Filed 6/25/15 Glidden v. NanoSmart 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                         G050165

         v.                                                             (Super. Ct. No. 30-2013-00652467)

NANOSMART PHARMACEUTICALS,                                             OPINION
INC.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior 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, David H. Lichtenstein; Calderelli
Hejmanowski Page & Leer and Marisa Janine-Page for Plaintiff and Respondent.


                                          *                  *                  *
                                     INTRODUCTION
              Defendant NanoSmart Pharmaceuticals, Inc. (NanoSmart), appeals from the
judgment entered after the trial court granted plaintiff Paul F. Glidden’s petition to
confirm the arbitration award (the petition to confirm). The arbitration concerned
Glidden’s and NanoSmart’s employment- and intellectual property-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 opposition 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 compliance 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 timeframe. 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 within 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 explain 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 arbitration award in this action, or to present a more substantive
opposition to the petition to confirm.



                                              2
               Pursuant to section 1292.6, the petition to confirm was properly filed in the
same superior court case in which Glidden had filed his prearbitration motions, including
a motion to compel arbitration regarding his claims against individual defendants.
NanoSmart has not cited any legal authority showing otherwise.
               In its appellate briefs, NanoSmart argues the arbitrator made legal errors
and exceeded his authority in rendering the award. NanoSmart did not raise any
substantive challenges to the arbitrator’s award to the trial court in this case.
Consequently, none of those challenges 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 this case, NanoSmart initiated a new lawsuit
(NanoSmart Pharmaceuticals, Inc. v. Glidden (Super. Ct. Orange County,
No. 30-2014-00712127)) (the 2014 action), in which it filed a petition to vacate the
arbitration award. NanoSmart’s petition to vacate the arbitration award in the 2014
action was based on several substantive challenges 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 pending 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.

        GLIDDEN INITIATES ARBITRATION THROUGH THE AAA PURSUANT TO THE
        ARBITRATION PROVISION CONTAINED IN HIS EMPLOYMENT AGREEMENT.
               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 Thiel, and Sarath Kanekal. The complaint
alleged that in November 2011, Glidden was hired by NanoSmart to perform


                                               3
pharmaceutical-related research and development and that he “imagined, created,
developed, and invented methods and formulations of nanoparticle-sized emulsion
delivery systems, including more than 60 methods and formulations of such systems, and
performed other research and development.”
              The complaint further alleged that in January 2012, Glidden entered into an
employment agreement with NanoSmart, which NanoSmart later breached. That
employment agreement included a binding arbitration provision, stating: “Any dispute
arising under this Agreement will be resolved in the United States by arbitration pursuant
to the American Arbitration Association and will be governed by the laws of the State of
California. Any dispute under this Agreement shall be settled by arbitration in Orange
County, State of California, pursuant to the Commercial Rules, then existing, of the
American Arbitration Association. The decision of the arbitrator shall be final and
binding on the parties as to issue of fact, but either party may appeal all issues of law to
an appropriate court of law.”
              The complaint asserted NanoSmart also 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 breached the implied covenant of good faith
and fair dealing, and engaged in fraud and deceit. Glidden sought recovery of damages,
penalties, equitable relief, and declaratory relief.
              In April 2013, the named defendants filed an answering statement and
counterclaim consisting of claims for breach of contract, fraud, misappropriation, and
injunctive relief against Glidden. 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 arbitrator overruled the objection without
prejudice.




                                               4
                                              II.

            GLIDDEN INITIATES THIS ACTION IN THE TRIAL COURT BY FILING A
             PETITION FOR A PRELIMINARY INJUNCTION AND LATER FILES A
             MOTION TO COMPEL INDIVIDUAL DEFENDANTS TO ARBITRATE.
               In May 2013, Glidden initiated this case in the trial court by filing a petition
for a preliminary injunction. In November 2013, Glidden filed a motion to compel the
                                1
individually named defendants to arbitrate Glidden’s claims 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 for a preliminary injunction nor the ruling on
the motion to compel is before us.


                                              III.

THE ARBITRATION AWARD; GLIDDEN FILES THE PETITION TO CONFIRM IN THIS ACTION.
               The arbitration of Glidden’s and NanoSmart’s claims was held on
November 6, 7, and 12, 2013. The arbitrator’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 jurisdiction over the individually named defendants;
they were therefore dismissed from the arbitration without prejudice to Glidden’s right to
pursue any claims he might have against them in another forum.
               The arbitrator found that Glidden and NanoSmart entered 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 NanoSmart 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 constituting 28,000 shares of NanoSmart common

1
    Kanekal had been previously dismissed from the action with prejudice by Glidden.

                                               5
stock, which the arbitrator valued in the amount of $84,000 as of the date of the
termination of Glidden’s employment; (3) reimbursement for a hospital 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 and severance pay, and
rejected his claim that NanoSmart violated the 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 arbitrator 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 administrative fees and expenses, totaling $12,200,
and the compensation and expenses of the arbitrator, 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.

 NANOSMART SUBMITS A PURPORTED REQUEST TO MODIFY THE ARBITRATION AWARD
  TO THE AAA, FILES AN OPPOSITION TO THE PETITION TO CONFIRM, AND AFTER THE
  ARBITRATOR REJECTS THE MODIFICATION REQUEST, INITIATES A NEW CASE IN THE
     TRIAL COURT BY FILING A PETITION TO VACATE THE ARBITRATION AWARD.
              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” following the arbitrator’s ruling on the request
to modify the award and NanoSmart has 100 days from the date of the ruling to do so;
and (3) the petition to confirm filed in this case was “procedurally” improper because this

                                             6
action was complete “through the court’s ruling on petitioner’s previous petition for an
injunction.” (Capitalization, boldface, & underscoring omitted.)
              On March 18, 2014, the arbitrator denied 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 arbitration award was not one to correct any
clerical, typographical, technical, or computational errors in the award. Accordingly,
respondent’s request is denied.”
              On March 21, 2014, NanoSmart initiated a new case in the trial court, the
2014 action, in which it filed a verified petition to vacate the arbitration award. Our
record does not show that NanoSmart filed a notice of related cases as required by
                                             2
rule 3.300 of the California Rules of Court.


                                               V.
                 THE TRIAL COURT GRANTS THE PETITION TO CONFIRM.
              On March 24, 2014, the petition to confirm came on for hearing. At the
hearing, NanoSmart’s counsel acknowledged that the arbitrator had denied NanoSmart’s
request for a modification of the award, and 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 another 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 substantially identical transactions,
incidents, or events requiring the determination of the same or substantially identical
questions of law or fact; [¶] (3) Involve claims against, title to, possession of, or damages
to the same property; or [¶] (4) Are likely for other reasons to require substantial
duplication of judicial resources if heard by different judges.”

                                                 7
Honor.” NanoSmart’s counsel argued that the date of service of the arbitration award, for
the purpose of calculating timeframes for filing petitions to confirm, correct, or vacate,
had changed to the date on which the arbitrator denied its request to modify the award.
NanoSmart’s counsel further argued: “And 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 six days ago. So we are still premature in
filing a petition to confirm. The earliest date we could file and serve a petition to confirm
would be March 28th.” Referencing the petition to vacate the arbitration award that
NanoSmart had recently filed in the 2014 action, 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. This 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 section 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 granted the petition to confirm.


                                             VI.

         NANOSMART FILED A NOTICED MOTION TO VACATE THE ARBITRATION
         AWARD IN THE 2014 ACTION AND FILED A NOTICE OF APPEAL FROM THE
           ORDER CONFIRMING THE ARBITRATION AWARD IN THIS ACTION.
              On May 1, 2014, NanoSmart filed a noticed motion to vacate the arbitration
award in the 2014 action. In its motion, NanoSmart argued, inter alia, the arbitrator
exceeded his powers by arbitrarily remaking the parties’ contract in certain respects, by


                                              8
refusing to postpone the hearing upon sufficient cause being shown, by awarding stock
value unsupported by law or contract, and by awarding Glidden the amount of a hospital
bill. NanoSmart also argued that the arbitrator lacked due diligence and competence.
              On May 20, 2014, NanoSmart filed a notice of appeal from the trial court’s
                                                          3
March 24, 2014 order confirming the arbitration award.


                                             VII.

                  THE TRIAL COURT STAYS THE 2014 ACTION, PENDING
                     RESOLUTION OF THE APPEAL IN THIS ACTION.
              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 cited “[j]urisdictional [d]efects,” given the order
confirming the same arbitration award in the instant case. The court granted the ex parte
application and stayed the proceedings in the 2014 action, pending 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 for modification with Wenke; 2/18 Nano filed
opposition to petition to confirm; 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 652467; 3/24 court grants petition
to confirm and judgment is entered; 5/13 Glidden 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 judgment (652467)—there can only


3
  As discussed post, in June 2014, the trial court entered judgment, in accordance with its
order granting the petition to confirm, which NanoSmart states was to be effective
March 24, 2014, nunc pro tunc.

                                              9
be one judgment from arbitration proceeding (CCP 1286; petition 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 ‘embraced in’ or [‘]affected by’ the issue on
appeal (CCP 916(a)), and a decision on petition 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.

            THE TRIAL COURT IN THIS ACTION SIGNS AN AMENDED ORDER
           CONFIRMING THE ARBITRATION AWARD AND ENTERS JUDGMENT
          ACCORDINGLY, EFFECTIVE MARCH 24, 2014, NUNC PRO TUNC; THIS
          COURT DENIES NANOSMART’S PETITION FOR WRIT OF SUPERSEDEAS.
              On June 2, 2014, the trial court signed an amended order confirming the
arbitration award and entered judgment awarding Glidden $433,651.27 together with
interest at the rate of 10 percent. NanoSmart 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 judgment in this case. On
July 3, 2014, this court summarily denied the petition and request for an immediate
temporary stay.


                   MOTION TO STRIKE AND 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 the Trial Court” in this case. Glidden has
moved to strike appellant’s appendix tab 39 on the additional ground it “appears to

                                             10
[contain] altered copies of exhibits from the underlying arbitration.” Many of the
documents that are the subject of Glidden’s motion to strike were those filed in the 2014
action.
              Pursuant to rule 8.124 of the California Rules of Court, we grant Glidden’s
motion to strike in its entirety. NanoSmart has failed to show that 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 through 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 2014 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 under Evidence Code section 459,
a party must serve and file a separate motion with a proposed order.”
              Pursuant to Evidence Code sections 459, subdivision (a) and 452,
subdivision (d), on our own motion, we take judicial notice of appellant’s appendix tabs 1
through 7 and 9 through 12, for the purpose of providing additional procedural
background in the resolution of the issues presented in this appeal.


                                      DISCUSSION
              NanoSmart argues the judgment entered after the trial court granted the
petition to confirm should be vacated because (1) the petition to confirm was
“prematurely granted, which greatly prejudiced 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 provisions of the contract, improper application
of procedural rules, baseless findings of bad faith, and an irrational award of attorney’s
fees, to name a few examples.”

                                             11
              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 request 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 judgment was entered, nunc pro tunc, effective
March 24, 2014, and NanoSmart filed 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 appellate 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.

           THE PETITION TO CONFIRM WAS NEITHER PREMATURELY FILED BY
           GLIDDEN NOR PREMATURELY GRANTED BY THE TRIAL COURT, AND
                       WAS NOT FILED IN THE WRONG COURT.
              A party may petition a trial court to confirm, correct, or vacate an
arbitration award. (§ 1285.) A party may also seek to have the award corrected or
vacated by filing an opposition to a petition to confirm an arbitration 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 arbitration 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 award upon the petitioner
(§ 1288.4). A petition to vacate or correct an arbitration award must be filed within
100 days of the petitioner being served with a signed copy of the arbitration award.
(§ 1288.) An opposition requesting an award be vacated or corrected must be served and


                                              12
filed within 100 days of the respondent 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 files a petition to confirm the award, the other
side must respond within 10 days”—even if the opposition seeks to vacate 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 service of the petition [citation].
Unless the response is duly served and filed, under section 1290 the allegations of the
petition are deemed to be admitted 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 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.” (Coordinated
Construction, Inc. v. Canoga Big “A,” Inc. (1965) 238 Cal.App.2d 313, 317.)
              Here, the arbitration award was served by e-mail on January 22, 2014.
Rule R-45 of the governing AAA’s Commercial Arbitration Rules and Mediation
Procedures, which NanoSmart asserts the parties’ 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 mail or as provided in the
               4
agreement.”].) NanoSmart does not challenge the manner or date of service of the
arbitration award.

4
  Rule R-45 of the AAA’s Commercial Arbitration Rules and Mediation Procedures (eff.
June 1, 2009), available at <https://www.adr.org/aaa/faces/rules/searchrules> (as of
June 25, 2015), provided: “Parties shall accept as notice and delivery of the award the

                                              13
                 On February 3, 2014, 12 days later, and thus more than 10 days after
service of a copy of the arbitration award, Glidden filed the petition to confirm.
NanoSmart argues the petition to confirm is invalid 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 provides that “[n]o petition
may be served and filed under this chapter until at least 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 NanoSmart a day early, it was not filed until
February 3, 2014. NanoSmart does not address how being served early in any way
prejudiced it.
                 On February 18, 2014, NanoSmart filed an “Opposition to Petitioner’s
Motion to Confirm Arbitration Award.” NanoSmart’s opposition was untimely as it was
not filed within the 10-day response period required by section 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 respond to a petition
to confirm an arbitration award “may be extended . . . for good cause, by order of the
court,” NanoSmart never requested any extension of time to respond to the petition to
confirm, or otherwise, in this action. Notwithstanding NanoSmart’s failure to timely
respond, the trial court did not strike NanoSmart’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 acknowledged 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 electronic 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 Procedures rules in this opinion refer to the
rule numbers in effect at the relevant times, not to the current rule numbers.

                                               14
may consider untimely filed and served response 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 arbitration 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 improperly filed “under the same case number
[Glidden] utilized for his petition 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 trial court erred by granting the petition to
confirm because on February 10, 2014, NanoSmart 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 file a motion to Confirm no earlier than
10 days after the date of the award’s service.” Section 1288.8 provides: “If an
application is made to the arbitrators for correction 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 the

                                             15
correction of the award or of the denial of the 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 modification request with the AAA, the “date of
service” of the arbitration award for purposes of calculating deadlines 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 modification request or the date the
request was deemed denied.
              NanoSmart’s purported request to modify the arbitration award was not
timely under section 1284 because it was submitted on February 10, more than 10 days
after service of a signed copy of the arbitration award. Section 1284 provides in part:
“The arbitrators, upon written application of a party to the arbitration, may correct the
award upon any of the grounds set forth in subdivisions (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 award 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 arbitrator is not empowered to redetermine the
merits of any claim already decided.” (Italics added.) Hence, NanoSmart argues, its
request under rule R-46 served to reset the clock on challenging the arbitration award,
pursuant to section 1288.8.
              The problem with NanoSmart’s argument is that by the time of the
March 24, 2014 hearing on the petition to confirm, the arbitrator had resolved

                                             16
NanoSmart’s request to modify the award. He did so, not by deciding the request on its
merits, but by concluding 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 award. Accordingly, respondent’s request is
denied.” If NanoSmart’s request to modify did not seek to correct “any clerical,
typographical, or computational errors,” 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), 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 trial 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 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). NanoSmart never requested that the trial court make
any corrections to the award. (See § 1286.8, subd. (a) [“The court may not correct an
award unless: [¶] (a) A petition or response requesting that the award 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, does not simply fall to this
decision or agree to it. We plan to challenge it going forward. And so I just want to
                                                                     5
point out the validity of the request is not in front of Your Honor.”
5
 At oral argument on appeal, NanoSmart’s counsel argued that NanoSmart’s request to
modify the arbitration award that it submitted to the AAA was indeed a request to correct

                                              17
               Even if we were to assume NanoSmart timely filed a proper request to
modify the arbitration award to correct any clerical, typographical, 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 request a continuance of the hearing on the
petition to confirm in order for it to file a petition to correct or vacate the arbitration
award in this action. At no time has NanoSmart sought relief of any kind in the trial
court in this action, based on section 473, or otherwise.

clerical, typographical, or computational errors in the award, within the meaning of
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
consequently reset the clock on challenging the award in the trial court under
section 1288.8. Counsel argued the arbitrator 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 contrary, NanoSmart repeatedly 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 case. It was filed in the 2014 action, and, as discussed ante, we
have taken judicial notice of documents from the 2014 action, which include a copy of
NanoSmart’s request to modify that it submitted to the AAA.
   We conclude that even if the trial court 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 the AAA’s Commercial Arbitration Rules and
Mediation Procedures, supra, <https://www.adr.org/aaa/faces/rules/searchrules> (as of
June 25, 2015). Although styled as a request for modification of “clerical errors” (not
computational errors) contained in the arbitration award, the request constituted
NanoSmart’s attempt to reargue that NanoSmart (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 Glidden 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 should not be required to pay it; and (5) was
entitled to a detailed calculation of the awarded 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.

                                               18
                  Finally, NanoSmart argues the petition 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 court to file the petition to
confirm. We disagree. Section 1292.6 provides: “After a petition has been filed under
          [6]
this title,     the court in which such petition was filed retains jurisdiction to determine any
subsequent petition involving the same agreement to arbitrate and the same controversy,
and any such subsequent 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 petition brought under section 1281.2, which is
within title 9 of part 3 of the Code of Civil Procedure—thus within the same title as
section 1292.6. Glidden therefore properly filed the petition to confirm in this case,
Glidden v. NanoSmart Pharmaceuticals, Inc., Orange County Superior Court, case
No. 30-2013-00652467.


                                                 II.

                WE DO NOT ADDRESS NANOSMART’S SUBSTANTIVE CHALLENGES
                  TO THE ARBITRATION AWARD BECAUSE THEY WERE NEVER
                       PRESENTED TO THE TRIAL COURT IN THIS CASE.
                  Much of the argument contained in NanoSmart’s appellate briefs is devoted
to challenging the arbitration award. NanoSmart, 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) refused 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 Civil Procedure, spanning
sections 1280 through 1294.2.

                                                 19
Arbitrators in Contractual Arbitration; and (5) was inattentive during proceedings. None
of these arguments was presented in this action to the trial court in response to the
petition to confirm. Therefore, they were never considered by the trial court before the
petition to confirm was granted. NanoSmart had the full opportunity to present its
arguments in response to the petition to confirm, and should have, but did not.
(§ 1285.2.)
              We therefore do not decide NanoSmart’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. Respondent shall recover costs on appeal.




                                                   FYBEL, J.

WE CONCUR:



ARONSON, ACTING P. J.



IKOLA, J.




                                              20
