provide a current financial statement; further, a
1 We refer to Contract Décor and David Stewart collectively
as “plaintiffs.”
2
responsible managing officer,2 principal or officer signing the
subcontract would have to guarantee Contract Décor’s work, and
so be jointly and severally liable to Icon West for liabilities not
covered by a bond.
The second key provision, section 15, governed dispute
resolution. It incorporated the mechanism in the prime contract
between the Owner and Icon West. If a dispute involved the
Owner, the prime contract’s dispute resolution provisions
applied. Otherwise, the procedure required first an informal
meeting to resolve the disagreement, to be followed if necessary
by a written demand for arbitration. The parties would then
arbitrate with the American Arbitration Association (AAA) under
its Construction Industry Rules.3 Icon West could name in that
arbitration an officer who had provided a guarantee in lieu of a
bond, as described above.
Contract Décor’s president, Marc Stewart, signed the
subcontract. David Stewart, one of the plaintiffs here, did not.
Nor is there evidence David Stewart provided a guarantee.
2 A corporation qualifies for a contractor’s license through a
responsible managing officer or employee. (Bus. & Prof. Code
§ 7068, subd. (b)(3).)
3 We deny Icon West’s request for judicial notice of AAA’s
Construction Industry Arbitration Rules and Mediation
Procedures because it is not relevant to our disposition of the
issues on appeal. (Arce v. Kaiser Foundation Health Plan, Inc.
(2010) 181 Cal.App.4th 471, 482.)
3
II. The dispute and arbitration proceedings
In 2023, a dispute arose about the shades Contract Décor
installed for the project. Contract Décor and Icon West tried to
negotiate a resolution, without success.
In March 2024, Icon West sent a demand for arbitration to
plaintiffs. Plaintiffs did not respond to the demand or to any
communication regarding the arbitration. They did not appear in
the arbitration, which proceeded without them. The arbitrator
issued a final award finding plaintiffs in breach of the
subcontract and awarded Icon West $42,689.37 in damages
against plaintiffs jointly and severally plus attorney fees and
other costs relating to the arbitration.
On October 4, 2024, AAA served by email and mail the
award on plaintiffs.
The Contractors State License Board (the Board) sent
Contract Décor a notice, dated January 17, 2025, of a
construction-related judgment against it.
III. Plaintiffs’ petition to vacate the arbitration award
A. The petition
On February 21, 2025, plaintiffs filed a petition in the
superior court to vacate the arbitration award. This was served
on April 21, 2025.
Plaintiffs agreed in the trial court that their petition was
untimely because it was filed and served more than 100 days
after the arbitrator served the award. (Code Civ. Proc., § 1288.)4
But plaintiffs sought equitable relief from the deadline, saying
4 All further undesignated statutory references are to the
Code of Civil Procedure.
4
they misunderstood the difference between arbitration and
mediation, assumed the proceeding was a mediation, and decided
not to participate until a lawsuit was filed. Plaintiffs also told
the court that it was only when they received the Board’s
January 2025 notice of a judgment that they understood the
nature of the proceedings conducted in their absence.
Plaintiffs argued that the award against Stewart had to be
vacated because he did not sign the subcontract.
They finally argued the entire award had to be vacated
because the dispute was subject to the mediation and litigation
provision in section 15 of the subcontract and not to the
arbitration provision in that section.
B. Icon West’s opposition to the petition
Icon West simultaneously opposed the petition to vacate
the award and petitioned to confirm the arbitration award. Icon
West argued that the petition to vacate the award was untimely,
and plaintiffs were not entitled to equitable relief from the
deadline to file a petition to vacate. Also, Icon West urged that
the award was not void as to Stewart because, while he had not
signed the agreement, section 6 of the subcontract made him
personally liable for any judgment as Contract Décor’s officer.
Finally, Icon West argued that the arbitration and not mediation
provision applied to this dispute because its claim did not involve
the Owner.
C. The trial court’s ruling
The trial court denied the petition to vacate the arbitration
award and granted Icon West’s petition to confirm the award.
The trial court first found that the petition to vacate was
untimely. The AAA served the award on October 4, 2024, so any
5
petition to vacate the award had to be filed and served within 100
days, i.e., by January 13, 2025. (§ 1288.) Plaintiffs did not file
the petition until February 21, 2025 and did not serve it until
April 21, 2025.
The trial court further found that plaintiffs were not
entitled to equitable relief from the filing deadline.
On the merits, the trial court found that plaintiffs’
objections were based on the arbitrator’s purported factual or
legal errors and, as such, were not judicially reviewable. As for
plaintiffs’ argument that the mediation and not the arbitration
provision applied, the trial court found that the subcontract could
“rationally” be interpreted as permitting arbitration because the
dispute brought to the AAA did not involve the Owner as a party.
The trial court therefore deferred to the arbitrator’s “reasonable
determination of her contractual authority.” Next, the trial court
found that the subcontract could be rationally interpreted to
apply to nonsignatory Stewart. To the extent plaintiffs argued
that the arbitrator ignored the requirement that a bond waiver
be in writing, the trial court found “this argument improperly
challenges a factual determination by the Arbitrator.”
The trial court entered judgment on Icon West’s cross-
petition to confirm the arbitration award. This appeal followed.5
5 We reject Icon West’s argument that the appellate record is
inadequate to permit meaningful review. The argument appears
to hinge on the absence of the reporter’s transcript of the hearing
below. But the transcript is unnecessary to our review of the
issues on appeal. (See generally Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
6
DISCUSSION
I. General principles
An arbitrator’s decision is subject to limited judicial review.
(Berglund v. Arthroscopic & Laser Surgery Center of San Diego,
L.P. (2008) 44 Cal.4th 528, 534.) Courts do not generally review
arbitration awards for factual or legal errors. (Richey v.
AutoNation, Inc. (2015) 60 Cal.4th 909, 916 (Richey).)
Courts do decide if an arbitrator acts in excess of the
arbitrator’s powers (§ 1286.2, subd. (a)(4)), and an award may be
vacated or corrected if it is in excess of the arbitrator’s powers
(§ 1286.6). Our review is de novo. (Richey, supra, 60 Cal.4th at
p. 918, fn. 1.)
A challenge to an arbitration award must 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 party
may seek equitable relief from the statutory deadline. (Law
Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 959–960 (Law
Finance).)
II. Equitable relief
The parties agree the petition to vacate the arbitration
award was untimely because plaintiffs filed and served it more
than 100 days after AAA served the award on plaintiffs.
Plaintiffs argue they should be relieved from section 1288’s
filing and service deadline on equitable grounds. (See generally
Law Finance, supra, 14 Cal.5th at p. 956.) They provide only a
terse argument—two paragraphs in their opening brief, and
silence in the reply. They never identify an equitable theory nor
do they apply law to the facts. The issue is therefore forfeited.
(See, e.g., Cahill v. San Diego Gas & Electric Co. (2011) 194
7
Cal.App.4th 939, 956 [arguments unsupported by reasoned
argument and authority are forfeited]; In re Marriage of Falcone
& Fyke (2008) 164 Cal.App.4th 814, 830 [absence of cogent legal
argument or citation to authority allows court to treat contention
as waived]; Paterno v. State of California (1999) 74 Cal.App.4th
68, 106 [appellate court is not required to examine undeveloped
claims or make arguments for parties].)
In any event, we would reject plaintiffs’ argument on the
merits. We address equitable tolling and equitable estoppel, the
two doctrines discussed by the Supreme Court in the context of
relief from section 1288’s deadline. (Law Finance, supra, 14
Cal.5th at pp. 959–960.)
Equitable tolling suspends or extends a statute of
limitations to ensure fundamental practicality and fairness.
(Saint Francis Memorial Hospital v. State Dept. of Public Health
(2020) 9 Cal.5th 710, 719 (Saint Francis).) Equitable tolling
requires timely notice to the defendant, lack of prejudice to the
defendant, and plaintiff’s reasonable and good faith conduct. (Id.
at p. 724.)
Plaintiffs cannot establish they acted reasonably and in
good faith. They argue that they mistook the arbitration for
mediation and did nothing, waiting for a lawsuit to be filed.
Perhaps the mistake explains why plaintiffs did not participate
in the arbitration. But it does not explain why they missed the
100-day deadline of section 1288. They received the arbitration
award—marked as such—on October 4, 2024, but their petition
wasn’t filed until February 21, 2025 and wasn’t served until April
21, 2025. In his declaration, Stewart tried to explain the delay,
stating that the Board’s January 2025 notice of judgment
8
“triggered” a “determination of the exact nature of the
proceeding,” i.e., the arbitration.
But that’s not the point. The point is that, earlier, he and
Contract Décor had received the AAA award, dated October 4,
2024, and either ignored it or inexplicably did not see it was an
arbitration award.6 Plaintiffs’ conduct was not reasonable and in
good faith, so equitable tolling does not apply. (See, e.g., Saint
Francis, supra, 9 Cal.5th at p. 726 [mistake or neglect alone do
not excuse late-filed petition].)
Nor is the doctrine of equitable estoppel helpful to
plaintiffs. It applies if “a party has, by his own statement or
conduct, intentionally and deliberately led another to believe a
particular thing true and to act upon such belief.” (Evid. Code,
§ 623.) This requires (1) Icon West to know the true facts;
(2) Icon West to intend its conduct be acted upon by plaintiffs;
(3) plaintiffs to be ignorant of the true facts; and (4) plaintiffs to
have relied on Icon West’s conduct or words to their detriment.
(Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.) In short, the
issue is whether Icon West “ ‘induced’ ” plaintiffs to delay their
challenge to the award (id. at 1029), by making some “type of
representation, ordinarily false, about a set of circumstances”
(Alameda County Deputy Sheriff’s Assn. v. Alameda County
Employees’ Retirement Assn. (2020) 9 Cal.5th 1032, 1072).
6 The award is printed on formal pleading paper, captioned
“American Arbitration Association,” is titled “Final Award,” and
begins, “THE UNDERSIGNED ARBITRATOR . . . .” It is only
two pages long and makes obvious dollar awards on the second
page. There is no suggestion of mediation, settlement, or any
other sort of procedure.
9
But plaintiffs cite no statement or conduct of Icon West
done to induce them to delay their challenge. Rather, they cite a
threat to sue made by Icon West’s attorney in March 2024, as
settlement discussions were failing and long before any legal
proceeding had started. There’s no connection to plaintiffs’ delay
after receiving the AAA award. Nor were plaintiffs ignorant of
the true facts: they had the dated award in their hands.
Plaintiffs are not entitled to equitable relief from the
statutory deadline to file their petition to vacate the arbitration
award.
III. Effect of subcontract’s dispute resolution provisions
Contract Décor’s final argument why the award should be
vacated as to it is the mediation provision applied to this dispute,
not the arbitration provision. Contract Décor argues that
arbitration is proper only for disputes which do not involve the
Owner; if they do involve the Owner (and Contract Décor says the
dispute did), the parties must instead mediate. Thus, while
Contract Décor does not refer to the notion, nor cite relevant
authority, it seems to argue that the arbitrator acted in excess of
her powers. (§ 1286.2, subd. (a)(4).)
Acting in excess of powers or ordinary jurisdiction is not
the same as acting without fundamental jurisdiction. (Zurich
American Ins. Co. v. Workers’ Comp. Appeals Bd. (2023) 97
Cal.App.5th 1213, 1229 [distinguishing acts outside scope of
“ ‘fundamental jurisdiction’ ” from acts “ ‘in excess of
jurisdiction’ ”]; People v. Chavez (2018) 4 Cal.5th 771, 780 [even
when an action is within scope of court’s fundamental
jurisdiction, “court may still exceed constraints placed on it by
statutes, the Constitution, or common law. [Fn. omitted.]
[Citation.] When a trial court fails to act within the manner
10
prescribed by such sources of law, it is said to have taken an
ordinary act in excess of jurisdiction. [Citation.] Such ‘ordinary’
jurisdiction [is] unlike fundamental jurisdiction . . . .”].) Acting in
excess of powers is not enough to show a lack of fundamental
jurisdiction such that the statutory deadline of section 1288 can
be avoided. (See generally National Union Fire Ins. Co. v. Stites
Prof. Law Corp. (1991) 235 Cal.App.3d 1718, 1723–1725.)
Contract Décor offers no argument or authority that the
arbitrator had no fundamental jurisdiction and thus we need not
further address the issue. (See, e.g., Cahill v. San Diego Gas &
Electric Co., supra, 194 Cal.App.4th at p. 956; In re Marriage of
Falcone & Fyke, supra, 164 Cal.App.4th at p. 830; Paterno v.
State of California, supra, 74 Cal.App.4th at p. 106.)
IV. The award is void as to Stewart
Stewart argues the arbitrator had no jurisdiction over him,
and therefore the award was void, and can be directly or
collaterally attacked at any time. We agree.
A judgment is void on its face if the court did not have
personal or subject matter jurisdiction, and a void judgment can
be directly or collaterally attacked at any time. (Strathvale
Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) This rule
applies to arbitration awards. (See NNN Capital Fund I, LLC v.
Mikles (2026) 119 Cal.App.5th 1200, 1213 [arbitrators exceed
their powers when they act without subject matter jurisdiction].)
Stewart never signed the subcontract containing the
arbitration clause. As arbitration is a matter of contract, Stewart
could not be compelled to arbitrate absent a doctrine under which
nonsignatories can be required to arbitrate, such as agency, alter
ego, or third party beneficiary. (E.g., UFCW & Employers Benefit
Trust v. Sutter Health (2015) 241 Cal.App.4th 909, 919.)
11
But it is a court, not an arbitrator, which decides if one of
those doctrines applies, because the arbitrator “has no power to
determine the rights and obligations of one who is not a party to
the arbitration agreement.” (American Builder’s Assn. v. Au-
Yang (1990) 226 Cal.App.3d 170, 179.) Whether “a nonsignatory
is a party to an arbitration agreement is one for the trial court in
the first instance.” (Ibid., fn. omitted; Matthau v. Superior Court
(2007) 151 Cal.App.4th 593, 604 [whether arbitration agreement
is operative against nonsignatory is question of substantive
arbitrability for court to determine]; H. Warren Knight et al., Cal.
Practice Guide: Alt. Dispute Resolution ¶¶ 5:263.2, 5:287 (The
Rutter Group 2025).) The court finding must precede the
arbitration. (Benaroya v. Willis (2018) 23 Cal.App.5th 462, 464–
465, 470, 474–475.)
Prior to the arbitration here, no court decided that Stewart
was required to arbitrate. Thus, the arbitrator had no
fundamental jurisdiction over Stewart, and Stewart had no
reason to participate.7
The trial court did conduct an after-the-fact analysis of
whether Stewart was subject to arbitration, finding he was, first,
under the subcontract, second, as Contract Décor’s agent, or
third, a third party beneficiary of the subcontract. We will not
consider those rulings. Even were any of them valid, we would
still reverse, because there is no “harmless error” rule here by
which we might find that, had a court ruled in the first instance
that Stewart was bound to arbitrate, the judgment against him
would be proper. Stewart had no legal reason to participate in
7 The award states Stewart represented himself at the
proceedings. As the parties here agree, this isn’t true; he didn’t
participate at all.
12
the arbitration; it would be plainly unfair now to bind him to the
result of a proceeding from which he was at the time justifiably
absent.
Regardless, the error in permitting the
arbitrator to decide whether appellant could be
compelled to arbitrate as the alter ego of Benaroya is
not subject to harmless error. “[I]ts effects are
‘ “unmeasurable” ’ and ‘ “def[y] analysis by “harmless-
error” standards.’ ” [Citations.]’ (Sandquist [v. Lebo
Automotive, Inc. (2016)] 1 Cal.5th [233] 261, 205.)
The wrong decision maker decided the issue; the
arbitrator exceeded his authority by purporting to
compel appellant to arbitrate and making him liable
for the award as Benaroya’s alter ego. Therefore, the
arbitration award must be set aside insofar as it
binds appellant. (Code Civ. Proc., § 1286.2, subd.
(a)(4) [ground for vacating arbitration award
established where ‘[t]he arbitrators exceeded their
powers and the award cannot be corrected without
affecting the merits of the decision upon the
controversy submitted’].) There is no basis for
finding the court’s failure to do so was mere harmless
error.
(Benaroya v. Willis, supra, 23 Cal.App.5th at p. 475.)
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DISPOSITION
The judgment is reversed as to David Stewart, and the trial
court is directed to grant the petition to vacate the arbitration
award as to him. The judgment is otherwise affirmed. The
parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
KARNOW, J.*
We concur:
ADAMS, Acting P. J.
HANASONO, J.
* Retired Judge of the San Francisco Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
14