Mail Service
Extension Rules Did Not Apply in MFAA Context.
The next case goes to show you
how (1) the facts are usually outcome determinative, and (2) the specific
context and promulgated rules in a statutory scheme may well prevail over a
result that seems intuitive under a different set of rules.
The
Mandatory Fee Arbitration Act (MFAA), Bus. & Prof. Code, sec. 6200 et seq.,
allow a client to force an attorney seeking collection of fees to arbitrate;
and, “within 30 days after mailing of notice of the award,” the attorney not
liking the award can commence a collection in superior court if one has not
been commenced already. (Sec. 6204(c).)
The next case we discuss focuses on this 30-day requirement under a
fairly unique set of circumstances.
In Richardson v. Ceja, Case No. F053954 (Oct. 7,
2008) (unpublished), client elected MFAA arbitration and obtained an award
ruling that former attorney should refund her $40,000. The proof of service indicated mailing on
December 19, 2006 and was mailed to attorney at the correct address, but the
actual envelope containing the award omitted the suite number from the address
and misspelled his last name (“Ricardson” rather than “Richardson”). However, attorney did admit receiving the
mailed award “on or about Saturday, December 23, 2006.” Attorney filed his court collection action on
January 19, 2007, the 31st day after the December 19, 2006 proof of
service mailing date. The superior court
ruled that attorney filed the complaint too late such that former client had a
judgment for $40,000 against attorney.
Attorney
appealed and lost before the Fifth District, in a 3-0 decision authored by
Presiding Justice Ardaiz.
After an
exhaustive survey of mailing statutory provisions, the appellate panel
concluded that the normal Code of Civil Procedure mailing statutes (sections
1012, 1013, and 1013a) relate only to notices in pending court actions or
proceedings. The Court of Appeal
reasoned as follows: “We see nothing in
the MFAA stating or suggesting that Code of Civil Procedure section 1013,
subdivision (a) should apply to the mailing of notice of an arbitration award. Indeed, the language of the MFAA itself appears
to us to evince a legislative intent that Code of Civil Procedure section 1013
should not apply to the ‘mailing of notice of the award.’ (Sec. 6204, subds.
(b) & (c).) If there is a civil
action pending, a party wishing to reject the arbitration award and proceed to
trial may file, in the court action, a ‘rejection of arbitration award.’ (Sec.
6204, subd. (b).) There must be ‘service
and filing of the rejection of arbitration award’ (sec. 6204, subd. (b)), and
‘[s]ervice may be made by mail on any party who has appeared.’ (Ibid.) On the other hand, the arbitration award is
independent of the court proceeding. The
very same subdivision (b) of the very same section 6204 requires ‘mailing of
the arbitration award’ and not ‘service of the arbitration award by mail
pursuant to C.C.P. sec. 1013.’ The
Legislature thus appears to have drawn a distinction between the service of a
document in a pending court proceeding and the mailing of an arbitration award
in arbitration proceeding held pursuant to the MFAA. Furthermore, if the phrase ‘within 30 days
after mailing of notice of the award’ in section 6204, subdivisions (b) and
(c), were intended to mean ‘within 30 days after service of the award by mail
pursuant to C.C.P. sec. 1013(a),’ a filing made on the 31st day
after mailing would be timely anyway, regardless of whether the address on the
envelope complied with requirements of Code of Civil Procedure section 1013,
subdivision (a), because section 1013, subdivision (a) would then extend by an
additional five days appellant’s time within which to file his civil
action. The words ‘within 30 days after
mailing of notice of the award’ appear to have been used precisely to avoid any
reference to service by mail pursuant to Code of Civil Procedure section 1013
and to provide certainty of the deadline by which a dissatisfied party to the
arbitration must request a trial after arbitration, either by filing and
serving a rejection of the arbitration award (if there is an action pending) or
by commencing a civil action (if there is no action pending). (See Slip Opn., at pp. 9-10.)
Justice
Ardaiz also observed that attorney’s opposition evidence was a little cagey in
nature. Attorney’s “artfully worded
declaration” suggested that all the mail might have gone through a common slot
and was then picked up and put on a common area “end table” in the building
where the commercial suites were located.
If this were the case, “we fail to see how the lack of a suite number on
the envelope would make any difference whatsoever in the delivery of the
envelope.”
BLOG OBSERVATION NO. 1—The appellate
court’s result was aided by the existence of a local Fresno County
bar rule indicating that service of the MFAA arbitration award was complete at
the time of deposit with no time extension by reason of service by mail.
BLOG OBSERVATION NO. 2—Why didn’t
attorney try to posture a plea for clemency by resort to the relief provisions
of Code of Civil Procedure section 473?
Answer: Maynard v. Brandon,
36 Cal.4th 364, 369 (2005) held that section 473(b) could not be
used to remedy a failure to meet the 30-day deadline for seeking a trial
following arbitration under the MFAA.
BLOG OBSERVATION NO. 3—If you are a
party aggrieved by an MFAA arbitration award, do not crowd the deadline for
commencing a collection action in court.
No extension will be given for mailing, under Richardson’s
interpretation of the MFAA scheme.