Filed 6/25/15 Glidden v. Na noSmart Pharmaceuticals CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

PAUL F. GLIDDEN, Plaintiff and Respondent,

v. NANOSMART PHARMACEUTICALS, INC., Defendant and Appellant. G050165 (Super. Ct. No. 30-2013-00652467)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, Franz E. Miller, Judge. Affirmed. Motion to strike. Granted. The Perry Law Firm, Michael R. Perry , Larry M. Roberts and Michelle A. Hoskinson for Defendant and Appellant. Caldarelli Hejmanowski & Page, Da vid H. Lichtenstein; Calderelli Hejmanowski Page & Leer and Marisa Ja nine-Page for Plaintiff and Respondent.

* * *2 INTRODUCTION Defendant NanoSmart Pharmaceuticals, Inc. (NanoSmart), appeals from the judgment entered after the trial court gran ted plaintiff Paul F. Glidden’s petition to confirm the arbitration award (the petition to confirm). The arbitration concerned Glidden’s and NanoSmart’s empl oyment- and intellectual prop erty-related claims against each other. NanoSmart opposed the petition to confirm on the grounds the petition was prematurely filed and was filed in the wrong trial court. NanoSmart argued that Glidden should have filed his petition in a new superior court action instead of filing it in the same case in which the prearbitration motions had been filed and resolved. In addition to arguments asserted in its oppos ition to the petition to confirm, in this appeal, NanoSmart raises substantive challenges to the arbitration award itself. We affirm. The petition to confirm was timely filed 12 days after service of the arbitration award, in co mpliance with Code of Civil Procedure sections 1288 and 1288.4. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.) NanoSmart argues that its request to modify the award submitted to the arbitrator altered the statutory timefra me. The arbitrator denied NanoSmart’s purported request to modify the award, not on its merits, but on the ground it did not constitute a request to modify the award w ithin the meaning of rule R-46 of the governing Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (AAA). Hence, NanoSmart’s submission did not alter the requisite statutory timeframe. Even if the petition to confirm had been granted prematurely, NanoSmart has failed to expl ain how it was prejudiced; it never sought a continuance of the hearing on the petition to confirm or the opportunity to file a petition to modify or vacate the arbitra tion award in this action, or to present a more substantive opposition to the petition to confirm.3 Pursuant to section 1292. 6, the petition to confirm wa s properly filed in the same superior court case in which Glidden had filed his prearbitration motions, including a motion to compel arbitration regarding hi s claims against individual defendants. NanoSmart has not cited any lega l authority showing otherwise. In its appellate briefs, NanoSmart ar gues the arbitrator made legal errors and exceeded his authority in rendering th e award. NanoSmart did not raise any substantive challenges to the arbitrator’s award to the tr ial court in this case. Consequently, none of those cha llenges is before this court in this appeal. We note that after Glidden filed the petition to confirm, and shortly after NanoSmart filed its opposition to the petition to confirm in th is case, NanoSmart initiated a new lawsuit ( NanoSmart Pharmaceuticals, Inc. v. Glidden (Super. Ct. Orange County, No. 30-2014-00712127)) (t he 2014 action), in which it filed a petition to vacate the
arbitration award. NanoSmar t’s petition to vacate the arb itration award in the 2014
action was based on several substantive challe nges to the award itself. The trial court has not ruled on the petition to vacate filed in the 2014 action, but instead has stayed the proceedings in that case pendin g resolution of the appeal in this case. The instant action
and the 2014 action have not been consolidated. Hence, no ruling on the 2014 action by a trial court is before us in this appeal.

BACKGROUND
I.
G LIDDEN I NITIATES A RBITRATION T HROUGH THE AAA P URSUANT TO THE A RBITRATION P ROVISION C ONTAINED IN H IS E MPLOYMENT A GREEMENT

. In March 2013, Glidden served a demand for arbitration and submitted a complaint to the AAA, naming, as defendants, NanoSmart, Target Pharmaceuticals, Inc., James R. Smith, Henry J. Smith, Daniel Thie l, and Sarath Kanekal. The complaint alleged that in November 2011, Glidde n was hired by NanoSmart to perform4 pharmaceutical-related research and developm ent and that he “imagined, created, developed, and invented methods and form ulations of nanoparticle-sized emulsion delivery systems, including more than 60 meth ods and formulations of such systems, and performed other research and development.” The complaint further alleged that in January 2012, Glidde n entered into an employment agreement with NanoSmart, which NanoSmart later breached. That employment agreement in cluded a binding arbitration provis ion, stating: “Any dispute arising under this Agreement w ill be resolved in the United St ates by arbitration pursuant
to the American Arbitration Association and w ill be governed by the laws of the State of California. Any dispute under this Agreemen t shall be settled by arbitration in Orange County, State of California, pursuant to th e Commercial Rules, then existing, of the
American Arbitration Associa tion. The decision of the ar bitrator shall be final and binding on the parties as to i ssue of fact, but either party ma y appeal all issues of law to an appropriate court of law.” The complaint asserted NanoSmart al so engaged in unfair competition and
violated Labor Code sections 201, 203, 204, 206, 208, 226, 227, 227.3, and 1174. The complaint stated that the named defendants br eached the implied cove nant of good faith and fair dealing, and engaged in fraud and deceit. Glidden sought recovery of damages, penalties, equitable relief, a nd declaratory relief. In April 2013, the named defendants filed an answering statement and counterclaim consisting of claims for breac h of contract, fraud, misappropriation, and injunctive relief against Glidde n. The individual defendants filed an objection to the AAA’s jurisdiction because they were not signatories to the arbitration agreement
between Glidden and NanoSmart. The arb itrator overruled the objection without prejudice.5 II.
G LIDDEN I NITIATES T HIS A CTION IN THE T RIAL C OURT BY F ILING A P ETITION FOR A P RELIMINARY I NJUNCTION AND L ATER F ILES A M OTION TO C OMPEL I NDIVIDUAL D EFENDANTS TO A RBITRATE

. In May 2013, Glidden initiated this ca se in the trial court by filing a petition for a preliminary injunction. In November 2013, Glidden filed a motion to compel the individually named defendants 1 to arbitrate Glidden’s clai ms against them. The trial
court in this case denied Glidden’s motion to compel on procedural and substantive grounds. Neither the ruling on the petition fo r a preliminary injunc tion nor the ruling on the motion to compel is before us.

III.

T HE A RBITRATION A WARD ; G LIDDEN F ILES THE P ETITION TO C ONFIRM IN T HIS A CTION

. The arbitration of Glidden’s and NanoSmart’s claims was held on November 6, 7, and 12, 2013. The arbitrat or’s decision, dated January 21, 2014, was served on the parties via e-mail on January 22 , 2014. The arbitrator found there was no legal or factual basis for retaining jurisdic tion over the individually named defendants; they were therefore dismissed from the arbitration without prej udice to Glidden’s right to pursue any claims he might have ag ainst them in another forum.
The arbitrator found that Glidde n and NanoSmart en tered into an employment agreement in February 2012 and the agreement was terminated on December 31, 2012. The arbitrator found that neither party was liable for fraud, misrepresentation, or deceit and that NanoSm art did not engage in unlawful, unfair, or fraudulent business acts or practices. As to Glidden’s breach of contract claim and claims for violations of the Labor Code, the arbitrator found NanoSmart owed Glidden: (1) $61,024 for lost wages; (2) a bonus co nstituting 28,000 shares of NanoSmart common

1 Kanekal had been previously dismissed fro m the action with prejudice by Glidden.6 stock, which the arbitrator valued in the amount of $84 ,000 as of the date of the termination of Glidden’s employment; (3) re imbursement for a hosp ital bill in the amount of $2,814.77; (4) $9,231 for vacation pay; and (5) $20,000 in penalties. The arbitrator denied Glidden’s claims for the recovery of an annual bonus an d severance pay, and rejected his claim that NanoSmart violated th e implied covenant of good faith and fair dealing.
The arbitrator also found in favor of Glidden and against NanoSmart on all
of NanoSmart’s counterclaims. The arbitr ator awarded Glidden a total amount of $195,513.77, plus interest, for damages, $23 ,000 for costs, and $210,000 for attorney
fees. The arbitrator held that AAA’s admi nistrative fees and expenses, totaling $12,200, and the compensation and expenses of the arb itrator, totaling $33,525, would be borne by
NanoSmart. On February 3, 2014 , Glidden filed the petition to confirm and enter judgment upon it in this action. The petition to confirm was verified.

IV.

N ANO S MART S UBMITS A P URPORTED R EQUEST TO M ODIFY THE A RBITRATION A WARD

TO THE AAA, F ILES AN O PPOSITION TO THE P ETITION TO C ONFIRM , AND A FTER THE A RBITRATOR R EJECTS THE M ODIFICATION R EQUEST , I NITIATES A N EW C ASE IN THE T RIAL C OURT BY F ILING A P ETITION TO V ACATE THE A RBITRATION A WARD

. On February 10, 2014, NanoSmart submitted to the AAA a request to modify the arbitration award. On February 18, NanoSmart filed an opposition to the petition to confirm based on the grounds that (1) the petition to confirm was premature
under sections 1288.4 and 1288.8 because at the time of NanoSmart’s opposition, a request to the AAA to modify the award was pending; (2) NanoSmart “reserves its right to further challenge the arbitration award” fo llowing the arbitrator’s ruling on the request to modify the award and NanoSmart has 100 da ys from the date of the ruling to do so; and (3) the petition to confirm filed in this case was “procedurally” improper because this7 action was complete “through the court’s ru ling on petitioner’s previous petition for an injunction.” (Capitalization, bold face, & underscoring omitted.) On March 18, 2014, the arbitrator de nied NanoSmart’s request to modify
the arbitration award because it did not constitute a request to modify the award, stating: “[R]espondent’s request to modify the arb itration award was not one to correct any clerical, typographical, technical, or computa tional errors in the award. Accordingly, respondent’s request is denied.” On March 21, 2014, Nano Smart initiated a new case in the trial court, the 2014 action, in which it filed a verified pe tition to vacate the arbitration award. Our
record does not show that NanoSmart filed a notice of related cases as required by
rule 3.300 of the California Rules of Court. 2

V.
T HE T RIAL C OURT G RANTS THE P ETITION TO C ONFIRM

. On March 24, 2014, the petition to c onfirm came on for hearing. At the hearing, NanoSmart’s counsel acknowledged th at the arbitrator had denied NanoSmart’s request for a modification of the award, an d stated: “We plan to challenge it going forward. And so I just want to point out the validity of the request is not in front of Your

2 Rule 3.330(b) of the California Rules of Court states: “Whenever a party in a civil action knows or learns that the action or proceeding is related to another action or proceeding pending, dismissed, or disposed of by judgment in any state or federal court in California, the party must serve and file a Notice of Related Case.” Rule 3.330(a) states: “A pending civil case is related to an other pending civil case, or to a civil case that was dismissed with or without prejudice, or to a civil case that was disposed of by judgment, if the cases: [¶] (1 ) Involve the same parties and are based on the same or similar claims; [¶] (2) Arise from the same or substantia lly identical transactions, incidents, or events requiring the determina tion of the same or substantially identical questions of law or fact; [¶] (3) Involve clai ms against, title to, possession of, or damages to the same property; or [¶ ] (4) Are likely for other reas ons to require substantial duplication of judicial resources if heard by different judges.”8 Honor.” NanoSmart’s counsel argued that the da te of service of the arbitration award, for the purpose of calculating timeframes for fili ng petitions to confirm, correct, or vacate, had changed to the date on whic h the arbitrator denied its re quest to modify the award. NanoSmart’s counsel further argued: “A nd from that date, we determine when subsequent petitions may be filed. [¶] So in this case, Your Honor, the denial order was issued on March 18, 2014. This was only si x days ago. So we are still premature in filing a petition to confirm. Th e earliest date we could file and serve a petition to confirm
would be March 28th.” Refe rencing the petition to vacate the arbitration award that NanoSmart had recently filed in the 2014 acti on, NanoSmart’s counsel stated: “[I]n an effort to actually follow the procedural time lines, petitioner NanoSmart waited to file its petition to vacate the award. Th is was just filed on Friday. And we planned to timely serve it, utilizing the ten-day rule, waiting until March 28th to complete our filing and service of our petition.” At no time during the hearing, did NanoSmart ask that the hearing on the petition to confirm be continued to enable it to seek leave to file a late petition to modify or vacate the award on any grounds, under sec tion 473 or otherwise. At no time did NanoSmart assert substantive challenges to the arbitration award in this action or seek the opportunity to supplement its opposition to the petition to confirm. At the end of the March 24 hearing, the court gran ted the petition to confirm.

VI.

N ANO S MART F ILED A N OTICED M OTION TO V ACATE THE A RBITRATION A WARD IN THE 2014 A CTION AND F ILED A N OTICE OF A PPEAL FROM THE O RDER C ONFIRMING THE A RBITRATION A WARD IN T HIS A CTION

. On May 1, 2014, NanoSmart filed a no ticed motion to vacate the arbitration award in the 2014 action. In its motion, Na noSmart argued, inter alia, the arbitrator exceeded his powers by ar bitrarily remaking the parties’ contract in certain respects, by9 refusing to postpone the hear ing upon sufficient cause be ing shown, by awarding stock value unsupported by law or co ntract, and by awarding Gli dden the amount of a hospital bill. NanoSmart also argued th at the arbitrator lacked du e diligence and competence. On May 20, 2014, NanoSmart filed a no tice of appeal from the trial court’s March 24, 2014 order confirming the arbitration award. 3

VII.

T HE T RIAL C OURT S TAYS THE 2014 A CTION , P ENDING R ESOLUTION OF THE A PPEAL IN T HIS A CTION

. On June 2, 2014, in the 2014 action, the trial court entertained Glidden’s ex parte application seeking relief from his obligation to respond to NanoSmart’s petition
to vacate the arbitration award. Glidden cite d “[j]urisdictional [d]efects,” given the order confirming the same arbitration award in the in stant case. The court granted the ex parte application and stayed the proceedings in the 2014 action, pend ing the resolution of NanoSmart’s appeal in the instant case. The trial court explained its ruling as follows: “Nov ’13 arbitration before Wenke [(the arbitrator)]; 1/21/ 14 Wenke issues decision; 2/3/ 14 Glidden filed petition to confirm (652467); 2/10 Nano filed request fo r modification with Wenke; 2/18 Nano filed opposition to petition to confir m; 3/19 Wenke denies request for modification; 3/21 Nano files petition to vacate (712127; this case) but did not file notice of related case and did not seek to continue hearing on petition to confirm in 652 467; 3/24 court grants petition to confirm and judgment is entered; 5/13 G lidden files this motion; Nano appeals 652467 ruling confirming arbitration; court has no jurisdiction to consider petition to vacate (712127) after it grants petition to confirm and enters judg ment (652467)—there can only

3 As discussed post , in June 2014, the trial court ente red judgment, in ac cordance with its order granting the petition to confirm, whic h NanoSmart states was to be effective March 24, 2014, nunc pro tunc.10 be one judgment from arbitra tion proceeding (CCP 1286; pe tition to vacate was timely in the s[e]n[s]e it was filed with[in] 100 days of order denying modification of award but
not in the sense it was not heard before judgment confirming the award was entered; perfecting of appeal stays proceedings ‘emb raced in’ or [‘]affected by’ the issue on appeal (CCP 916(a)), and a decision on pe tition to vacate would impact the overall effectiveness of the appeal ( Varian Med [ ical ] Syst [ em ] s [ , Inc. v. Delfino (2005)] 35 C[al.]4[th ]180, 189).”

VIII.

T HE T RIAL C OURT IN T HIS A CTION S IGNS AN A MENDED O RDER C ONFIRMING THE A RBITRATION A WARD AND E NTERS J UDGMENT A CCORDINGLY , E FFECTIVE M ARCH 24, 2014, N UNC P RO T UNC ; T HIS C OURT D ENIES N ANO S MART ’ S P ETITION FOR W RIT OF S UPERSEDEAS

. On June 2, 2014, the trial court signed an amended order confirming the arbitration award and entered judgment awar ding Glidden $433,651.27 together with interest at the rate of 10 percent. NanoSm art asserts the judgment , dated June 2, 2014, was ordered effective March 24, 2014. In June 2014, NanoSmart filed a petition for a writ of supersedeas and request for immediate temporary stay of enforcement of the ju dgment in this case. On July 3, 2014, this court su mmarily denied the petition a nd request for an immediate temporary stay.

MOTION TO STRIKE A ND JUDICIAL NOTICE
Glidden filed a motion to strike a significant portion of the appellant’s appendix (specifically, appellant ’s appendix tabs 1 through 7, 9 through 12, 18 through 32, 36, 38, and 39, and pages 16 through 24 of tab 8), on the ground “these documents were never lodged, filed, or considered by th e Trial Court” in this case. Glidden has moved to strike appellant’s appendix tab 39 on the additional ground it “appears to11 [contain] altered copies of exhibits from the unde rlying arbitration.” Many of the documents that are the subject of Glidden’s mo tion to strike were those filed in the 2014
action.
Pursuant to rule 8.124 of the Califor nia Rules of Court, we grant Glidden’s motion to strike in its entirety. NanoSmart has failed to show th at any of the subject documents was part of the trial court record in this case. In NanoSmart’s opposition to the motion to strike, it argues that this court should take judicial notice of appellant’s appendix tabs 1 throug h 7 and 9 through 12 because they are “judicially noticeable” as “each and every exhibit is a record of the
Court.” Those documents were filed in the 20 14 action, not in this case. NanoSmart’s request does not comply with rule 8.252(a)(1) of the California Rules of Court, which states: “To obtain judicial notice by a reviewing court unde r Evidence Code section 459, a party must serve and file a separa te motion with a proposed order.”
Pursuant to Evidence Code secti ons 459, subdivis ion (a) and 452, subdivision (d), on our own motion, we take judi cial notice of appellant’s appendix tabs 1 through 7 and 9 through 12 , for the purpose of provid ing additional procedural background in the resolu tion of the issues presented in this appeal.

DISCUSSION NanoSmart argues the judgment entere d after the trial court granted the petition to confirm should be vacated because (1) the petition to confirm was “prematurely granted, which greatly prej udiced NanoSmart, preventing it from having a Petition/Motion to Vacate heard”; (2) the petition to confirm was filed in the wrong court; and (3) “the resulting judgment is based on an award that is replete with misapplications of law, including irrational findings as to pr ovisions of the contr act, improper application of procedural rules, baseless findings of bad faith, and an irrational award of attorney’s fees, to name a few examples.”12 For the reasons we will explain, the petition to confirm was not prematurely granted. Even if we were to assume it had been granted prematurely, NanoSmart has failed to show it suffered any prejudice as a result. NanoSmart’s opposition to the petition to confirm did not include any request to correct, modify, or vacate the award. At no time in this action, did NanoSmart reque st a continuance on the hearing or decision of the petition to confirm, or otherwise request the opportunity to file a petition to correct, modify, or vacate the award, before judgmen t was entered, nunc pro tunc, effective March 24, 2014, and NanoSmart file d its appeal from that judgment. In our resolution of this appeal, we only address the arguments that NanoSmart raised in opposition to the petition to confirm. As the substantive challenges to the award presented in NanoSmart’s appella te briefs (and asserted in the 2014 action) were not before the trial court in this action, much less decided by any trial court, they are not before this court in this appeal . We therefore do not address them.
I.

T HE P ETITION T O C ONFIRM W AS N EITHER P REMATURELY F ILED BY G LIDDEN NOR P REMATURELY G RANTED BY THE T RIAL C OURT , AND W AS N OT F ILED IN THE W RONG C OURT

. A party may petition a trial court to confirm, correct, or vacate an arbitration award. (§ 1285.) A party may also seek to have th e award corrected or vacated by filing an opposition to a petition to confirm an arbitr ation award. (§ 1285.2.) A petition to confirm an arbitration award must be filed within four years of the date the petitioner was served a signed copy of the arb itration award (§ 1288 ), but no petition, of any kind—whether to confirm, correct, or vacate an award—may be served and filed until at least 10 days after service of the signed copy of the awar d upon the petitioner (§ 1288.4). A petition to vacat e or correct an arbitration award must be filed within 100 days of the petitioner bein g served with a signed copy of the arbitration award. (§ 1288.) An opposition requesting an award be vacated or corrected must be served and13 filed within 100 days of the re spondent being served with a signed copy of the arbitration award. (§ 1288 .2, subd. (a).) The filing of a petition to confirm an arbitration award, however, changes the statutory timeline. “When one side file s a petition to confirm the award, the other side must respond within 10 days”—even if th e opposition seeks to v acate or confirm the award. ( Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66; see § 1290.6.) Therefore, “‘[w]hen [a] party petitions the court to confirm the award . . . , [the opposing party] may seek vacation . . . of the award by way of response only if he serves and files his response within 10 days after the serv ice of the petition [citation]. Unless the response is duly served and filed, under section 1290 the allegations of the petition are deemed to be admitte d by [the other side].’” ( Oaktree Capital Management,
L.P. v. Bernard , supra , at p. 64, fn. omitted.) “[ T]he proper interpretation of
section 1288.2 is that th e 100-day limit applies only wh en the other party to the arbitration does not file a petition to confirm the award. When su ch petition is filed a response must be filed within the time limit set forth in section 1290.6.” ( Coordinated Construction, Inc. v. Canoga Big “A,” Inc. (1965) 238 Cal.App.2d 313, 317.) Here, the arbitration award was serv ed by e-mail on January 22, 2014. Rule R-45 of the governing AAA’s Comme rcial Arbitration Rules and Mediation Procedures, which NanoSmart asserts the part ies’ contractually agreed would govern the resolution of the parties’ dispute, provided that electronic service was acceptable. (See § 1283.6 [“The neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified ma il or as provided in the agreement.”].) 4 NanoSmart does not challenge the manner or date of service of the
arbitration award.

4 Rule R-45 of the AAA’s Commercial Arbitr ation Rules and Media tion Procedures (eff. June 1, 2009), available at <https://www.adr.org/aaa/faces/r ules/searchrules> (as of June 25, 2015), provided: “P arties shall accept as notice a nd delivery of the award the14 On February 3, 2014, 12 days late r, and thus more than 10 days after service of a copy of the arbitration awar d, Glidden filed the petition to confirm. NanoSmart argues the petition to confirm is i nvalid because Glidden’ s proof of service shows that it was served on NanoSmart by overnight mail on January 31, 2014—only 9 days after a copy of the award was served. Section 1288.4 provid es that “[n]o petition may be served and filed under this chapter until at leas t 10 days after service of the signed copy of the award upon the petitioner.” (Italics added.) Although the petition to confirm might have been served on Nano Smart a day early, it was not filed until February 3, 2014. NanoSmart does not ad dress how being served early in any way prejudiced it. On February 18, 2014, NanoSmart filed an “O pposition to Petitioner’s
Motion to Confirm Arbitration Award.” Na noSmart’s opposition was untimely as it was not filed within the 10-day re sponse period required by sec tion 1290.6. Consequently, “[t]he allegations of a petition are deemed to be admitted by [the] respondent duly served therewith.” (§ 1290; see Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846-847.) Although section 1290.6 provides that the deadline to re spond to a petition to confirm an arbitration award “may be ex tended . . . for good cause, by order of the court,” NanoSmart never requested any extens ion of time to respond to the petition to confirm, or otherwise, in this action. No twithstanding NanoSmart’s failure to timely respond, the trial court did not strike Na noSmart’s opposition to the petition to confirm and entertained the arguments contained in it. (See Ruiz v. Moss Bros. Auto Group, Inc. , supra , 232 Cal.App.4th at p. 847 [“Courts have long ackn owledged that the trial court

placing of the award or a true copy thereof in the mail addressed to the parties or their representatives at the last known addresses, personal or electr onic service of the award, or the filing of the award in any other manner that is permitted by law.” Citations to the Commercial Arbitration Rules and Mediation Proc edures rules in this opinion refer to the rule numbers in effect at the relevant times, not to the current rule numbers.15 may consider untimely filed and served resp onse papers, when no prejudice to the petitioner is shown, without an order extending the 10-day time period of section 1290.6.”].) In NanoSmart’s four-page opposition to the petition to confirm, NanoSmart did not request that the arbitr ation award be corrected or vacated. In fact, NanoSmart never offered any substantive challenges to the arbitration award to the trial court in this action. Instead, NanoSmart argued (1) the petition to confirm was premature, not only because it was served on NanoSmart one day earlier than permitted by section 1288.4 (which, for the reasons discussed ante , was without consequence), but also because NanoSmart had submitted to the AAA a request for modification of the award, pursuant to rule R-46 of the applicable AAA’s Commercial Arbitration Rules and Mediation Procedures; (2) the petition to confirm was im properly filed “under the same case number [Glidden] utilized for his pe tition for an injunction action and motion to compel arbitration”; and (3) NanoSmart “reserves its right to further challenge the arbitration award . . . if the AAA does not grant all or part of NanoSmart’s pending request to modify,” pursuant to sections 1286.6 and 1286 .8. We address each of these arguments in turn, and conclude none has merit. First, NanoSmart argued that the tria l court erred by granting the petition to confirm because on February 10, 2014, NanoSma rt had submitted a request to modify the
arbitration award to the AAA. In its opening brief, NanoSmart argues, “[p]er California Code of Civil Procedure § 1288.8, the award’s service date ceased to be January 22, 2014 effectively extinguishing any start to the timeline under California Code of [ C ] ivil
Procedure § 1288.4 that would allow Glidden to f ile a motion to Confirm no earlier than 10 days after the date of the award’s serv ice.” Section 1288.8 provides: “If an application is made to the arbitrators for correc tion of the award, the date of service of the award for the purposes of this article shall be deemed to be whichever of the following dates is the earlier: [¶] (a) The date of service upon the petitioner of a signed copy of the16 correction of the award or of the denial of th e application. [¶] (b ) The date that such application is deemed to be denied under Section 1284 .” NanoSmart’s argument, therefore, is that because it filed a modifi cation request with the AAA, the “date of service” of the arbitration award for purp oses of calculating d eadlines for seeking confirmation of, modification to , or vacation of the arbitration award in the trial court changed to whatever date the arbitrator ruled on the modifica tion request or the date the request was deemed denied. NanoSmart’s purported request to m odify the arbitration award was not timely under section 1284 because it was s ubmitted on February 10, more than 10 days after service of a signed copy of the arbitrati on award. Section 1284 provides in part: “The arbitrators, upon written ap plication of a party to the arbitration, may correct the award upon any of the grounds set forth in su bdivisions (a) and (c) of Section 1286.6 not later than 30 days after service of a signed copy of the award on the applicant. [¶] Application for such correction shall be made not later than 10 days after service of a signed copy of the award on the applicant .” (Italics added.) NanoSmart argues the parties contractually agreed to a longer timeframe for seeking correction of the arbitration aw ard by agreeing to rule R-46 of the AAA’s
Commercial Arbitration Rules and Mediation Procedures, supra , <https://www.adr.org/ aaa/faces/rules/searchrules> (as of June 25, 2015), which provided in part: “ Within 20 days after the transmittal of an award , any party, upon notice to the other parties, may request the arbitrator, through the AAA, to correct any clerical, typographical, or computational errors in the award. The arb itrator is not empowered to redetermine the merits of any claim already decided.” (Ita lics added.) Hence, NanoSmart argues, its request under rule R-46 served to reset the clock on challe nging the arbitration award, pursuant to section 1288.8. The problem with NanoSmart’s ar gument is that by the time of the March 24, 2014 hearing on the petition to confirm, the arbitrator had resolved17 NanoSmart’s request to modify the award. He did so, not by deciding the request on its merits, but by concludi ng it did not constitute a request to modify the award. In the March 18, 2014 ruling, the arbitrator stated: “The arbitrator finds that respondent’s request to modify the arbitration award was not one to correct any clerical, typographical, technical, or computational errors in the awar d. Accordingly, respondent’s request is denied.” If NanoSmart’s request to modi fy did not seek to correct “any clerical, typographical, or computational errors,” ru le R-46 of the AAA’s Commercial Arbitration Rules and Mediation Procedures, supra , <https://www.adr.org/aaa/faces/rules/ searchrules> (as of June 25, 2015), did not apply, and section 1288.8 was therefore never triggered to reset the date of service of the arbitration award. NanoSmart did not argue in the tria l court that the arbitrator wrongly concluded NanoSmart’s request failed to constitute a request to modify or correct the arbitration award within the meaning of ru le R-46 of the AAA’s Commercial Arbitration Rules and Mediation Procedures, supra , <https://www.adr.org/aaa/faces/rules/ searchrules> (as of June 25, 2015). NanoSmar t never requested that the trial court make any corrections to the award. (See § 1286.8 , subd. (a) [“The cour t may not correct an award unless: [¶] (a) A petition or response requesting that the aw ard be corrected has been duly served and filed . . . .”].) Our record does not show the trial court in this action, before ruling on the petition to confirm, ever saw the request to modify the
arbitration award that NanoSmart submitted to the AAA. At the hearing on the petition to confirm, NanoSmart’s counsel stated: “[T]he validity of the request to modify is not in front of Your Honor. Now, the arbitrator has, of course, made a ruling on the request to modify. Of course, petitioner NanoSmart does not agree, doe s not simply fall to this decision or agree to it. We plan to challenge it going forward. And so I just want to point out the validity of the request is not in front of Your Honor.” 5

5 At oral argument on appeal, NanoSmart’s counsel argued that NanoSmart’s request to modify the arbitration award th at it submitted to the AAA was indeed a request to correct18 Even if we were to assume NanoSm art timely filed a proper request to modify the arbitration award to correct a ny clerical, typographi cal, or computational errors in the award, which was denied by the arbitrator on March 18, 2014, the trial court’s decision to grant the petition to confirm six days later did not prejudice NanoSmart. At no time did NanoSmart reque st a continuance of the hearing on the petition to confirm in order for it to file a pe tition to correct or vacate the arbitration
award in this action. At no time has NanoSm art sought relief of any kind in the trial court in this action, based on section 473, or otherwise.

clerical, typographical, or computational erro rs in the award, w ithin the meaning of rule R-46 of the AAA’s Commercial Arbitr ation Rules and Medi ation Procedures, supra , <https://www.adr.org/aaa/faces/rules/search rules> (as of June 25, 2015), which consequently reset the clock on challengi ng the award in the trial court under section 1288.8. Counsel argued the arbitrat or erred by concluding the request did not constitute such a request within the meaning of rule R-46. As discussed ante , although NanoSmart expressed its disagreement with the arbitrator’s ruling, it did not ask the trial court to review it in this case; to the cont rary, NanoSmart repeated ly informed the court that the arbitrator’s ruling was not before it. NanoSmart’s request to modify was not filed in the trial court in this cas e. It was filed in the 2014 action, and, as discussed ante , we have taken judicial notice of documents from the 2014 action, whic h include a copy of NanoSmart’s request to modify th at it submitted to the AAA. We conclude that even if the trial c ourt had reviewed the request to modify, it would have determined the arbitrator was correct in ruling that the request did not constitute a request to correct clerical, typographical, or computational errors in the arbitration award, within the meaning of rule R-46 of th e AAA’s Commercial Arbitration Rules and Mediation Procedures, supra , <https://www.adr.org/aaa/faces/rules/searchrules> (as of June 25, 2015). Although styl ed as a request for modificati on of “clerical errors” (not computational errors) contained in the ar bitration award, the request constituted NanoSmart’s attempt to reargue that Nano Smart (1) did not owe Glidden 10 vacation days; (2) owed Glidden vacation pay, if at all, at a lower daily rate; (3) did not owe Glidden the value of bonus stock because Gli dden prevented issuance of the shares, and even if NanoSmart did owe him the value of such stock, the arbitrator should have accepted NanoSmart’s evidence regarding a lower value of the shares of stock; (4) never promised to pay Glidden’s hospital bill and sh ould not be required to pay it; and (5) was entitled to a detailed calculation of the awarde d costs, expenses, and attorney fees. Consequently, NanoSmart has failed to establish that the arbitrator’s denial of its request changed the timeline for challenging the arbitration award in this action under section 1288.8.19 Finally, NanoSmart argues the petiti on to confirm is essentially void because Glidden filed the petition in the same superior court case in which prior petitions
had been filed before the arbitration. Without citing authority, NanoSmart argues Glidden was required to initiate a new action in the trial c ourt to file the petition to confirm. We disagree. Section 1292.6 prov ides: “After a petition has been filed under this title, [6] the court in which such petition was file d retains jurisdiction to determine any subsequent petition involving th e same agreement to arbitrate and the same controversy, and any such subse quent petition shall be filed in the same proceeding.” On November 12, 2013, Glidden filed a motion to compel arbitration as to the individual defendants, which would qualify as a petiti on brought under secti on 1281.2, which is within title 9 of part 3 of th e Code of Civil Proc edure—thus within the same title as
section 1292.6. Glidden ther efore properly filed the petiti on to confirm in this case, Glidden v. NanoSmart Pharmaceuticals, Inc. , Orange County Superior Court, case
No. 30-2013-00652467.

II.

W E D O N OT A DDRESS N ANO S MART ’ S S UBSTANTIVE C HALLENGES TO THE A RBITRATION A WARD B ECAUSE T HEY W ERE N EVER P RESENTED TO THE T RIAL C OURT IN T HIS C ASE

. Much of the argument contained in Na noSmart’s appellate briefs is devoted to challenging the arbitration award. NanoSmar t, argues, inter alia, that the arbitrator (1) arbitrarily remade the parties’ contract in several respects; (2) improperly awarded Glidden “full attorney’s fees . . . without regard to improperly forcing Individual Respondents to participate in litigation as parties”; (3) refuse d to postpone the arbitration hearing; (4) violated the California Rules of Court, Ethics Standards for Neutral

6 Section 1292.6 is in title 9 of part 3 of the Code of Civi l Procedure, spanning sections 1280 through 1294.2.20 Arbitrators in Contractual Arbitration; and (5 ) was inattentive during proceedings. None of these arguments was presented in this ac tion to the trial court in response to the petition to confirm. Therefore, they were ne ver considered by the trial court before the petition to confirm was granted. NanoSmar t had the full opportunity to present its arguments in response to the petition to co nfirm, and should have, but did not. (§ 1285.2.)
We therefore do not decide NanoSma rt’s substantive challenges to the arbitration award because they are not before us. We do not express any opinion on the viability of the 2014 action, or the res judicata or collateral estoppel effect our opinion
has on that case.

DISPOSITION The judgment is affirmed. Respon dent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.