Judge Frank M. Tavelman, Case 19BBCV00152 2022-09-16 Tentative Ruling

Judge: Frank M. Tavelman, Case: 19BBCV00152, Date: 2022-09-16 Tentative Ruling

Case Number: 19BBCV00152 Hearing Date: September 16, 2022 Dept: A

19BBCV00152

MOTION TO CONFIRM ARBITRATION

MP: Defendant Phillip B. Goldfine, et al.

RE: Maggy Entertainment LLC, Magda Rasoul

ALLEGATIONS:

Maggy Entertainment, LLC and Magda Rasoul (“Plaintiffs”) filed suit against Phillip B. Goldfine, et al. (“Defendant”) after an agreement for Plaintiffs to produce a movie presented to them by Defendant went awry.

Plaintiff filed a Complaint on alleging 6 causes of action: (1) fraud, (2) conversion, (3) rescission, (4) breach of written contract, (5) intentional interference with contract, and (6) accounting.

This Court granted Defendants’ Petition to Compel Arbitration on May 24, 2019. (Petition, p. 2). The arbitration hearing was conducted on December 20, 21, and 22, 2021 before the Honorable Candace D. Cooper, (Ret.) with an interim award issued on March 28, 2022 in favor of all Defendants, and a Supplemental Award on July 25, 2022, awarding Defendants attorneys’ fees and costs, which together, constitutes the complete and final award in the arbitration. (Id).

HISTORY:

The Court received the Motion filed by Defendants on August 16, 2022. The Court received the opposition to the Motion filed by Plaintiff on August 26, 2022. The Court received the reply to the Motion filed by Defendants on September 8, 2022.

RELIEF REQUESTED:

Defendants request the confirmation of the final award of the arbitrator and enter judgment against Maggy Entertainment LLC and Magda Rasoul according to the Final Award for $147,750.00 for attorneys’ fees, and $39,050.10 for costs, for a total award of $186,800.10 in favor of Defendants. (Petition, p. 4, ¶6).

ANALYSIS:

I. LEGAL STANDARD

A petition to confirm an arbitration award must include the substance of the agreement to arbitrate, the names of the arbitrators, and the opinion of the arbitrator. CCP § 1285.4. The general rule is that a court will not review “the merits of the controversy, the validity of the arbitrator’s reasoning, or the sufficiency of the evidence.” (See Jordan v. DMV (2002) 100 Cal.App.4th 431). Confirmation of the award is mandatory unless a response or petition to correct or vacate the award has been timely filed. (See CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818).

“The scope of judicial review of arbitration awards is extremely narrow. Courts may not review the merits of the controversy, the sufficiency of the evidence supporting the award, or the validity of the arbitrator's reasoning….Indeed, with limited exceptions, ‘an arbitrator's decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties.’” (Dept. of Personnel Admin. v. Cal. Correctional Peace Officers Ass'n (2007) 152 Cal.App.4th 1193, 1200. Accord California School Employees Assn. v. Bonita Unif. School Dist. (2008) 163 Cal.App.4th 387, 406-07.

The only grounds for judicial review and vacation of an arbitration award are: “(a) the award was procured by corruption, fraud or other means; (b) there was corruption in the arbitrator; (c) the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator; (d) the arbitrator exceeded … powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; (e) the rights of the party were substantially prejudiced by the refusal of the arbitrator to postpone the hearing; or (f) there was a disclosure or disqualification issue….” (See Allstate Ins. Co. v. Sup. Ct. (2006) 142 Cal.App.4th 356, 362-63 (citing, e.g., CCP §1286.2); SWAB Financial v. E*Trade Securities (2007) 150 Cal.App.4th 1181, 1201.

The only grounds upon which the Court may correct an arbitration award are: (a) there was a miscalculation of figures or mistake in description of a person, thing, or property; (b) the arbitrator exceeded his or her powers, but the award may be corrected without affecting the merits of the decision; or (c) the award is imperfect in a matter of form which does not affect the merits of the controversy. CCP § 1286.6. An arbitration award may also be set aside if the arbitrator fails to disclose any ground specified in CCP § 170.1, for disqualification of a judge, as well as matters required to be disclosed by the ethics standards for neutral arbitrators adopted by the Judicial Council. (Honeycutt v. JPMorgan Chase Bank, N.A. (2018) 25 Cal. App. 5^th 909

II. DISCUSSION

Code of Civil Procedure, section 1290.4 requires the Petition and Notice of Hearing to be served on Respondent “in the manner provided in the arbitration agreement for the service of such petition and notice” or “[i]f the arbitration agreement does not provide the manner in which such service shall be made . . . [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a), (b).)

Petitioner has filed proof of service demonstrating substitute service on the individual Respondent and service on the agent for service of process on the entity Respondentof the Petition, and the original notice of hearing. Service was effectuated by e-mail to the Respondent’s attorneys on March 28, 2022. (Petition, p. 40, Proof of Service).

Therefore, the court finds that Petitioner has complied with the requirements of Code of Civil Procedure, section 1290.4.

Service of the Arbitration Award (CCP §§ 1283.6, 1288)

The arbitration award was served on both parties on July 25, 2022, as required by Code of Civil Procedure section 1283.6. (Pet., Exhibit 4). Furthermore, under Code of Civil Procedure section 1288, a petition to confirm arbitration must be filed and served no more than four years after the award was served. The award here was issued on July 25, 2022 and the Petition was timely filed on August 16, 2022, and timely served in August 16, 2022.

Confirmation of the 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.) 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.) Code of Civil Procedure, 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.

(Code Civ. Proc., § 1285.4.) The petition complies with the above requirements. It attaches a copy of the agreement to arbitrate. (Petition, Exhibit 4). It also sets forth the name of the Arbitrator (Honorable Candace D. Cooper, Ret.), and attaches a copy of the Award to the Petition. (Petition, Exhibit 4). On March 28, 2022, the arbitrator issued an award requiring Respondents to pay Petitioner $147,750.00 in attorney’s fees and $39,050.10 in costs. (Id. at p. 47, Exhibit 4) Accordingly, Petitioner has complied with the requirements of Code of Civil Procedure, section 1285.4, subdivision (a).

The court notes that Respondents requests that this Court vacate the arbitration award based on the arbitrator’s alleged failure to disclose certain conflicts of interests. (Plaintiffs’ Response to Defendants’ Petition to Confirm Arbitration Award). However, as held in Allstate Ins. Co. v. Sup. Ct, supra, “the only grounds for judicial review and vacation of an arbitration award are: “(a) the award was procured by corruption, fraud or other means; (b) there was corruption in the arbitrator; (c) the rights of the party were substantially prejudiced by misconduct of a neutral arbitrator; (d) the arbitrator exceeded … powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; (e) the rights of the party were substantially prejudiced by the refusal of the arbitrator to postpone the hearing; or (f) there was a disclosure or disqualification issue….”

Respondents argue that:

“The Arbitration Award should be vacated because the arbitrator failed to disclose within the time for disclosure a ground for disqualification of which the arbitrator was then aware pursuant to C.C.P. § 1291.9; C.C.P. §1281.9(a)(2); C.C.P. §170.1(6)(A); C.C.P. §170.1(6)(B)and the arbitrator should have disqualified himself or herself after Plaintiffs made a demand to do so pursuant to C.C.P. § 1291.9; C.C.P. §1281.9(a)(2); C.C.P. §170.1(6)(A); C.C.P. §170.1(6)(B).” However, their request is bereft of any support for the claim, including the absence of any declarations.

Award of Costs

Finally, Petitioner requests an award of costs of suit incurred herein. (Petition, p. 1-2.) Costs and fees incurred in judicial proceedings to enforce an arbitration award are recoverable by the prevailing party as a matter of right. (Code Civ. Proc., § 1293.2; Austin v. Allstate Ins. Co. (1993) 16 Cal.App.4th 1812, 1815-1816.). Petitioner seeks costs in the amount of $2,500 plus $9.27 filing costs; however, the calculation of those costs is not known to the Court. As such, CRC, Rule 3.1700 governs prejudgment costs, including the filing fee now sought by Petitioner. To obtain such costs, Petitioner must “serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment.” (CRC, Rule 3.1700(a)(1).)

III. CONCLUSION

Based on the foregoing, the Petition to Confirm Arbitration Award is granted.

Moving party to give notice and file proposed judgment consistent with this decision.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant Phillip B. Goldfine's Motion came on regularly for hearing on September 16, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED

IT IS SO ORDERED.

DATE: September 16, 2022 _______________________________

F.M. TAVELMAN, Judge

Superior Court of California

County of Los Angeles