Filed 3/7/24 Lopez v. Landscape Development CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

BIELMAN LOPEZ,

Plaintiff and Respondent,

v.

LANDSCAPE DEVELOPMENT, INC.,

Defendant and Appellant.

F085676

(Super. Ct. No. BCV-21-102890)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Bernard C. 

Barmann, Jr., Judge.

Musick, Peeler & Garrett and Cheryl A. Orr; Skane Mills and Joel P. Glaser; 

Ogletree, Deakins, Nash Smoak & Stewart and Lyne A. Richardson for Defendant and

Appellant.

Moss Bollinger, Dennis F. Moss, Jeremy F. Bollinger, Ari E. Moss and J. Anthony 

Flores for Plaintiff and Respondent.

-ooOoo-
2.

Appellant Landscape Development, Inc. (Landscape) appeals from an order of the 

superior court in favor of respondent Beilman Lopez. In the order, the court found 

Landscape had materially breached the parties’ arbitration agreement due to its failure to 

timely pay arbitration fees as required by statute, authorized the withdrawal of Lopez’s 

claim from arbitration, and awarded Lopez monetary sanctions in the amount of $3,770. 

We reverse the order.

FACTUAL AND PROCEDURAL BACKGROUND

I. Commencement of the Lawsuit and Demand For Arbitration

Lopez was hired as an employee of Landscape in July 2018. In connection with 

his employment, Lopez signed Landscape’s standard arbitration agreement that required 

the parties arbitrate any employment-related claims covered by the agreement.

On December 10, 2021, Lopez filed a complaint in the Kern Superior Court for 

civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, 

§ 2698 et seq.) (PAGA). Lopez brought suit on his own behalf and that of “similarly 

aggrieved employees and the State of California,” and alleged Landscape violated various 

Labor Code statutes and Industrial Welfare Commission wage orders.

On June 21, 2022,1 Landscape’s counsel demanded Lopez dismiss his complaint 

and all class claims, and submit his individual claims against Landscape to binding 

arbitration. On July 22, Lopez’s counsel responded to the demand and agreed to pursue 

Lopez’s individual claims in arbitration, but declined to dismiss the complaint or Lopez’s 

representative PAGA claims.2 Not satisfied with the response, on August 3, Landscape 

brought a motion seeking to compel arbitration of Lopez’s individual claims, and the 

dismissal of Lopez’s representative PAGA claims.

1 All dates referenced herein are to 2022 unless otherwise noted.

2

In his response to the arbitration demand, Lopez’s counsel clarified Lopez’s complaint 

only contained a single PAGA cause of action and no class claims, but stated Lopez would 

include any individual claims for Labor Code violations in the arbitration.
3.

Approximately two weeks after Landscape filed its motion to compel arbitration, 

Lopez initiated arbitration proceedings. Thereafter, the superior court formally 

compelled arbitration of Lopez’s individual claims (including individual PAGA claims) 

and stayed the action as to his representative PAGA claims.

II. Arbitration Proceedings

Lopez initiated the arbitration on August 16 by paying the Judicial Arbitration and 

Mediation Service (JAMS) a nonrefundable filing fee of $400. Lopez’s counsel received 

confirmation of the payment via an email from JAMS’s billing administration. Attached 

to the email was a pdf copy of a JAMS account statement reflecting the payment.

On August 31, JAMS’s billing administration sent an email to Landscape’s 

attorneys and copied Lopez’s counsel on the email. The email read, in part: “Please find 

your Deposit Request attached for the [Lopez v. Landscape] matter. Please note that 

payment is due upon receipt.” A pdf copy of the deposit request was attached to the 

email and required a $1,350 nonrefundable filing fee. On September 6, Landscape timely 

paid JAMS the requested deposit of $1,350.

On September 22, JAMS confirmed the commencement of arbitration in a written 

notice to all parties’ counsel. A pdf copy of the notice titled “Commencement of 

Employment Arbitration” (some capitalization and boldface omitted) (notice of 

commencement) was attached to an email sent by JAMS to all parties’ counsel. The 

notice of commencement included, without limitation, the names of seven proposed 

arbitrators, a fee schedule for each, and documents advising the parties of various JAMS 

policies. Each fee schedule included with the notice of commencement read, in part: 

“All fees are due and payable in advance of services rendered and by any applicable due 

date as stated in a hearing confirmation letter.”

On October 7, the parties, through their counsel, notified JAMS of their selected 

arbitrator.
4.

On October 13, JAMS issued, and uploaded to its online portal, a notice titled 

“Appointment of Arbitrator” (notice of appointment) stating the parties’ chosen arbitrator 

had been appointed to the case. In a declaration to the superior court, Lopez’s counsel 

said, “the Parties” were notified of the uploaded document by an email received from 

JAMS with the subject title “JAMS Access New Notifications.” However, the email 

attached as an exhibit to the declaration was addressed only to Lopez’s counsel. The 

email read, “Dear [counsel for Lopez], [¶] Here are all of the new Notifications within 

JAMS Access. Click here to login to JAMS Access to see the Notifications.” 3 The 

email continued, in relevant part: “Notice of Appointment.pdf is uploaded to case [Lopez 

vs. Landscape,] #5210000157 by [JAMS’s business manager].”

The notice of appointment included a paragraph that read: “The paying party has 

been billed a preliminary deposit to cover the expense of all pre-hearing work, such as 

reading, drafting of orders, and conference calls. An invoice for this deposit is attached. 

Payment is due upon receipt. Upon receipt of payment, a Preliminary Arbitration 

Management Conference Call will be scheduled with the Arbitrator.” Below the notice 

of appointment’s author’s signature is the notation “Enclosure.” Lopez’s counsel averred 

that a deposit request for $12,000 issued to Landscape’s counsel (the subject invoice) was 

attached to the notice of appointment.

On November 2, JAMS sent counsel for all parties an email that read, in part: “I 

am following up on the initial retained payment for the above referenced matter. JAMS 

3 According to JAMS’s official website, “JAMS Access” is “a secure, online case 

management platform provided to JAMS clients at no charge” and is described, in part, as 

follows: “Our user-friendly interface streamlines the filing and service of documents and 

facilitates communication among JAMS neutrals, attorneys, parties and case managers[,]” and 

invites users to “[c]reate your account now at access.jamsadr.com.” (Boldface omitted.) 

(<https://www.jamsadr.com/jamsaccess> (as of Mar. 7 2024).) A party receiving notification 

from JAMS Access that a document has been uploaded to the online portal must log in to the 

service to view the notification. (<https://www.access.jamsadr.com/newsinsights/resources/user-guide-neutrals> at “Frequently Asked Questions (FAQ)” (as of Mar. 7,

2024).)
5.

has yet to receive payment for initial retainer from [ Landscape]. I have attached a copy 

of the [subject invoice] dated [October 13] for your consideration. Please submit 

payment as soon as possible ....” Attached to the email was a copy of the subject 

invoice. The subject invoice contained a line that read, “Billed To” Landscape’s counsel 

and beneath which was the firm’s Las Vegas, Nevada address and the case name.4 

Below the case name, it read “Representing: Landscape Development, Inc.”

In a declaration, Landscape’s counsel averred the November 2 follow-up email 

“was the first time [he] received the [subject invoice] for the arbitrator’s fees.”

On November 10, JAMS sent an email to all counsel asking the parties to “please 

provide ... the status of payment for the [subject invoice] regarding the above referenced 

matter.” Landscape’s counsel replied, “Who has not paid? This email was vague.” 

JAMS replied, in part: “My apologies for the confusion. I followed up on the previous 

email thread which indicated that [Landscape] has not paid the [subject invoice] for this 

matter. [¶] Currently, JAMS has not received payment from [Landscape].” Landscape’s 

counsel responded, “Please send me the invoice and I will follow up.”

On November 11, JAMS sent another email to Landscape’s counsel that read, in 

part: “Attached please find a copy of the [subject invoice] dated [October 13] for your 

consideration. Please submit payment as soon as possible .... [¶ ... ¶] Once we 

receive[] payment for [the subject invoice], we will proceed with scheduling the 

Preliminary Arbitration Management Conference Call with [the arbitrator].” 

Also on November 11, a representative of Landscape emailed JAMS and 

requested JAMS bill the subject invoice to Landscape (rather than Landscape’s attorneys) 

to comply with its accounting department’s requirements. The representative wrote, “We 

4 Although addressed to the firm’s Las Vegas address, there is no evidence in the record 

that the subject invoice was sent to Landscape or its counsel by other means (e.g., by mail or 

delivery). Landscape’s counsel averred the firm’s Las Vegas address was never used on any of 

the pleadings filed in this matter and denied receiving the subject invoice at the Las Vegas office, 

at any address used on pleadings, or otherwise, prior to November 2.
6.

will process the payment when received.” In response that same day, JAMS responded 

by requesting Landscape’s insurance adjustor’s name and contact information and stating 

it would update the subject invoice once the information was received.

On November 17, JAMS again requested the insurance adjustor’s contact 

information from Landscape. That same day, Landscape’s counsel’s office forwarded the 

requested information to JAMS.

III. Lopez Elects to Withdraw From Arbitration and Then Landscape Pays the 

Subject Invoice

On November 17, Lopez’s counsel contacted JAMS and confirmed that the subject 

invoice had not yet been paid by Landscape.

On November 21, at 4:13 p.m., Lopez’s counsel emailed JAMS and Landscape’s 

counsel and advised them Lopez “is electing to withdraw his claim from arbitration ... 

due to ... Landscape[’s] ... material breach of the arbitration agreement,” pursuant to 

Code of Civil Procedure section 1281.97, subdivision (b)(1).

5

 At 5:20 p.m. that same 

day, Landscape’s counsel wrote JAMS and asked, “When can we expect the revised 

invoice in the name of Landscape Development, Inc.?”

An updated invoice was sent the following day, November 22, and was billed to 

Landscape’s insurance adjustor. Although the revised invoice was still not billed directly 

to Landscape, Landscape paid it on November 23 by check dated November 21. 

Landscape contends the subject invoice was timely paid because it was paid within 

30 days of November 2, the date it was first received by Landscape’s counsel.

5 All statutory references are to the Code of Civil Procedure unless otherwise noted.
7.

IV. Lopez Successfully Moves the Superior Court For a Determination 

Landscape Was in Material Breach of the Arbitration Agreement and For 

Monetary Sanctions

On November 22, Lopez filed a motion for monetary sanctions (sanctions motion) 

alleging Landscape’s material breach of the arbitration agreement under sections 1281.98 

and 1281.99 for failure to timely pay the subject invoice. Lopez requested the superior 

court find Landscape “failed to timely pay initiating fees, thereby waiving arbitration,” 

“retain jurisdiction to hear [Lopez’s] entire PAGA action,” and award Lopez monetary 

sanctions in the amount of $19,474.70.

In an order filed January 23, 2023 (sanctions order), the superior court granted 

Lopez’s sanctions motion having found (1) Landscape “failed to pay the arbitration fees 

necessary for the arbitration to proceed within the 30-day statutory grace period pursuant 

to ... section[] ... 1281.98”;6(2) pursuant to said statute, Landscape’s “failure to timely 

pay its arbitration fees constitutes a material breach of the parties’ arbitration agreement 

that [Landscape] drafted”; (3) Lopez “has elected to withdraw his claim from arbitration 

and proceed in [the superior c]ourt”; (4) Lopez “is entitled to an award of sanctions 

against [Landscape] to recover his reasonable attorneys’ fees and costs incurred as a 

result of [Landscape’s] breach”; and (5) Lopez’s counsel “reasonably incurred costs 

totaling $77.20 and ... attorneys’ fees ... totaling $3,770.00.” Thus, the court granted 

Lopez’s request for attorneys’ fees and costs in the amount of $3,777.20.

V. Landscape Successfully Moved the Superior Court to Stay Its Sanctions

Order Pending Appeal

On January 30, 2023, Landscape moved the superior court to stay its sanctions 

order pending appeal. The court granted Landscape’s stay motion.

On February 2, 2023, Landscape timely appealed the sanctions order.

6 Although Lopez argued Landscape breached the arbitration agreement under both 

sections 1281.97 and 1281.98, and the superior court cited both statutes in its sanctions order, 

Lopez concedes the initial payment was timely made by Landscape and states section 1281.97 

“is not at issue in this appeal.”
8.

DISCUSSION

I. Landscape’s Contentions on Appeal

The main thrust of Landscape’s argument on appeal is that Lopez did not meet his 

burden of proof to demonstrate Landscape materially breached the parties’ arbitration 

agreement and, therefore, the sanctions order should be reversed. Landscape further 

contends the manner in which JAMS allegedly sent the subject invoice to the parties does 

not comply with subdivision (a)(2) of section 1281.98. Landscape argues the evidence in 

the record affirmatively demonstrates it timely paid the subject invoice within 30 days of 

November 2, the date Landscape first received the invoice. Landscape posits “if [its] 

counsel never received the invoice on October 13, ... the due date [for payment] did not 

commence to run from that date.” As discussed below, Landscape’s argument that Lopez 

did not meet his burden of proof in bringing the sanctions motion has merit.

II. Standard of Review

The parties disagree on the applicable standard of review on appeal. Landscape 

contends this court’s review is de novo “because it is the functional equivalent of an 

order denying a petition to compel arbitration,” citing Gallo v. Wood Ranch USA, Inc.

(2022) 81 Cal.App.5th 621, 632–633 & fn. 4 (Gallo) and De Leon v. Juanita’s Foods

(2022) 85 Cal.App.5th 740, 749–750 (De Leon). Landscape also argues de novo review 

is proper because “application of law turns on undisputed facts,” citing Boling v. Public 

Employment Relations Bd. (2018) 5 Cal.5th 898, 912.

Lopez agrees de novo review is appropriate where a question of law is presented, 

but contends “[t]his case involves a disputed factual issue over whether ... JAMS sent the 

[subject] invoice to Landscape’s counsel on October 13” and, therefore, the sanctions 

order must be affirmed if supported by substantial evidence, citing, among other cases, 

Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.

“Ordinarily, a trial court’s determination that a party waived the right to arbitrate 

is subject to substantial evidence review.” (De Leon, supra, 85 Cal.App.5th at p. 749.) 
9.

The court in De Leon departed from this rule because the factual support for the trial 

court’s rulings were undisputed. (Ibid.) Similarly, the court in Gallo applied a de novo 

review “because the propriety of the order [determining waiver of the right to arbitrate] 

rest[ed] on questions of federal preemption as well as the application of undisputed facts 

to the law ....” (Gallo, supra, 81 Cal.App.5th at p. 633.)

“Where findings of fact are challenged on a civil appeal, we are bound by the 

‘elementary, but often overlooked principle of law, that ... the power of an appellate 

court begins and ends with a determination as to whether there is any substantial 

evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We 

must therefore view the evidence in the light most favorable to the prevailing party, 

giving it the benefit of every reasonable inference and resolving all conflicts in its favor 

in accordance with the standard of review so long adhered to by this court.” (Jessup 

Farms v. Baldwin (1983) 33 Cal.3d 639, 660.) “Substantial evidence is evidence that is 

‘of ponderable legal significance,’ ‘reasonable in nature, credible, and of solid value,’ and 

‘“substantial” proof of the essentials which the law requires in a particular case.’” 

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.)

Although certain factual issues are undisputed (e.g., Landscape’s payment of the 

subject invoice on or about November 22), the sanctions order turned primarily on the 

superior court’s resolution of two disputed and interrelated factual issues—whether 

JAMS sent the subject invoice to Landscape on October 13, and whether Landscape 

received the subject invoice on October 13. These are historical facts, the resolution of 

which we review for substantial evidence. (Crocker National Bank v. City and County of 

San Francisco (1989) 49 Cal.3d 881, 888.)

III. Applicable Law

A. Section 1281.98

Section 1281.98, a part of the California Arbitration Act (§ 1280 et seq.) (CAA), 

provides, in part, as follows:
10.

“(a) [¶] (1) In an employment or consumer arbitration that 

requires, either expressly or through application of state or federal law or 

the rules of the arbitration provider, that the drafting party pay certain fees 

and costs during the pendency of an arbitration proceeding, if the fees or 

costs required to continue the arbitration proceeding are not paid within 

30 days after the due date, the drafting party is in material breach of the 

arbitration agreement, is in default of the arbitration, and waives its right to 

compel the employee or consumer to proceed with that arbitration as a 

result of the material breach.

“(2) The arbitration provider shall provide an invoice for any fees 

and costs required for the arbitration proceeding to continue to all of the 

parties to the arbitration. The invoice shall be provided in its entirety, shall 

state the full amount owed and the date that payment is due, and shall be 

sent to all parties by the same means on the same day. To avoid delay, 

absent an express provision in the arbitration agreement stating the number 

of days in which the parties to the arbitration must pay any required fees or 

costs, the arbitration provider shall issue all invoices to the parties as due 

upon receipt. Any extension of time for the due date shall be agreed upon 

by all parties....” (§ 1281.98, subd. (a).)

“The Legislature enacted section 1281.98 ... to curb a particular arbitration abuse. 

The abuse was that a defendant could force a case into arbitration but, once there, could 

refuse to pay the arbitration fees, thus effectively stalling the matter and stymying the 

plaintiff’s effort to obtain relief.” (Cvejic v. Skyview Capital, LLC (2023) 92 Cal.App.5th 

1073, 1076.) “[T]he legislative history [of section 1281.98] indicates the California 

Legislature sought a clear and unambiguous rule for courts to apply in determining 

whether late payment of arbitration fees by a drafting party constituted a material breach 

of an arbitration agreement.” (De Leon, supra, 85 Cal.App.5th at p. 756.)

As originally enacted, section 1281.98 did not include subdivision (a)(2). (Stats. 

2019, ch. 870, § 5) In 2021, the Legislature enacted Senate Bill No. 762 (2021–2022 

Reg. Sess.) (Senate Bill 762), which amended section 1281.98 by adding 

subdivision (a)(2) to the statute effective January 1, 2022. (§ 1281.98, subd. (a)(2).) An 

analysis of Senate Bill 762 performed by the Office of Senate Floor Analysis reads, in 

part, as follows:
11.

“To ensure that consumers and employees are not unfairly prejudiced when 

businesses and employers delay arbitrations by failing to timely pay 

arbitration fees, existing law grants consumers and employees certain rights 

when the drafting business or employer is delinquent in making an 

arbitration fee payment necessary for the arbitration to go forward. When a 

business or employer is more than 30 days past due on an arbitration 

payment, the business or employer is considered in material breach of the 

arbitration agreement, and the consumer or employee may elect to proceed 

with the arbitration or bring the case in court....

“Existing law does not, however, impose any requirements on when 

an arbitrator must send invoices or whether and how the payment’s due 

date must be disclosed. This gives rise to a question as to when a business 

or employer is actually past due on a payment, which in turn causes 

ambiguity as to when a business or employer is 30 days late and therefore 

in material breach of the arbitration agreement. According to the sponsor, 

the California Employment Lawyers Association, some employers have 

used this lacuna to their advantage by, for example, receiving undisclosed

payment extensions, with the purpose of delaying arbitration proceedings

despite the protections provided to consumers and businesses under the

law.

“This bill closes the gap in current law by establishing clear 

guidelines for when an arbitrator must send an invoice, as well as requiring 

the invoice to contain the total amount due and the due date. This bill 

further provides that, where an arbitration agreement does not establish a 

time frame for paying an arbitration invoice, the payment is due upon 

receipt....” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Sen. 

Bill No. 762 (2021–2022 Reg. Sess.) as amended June 14, 2021, p. 2, fns. 

omitted.)

The need for the above referenced amendment to section 1281.98 was further 

discussed in another analysis of Senate Bill 762, in part, as follows:

“This virtuous and generally non-controversial bill seeks to close a 

potential loophole in [section 1281.98] .... In the wake of recent litigation 

surrounding [section 1281.98], it has become clear that additional statutory 

clarity regarding the timing of when arbitration fees are ‘due’ would be 

helpful to ensure that drafting parties could not exploit the ambiguity in the 

law to delay paying for and conducting arbitration, thereby leaving 

plaintiffs without a legal remedy.... Therefore, this bill provides for a clear 

start date for the 30-day timeline for paying arbitration fees.” (Assem. 
12.

Com. on Judiciary, Analysis of Sen. Bill No. 762 (2021–2022 Reg. Sess.)

as amended June 14, 2021, p. 1, italics omitted.)

B. Absent an Agreement Otherwise, the 30-day Grace Period For Payment 

of Arbitration Fees Established By Section 1281.98 Commences Upon the 

Drafting Party’s Receipt of a Fee Invoice

Lopez contends “[t]he obligations imposed by the law on a drafting party like 

Landscape are triggered by the ‘sending’, not by the reading of the invoice by the drafting 

party,” citing subdivision (a)(2) of section 1281.98. Whereas the second clause of the 

contention is correct (see, e.g., Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 

777 [rejecting inadvertence and clerical error as a defense to nonpayment]), the first 

clause of the contention is incorrect.

“The proper interpretation of a statute is a question of law, which we determine 

independently, or de novo.” (People v. Jacobo (2019) 37 Cal.App.5th 32, 42) “‘As in 

any case involving statutory interpretation, our fundamental task ... is to determine the 

Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by 

examining the statute’s words, giving them a plain and commonsense meaning. 

[Citation.]’ [Citation.] ‘[W]e must look first to the words of the statute because they are 

the most reliable indicator of legislative intent. [Citation.] If the statutory language is 

clear and unambiguous, the plain meaning of the statute governs.’” (De Leon, supra, 85 

Cal.App.5th at p. 750.)

On the issue of payment, the language of section 1281.98 is clear and 

unambiguous. Payment of an arbitration invoice by a drafting party is not required by the 

statute upon the sending of the invoice. Rather, payment must be made “within 30 days 

after the due date” of the invoice. (Id., subd. (a)(1).) Absent an agreement otherwise, 

section 1281. 98 further requires the invoice be made “due upon receipt.” (Id., 

subd. (a)(2).) Thus, even though proof an invoice was sent in some instances, creates a 
13.

rebuttable presumption it was received,7it is the receipt—not the sending—of the invoice 

that triggers a party’s statutory obligation to pay within 30 days. Had the Legislature 

intended payment to be due upon the “sending” of an arbitration invoice, it could have 

easily so provided.

The term “receipt,” as used in the context of section 1281.98, is not subject to 

varying interpretations. Webster’s defines the term “receipt” as “[a]n act of receiving 

something” (Webster’s II New College Dict. (1995) p. 924, col. 2), “[t]he fact of being 

received” (ibid.) and “[t]he act or process of receiving” (Webster’s 3d New Internat. Dict. 

(1986) p. 1894, col. 1). The American Heritage Dictionary defines the term “receipt” as 

“[t]he act of receiving or being received.” (American Heritage Dict. (4th ed. 2001) 

p. 699, col. 1.) In a legal context, the term “receipt” is defined in a substantively identical 

manner. Specifically, Black’s Law Dictionary defines the term as “The act of receiving 

something” and provides the following usage example, “<my receipt of the document 

was delayed by two days>.” (Black’s Law Dict. (9th ed. 2009) p. 1382, col. 1.)

Except for Black’s Law Dictionary, the above dictionaries provide the following 

relevant definitions for the term “receive”:8 “To acquire or take (something given, 

offered, or transmitted) .... To take in or hold ....” (Webster’s II New College Dict. 

(1995) p. 924 col. 2, p. 925, col. 1); “To take or acquire (something given, offered, or 

transmitted)” (American Heritage Dict. (4th ed. 2001) p. 699, col. 1.); and “to take 

possession or delivery of” (Webster’s 3d New Internat. Dict. (1986) p. 1894, col. 1).

7 See, e.g., Evidence Code section 641 (“A letter correctly addressed and properly mailed 

is presumed to have been received in the ordinary course of mail.”); Code of Civil Procedure 

section 1020, subdivision (a) (rebuttable presumption of receipt of registered mail upon 

“production of a returned receipt purporting to be signed by the addressee”); In re Cavanaugh

(1965) 234 Cal.App.2d 316, 320 (service by mail “in the manner described in ... section 1013, is 

presumed to have been received”). The foregoing presumptions are rebuttable. (In re

Cavanaugh, supra, at p. 320; Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 

1486; Code Civ. Proc., § 1020; Evid. Code, § 630.)

8 Black’s Law Dictionary (9th ed. 2009) does not provide a definition for “receive.”
14.

“‘“Every statute and code section should be construed with reference to its 

purpose and the objects intended to be accomplished by it. The language will be so 

interpreted, if possible, as to aid the design and intent of the legislature and to effectuate 

the evident objects and purpose of the law.”’” (Wholesale T. Dealers v. National etc.

(1938) 11 Cal.2d 634, 660, italics added.) “‘“‘The mere literal construction of a section 

in a statute ought not to prevail if it is opposed to the intention of the legislature apparent 

by the statute; and if the words are sufficiently flexible to admit of some other 

construction it is to be adopted to effectuate that intention. The intent prevails over the 

letter, and the letter will, if possible, be so read as to conform to the spirit of the act.’”’” 

(Rushing v. Powell (1976) 61 Cal.App.3d 597, 604, italics added.)

The legislative history of subdivision (a)(2) of section 1281.98 indicates the 

statutory obligation of the arbitration provider to send the invoice “to all parties by the 

same means on the same day” was intended to reduce (or possibly eliminate) disputes 

over whether a drafting party received an arbitration invoice on a given date, and to 

enable all parties to know when payment is due. Notwithstanding, the language of 

section 1281.98 is not sufficiently flexible to enable us to interpret the statute such that 

the 30-day grace period would commence upon the sending of an arbitration invoice 

without consideration of whether and when the invoice was received. 

Notably, “[t]he law traditionally disfavors forfeitures and statutes imposing them 

are to be strictly construed.” (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 

906; see Civ. Code, § 1442; Hernandez v. Temple (1983) 142 Cal.App.3d 286, 290; 

People v. Resolute Ins. Co. (1975) 50 Cal.App.3d 433, 435.) Our construction of 

section 1281.98 is consistent with this principle. The statutory construction urged by 

Lopez is a more liberal construction of section 1281.98, which, if adopted, would result 

in a forfeiture of Landscape’s right to arbitrate in violation of the principle. Finally, 

although our construction of subdivision (a)(2) of section 1281.98 leaves room for a party 

to assert it did not receive an arbitration invoice to counter evidence of a material breach 
15.

of an arbitration agreement due to untimely payment, our construction remains consistent 

with the Legislature’s intent to reduce (and possibly eliminate) such disputes.9

As discussed, and absent an agreement among the parties otherwise, 

section 1281.98, subdivision (a), provides that an arbitration invoice shall be issued as 

“due on receipt,” and that payment of the invoice must be made “within 30 days after the 

due date.” The clear and unambiguous text of the statute provides the 30-day grace 

period for payment will commence once the invoice is received—i.e., once the drafting 

party comes into possession of the invoice. Although evidence that an arbitration invoice 

was sent is relevant to the question of whether and when it was received, we reject the 

categorical contention that the mere sending of the invoice commences the running of the 

30-day grace period. 

IV. Substantial Evidence Does Not Support a Finding That Landscape’s Payment 

of the Subject Invoice Was Untimely

A. Lopez Bore the Burden of Proof to Demonstrate Landscape’s Payment of 

the Subject Invoice Was Untimely

Under section 1281.98, Landscape, as the party that drafted the arbitration 

agreement, was required to pay the subject invoice “within 30 days after the due date” to 

avoid being in material breach of the arbitration agreement. (Id., subd. (a)(1).)10 On 

9 Courts have described the 30-day grace period as “establish[ing] a clear-cut rule for 

determining if a drafting party is in material breach of an arbitration agreement” (De Leon,

supra, 85 Cal.App.5th at p. 755) and as “‘establish[ing] a simple bright-line rule that a 

[company’s] failure to pay outstanding arbitration fees within 30 days after the due date results 

in its material breach of the arbitration agreement.’” (Doe v. Superior Court (2023) 95 

Cal.App.5th 346, 359, quoting De Leon, supra, at p. 753.) While we agree the 30-day provision 

of section 1281.98, subdivision (a)(1), lends concreteness to the timing of an obligation to pay an 

arbitration invoice, the case before us demonstrates that factual situations may complicate 

calculation of the 30-day grace period. To the extent a more definitive means of determining 

commencement of the 30-day grace period is desired, it is for the Legislature (and not this court) 

to design a statutory structure to achieve that goal.

10 The CAA defines “‘[d]rafting party’” as “the company or business that included a 

predispute arbitration provision in a contract with a consumer or employee. The term includes 

any third party relying upon, or otherwise subject to the arbitration provision, other than the 
16.

appeal, Landscape argues Lopez “failed to meet his burden of proof ... to demonstrate 

that Landscape breached the agreement to arbitrate ....” (Boldface and capitalization 

omitted.) We agree.

“Except as otherwise provided by law, a party has the burden of proof as to each 

fact the existence or nonexistence of which is essential to the claim for relief or defense 

that he is asserting.” (Evid. Code, § 500.) In the context of court compelled arbitration, 

“[i]f the [employee] elects to proceed in court to ... resume litigation [after a material 

breach of the arbitration agreement], the [employee] must ... seek vacatur of a prior order 

compelling arbitration and staying the litigation ....” (Williams v. West Coast Hospitals, 

Inc. (2022) 86 Cal.App.5th 1054, 1066.) In its sanctions motion, Lopez did just that. 

Lopez sought “an order finding that ... Landscape ... materially breached the arbitration 

agreement that it drafted by failing to pay fees and costs ‘required to continue the 

arbitration proceeding ... within 30 days after the due date,’ thereby waiving arbitration.” 

Lopez further sought an award of monetary sanctions under sections 1281.98 and 

1281.99. Consequently, in order to obtain the sanctions order, Lopez bore the burden of 

proving Landscape materially breached the arbitration agreement. Lopez does not argue 

to the contrary.

As required by subdivision (a)(2) of section 1281.98, the subject invoice stated 

“[p]ayment is due upon receipt.” Thus, in order to meet its burden of proof in the 

sanctions motion, Lopez necessarily had to produce evidence and persuade the superior 

court that Landscape received the subject invoice more than 30 days prior to Landscape 

making payment of the invoice. (Id., subd. (a)(1); Evid. Code, §§ 115, 500.)

employee or consumer.” (§ 1280, subd. (e).) The parties do not dispute that Landscape is the 

“‘[d]rafting party’” as defined in CAA.
17.

B. Evidence Proffered in Support of Lopez’s Sanctions Motion

We summarize the relevant evidence Lopez submitted to the superior court in 

support of his sanctions motion below.11

1. JAMS’s September 22 Notice of Commencement and Related 

Documents

In a declaration, Lopez’s counsel stated, “On September 22, ... JAMS served the 

Notice of Commencement [of arbitration] through JAMS online portal, JAMS Access, to 

which all of the parties have access.” In support of that statement, Lopez’s counsel 

attached as an exhibit to his declaration a copy of a September 22 email sent to counsel 

for both parties that read, in relevant part: “Dear Parties, [¶] Attached is a courtesy copy 

of the Notice of Commencement just filed today in JAMS Access.” A pdf copy of the 

notice of commencement was attached to the email and included the notation near the top 

of the document: “NOTICE TO ALL PARTIES.” The notice of commencement briefly 

discussed the process for selecting arbitrators and, among other things, stated, “The 

Arbitrator shall bill in accordance with his/her current Fee Schedule.”

The fee schedule for the arbitrator ultimately selected by the parties was included 

with the notice of commencement and contained an information section titled 

“Cancellation/Continuance Policy” (some capitalization and boldface omitted) under 

which was written, in relevant part: “All fees are due and payable in advance of services 

rendered and by any applicable due date as stated in a hearing confirmation letter.” Also 

included with the notice of commencement was a document titled “JAMS Arbitration 

Administrative Policies” (some capitalization and boldface omitted), which read, in part: 

“The Parties and their attorneys agree to pay JAMS for the arbitration as set forth in the 

11 Lopez’s counsel submitted additional evidence to provide the superior court with 

contextual facts and procedural information. We have already stated those facts in our 

discussion of the factual and procedural background and do not repeat them here.
18.

Fee and Cancelation Policy attached to and incorporated in this Agreement”—i.e., the 

Cancellation/Continuance Policy referenced in this paragraph.12

Landscape acknowledged the receipt of these September 22 communications and 

attachments. However, Landscape’s counsel stated he received the documents by 

email—not by logging into JAMS Access.

2. JAMS’s October 13 Notice of Appointment and Related Attachment

Lopez’s counsel also stated, “On October 13, ... JAMS issued a notice to the 

parties appointing Joel Grossman as the arbitrator. Attached as [an] Exhibit is a true and 

correct copy of the [notice of appointment] ... and all attachments enclosed with the 

notice dated October 13 ....”

As with the notice of commencement, the notice of appointment included the 

notation “NOTICE TO ALL PARTIES,” advised the parties that their selected arbitrator 

had been appointed to the case, and stated, in part: “The paying party has been billed a 

preliminary deposit to cover the expense of all pre-hearing work, such as reading, 

drafting of orders, and conference calls. An invoice for this deposit is attached. Payment 

is due upon receipt.” The subject invoice was uploaded to JAMS’s online portal along 

with, and attached to, the notice of appointment.

3. Subsequent Communications Between Counsel and JAMS

Lopez’s counsel stated he received the November 2 follow-up email from JAMS 

in which JAMS’s case coordinator stated, in part: “I am following up on the initial 

retainer payment for the above referenced matter. JAMS has yet to receive payment for 

initial retainer from [Landscape]. I have attached a copy of the [subject invoice] for your 

consideration. Please submit payment as soon as possible ....” Lopez’s counsel averred 

12 We presume the fee and cancelation policy mentioned in the JAMS arbitration 

administrative policies is a reference to the cancellation/continuance policy included in the 

arbitrator’s fee schedule. No separate document titled, or containing a subheading titled, “Fee 

and Cancelation Policy” is included in the record on appeal.
19.

the attachments to the email included a copy of the subject invoice, wire payment 

instructions, and a W-9 form for JAMS.

Lopez’s counsel also stated he received the November 10 follow-up email from 

JAMS in which JAMS’s case coordinator stated, “At your earliest convenience, can you 

please provide me with the status of payment for the initial retainer regarding the [Lopez 

v. Landscape] matter?”

Lopez’s counsel further stated he contacted JAMS on November 17 and 

“confirmed that [Landscape] had still not paid the outstanding balance and, therefore, [the 

case coordinator] still could not schedule the Preliminary Arbitration Management 

Conference Call.”

Finally, Lopez’s counsel stated he notified JAMS and Landscape’s counsel by 

email on November 21 of Lopez’s decision to withdraw his claims from arbitration and 

pursue them in the superior court. Attached to Lopez’s counsel’s declaration was an 

email stream that included the email notifying of Lopez’s withdrawal from the arbitration 

and emails containing back-and-forth discussions between the parties’ counsel 

concerning their disagreement over whether Lopez had the right to withdraw from the 

arbitration.

C. Landscape’s Evidence in Opposition to the Sanctions Motion

Landscape’s counsel submitted a declaration and exhibits in opposition to the 

sanctions motion. In his declaration, Landscape’s counsel acknowledged receiving the 

notice of commencement and related attachments by email.

Landscape’s counsel also acknowledged receiving the November 2 and 

November 10 follow-up emails from JAMS indicating it was still awaiting payment of 

the subject invoice. Counsel stated he received a copy of the subject invoice as part of 

the November 2 email and averred, “[t]his was [the] first time I received the [subject 

invoice] for the arbitrator’s fee.”
20.

In his declaration, Landscape’s counsel discusses his communications with JAMS 

and opposing counsel concerning his contention and objection that the subject invoice 

was improperly billed to his firm rather than to Landscape.

Landscape’s counsel also averred that, on November 22, he “asked JAMS to send 

the email or communication by which the disputed [subject invoice] was sent to 

[Landscape],” but stated, “JAMS has not provided any evidence that the [subject invoice] 

was sent to [Landscape] or [his] firm ....” He also stated he “verified the [subject] 

invoice was not received by any Department of [his] firm” or his firm’s Las Vegas, 

Nevada office.

D. Lopez’s Supplemental Evidence in Reply to Landscape’s Opposition

In a supplemental declaration, Lopez’s counsel stated, “when JAMS had a new 

notification, [it] sent an email to the Parties with the subject matter ‘JAMS Access New 

Notifications’. The email stated: ‘Here are all of the new Notifications within JAMS 

Access. Click here to login to JAMS Access to see the Notifications.’ Below that 

message was a box containing the name of the new document that JAMS had uploaded to 

the case file for the arbitration with a hyperlink to take the recipient to the document in 

JAMS Access, JAMS’ online portal. Accordingly, any new document was not attached 

to the email; instead, it was accessible through the link in the email.... The email from 

JAMS with the hyperlink to the ‘Notice of Appointment’ (to which the [subject invoice] 

was attached) was sent to me [i.e., Lopez’s counsel] on October 13 ....”

Lopez’s counsel attached the JAMS Access notification email as an exhibit to his 

declaration and stated, “This email was typical of other emails that JAMS sent to the 

Parties in the arbitration, including the invoice for [Lopez’s] initial filing fee.” To 

illustrate this latter point, Lopez’s counsel included additional exhibits to his 

supplemental declaration, consisting of other email notifications he received from JAMS 

Access. Each of these additional exhibits were addressed only to Lopez’s counsel’s 

email address (not to Landscape’s counsel) and contained the following greeting and, 
21.

without limitation, the following text: “Dear [counsel for Lopez], [¶] Here are all of the 

new Notifications within JAMS Access. Click here to login to JAMS Access to see the 

Notifications.”

E. Supplemental Declaration of Landscape’s Counsel

Landscape’s counsel filed a supplemental declaration after Lopez filed his reply 

paperwork in support of the sanctions motion. In it, counsel discusses the various efforts 

he and others in his firm took to determine whether the subject invoice was received at 

the firm’s Los Angeles and Las Vegas offices, as well as the firm’s accounting 

department. Lopez objects to our consideration of the supplemental declaration on 

grounds there is no authority for a party to file a supplemental pleading absent leave of 

court. The supplemental declaration is not necessary to our resolution of the issues 

presented on appeal. We sustain Lopez’s objection and do not consider Landscape’s 

supplemental declaration.

F. Analysis

We first clarify how we view certain contentions made by Lopez in the court 

below and on appeal. For example, Lopez contends “JAMS served the ‘Notice of 

Commencement’ through JAMS online portal, JAMS Access, to which all of the parties 

were given access.” We view Lopez’s phrase “JAMS served the ‘Notice of 

Commencement’” merely as an indication that the notice of commencement was 

uploaded to the JAMS Access portal. If Lopez intended the phrase to suggest that valid

service of the notice was made upon the parties, the statement is a conclusion and is 

unsupported. Second, we interpret the phrase “to which all of the parties were given

access” as a statement that JAMS Access is a service available to all parties. If the 

statement was meant to suggest that all parties signed up for the JAMS Access service, 

there is no evidence in the record on appeal to support the suggestion.

Similarly, the statement that other JAMS Access email notifications were “typical 

of other emails that JAMS sent to the Parties” is unsupported to the extent the term 
22.

“Parties” was intended to include Landscape. Each of the JAMS Access email 

notifications submitted by Lopez in support of the sanctions motion was addressed solely 

to Lopez’s counsel. While we may suppose that each party (or counsel) that had signed 

up for the JAMS Access service would receive an individualized email as Lopez’s 

counsel received, there is no evidence in the record, substantial or otherwise, that 

Landscape was sent the JAMS Access email notification, that Landscape received the 

email, that Landscape or its counsel signed up for the JAMS Access service, or that 

would support an inference (or presumption) of any of these alleged facts.13

On appeal, Lopez argues “the attorneys for Landscape submitted no declaration in 

support of Landscape’s Opposition [to the sanctions motion] to refute the inference that 

they were signed up for JAMS Access and received the October 13 ... Notice [of 

appointment] with [the subject] invoice.” “‘[T]he burden of producing evidence as to a 

particular fact rests on the party with the burden of proof as to that fact. [Citations.] If 

that party fails to produce sufficient evidence to make a prima facie case, it risks nonsuit 

or other unfavorable determination. [Citations.] But once that party produces evidence 

sufficient to make its prima facie case, the burden of producing evidence shifts to the 

other party to refute the prima facie case.’” (California Farm Bureau Federation v. State 

Water Resources Control Bd. (2011) 51 Cal.4th 421, 436; see Evid. Code, § 110.) 

Having found no substantial evidence to support a finding that Landscape was either sent, 

or received, the October 13 JAMS Access email notification (or, for that matter, that 

Landscape or its counsel had signed up for the JAMS Access service), the burden did not 

shift to Landscape to “introduce evidence sufficient to avoid a ruling against [it] on the 

13 Lopez argues the use of the term “‘courtesy copy’” in JAMS’s September 22 email to 

describe the attached notice of commencement put the parties on notice “that the official 

documents and notifications in the arbitration would be ‘filed’ on JAMS Access.” Lopez notes 

the email also invited the parties to sign up for the JAMS Access service. The argument does not 

aid Lopez. The September 22 email does not, in any way, show or support an inference that the 

October 13 JAMS Access email notification or subject invoice were sent to, or received by, 

Landscape, or even that Landscape signed up for the JAMS Access service.
23.

issue.” (Evid. Code § 110; accord, California Farm Bureau, supra, at p. 436.) Thus, 

Landscape was not required to refute Lopez’s contentions in order to avoid an 

unfavorable ruling on the sanctions motion.14

In summary, we conclude Lopez did not meet his burden of demonstrating 

Landscape materially breached the arbitration agreement.

V. Even Assuming, Arguendo, Landscape’s Receipt of the JAMS Access Email 

Notification, Our Decision Would Be the Same15

For reasons explained below, even if we were to assume, for argument’s sake 

only, that a JAMS Access email notification (similar to the one sent to Lopez’s counsel) 

was likewise sent to Landscape’s counsel—an assumption not warranted by the record on 

appeal—we would still conclude there is insufficient evidence upon which to find 

Landscape in material breach of the arbitration agreement under section 1281.98.

The notice of commencement that was received by the parties prior to the notice of 

appointment stated, “The Arbitrator shall bill in accordance with his/her current Fee 

Schedule.” The fee schedule for the arbitrator appointed in this matter reads, in part: “A 

deposit request for anticipated preparation and follow-up time will be billed to the 

14 Evidence of whether Landscape signed up for the JAMS Access service was not evidence 

solely in the possession of Landscape. Such evidence could have been obtained from JAMS 

itself. Consequently, this is not a situation where fairness would dictate that Landscape bear the 

burden of proof on this issue. (See Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 

55, 71 [“‘Where the evidence necessary to establish a fact essential to a claim lies peculiarly 

within the knowledge and competence of one of the parties, that party has the burden of going 

forward with the evidence on the issue although it is not the party asserting the claim.’”].) Even 

if we were to assume the evidence would have been easier for Landscape to produce than for 

Lopez to obtain from JAMS—itself, a speculative proposition—“‘[g]reater access to relevant 

evidence does not mandate that a defendant bear the burden of proof on the issue.’” 

(Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1097.)

15 Nothing in this opinion should be construed to suggest the court is adverse to the use of 

emails or hyperlinks, in appropriate circumstances, to provide parties to an arbitration with 

notice that arbitration fees are due. The widespread use of emails and hyperlinks greatly 

facilitates modern day comminications. In determining whether applicable notice and service 

requirements have been met, each case must be analyzed on its own facts and the law.
24.

parties.... [¶...¶] All fees are due and payable in advance of services rendered and by 

any applicable due date as stated in a hearing confirmation letter....” (Italics added.) In 

reviewing the notice of appointment and JAMS Access email notification, we observe the 

email notification only provided a link to a document titled “Notice of Appointment.” It 

did not purport to provide a link to the subject invoice or to a hearing confirmation letter. 

We also note the means by which JAMS sent the subject invoice to Lopez’s counsel was 

a significant departure from its prior method of transmitting the initial deposit request 

invoice to Landscape. Specifically, Landscape received the initial deposit request invoice 

for $1,350 by email from JAMS’s billing administrator with a copy of the invoice clearly 

identified and attached to the email itself. Even assuming for argument’s sake only that 

Landscape received the JAMS Access email notification, nothing therein, or in JAMS’s 

prior practice, would have alerted Landscape to the fact that the subject invoice was 

attached to the notice of appointment referenced in the email.

A party receiving such a JAMS Access email notification without also receiving 

some indication that an arbitration invoice was (or might be) included in the email, could 

not fairly be said to be in receipt of the invoice (as envisioned by § 1281.98)—at least 

until such time as they actually logged into JAMS Access, obtained the notice of 

appointment, and, thereby, discovered the attached subject invoice.16 To conclude 

otherwise would result in Landscape’s forfeiture of the right to arbitrate despite never 

having been on notice that the subject invoice was transmitted to it.17

16 At oral argument, Lopez’s counsel analogized the situation to that of a person who 

receives a notice by mail, neglects to open the envelope in which it is enclosed, and then argues 

the notice was never received. The analogy fails because, as discussed previously, there is no 

evidence in the record on appeal that the JAMS Access email notification (i.e., the “envelope” in 

counsel’s analogy) was ever sent to, or received by, Landscape.

17 We acknowledge Lopez’s point that Landscape could have avoided the sanctions motion 

and this appeal by operating off the assumption it should pay the subject invoice within 30 days 

of the date of the subject invoice. However, for reasons discussed herein, Lopez failed to 

demonstrate that Landscape was under a legal obligation to do so.
25.

VI. Lopez’s Motion Requesting This Court Take Evidence on Appeal is Denied

Lopez, as part of his response to Landscape’s primary argument on appeal, moved 

this court to take evidence pursuant to section 909 and California Rules of Court, 

rule 8.252(c). Lopez seeks a finding that JAMS issued a proof of service that 

“conclusively establishes that the Notice of Appointment and the attached [subject] 

invoice was ‘sent to all parties by the same means on the same day’ by JAMS on 

October 13, ... in compliance with ... [section] 1281.98[, subdivision ](a)(1).” A copy of 

the proof of service was submitted with Lopez’s motion. We deferred ruling on the 

motion pending consideration of the appeal on its merits. We now deny the motion.

Section 909 authorizes a reviewing court to take evidence and “make factual 

determinations contrary to or in addition to those made by the trial court” in “all cases 

where trial by jury is not a matter of right ....” “It has long been the general rule and

understanding that ‘an appeal reviews the correctness of a judgment as of the time of its 

rendition, upon a record of matters which were before the trial court for its 

consideration.’ [Citation.] This rule reflects an ‘essential distinction between the trial 

and the appellate court ... that it is the province of the trial court to decide questions of 

fact and of the appellate court to decide questions of law ....’ [Citation.] The rule 

promotes the orderly settling of factual questions and disputes in the trial court, provides 

a meaningful record for review, and serves to avoid prolonged delays on appeal. 

‘Although appellate courts are authorized to make findings of fact on appeal ..., the 

authority should be exercised sparingly. [Citation.] Absent exceptional circumstances, 

no such findings should be made.’” (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics 

omitted.)

First, there is no reason the proffered proof of service could not have been 

presented to the superior court in connection with the sanctions motion. Lopez’s 

argument he did not submit the proof of service to the court below because Landscape 

did not argue to the court that it did not receive the JAMS Access notification, or that 
26.

there was “no proof of service” attached to the notice of appointment, is not persuasive. 

As discussed above, Lopez bore the burden of demonstrating Landscape’s receipt of the 

subject invoice in order to show payment was untimely. A proof of service is an obvious 

piece of evidence relevant to that issue.

Moreover, it was clear from the tenor of Landscape’s opposition to the sanctions 

motion that Landscape contended it did not receive the JAMS Access email notification 

on October 13, and first received the subject invoice on November 2. In response, 

Lopez’s counsel filed a supplemental declaration to demonstrate to the superior court 

why it should not give credence to Landscape’s contention. Lopez does not adequately 

explain why the proof of service was not submitted with his counsel’s supplemental 

declaration. “It is true, of course, that ‘[t]he general rule of motion practice ... is that 

new evidence is not permitted with reply papers.’ [Citation.] However, a recognized 

exception is for points ‘strictly responsive’ to arguments made for the first time in the 

opposition.” (Golden Door Properties, LLC v. Superior Court (2020) 53 Cal.App.5th 

733, 774.) We conclude there is no good cause to accept the new evidence on appeal.

Next, the proffered proof of service does not conclusively establish the subject 

invoice was served upon Landscape through JAMS Access. We first note that even 

where a proof of service is in proper form, it only creates a rebuttable presumption of 

proper service. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 

795) Here, however, the proof of service is not in a sufficient form to either prove, or 

create a rebuttable presumption, that the subject invoice was sent or received. Generally, 

a proof of service must be in the form of an affidavit or qualifying certificate of service. 

(§§ 1010.6, subd. (e)(2), 1013a, 1013b, subds. (a), (c), 2003.) The proffered proof of 

service does not meet either of these criteria. In addition, a proof of service must contain 

the exact title of the document served. (§§ 1010.6, subd. (a)(1)(C), 1013a, 1013b, 

subd. (a).) The proffered proof of service only states the “Notice of Appointment.pdf” 

was uploaded to the portal and that “[a]n email notification [of the upload] has been sent” 
27.

to the parties’ counsel. It does not state, or otherwise give notice, the subject invoice was 

uploaded to the portal.

Accordingly, we deny the motion to take new evidence and do not make the 

finding requested by Lopez.

DISPOSITION

The superior court’s January 23, 2023, order finding Landscape in material breach 

of the parties’ arbitration agreement, authorizing the withdrawal of Lopez’s claim from 

arbitration, and awarding Lopez monetary sanctions in the amount of $3,770, is reversed. 

Costs on appeal are awarded to Landscape (Cal. Rules of Court, rule 8.278(a)(2)).

18

MEEHAN, J.

WE CONCUR:

LEVY, Acting P. J.

FRANSON, J.

18 In light of our disposition, it is unnecessary for us to consider Landscape’s additional 

arguments on appeal.