Motion to Vacate Judgment
Royalty Lending 2019, LTD v. Giancarlo Cucumo, 25LC-1453
Hearing: Motion to Vacate Judgment
Date: June 25, 2026
Royalty Lending 2019, LTD (Plaintiff) made two private business loans to Giancarlo Cucumo (Defendant) that were repaid. After repayment of the second loan Defendant lodged complaints about the second loan with various state and federal agencies. Defendant lodged a complaint with the Better Business Bureau (BBB) regarding the second loan and Plaintiff and Defendant entered into an agreement for binding arbitration with the BBB.
The matter was arbitrated and on January 21, 2025, the arbitrator issued “Reasons for Decision” and the final Decision which requires neither party to pay the other anything and enjoins Defendant from making any further complaints concerning the second loan and directs Defendant to withdraw his erroneous 1099s filed with the IRS (Arbitration Award). (Petition, Ex. C.)
Plaintiff asserts that the Arbitration Award was served on Defendant on January 27, 2025. (Petition, p.5, ¶17) Defendant did not request correction or otherwise contest the Arbitration Award until January 26, 2026, when he filed his opposition to Plaintiff’s motion to confirm the award. On April 30, 2026, the Court granted Plaintiff’s motion to confirm the Arbitration Award and entered judgment.
Before the Court is Defendant’s motion to vacate the judgment. Defendant raises the following four arguments:
1. The judgment is defective because the Court failed to determine whether Defendant was entitled to equitable tolling of the 100-day deadline of Code of Civil Procedure sections 1288.2 1 for contesting an arbitration award.
2. The Court improperly relied on Coney Island Auto Parts Unlimited, Inc. v. Burton (2026) 607 U.S. 155, 146 S.Ct. 579, in the judgment.
3. The Court cites two different code sections for its conclusion that Defendant made a general appearance thereby waiving alleged service defects.
4. The arbitrator exceeded his powers within the meaning of Code of Civil Procedure section 1286.2(a)(4) by issuing a cease-and-desist order.
1 Further statutory references are to the Code of Civil Procedure unless otherwise stated.
I. Equitable Tolling
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The Court did not determine whether Defendant was entitled to equitable tolling because Defendant never raised the issue. The elements to be considered in determining equitable tolling are (1) timely notice by the moving party; (2) lack of prejudice to the opposing party; and (3) reasonable and good faith conduct by the moving party. (Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710, 727-728.) Defendant still has not submitted evidence or argument supporting these elements. His argument seems to be that a court must determine potential equitable tolling whether or not it is asserted and supported by evidence.
Such is not the law. “Contentions are waived when a party fails to support them with reasoned argument and citations to authority.” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [citation omitted].) Defendant arguably waived equitable tolling by failing to raise it in opposition to Plaintiff’s motion to confirm the Arbitration Award. Even if the issue was not waived, Defendant has failed to show he is entitled to equitable tolling.
II. Citation to Federal Law
The Court did not raise federal law as relevant to determining Plaintiff’s motion to confirm the Arbitration Award. The Court’s citation to Coney Island Auto Parts Unlimited, Inc. v. Burton (2026) 607 U.S. 155, 146 S.Ct. 579 (Coney Island), was solely for the purpose of refuting Defendant’s citation to “Holt v. Institutional Shareholders, Inc. (2021) 61 Cal.App.5th 807, 817, for the proposition that voidness pursuant to federal law may be raised at any time.” As the Court stated, the Holt case does not exist and Coney Island stands for the opposite proposition.
III. Citation re General Appearance
The only statute the Court cited in its ruling for the contention that Defendant made a general appearance was section 410.50, subdivision (a).
IV. Arbitrator’s Authority
The arbitrator did not exceed his powers in enjoining Defendant from “presenting any further claims or complaints about the issues in this arbitration to Royalty or to any law enforcement agency or to any other agency charged with enforcing the law, and to correct any previously presented claims by either withdrawing them or by otherwise ceasing to pursue them.” The arbitrator also specifically ordered that Defendant must “contact the IRS and withdraw his
erroneously filed 1099s which purport to show outrageously inaccurate and improper income payments to Royalty.” (Order Confirming Arbitrator’s Award, Exh., A.)
An arbitrator’s authority derives from the agreement to arbitrate and the arbitrator’s powers may be expanded by the scope of the issues submitted to arbitration. (Kelly Sutherlin McLeod Architecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 528–29 (KSMA) [citations omitted]. Both parties cite KSMA wherein the arbitrator entered an award finding the defendant made false and defamatory statements regarding the plaintiff architectural firm’s work on his home. The arbitrator ordered the defendant to send letters retracting the statements. The appellate court found that the arbitrator’s authority to grant any just and equitable remedy included the authority to order retractions of defamatory statements, even though a Court may not have such broad authority. (Id. at 529-530.)
Here, the arbitration agreement covered Plaintiff’s claim for reimbursement of costs incurred in responding to Plaintiff’s various allegations, claims and complaints as well as Plaintiff’s claim for reversal of improper 1099 Forms Defendant filed with the IRS. (Opposition, p. 7, lns. 5-7.) The cease and desist language is limited to claims or complaints about the issues in the arbitration. In other words, the award limits Defendant’s right to file claims and complaints that contradict the arbitrator’s determination of issues.
As the court in KSMA held, “Our Supreme Court has recognized that limitations on free speech are proper where the speech at issue has been adjudged to be defamatory.” Here, the arbitrator implicitly found that any further claims or complaints Defendant might make concerning the issues decided at arbitration would be defamatory. “[P]rohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory” does not violate free speech. (Balboa Island Vill. Inn, Inc. v. Lemen (2007) 40 Cal. 4th 1141, 1150, as modified (Apr. 26, 2007).)
Defendant cites various speech protection statutes that do not apply here. Defendant is not a whistleblower, a witness, or Plaintiff’s employee. The arbitrator found that Plaintiff did not, in making the loans to Defendant, engage in misconduct as Defendant alleged. Defendant is prohibited from re-asserting the misconduct claims to any agency because to do so would be defamatory.
V. RULING
The motion to vacate judgment is denied.
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