Petition Was Filed In Time, But Not Properly Served In Time
Condo owners with 70-year lease terms were subject to a readjustment of monthly rental after 30 1/2 years. The owners arbitrated the rental readjustment with their lessor, and the outcome was devastating (from the owners’ perspective): a 27-fold increase in average lease payments, and retroactive lease payments of between $70K and $90K. After the trial court dismissed the owners’ petition to vacate the arbitration award, because the owners had failed to petition to vacate within 100 days of service of the award, an appeal followed. Abers v. Rohrs, Case No. G047034 (4th Dist. Div. 3 filed 6/13/13, pub. 7/15/13) (Rylaarsdam, Acting P.J., author 3:0)
Here’s where the owners went sideways. For strategic reasons, they filed their petition under a case number different from the still-pending declaratory relief case number. Apparently, they timely filed their petition within the 100 day deadline, but served it by mail in the new proceeding. Because the respondents had not yet appeared in the new proceeding, service by mail was insufficient to confer jurisdiction on the court.
True, the lease provisions provided for service of notice by mail. But unfortunately for the owners, notice is not the same as service of process, as required by statute.
Nor was relief available under under Cal. Code Civ. Proc., section 473(b), providing the court with discretionary power to relieve a party from the consequences of mistake, inadvertence, surprise, or excusable neglect. Section 473 was inapplicable, because the trial court’s jurisdiction had expired.