Modification: Law Finance Group, LLC v. Key

LAW FINANCE GROUP, LLC,

Plaintiff and Appellant,

v.

SARAH PLOTT KEY,

Defendant and Respondent.

No. B305790

(Los Angeles County Super. Ct. No. 19STCP04251)

California Courts of Appeal

Second Appellate District

Division Two

Filed August 19, 2021

ORDER MODIFYING OPINION AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on July 30, 2021, and reported in the Official Reports (___ Cal.App.5th ___ [2021 Cal.App. Lexis 625]) be modified in the following particulars:

1. On page *17, first full paragraph, after the quoted phrase "cannot be relied upon to excuse a party's failure to comply with a jurisdictional statute of limitations," add as footnote 8 the following footnote, which will require renumbering the subsequent footnote:

⁸ Our opinion in Santa Monica also forecloses another argument presented for the first time in Key's petition for rehearing. Key argues that she could raise her challenges to the arbitrators' ruling in response to LFG's petition to confirm whether or not she filed a timely request to vacate because the Loan Agreement was an illegal contract that the courts may not enforce. Of course, the alleged illegality of the Loan Agreement under the governing statutes was an issue in the arbitration, the results of which Key sought to challenge in court. In Santa Monica, we rejected the argument that a trial court is empowered "to entertain a challenge to an arbitration award based on the award's illegality, even when the challenging party missed the 100-day filing and service deadline." (Santa Monica, supra, 243 Cal.App.4th at p. 546.) Specifically, we declined to construe the holding in South Bay Radiology Medical Associates v. Asher (1990) 220 Cal.App.3d 1074 as "authorizing judicial review of untimely challenges to arbitration awards whenever those challengers assert that the award contravenes a statute." (Santa Monica, at p. 546.) We explained that "to do so would create an exception that would swallow the general rule hinging jurisdiction on the timeliness of the challenge." (Ibid.) That same reasoning applies here.

2. On page *21, at the end of the last paragraph of part 2 of the Discussion, add as footnote 10 the following two-paragraph footnote:

¹⁰ In light of this analysis, Key's reliance on Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710 (Saint Francis) is misplaced. In that case, which Key cited for the first time in her petition for rehearing, our Supreme Court held that, absent statutory language or a "manifest policy" to the contrary, "we presume that statutory deadlines are subject to equitable tolling." (Id. at p. 720.) Nothing in Saint Francis undermines our conclusion that equitable relief is unavailable to Key here, even assuming (again, without deciding), that such relief is not foreclosed by the statutory scheme.

In Saint Francis, the court explained that, where equitable tolling is available under a statute, it is a "narrow remedy that applies to toll statutes of limitations only 'occasionally and in special situations.' " (Saint Francis, supra, 9 Cal.5th at p. 724, quoting Addison v. State (1978) 21 Cal.3d 313, 316.)  The remedy applies only when three elements are present: (1) timely notice; (2) lack of prejudice to the defendant; and (3) reasonable and good faith conduct on the part of the plaintiff. (Saint Francis, at p. 724.) The third element has both a subjective and an objective component: "A plaintiff's conduct must be objectively reasonable and subjectively in good faith." (Id. at p. 729, italics added.) For the reasons discussed above, Key's claimed reliance on LFG's purported agreement to extend the 100-day deadline was not objectively reasonable because LFG did not have the authority to extend that deadline. This conclusion is unrelated to the court's authority to provide equitable relief. Nothing in Saint Francis suggests that a court's authority to excuse late filings in appropriate circumstances under the doctrine of equitable tolling means that parties may simply agree to extend jurisdictional deadlines.

There is no change in the judgment.

Key's petition for rehearing is denied.

CERTIFIED FOR PUBLICATION.

LUI, P. J.

ASHMANN-GERST, J.

HOFFSTADT, J.