Filed 7/1/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MIGUEL VALENCIA, JR., et 

al.,

Plaintiffs and 

Respondents,

v.

ARMANDO MENDOZA et al.,

Defendants and 

Appellants.

 B325803

 (Los Angeles County

 Super. Ct. No. BC723902)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, David Sotelo, Judge. Affirmed.

Spierer, Woodward, Corbalis & Golberg, Stephen B. 

Goldberg and Jeffrey Lewis for Defendants and Appellants.

Cohen & Cohen, Kerry A. Cohen and Barry L. Cohen for

Plaintiffs and Respondents.

___________________________
2

Armando Mendoza, Coastal Holdings, LLC, and Class A 

Realty, Inc. (collectively, the Mendoza defendants) appeal from a 

judgment entered after the trial court confirmed an arbitration 

award in favor of Miguel Valencia, Jr., and Lizette Valencia on 

the Valencias’ claims in connection with undisclosed defects in a 

home they purchased from the Mendoza defendants. On appeal, 

the Mendoza defendants contend the court erred in denying their 

petition to vacate the arbitration award and granting the 

Valencias’ petition to confirm the award after finding the petition 

to vacate was untimely. The Mendoza defendants also contend 

the arbitrator committed legal error—reviewable under the 

parties’ arbitration agreement—when the arbitrator excluded key 

evidence from the arbitration hearing. 

The trial court correctly found that the Mendoza 

defendants’ petition to vacate the arbitration award was untimely 

under Code of Civil Procedure section 1290.61 because it was filed 

more than 10 days after service of the Valencias’ petition to 

confirm the arbitration award. The fact the petition to vacate 

complied with the deadline under section 1288 to file the petition 

within 100 days of service of a signed copy of the arbitration 

award does not excuse the failure to meet the 10-day deadline to 

respond to the petition to confirm the award—a response seeking 

vacation of the arbitration award was required to comply with 

both. Although the court had discretion to extend the deadline 

under section 1290.6 for good cause, it did not abuse its discretion 

in finding no good cause. We therefore consider whether the 

Mendoza defendants met their burden to show the arbitrator 

1 Further undesignated statutory references are to the Code 

of Civil Procedure.
3

erred in its rulings excluding evidence by reviewing the Mendoza 

defendants’ initial opposition to the petition to confirm the 

arbitration award, without considering the declarations they 

later filed with their untimely petition to vacate. They did not

meet their burden, and we affirm. 

BACKGROUND AND PROCEDURAL HISTORY

A. The Valencias’ Home Purchase2

In August 2016 the Valencias purchased a house on South 

Harbor View Drive in San Pedro (the home) from Coastal 

Holdings, a company wholly owned and controlled by Mendoza. 

Mendoza’s broker in the transaction was Class A Realty; 

Mendoza owned 50 percent of Class A Realty, and his fiancée 

owned the other 50 percent. The Valencias were attracted to the 

home because it appeared to be in move-in condition.

Mendoza had purchased the home several months earlier 

from Fillipo Tranni with the intention to “flip”3 the home for 

resale. Tranni had lived in the home for many years and started 

a major renovation: Tranni had hired an architect, obtained 

some permits, and begun demolition work when he realized the 

renovation was too complicated, and he decided instead to sell the 

2 Our recitation of the facts underlying the dispute is taken 

from the arbitrator’s findings of fact in the arbitration award and, 

except as noted, are undisputed for the purpose of the appeal.

3 Merriam-Webster dictionary defines “flip” in relevant 

context as follows: “[T]o buy and usually renovate (real estate) so 

as to quickly resell at a higher price.” (Merriam-Webster’s Online 

Dict. (2024) <https://www.merriam-webster.com/dictionary/flip>

[as of July 1, 2024].)
4

home. In selling the home to Mendoza, Tranni disclosed that 

work had been done without necessary permits, and it was not in 

compliance with building codes. Tranni also disclosed the home

had other issues, including water intrusion, stucco that was 

chipping, and improperly installed windows.

Mendoza was an experienced house flipper, having flipped 

50 to 60 houses in the past. Mendoza hired Pablo Rivas and 

Carlos Navarro to perform construction work to finish Tranni’s

renovation and allow resale as soon as possible. Mendoza

identified himself as the “owner/builder” on applications for the 

building permits he believed necessary for the job; his selfidentification as the owner/builder required that all work be done 

by licensed contractors. Mendoza, Rivas, and Navarro were not 

licensed contractors. Further, a significant amount of work was 

completed before Mendoza obtained permits, so when the 

building inspector came to the site for a code inspection, the 

inspector could not see the prior work and whether it complied 

with building codes. Other work was entirely unpermitted. 

When Mendoza sold the home to the Valencias, he did not 

disclose the issues previously disclosed by Tranni, nor did he 

disclose that he did unpermitted work using unlicensed 

contractors. When he listed the property for sale, he described it 

as “‘completely remodeled’” with “‘no expense spared.’” 

Shortly after the Valencias purchased the home and moved 

in, problems arose. After the first rain, water poured in around 

the windows installed by Mendoza. While unsuccessful attempts 

to remedy the leak and repair the damage were underway, 

numerous other defects became apparent. It was necessary for 

the Valencias to move out of the home for several months while 

extensive repairs were made. 
5

B. The Arbitration and Award

On October 2, 2018 the Valencias filed this action against 

the Mendoza defendants, asserting 10 causes of action based on 

fraudulent concealment of defects in the home.4 After the 

Mendoza defendants moved to compel arbitration, the parties

agreed to a stipulation for binding arbitration and a stay of the 

court action, which the trial court approved and entered on 

January 25, 2019. Paragraph 8 of the parties’ stipulation 

provided for enhanced judicial review of the arbitration award 

pursuant to Cable Connection, Inc. v. DIRECTV, Inc. (2008) 

44 Cal.4th 1334 (Cable Connection). The agreement stated, 

“[T]he Arbitrator shall apply California substantive law to the 

proceeding. The arbitrator shall not have the power to commit 

errors of law or legal reasoning, and the award may be vacated or 

corrected on appeal to a court of competent jurisdiction for any 

such error. It is the explicit and unambiguous intent of the 

parties that any error of law or legal reasoning shall be an act in 

excess of the arbitrator’s powers that is reviewable on appeal. 

Specifically, any party may seek to vacate any award that has 

been made in excess of the Arbitrator’s powers, as provided for in 

[§ 1286.2], with a concomitant right of appeal to a court of 

competent jurisdiction.”

The Valencias asserted eight claims in the arbitration

against one or more of the Mendoza defendants: (1) violation of 

state contractor licensing laws (Bus. & Prof. Code, § 7028; Code 

Civ. Proc., § 1029.8); (2) breach of contract; (3) breach of statutory 

4 On our own motion we augment the record to include the 

Valencias’ complaint filed on October 2, 2018 in the superior 

court. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
6

duty of disclosure (Civ. Code, § 1102); (4) fraud; (5) negligent 

misrepresentation; (6) negligence; (7) violation of the common law 

duty of disclosure; and (8) fraudulent concealment (Civ. Code, 

§ 2079). There was extensive pre-hearing discovery, including 

hundreds of written discovery requests and 17 depositions. 

The arbitration hearing was held over five days in 

June 2021 before Judith C. Chirlin, a retired superior court 

judge. Twelve witnesses testified, including three engineers who 

testified as retained experts on building code requirements and 

damages: William McKee Nelson and David Stern (for the 

Valencias) and Bryce Dean Richmond (for the Mendoza 

defendants). At the conclusion of witness testimony, the parties 

submitted closing briefs and separate briefing on damages. 

On August 23, 2022 the arbitrator issued a 17-page final 

arbitration award (award).5 The arbitrator found the Valencias’ 

causes of action fell into two main categories, negligence and 

failure to disclose, and multiple Mendoza defendants were liable 

in each category. The arbitrator awarded $432,536 in monetary 

damages, including $130,000 for repairs; $260,000 for 

impairment to the fair market value of the home due to the 

defects; and smaller amounts for loss of use, statutory penalties, 

and inspection fees.6 Finding by clear and convincing evidence 

5 The arbitrator issued an interim award in February 2022 

addressing liability, and she subsequently entered separate 

rulings on punitive damages and attorneys’ fees and costs, which 

were incorporated into the final award. 

6 The arbitrator found the monetary damages sustained due 

to the undisclosed defects exceeded $390,000 but reasoned that 

awarding the full amount plus damages for the impairment in 

the home’s value would “result in serious double counting”;
7

that Mendoza “made false representations and failed to disclose 

known defects with knowledge of the falsity” and “intended to 

defraud the Valencias,” the arbitrator awarded $438,800 in 

punitive damages. The arbitrator also awarded $364,544 in

attorneys’ fees and $52,667 in costs, plus prejudgment interest. 

C. Confirmation of the Award 

1. The Valencias’ petition to confirm the award

On September 2, 2022 the Valencias filed a petition to 

confirm the arbitration award, setting a September 28, 2022 

hearing date. The petition attached the home purchase 

agreement, the stipulation to arbitrate, and the arbitration 

award. The Valencias did not file any declarations or additional 

evidence. 

On September 14 the Mendoza defendants filed a four-page 

opposition.7 In an introductory paragraph, the Mendoza 

defendants stated they were “in the process of completing 

drafting” a petition to vacate that would “likely be filed within 

the next 10-15 days.” They had reserved a hearing date in April 

accordingly, the arbitrator discounted the cost of repairs by

approximately $260,000.

7 On appeal, the parties do not dispute that the Mendoza

defendants’ September 14, 2022 opposition was timely under 

section 1290.6 (providing that a response to a petition to confirm 

an arbitration award shall be served and filed within 10 days 

after service of the petition, unless extended by agreement of the 

parties or a court order). The parties had agreed to a two-day 

extension of the service deadline as part of their electronic service 

agreement. 
8

2023 and requested the court continue the Valencias’ petition to 

confirm so that it would be heard with their petition to vacate. 

The Mendoza defendants in their opposition argued the 

arbitrator’s refusal to consider two items of critical evidence 

constituted grounds to vacate the award.8 First, the arbitrator 

excluded a building inspection card that on its back “included a 

statement by the inspector, “‘OK to close walls.’” As described in 

the opposition, the building inspector testified at the hearing that 

he was unable to see the work done by the Mendoza defendants

before the walls were closed, and the arbitrator made a finding in 

the award that “[a] significant amount of the work done by [the 

Mendoza defendants] was done before Mr. Mendoza pulled 

permits so that when the City Building Inspector came to inspect, 

he could not see the work and whether it had been done correctly 

and in accordance with the Building Codes.” The Mendoza 

defendants argued that had the arbitrator allowed the inspection 

card into evidence, the annotation “‘OK to close walls’” would 

have shown a “blatant lie” by the inspector (that he was not able 

to see the work before the walls were closed up), which would 

have discredited his testimony. 

Second, the Mendoza defendants argued that although the 

Valencias’ expert Nelson “relied heavily on Chapter 34 of the 

2016 Building Code”9 in testifying that repairing the home would 

8 The Mendoza defendants did not address the judicial 

standard of review of an arbitration award or note that the 

parties agreed to expand judicial review under Cable Connection, 

supra, 44 Cal.4th 1334.

9 It is unclear to what the experts (and parties) were 

referring as “Chapter 34.” Chapter 34 of the 2016 California 
9

require a complete code upgrade, including opening up walls and 

constructing shear walls throughout the structure, the arbitrator 

precluded the Mendoza defendants’ expert (Richmond) from 

testifying that Chapter 34 did not apply to the subject repairs, 

ruling that Richmond’s testimony “exceeded the scope of his 

deposition testimony.” As a result, Nelson’s testimony about the 

significant corrective work necessary for code compliance was left 

unchallenged, inflating the damages award, which was

predicated on “the largest repair scenario, including the repairs 

which were outlined by Mr. Nelson.” 

The Mendoza defendants did not submit any declarations 

or evidence in support of their opposition. In a concluding 

paragraph, the Mendoza defendants stated their forthcoming 

petition to vacate “will include a more detailed analysis of the 

evidence excluded and its impact on the [a]ward,” and they 

reiterated their request that the petition to confirm and the 

petition to vacate be heard together “in the interest of judicial 

economy and common sense.”

In their reply brief the Valencias argued the Mendoza 

defendants’ opposition did not include any evidence to support 

vacation of the award (nor did it explicitly request to vacate the 

award), and there was no basis for a continuance because the 

Building Code is a reserved chapter. However, the index for 

Chapter 34 includes the following note: “Provisions of former 

Chapter 34, Existing Structures, are now located in Part 10, 

California Existing Building Code.” We assume the experts and 

parties are referring to regulations governing existing structures 

that were formerly located in Chapter 34 of the Building Code 

but were moved to the “Existing Building Code.” For 

convenience, we refer to Chapter 34, as do the parties, without 

addressing the substantive building code requirements.
10

Mendoza defendants’ unfiled petition to vacate was already 

untimely under section 1290.6 for failure to serve the petition

within 10 days after service of the Valencias’ petition to confirm. 

The Valencias also argued the arbitrator properly excluded 

the inspection card and Richmond’s testimony about Chapter 34. 

The inspection card was “directly responsive to multiple 

production requests,” and several witnesses had been deposed 

about the inspection, yet the Mendoza defendants did not produce 

the card in discovery or disclose it on their exhibit list. Moreover, 

the Mendoza defendants represented they had no further

responsive records, then less than 24 hours before the arbitration 

hearing they “miraculously found the inspection card.” At the 

hearing, the Valencias’ lawyers objected to the admission of the 

inspection card and other late-produced documents on the basis 

of unfair surprise, and the arbitrator sustained the objection. 

The Valencias’ lawyer, Kerry Cohen, submitted a 

declaration that included excerpts of the discovery demands and 

responses, deposition notices, and correspondence with counsel

regarding the inspection records. The correspondence showed

that the Sunday before the Monday hearing, the Mendoza 

defendants’ lawyer, Christopher Delaplane, wrote to Cohen to say 

Mendoza found the permit card that day. Delaplane explained 

that although Mendoza had previously searched his storage unit

and produced his file relating to the home, the inspection card 

was not in that file. He and his fiancée conducted “another 

search” on the eve of the arbitration hearing and “found [the 
11

inspection card] intermixed with other non-relevant 

documents.”10

With respect to the exclusion of Richmond’s testimony

about Chapter 34, the Valencias argued the arbitrator properly 

restricted his testimony under the principles set forth in 

Kennemur v. State of California (1982) 133 Cal.App.3d 907 

(Kennemur) for excluding undisclosed expert opinions. As 

described in Cohen’s declaration, which attached excerpts of 

Richmond’s deposition and correspondence between the lawyers, 

Richmond testified in his March 2021 deposition that he had 

been retained to opine only about structural issues relating to a 

kitchen beam and whether exterior framing required 2x4 or 2x6 

studs. Richmond confirmed he had not been asked to give any 

other opinions, although he testified he had received Nelson’s 

report and might opine about Nelson’s opinions “eventually.”

Shortly before the arbitration hearing, Delaplane stated in 

response to a supplemental discovery demand that the Mendoza 

defendants’ experts were “still in the process of formulating 

additional responses to Plaintiff’s damage claims, all of which 

will be raised at the trial of this matter.” Cohen demanded 

Delaplane make the experts available for deposition on these

opinions, but Delaplane refused, stating “our experts are 

10 The Valencias also argued that the handwritten annotation 

on the back of the card stating “OK to close walls,” absent any 

context or foundation, did not impeach the building inspector. 

Further, they asserted, the inspector’s hearing testimony that the 

walls were closed was consistent with his deposition testimony 

and photographs taken at the time of the inspection. We cannot 

evaluate this argument because the record on appeal does not 

contain any photographs or the inspector’s testimony.
12

preparing for the arbitration and will be reviewing your experts’ 

deposition transcripts in order to assess their respective 

opinions. . . . This does not make them subject to an additional 

round of depositions.” As Cohen described in his declaration, at 

the arbitration hearing Delaplane sought to elicit opinions from 

Richmond regarding the applicability of the upgrade 

requirements under Chapter 34, and Cohen objected under 

Kennemur. After argument from counsel, the arbitrator 

sustained the objection. 

2. The Mendoza defendants’ petition to vacate the award 

On September 27, 2022, the day before the hearing on the 

Valencias’ petition to confirm the award, the Mendoza defendants 

filed a petition to vacate the arbitration award, supported by an 

eight-page memorandum and declarations from Mendoza, 

Delaplane, and Richmond. The Mendoza defendants raised the 

same two grounds for vacating the award they argued in their 

opposition (and raise on appeal): the arbitrator’s exclusion of the 

building inspection card and Richmond’s testimony about 

Chapter 34. 

With respect to the inspection card, the Mendoza 

defendants’ factual account of the last-minute discovery of the 

card was substantially consistent with the Valencias’ account. 

Delaplane also stated in his declaration that the Mendoza 

defendants had requested the permit file for the home from the 

Los Angeles Department of Building and Safety,11 and the 

11 In 1909 the City of Los Angeles annexed San Pedro, where 

the home is located. (See In re Miller (1910) 15 Cal.App. 43, 44.)
13

department failed to produce a copy of the back of the permit 

card. 

Delaplane explained as to Richmond’s testimony that 

Nelson raised Chapter 34 for the first time in his deposition, 

which was after Richmond’s deposition. Further, Richmond and 

Delaplane repeatedly stated that Richmond would offer 

additional opinions in response to the Valencias’ experts’ 

opinions, and Richmond’s opinions about Chapter 34 were 

introduced only for rebuttal. Delaplane also attested that the 

Mendoza defendants “were amenable to allowing [the Valencias] 

to take Mr. Richmond’s deposition on his Chapter 34 opinions

and to allow Mr. Nelson to be able to respond to said opinions,” 

but the need for a further deposition should have been addressed 

in a motion prior to the arbitration and not by an evidentiary 

exclusion. Richmond in his declaration stated he would have 

testified that “Nelson wrongly applied Chapter 34 and incorrectly 

opined that a code upgrade for non-altered elements of the 

Property was necessary. Since the Property is considered 

‘conventional light-frame construction’ and has a flexible 

diaphragm, only the altered portion of the Property would need to 

meet current codes.”

3. The trial court’s order confirming the award

The trial court heard the Valencias’ motion to confirm on 

September 28, 2022. There was no court reporter present, and 

the parties have not provided a settled statement of the 

proceeding. As stated in its three-page minute order, the court

found that it was required to confirm the award under 

section 1286.4 because the Valencias filed and served a petition 

to confirm that complied with the statutory requirements, and 
14

the Mendoza defendants did not file and serve a request to vacate 

within 10 days of service of the petition to confirm as required by 

section 1290.6. And the Mendoza defendants’ opposition did not 

present facts or evidence demonstrating good cause to extend the 

time for the Mendoza defendants to file a response or to continue 

the hearing on the petition to vacate.12 

The trial court continued, “While Defendants contend the 

arbitrator refused to admit critical evidence, the general rule in 

California remains that the grounds for vacating an arbitration

award are exclusively statutory and there is no statutory 

provision for vacating an award on mere grounds of a refusal to 

hear evidence, without more.” Further, “Defendants fail[ed] to 

provide any evidence to show that the evidentiary ruling 

prejudiced them because the ruling ‘influenced the outcome of the 

arbitration.’” 

The trial court granted the Valencias’ petition to confirm 

the award, and on its own motion, the court advanced the hearing 

and vacated the Mendoza defendants’ petition to vacate the 

award. The court entered a judgment in favor the Valencias for 

$1,512,850, which included the arbitrator’s award and $224,303

in prejudgment interest.13 On October 7, 2022 the Valencias filed 

12 In an apparent typographical error, the minute order 

stated the Mendoza defendants’ opposition “did present facts or 

evidence” demonstrating good cause for vacating the award. The 

parties do not dispute that the minute order should have stated 

the Mendoza defendants “did not present facts or evidence.” 

(Italics added.) 

13 The trial court entered the $1,512,850 judgment against 

Mendoza and Coastal Holdings. The court entered a separate 
15

a notice of entry of the order confirming the award and a notice of 

entry of judgment. 

The Mendoza defendants timely appealed.14

DISCUSSION

A. Governing Law and Standard of Review of 

Arbitration Awards

“California law favors alternative dispute resolution as a 

viable means of resolving legal conflicts. ‘Because the decision to 

arbitrate grievances evinces the parties’ intent to bypass the 

judgment for $1,148,306 against Class A Realty, omitting the 

punitive damages award as to that defendant. 

14 On October 20, 2022, after entry of judgment but before 

they filed their notice of appeal, the Mendoza defendants filed a 

motion in the trial court for mandatory relief from the judgment

under section 473, subdivision (b), due to attorney error. On 

appeal, the Mendoza defendants request, as an alternative to 

reversing the judgment, that we remand the matter to the trial 

court with directions to rule on their motion for relief. On

September 26, 2023 the Mendoza defendants filed a request to 

augment the appellate record to include the opposition and reply 

briefs and the trial court’s May 4, 2023 order on the relief motion. 

We deemed their request to augment the record as a request for 

judicial notice and denied it on October 13, 2023. 

 An order denying a motion for relief from a judgment 

pursuant to section 473, subdivision (b), is a separately 

appealable postjudgment order. (Austin v. Los Angeles Unified 

School Dist. (2016) 244 Cal.App.4th 918, 927, fn. 6.) The merits

of the postjudgment motion under section 473, subdivision (b), is 

outside the scope of this appeal, which was taken from the order 

confirming the arbitration award and the judgment.
16

judicial system and thus avoid potential delays at the trial and 

appellate levels, arbitral finality is a core component of the 

parties’ agreement to submit to arbitration.’” (Richey v. 

AutoNation Inc. (2015) 60 Cal.4th 909, 916 (Richey).) The 

California Arbitration Act (Code Civ. Proc., § 1280 et seq.; CAA) 

provides “only limited grounds for judicial review of an 

arbitration award”; under the statute, “courts are authorized to 

vacate an award if it was (1) procured by corruption, fraud, or 

undue means; (2) issued by corrupt arbitrators; (3) affected by 

prejudicial misconduct on the part of the arbitrators; or (4) in 

excess of the arbitrators’ powers.” (Cable Connection, supra, 

44 Cal.4th at p. 1344, citing § 1286.2, subd. (a); see Soni v. 

SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1085 [“The 

exclusive grounds for vacating an arbitration award are provided 

in [section] 1286.2.”].) 

“Generally, courts cannot review arbitration awards for 

errors of fact or law, even when those errors appear on the face of 

the award or cause substantial injustice to the parties.” (Richey, 

supra, 60 Cal.4th at p. 916; accord, Law Finance Group, LLC v. 

Key (2023) 14 Cal.5th 932, 957 (Law Finance); see Heimlich v. 

Shivji (2019) 7 Cal.5th 350, 367 [“Most legal errors in arbitration 

are not reviewable.”].) However, parties may “take themselves 

out of the general rule that the merits of the award are not 

subject to judicial review” if they “clearly agree that legal errors 

are an excess of arbitral authority that is reviewable by the 

courts.” (Cable Connection, supra, 44 Cal.4th at p. 1361; accord, 

Harshad & Nasir Corp. v. Global Sign Systems, Inc. (2017) 

14 Cal.App.5th 523, 535 (Harshad) [general rule limiting judicial 

review “does not apply when the parties have agreed to ‘limit the 
17

arbitrators’ authority by providing for review of the merits in the 

arbitration agreement.’”].) 

In Cable Connection, the parties’ arbitration agreement 

stated, “‘The arbitrators shall not have the power to commit 

errors of law or legal reasoning, and the award may be vacated or 

corrected on appeal to a court of competent jurisdiction for any 

such error.’” (Cable Connection, supra, 44 Cal.4th at p. 1361, 

fn. 20.) The Supreme Court held that such an agreement 

providing for judicial review for legal error was enforceable, 

reasoning that because the CAA authorizes review of an award 

on the ground that it exceeds an arbitrator’s powers (§ 1286.2, 

subd. (a)(4)),15 and an arbitrator’s powers are circumscribed by 

terms of the parties’ arbitration agreement, “[i]f the parties 

constrain the arbitrators’ authority by requiring a dispute to be 

decided according to the rule of law, and make plain their 

intention that the award is reviewable for legal error, the general 

rule of limited review has been displaced by the parties’ 

agreement.” (Cable Connection, at p. 1355; accord, Harshad, 

supra, 14 Cal.App.5th at p. 535.)

Here, the parties expressly invoked Cable Connection in 

their stipulation to arbitrate by citing the case and including 

judicial review language virtually identical to the language 

15 Section 1286.2, subdivision (a)(4), states, “[T]he court shall 

vacate the award if the court determines” that “[t]he arbitrators 

exceeded their powers and the award cannot be corrected without 

affecting the merits of the decision upon the controversy 

submitted.”
18

approved by the Supreme Court. Accordingly, the arbitration 

award was reviewable for legal error.16

Section 1285.4 prescribes the requirements for a petition to 

confirm an arbitration award. “A petition to confirm need only 

set forth (1) the names of the arbitrators, (2) the arbitration 

agreement (by description or attached copy), and (3) the award 

and written opinion of the arbitrators (by description or attached 

copy).” (Eternity Investments, Inc. v. Brown (2007) 

151 Cal.App.4th 739, 745; see § 1285.4.) “If a petition . . . is duly 

served and filed, the court shall confirm the award as made,

unless in accordance with this chapter it corrects the award and 

confirms it as corrected, vacates the award or dismisses the 

proceedings.” (§ 1286.) Accordingly, once a petition to confirm 

16 The trial court appears not to have considered the parties’ 

stipulation to heightened judicial review of the arbitration award. 

For example, the court cited the holdings in Richey, supra, 

60 Cal.4th at page 916 in finding that “there is no statutory 

provision for vacating an award on mere grounds of a refusal to 

hear evidence, without more,” and Heimlich v. Shiji, supra, 

7 Cal.5th at page 369 (with respect to the evidentiary exclusions) 

that there was “absolutely no basis for even an inference that the 

Arbitration hearing was not fair to both parties.” 

 The Valencias contend the Mendoza defendants forfeited 

any claim the trial court applied the wrong standard of judicial 

review by failing to raise the agreement for heightened review 

under Cable Connection in either their opposition to the petition 

to confirm the award or their petition to vacate. (See Quiles v. 

Parent (2018) 28 Cal.App.5th 1000, 1013 [“‘Failure to raise 

specific challenges in the trial court forfeits the claim on 

appeal.’”].) We decline to reach forfeiture because we review the 

trial court’s order confirming the award de novo and 

independently evaluate the arbitrator’s evidentiary rulings.
19

that meets the statutory requirements has been served, “‘the 

burden is on the party attacking the award to affirmatively 

establish the existence of error.’” (Rivera v. Shivers (2020) 

54 Cal.App.5th 82, 94 (Rivera); accord, Lopes v. Millsap (1992) 

6 Cal.App.4th 1679, 1685.) 

We review de novo a trial court order confirming an 

arbitration award, including its determination whether the 

arbitrator exceeded her powers in granting relief. (Richey, supra, 

60 Cal.4th at p. 918, fn. 1; Branches Neighborhood Corp. v. 

CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743, 751.) 

However, to the extent the trial court’s decision to grant a 

petition to confirm or deny an arbitration award rests on its 

determination of disputed factual issues, we review the court’s 

orders for substantial evidence. (Branches Neighborhood Corp., 

at p. 750; Harshad, supra, 14 Cal.App.5th at p. 536 [“One 

pertinent standard is our standard for reviewing factual findings 

to determine whether they are supported by substantial 

evidence.”].) “There is a presumption favoring the validity of the 

award, and appellant bears the burden of establishing [its] claim 

of invalidity.” (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.)

B. The Trial Court Did Not Err in Disregarding the Mendoza 

Defendants’ Untimely Petition To Vacate 

The Mendoza defendants contend the trial court erred in 

failing to consider the evidence they submitted with their petition 

to vacate the arbitration award in ruling on the Valencias’

petition to confirm. They argue the court should instead have 

continued the hearing on the petition to confirm and allowed full 

briefing on the petition to vacate, in which the merits and 

timeliness of the petition to vacate and supporting evidence could 
20

have been addressed. However, it is undisputed that the 

Mendoza defendants failed to submit any timely evidence 

opposing the petition to confirm, and given the absence of any 

showing of good cause for relief from the statutory deadline, the 

trial court did not abuse its discretion in confirming the award at 

the September 28, 2022 hearing. 

A losing party’s request to vacate an arbitration award may 

be made by filing either a petition to vacate the award (§ 1285) or 

a response to a petition to confirm the award that requests 

vacation of the award (§ 1285.2). Section 1285 provides, “Any 

party to an arbitration in which an award has been made may 

petition the court to confirm, correct or vacate the award.” 

Section 1285.2 provides, in turn, “A response to a petition under 

this chapter may request the court to dismiss the petition or to 

confirm, correct or vacate the award.” Further, “[t]he allegations 

of a petition are deemed to be admitted by a respondent duly 

served therewith unless a response is duly served and filed.” 

(§ 1290.) “A petition to correct or vacate an award, or a response 

requesting such relief, shall set forth the grounds on which the 

request for such relief is based.” (§ 1285.8.) 

Three statutory provisions address the timeliness of 

pleadings that challenge confirmation of an arbitration award. 

Section 1288 provides, “A petition to vacate an award or to 

correct an award shall 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.” Section 1288.2 likewise provides, “A response 

requesting that an award be vacated or that an award be 

corrected shall be served and filed not later than 100 days after 

the date of service of a signed copy of the award. . . .”]. And 

section 1290.6 provides, “A response shall be served and filed 
21

within 10 days after service of the petition . . . .” However, “[t]he 

time provided in [section 1290.6] for serving and filing a response 

may be extended by an agreement in writing between the parties 

to the court proceeding or, for good cause, by order of the court.” 

(Ibid.)

For nearly half a century, the Courts of Appeal have 

consistently held that once the prevailing party in an arbitration

files a petition to confirm an arbitration award, the 10-day 

deadline in section 1290.6 controls when a losing party must 

respond, not the 100-day deadline in section 1288.2. (Oaktree 

Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 

66 [“The ‘well delineated statutory scheme’ giving a party who 

opposes a petition to confirm only 10 days to file a response spans 

several decades.”]; see Rivera, supra, 54 Cal.App.5th at p. 93

[“‘When the party petitions the court to confirm the award before 

the expiration of the 100-day period, respondent may seek 

vacation or correction of the award by way of response only if he 

serves and files his response within 10 days after the service of 

the petition (§ 1290.6).’”]; De Mello v. Souza (1973) 36 Cal.App.3d 

79, 83 [same]; Coordinated Const., Inc. v. Canoga Big “A”, Inc.

(1965) 238 Cal.App.2d 313, 318 [“[T]he proper interpretation of 

section 1288.2 is that the 100-day limit applies only when the 

other party to the arbitration does not file a petition to confirm 

the award. When such petition is filed a response must be filed 

within the time limit set forth in section 1290.6.”].) 

In Darby v. Sisyphian, LLC (2023) 87 Cal.App.5th 1100, 

disapproved on another ground by Law Finance, supra, 
22

14 Cal.5th at page 952, footnote 3 (Darby) ,17 our colleagues in 

Division Two applied this longstanding principle in the situation 

where, as here, a party filed a section 1288 petition to vacate 

more than 10 days after service of a petition to confirm: “[A]

competing request to vacate or correct the award—whether styled 

as a response to the petition to confirm or as a standalone 

petition—must be filed and served within 10 days of service of 

the petition to confirm, even if that due date is less than 100 days 

after service of the award.” (Darby, at p. 1110, footnote omitted.) 

The court rejected the argument that only filings “styled as 

responses” were subject to section 1290.6’s 10-day deadline, 

whereas filings “styled as standalone petitions” could ignore the 

10-day deadline, reasoning that any such distinction “would 

elevate form over substance, would effectively negate the 10-day 

deadline since any party who missed the 10-day deadline could 

simply restyle their untimely response as a standalone petition, 

and would be inconsistent with the Act’s policy to decide 

postarbitration petitions ‘expeditious[ly].’” (Darby, at p. 1110, 

fn. 7.)

In Law Finance, supra, 14 Cal.5th at pages 946 to 947, the

Supreme Court recently considered the inverse issue—whether a

response to a petition to confirm an arbitration award filed 

within 10 days of the petition to confirm but outside of the 100-

day deadline under sections 1288 and 1288.2 was timely. The 

court held the response was not timely, observing, “[N]either 

17 The Law Finance court disapproved of Darby v. Sisyphian, 

LLC, supra, 87 Cal.App.5th 1100 “to the extent that it 

characterized section 1288.2’s 100-day limitations period as 

‘jurisdictional’ in the fundamental sense.” (Law Finance, supra, 

14 Cal.5th at p. 952, fn. 3.)
23

deadline supersedes the other. On the contrary, when a filing 

both (1) responds to a petition to confirm, and (2) requests that 

the arbitration award be vacated, both deadlines apply: 

(1) Absent a written agreement or court order, the response must 

be filed within 10 days after service of the petition to confirm and 

(2) in any event, no later than 100 days after service of the 

award.” (Ibid.) The court added, however, “We need not and do 

not decide whether a party that fails to file a timely response 

under section 1290.6 may nevertheless request vacatur in a 

petition to vacate filed within the limitations period of 

section 1288.” (Id. at p. 946, fn. 2, citing Darby, supra, 

87 Cal.App.4th at p. 1110, fn. 7.)

The Mendoza defendants filed a timely opposition 

(response) to the Valencias’ petition to confirm the award, but the 

opposition was not supported by any evidence. Only on the eve of 

the hearing on the petition to confirm, nearly four weeks after 

they had been served with the Valencias’ petition to confirm (and 

well after the 10 days), did they file the petition to vacate the 

award that included supporting declarations and evidence. We 

agree with the reasoning in Darby, supra, 87 Cal.App.5th at 

page 1110 and footnote 7, that there is no material distinction 

between a request to vacate filed as a response to a petition to 

confirm under section 1288.2 and a standalone petition to vacate 

under section 1288 with respect to whether the 10-day deadline 

under section 1290.6 controls: It does. Accordingly, the trial 

court was not required to consider the evidence attached to the 

late-filed petition to vacate before ruling on the petition to 

confirm. A contrary holding would vitiate a trial court’s ability to 

act on a timely filed petition to confirm an award and require a

court to continue a hearing on an unopposed (or inadequately 
24

opposed) petition to confirm for up to 100 days from the filing of 

the award where, as here, the opposing party represents it plans 

to seek to vacate the award. 

Although the trial court was not required to excuse the 

Mendoza defendants’ noncompliance with the 10-day 

requirement under section 1290.6 or otherwise to adjust the 

hearing schedule on the Valencias’ petition to confirm to allow 

the Mendoza defendants’ late-filed evidence to be incorporated 

into their opposition, the court had discretion to do so. As the 

Law Finance court explained, “The extension mechanism in 

[section 1290.6] permits the parties to agree to extend the 

response deadline for any reason at all and permits the court to 

extend the deadline for good cause. That exception gives the 

parties and the court wide latitude to set a briefing schedule in 

any arbitration-related proceeding—an exception that would 

permit modifying the response deadline without necessarily 

meeting the requirements for equitable tolling or estoppel.” (Law 

Finance, supra, 14 Cal.5th at p. 955 [reversing holding that CAA 

deadlines limited court’s fundamental jurisdiction and remanding 

for consideration of equitable tolling and estoppel arguments for 

extending the deadlines under sections 1288 and 1288.2].) 

We review a trial court’s determination whether to extend a 

statutory deadline based on a showing of good cause for an abuse 

of discretion. (See Robinson v. U-Haul Co. of California (2016) 

4 Cal.App.5th 304, 327 [“a trial court’s finding of ‘good cause’ is 

generally reviewed deferentially, solely for abuse of discretion”]; 

see Lucci v. United Credit & Collection Co. (1934) 220 Cal. 492, 

495 [trial court’s decision pursuant to statute permitting “an 

extension . . . ‘in furtherance of justice’ and ‘upon good cause 

shown’” is reviewed for an “abuse of discretion”].)
25

The trial court did not abuse its discretion in finding there 

was no good cause to continue the hearing on the petition to 

confirm or to allow additional briefing. (See Robinson v. U-Haul 

Co. of California, supra, 4 Cal.App.5th at p. 327 [explaining with 

respect to extension to file motion for attorneys’ fees, “Where the 

standard requires ‘good cause’ only, it has been ‘“‘equated to a 

good reason for a party’s failure to perform that specific 

requirement [of the statute] from which he seeks to be 

excused.’”’”]; Katz v. Campbell Union High School Dist. (2006) 

144 Cal.App.4th 1024, 1036 [applying same standard in assessing 

good cause for relief from statutory requirements for summons].) 

 In their opposition to the petition to confirm, the Mendoza 

defendants requested that the court consider at the same time

the petition to confirm and the petition to vacate—which the 

Mendoza defendants represented would “likely be filed within the 

next 10-15 days”—“in the interest of judicial economy and 

common sense.” The Mendoza defendants did not argue, let alone 

submit any evidence, why they were unable to submit evidence

and a more developed argument in support of their opposition. 

Moreover, the Mendoza defendants failed to request an order 

extending the deadline to file a response under section 1290.6 (or 

request the Valencias stipulate to an extension), either before or 

after the deadline passed.18 

18 Without a transcript or settled statement reflecting what 

was said at the hearing on the petition to confirm, we have no 

record of whether the Mendoza defendants presented evidence of 

good cause at the hearing, nor do they argue they did. (See 

Randall v. Mousseau (2016) 2 Cal.App.5th 929, 935 [“[f]ailure to 

provide an adequate record on an issue requires that the issue be 

resolved against appellant,” and “[w]ithout a record, either by 
26

Because the Mendoza defendants did not submit evidence 

in their opposition to the petition to confirm and did not 

demonstrate good cause for relief from the 10-day deadline under 

section 1290.6, we, like the trial court, do not consider their 

untimely evidence in reviewing the award. 

C. The Mendoza Defendants Have Not Shown Error by the 

Arbitrator in Excluding Evidence

On appeal, the Mendoza defendants contend the arbitrator 

erred in excluding from evidence at the arbitration hearing the 

building inspection card with the handwritten annotation “‘OK to 

close walls’” and Richmond’s proposed testimony that Chapter 34 

did not require a complete code upgrade at the home as a result 

of the repairs and alterations.19 As discussed, because the 

transcript or settled statement, a reviewing court must make all 

presumptions in favor of the validity of the judgment”]; see also

Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 [“‘Because [the 

appellant] failed to furnish an adequate record of the attorney fee 

proceedings, [the appellant’s] claim must be resolved against 

[him].’”].)

19 In their opening brief the Mendoza defendants argue only 

that they were “‘substantially prejudiced . . . by the refusal of the 

arbitrator[] to hear evidence material to the controversy’” under 

section 1286.2, subdivision (a)(5). Vacation of an award under 

section 1286.2, subdivision (a)(5), “must rest on more than a 

simple error in applying the rules of evidence” and is not a “‘back 

door . . . through which parties may routinely test the validity of 

legal theories of arbitrators.’” (Heimlich v. Shivji, supra, 

7 Cal.5th 350, 368.) As discussed, however, the parties stipulated 

to enhanced judicial review for legal errors, and we therefore 

review the award for error rather than the more deferential 
27

Valencias filed a sufficient and timely petition to confirm the 

arbitration award, the Mendoza defendants bore the burden “‘to 

affirmatively establish the existence of error’” in order to vacate 

the award. (Rivera, supra, 54 Cal.App.5th at p. 94; Lopes v. 

Millsap, supra, 6 Cal.App.4th 1679, 1685.) The Mendoza 

defendants failed to meet this burden.

1. Exclusion of the permit inspection card

Under section 2023.030, subdivision (c), “[t]he court may 

impose an evidence sanction by an order prohibiting any party 

engaging in the misuse of the discovery process from introducing 

designated matters in evidence.” “‘“Only two facts are absolutely 

prerequisite to imposition of the sanction: (1) there must be a 

failure to comply . . . and (2) the failure must be wilful.”’” 

(Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545; see 

Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214-

1215 [evidence and issue sanctions were properly imposed after 

defendant engaged in a pattern of discovery abuse, including 

failing to produce responsive documents, concealing evidence in a 

document review room, and refusing to provide a witness for 

deposition, which collectively had the result of making the 

evidence unavailable to the plaintiff before the lapse of the 

discovery cutoff]; Do It Urself Moving & Storage, Inc. v. Brown, 

Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36 [trial court’s 

determination that plaintiff’s noncompliance with discovery was 

willful, warranting evidentiary sanctions, was “amply supported” 

standard under section 1286.2, subdivision (a)(5). Although the 

Mendoza defendants did not argue legal error until their reply 

brief, we decline to find forfeiture because the Valencias 

addressed legal error in their respondents’ brief.
28

by a record “replete with instances of plaintiffs’ attempts to . . .

withhold promised items of discovery”].) “‘The power to impose 

discovery sanctions is a broad discretion subject to reversal only 

for arbitrary, capricious, or whimsical action.’” (Do It Urself 

Moving & Storage, at p. 36; accord, Osborne v. Todd Farm Service

(2016) 247 Cal.App.4th 43, 54 [“The question ‘is not whether the 

trial court should have imposed a lesser sanction; rather the 

question is whether the trial court abused its discretion by 

imposing the sanction it chose.’”]; Williams v. Russ (2008) 

167 Cal.App.4th 1215, 1224 [“We review the trial court’s order 

[under section 2023.030] under the abuse of discretion standard 

and resolve all evidentiary conflicts most favorably to the trial 

court’s ruling.”].) 

The Valencias submitted with their reply brief in support of 

the petition to confirm the arbitration award excerpts of 

discovery demands and responses, as well as attorney 

correspondence, showing that the permit inspection card was 

responsive to their demands. Yet the Mendoza defendants did 

not produce the annotated inspection card and averred they had 

no further responsive documents. After the conclusion of 

discovery, on the evening before the arbitration, Delaplane 

produced the annotated inspection card, stating that Mendoza 

and his fiancée conducted “another search” that day and “found 

[the inspection card] intermixed with other non-relevant 

documents.” On the first day of the hearing, the arbitrator 

sustained the Valencias’ objection to the admission of the 

inspection card. 

Although the record does not reflect the grounds on which 

the arbitrator excluded the inspection card, we imply a finding 

from the order sustaining the objection that the arbitrator found 
29

there was sufficient evidence the Mendoza defendants willfully 

failed to comply with the discovery requests by withholding the 

annotated inspection card that Mendoza previously averred was 

not in his possession, warranting exclusion of the inspection card. 

(See Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 

1084 [in reviewing the imposition of a discovery sanction for 

abuse of discretion, “‘[w]e view the entire record in the light most 

favorable to the court’s ruling, and draw all reasonable inferences 

in support of it’”]; see also Cable Connection, supra, 44 Cal.4th at 

p. 1362 [“problems with the record” that might present an 

obstacle to effective judicial review have “a ready solution in the 

familiar rule that the decision under review is presumed correct 

on matters where the record is silent”].) On this record, we 

cannot say the arbitrator’s exclusion of the inspection card was 

an “‘arbitrary, capricious, or whimsical action.’” (Do It Urself 

Moving & Storage, supra, 7 Cal.App.4th at p. 36; see Vallbona v. 

Springer, supra, 43 Cal.App.4th at pp. 1545-1546 [court did not 

abuse its discretion in excluding evidence as a discovery sanction 

where defendant failed to respond to requests for production, 

testified a burglary precluded his compliance, and then produced 

some purportedly stolen documents].) Because there was no 

abuse of discretion, there was no error warranting vacation of the 

award.20

20 “[A]n abuse of discretion results in reversible error only if it 

is prejudicial.” (York v. City of Los Angeles (2019) 33 Cal.App.5th 

1178, 1190.) Because we find no abuse of discretion or other legal 

error, we do not reach prejudice.
30

2. Exclusion of Richmond’s testimony regarding 

Chapter 34

When an appropriate demand is made for the exchange of 

expert witness information, a party is required to disclose the 

general substance of the testimony the expert is expected to give 

at trial. (§ 2034.260, subd. (c)(2).) The disclosure allows the 

opposing party, in taking the expert’s deposition, “to fully explore 

the relevant subject area . . . and to select an expert who can 

respond with a competing opinion on that subject area.” (Bonds 

v. Roy (1999) 20 Cal.4th 140, 146-147; accord, Cottini v. Enloe 

Medical Center (2014) 226 Cal.App.4th 401, 416.) If a request is 

made, a party must “‘“‘disclose the substance of the facts and the 

opinions to which the expert will testify, either in his witness 

exchange list, or in his deposition, or both.’”’” (Dozier v. Shapiro 

(2011) 199 Cal.App.4th 1509, 1518-1519; accord, Easterby v. 

Clark (2009) 171 Cal.App.4th 772, 778; Kennemur, supra, 

133 Cal.App.3d at p. 919.) “‘“When an expert is permitted to 

testify at trial on a wholly undisclosed subject area, opposing 

parties . . . lack a fair opportunity to prepare for crossexamination or rebuttal.”’” (Dozier, at p. 1519; see Easterby, at 

p. 780.) An expert opinion at trial exceeding the scope of 

deposition testimony may be excluded “‘if the opposing party has 

no notice or expectation that the expert will offer the new 

testimony, or if notice of the new testimony comes at a time when 

deposing the expert is unreasonably difficult.’” (Dozier, at 

pp. 1523-1524; accord, Easterby, at p. 780; see § 2034.300, 

subd. (d) [on objection, trial court “shall exclude from evidence 

the expert opinion of any witness that is offered by a party who 

has unreasonably failed to do any of the following: [¶] . . . [¶]

[m]ake that expert available for deposition”].) “Except to the 
31

extent the trial court bases its ruling on a conclusion of law 

(which we review de novo), we review its ruling excluding or 

admitting expert testimony for abuse of discretion.” (Sargon 

Enterprises, Inc. v. University of Southern California (2012) 

55 Cal.4th 747, 773; accord, People v. Rouston (2024) 

99 Cal.App.5th 997, 1010.)

The Valencias submitted excerpts of Richmond’s deposition 

in which he testified he had not been asked to give any opinions 

besides those topics on which he had been designated and 

deposed, which did not include Chapter 34.21 In response to a 

supplemental discovery demand propounded prior to the 

arbitration hearing, Delaplane advised Cohen that “our experts 

. . . will be reviewing your experts’ deposition transcripts in order 

to assess their respective opinions,” but he refused Cohen’s

demand to make Richmond available for further deposition. 

Cohen objected under Kennemur, supra, 133 Cal.App.3d 907 after 

Delaplane sought to elicit Richmond’s opinions about Chapter 34 

at the arbitration hearing.

The parties have not provided a record of the arbitrator’s 

findings in sustaining the Valencias’ objection to the testimony, 

but, as discussed, we draw all reasonable inferences in favor of 

the arbitrator’s order. (Sabetian v. Exxon Mobil Corporation, 

supra, 57 Cal.App.5th at p. 1084.) In light of the evidence that 

Richmond did not disclose that he would testify about the 

application of Chapter 34, and the Mendoza defendants’ refusal

21 Although the record does not contain Richmond’s expert 

designation, and includes only limited deposition excerpts, the 

Mendoza defendants do not contend on appeal that the 

application of Chapter 34 was encompassed in the scope of 

Richmond’s designation or deposition testimony.
32

to make Richmond available to be deposed on the additional 

opinions he intended to provide in response to Nelson’s opinions

(which had been disclosed), the arbitrator did not abuse her 

discretion in excluding the testimony. (See Dozier v. Shapiro, 

supra, 199 Cal.App.4th at p. 1524 [trial court did not abuse its 

discretion in limiting plaintiff’s expert’s testimony where 

plaintiff’s counsel “never informed defendants about [expert’s]

postdeposition change of testimony, and therefore never gave 

them the opportunity to request a renewed deposition on that 

subject”].)

DISPOSITION

We affirm the September 28, 2022 order confirming the 

arbitration award and the judgment. The Valencias are entitled 

to recover their costs on appeal.

FEUER, J.

We concur:

MARTINEZ, P. J.

SEGAL, J.