County of Los Angeles

Department 26

mei xia guo,

Petitioner,

cetera investments services, llc,

Respondent.

Case No.: 23STCP03435

Hearing Date: December 12, 2023

[TENTATIVE] order RE:

Petition to Confirm arbitration award

Background

On October 26, 2022, Petitioner Mei Xia Guo (“Petitioner”) initiated a petition for expungement with the dispute resolution arm of the Financial Industry Regulatory Authority (“FINRA”) against Respondent Cetera Investment Services, LLC (“Respondent”). (Trotter Decl. ¶ 4, Exh. B.) On August 2, 2023, an award pursuant to the FINRA arbitration granting the expungement was entered in favor of Petitioner. (Trotter Decl. ¶ 8, Exh. F.)

On September 18, 2023, Petitioner filed the instant petition to confirm the arbitration award. No opposition has been filed.

Legal Standard

Any party to an arbitration in which an award has been made may petition the court for confirmation of the award. (CCP § 1285.) Upon service and filing of a petition to confirm arbitration award, the court shall confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286.) The contents of a petition to confirm an arbitration award shall set forth the substance of or have attached a copy of the agreement to arbitrate, the names of the arbitrators, and shall set forth or have attached a copy of the award and the written opinion of the arbitrators. (CCP § 1285.4.) Where the petition is served but no response is served and filed, the allegations in the petition are deemed admitted. (CCP § 1290; Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal.App.4th 956, 962.)

Every presumption is in favor of the arbitration award. (See Firestone Tire & Rubber Co. v. United Rubber Workers of America (1959) 168 Cal.App.2d 444, 449.) Code of Civil Procedure section 1286.2 provides that “the court shall vacate the award if the court determines any of the following: (1) [t]he award was procured by corruption, fraud or other undue means.” (CCP § 1286.2(a).) The defendant moving for vacation of an arbitration award due to corruption, fraud, or other undue means must demonstrate a nexus between the award and the alleged undue means used to attain it. (See Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 833-34.) An objection to the granting of a motion to confirm an award is equivalent to a motion to vacate. (See Thriftimart, Inc. v. Superior Court (1962) 202 Cal.App.2d 421, 425-26.)

Discussion

Service of the Arbitration Award

Code of Civil Procedure section 1283.6 provides that: “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 agreement.” (Id., [Italics added].)

Here, the arbitration award was served on Respondent on August 2, 2023 by FINRA – the neutral arbitrator. (Petition ¶ 9.) Therefore, service of the award is proper.

Service of the Petition to Confirm Arbitration and Notice of Hearing on Petition

A copy of petition to vacate an arbitration “and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.” (CCP § 1290.4(a).) If the arbitration agreement does not set forth a method, service shall be made in the manner provided by law for service of summons in an action if the party has not appeared if they reside within the state or by certified mail if the party resides outside the state. (CCP § 1290.4(b).) If the party upon whom the petition is to be made has appeared, service can be made by noticed motion. (CCP § 1290.4(c).)

Here, FINRA, which set forth the requirement for arbitration, does not set forth a manner of service of a petition to confirm the award. Thus, the manner of service must be made by the manner provided by law for service of summons. (See CCP § 1290.4(b).) Here, Respondent has returned an acknowledgement of receipt of the petition and filed a declaration noting that there was no opposition. (CCP § 415.30.) This is in accordance with Code of Civil Procedure section 1290.4(b). Moreover, pursuant the arbitration award, FINRA was to be named a party to the petition unless it was specifically waived in writing by FINRA. (Petition, Attachment 8(c).) Here, FINRA waived in writing the requirement to be named as an additional party to the confirmation of the arbitration award. (Trotter Decl. ¶ 3, Exh. A.)

Accordingly, the service of the Petition and notice of hearing were adequate.

Timeliness of Petition to Confirm Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years after the award is served. (CCP §§ 1288, 1288.4.)

As noted above, the award was served on August 2, 2023. (Petition ¶ 9.) The instant petition was filed on September 18, 2023. This is within the prescribed time period.

Confirmation of the Arbitration Award

The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) CCP section 1285.4 states a petition under this chapter shall:

a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.

b) Set forth the names of the arbitrators.

c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.

(CCP § 1285.4.)

The Petition complies with the above requirements. Petitioners seek to confirm the award as made. The agreement to arbitration is set forth by Rule 13805 of the FINRA Code of Arbitration Procedure for Customer Disputes and FINRA Rule 2080. (Petition, Attachment 4(B).) The arbitrator’s name – Robert D. Sussin – is set forth. (Petition ¶ 6.) Finally, the written opinion setting forth the award has been attached. (Petition, Attachment 8(c).) As the Petition is unopposed, Respondents have not established any ground for vacating the Award.

Accordingly, the Petition to Confirm Arbitration Award is granted.

CONCLUSION AND ORDER

Based on the foregoing, Petitioner Mei Xia Guo’s petition to confirm the arbitration award is GRANTED.

Pursuant to Code of Civil Procedure § 1287.4 judgment is entered pursuant to the arbitration award. The Central Registration Depository is ordered to expunge all references to Occurrence Number 2096505 from registration records maintained by the Central Registration Depository for Claimant Mei Xia Guo (CRD Number 4201624).

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: December ___, 2023 ___________________________

Elaine Lu

Judge of the Superior Court