Judge: Frank M. Tavelman, Case: 24BBCP00018, Date: 2024-03-08 Tentative Ruling

Case Number: 24BBCP00018    Hearing Date: March 8, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

PETITION TO CONFIRM ARBITRATION AWARD

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Two Nine Sports Inc. (Petitioner) brings this petition to confirm an arbitration award obtained against Spare CS, Inc. (Spare). The arbitration award was made on October 12, 2023 for $148,474.12. Spare has made no response to this petition.   

ANALYSIS: 

I.                    LEGAL STANDARD 

Any party to an arbitration award may petition the court to confirm, correct, or vacate the award. (C.C.P. § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” (C.C.P. § 1286.) A petition to confirm a binding arbitration shall name as respondents all parties to the arbitration and may name any other parties to be bound by the award. (C.C.P. § 1285.) The petition shall (1) set forth the substance of or have attached a copy of the agreement to arbitrate unless petitioner denies the existence of such an agreement; (2) set forth the name(s) of the arbitrator(s); and (3) set forth or have attached a copy of the award and written opinion of the arbitrator. (C.C.P. § 1285.4(a)-(c).)

The petition to confirm must be served and filed no later than four years after the date of service of a signed copy of the award on the petitioner (C.C.P. § 1288) but may not be served and filed until at least 10 days after service of the signed copy of the award upon the petitioner. (C.C.P. § 1288.4.) Where the arbitration agreement does not provide the manner in which service shall be made and the person on whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with se C.C.P. § 1290.4(a), the petition and notice of hearing must be served in a manner provided by law for the service of summons in an action. (C.C.P. § 1290.4(b).)

II.                 MERITS

Service of the notice for this petition was rendered on February 2, 2024. The proof of service shows service was made on D’Ontra Hughes, Spare’s agent for service of process, via substitute service. It appears the notice was left with Lisa Kline, a mailroom specialist, at 16192 Coastal Hwy Lewes, DE 19958 and mailed thereafter.  The proof of service does not indicate to whom the mailing was addressed, was it to Ms. Kline, D’Ontra Hughes or some other person.  Furthermore, to what address was it mailed.

The Court has concerns about the adequacy of service here. 

A summons may be served on a corporation by personal delivery to the agent for service of process, the president, CEO or “other head of the corporation,” vice president, secretary, assistant secretary, treasurer, assistant treasurer, controller or CFO of the corporation. (C.C.P. § 416.10(a), (b). Substitute service may be made by leaving the summons and complaint with a person apparently in charge and mailing a copy to the same address. (C.C.P.  415.20(a).)

Service of the petition was made on Spare through its agent for service of process but was simply left for the agent with the mail clerk of their building at the office. It is not clear that Lisa Kline was a person “apparently in charge” as per C.C.P. § 415.20(a). The process server’s affidavit does not state that she attempted to ascertain who was in charge at the location, nor does it identify Lisa Kline as that person. Further, the process server attests that Lisa Kline was “a competent member of the household at the dwelling house or usual place of abode of the person served.” This statement employs language that applies to service on an individual defendant, not a corporate defendant. (See C.C.P. § 415.20 (a).) The statement is also contrary to the fact that the petition was clearly served at Spare’s company address   The logic of the “apparently in charge” requirement is that notice is more reasonably calculated to be received by a corporate entity when someone who is in charge of one of its locations received it. Service on a mailroom employee does not equate to one who is “apparently in charge” of the office. As a result, the purported substitute service is insufficient.

Accordingly, the petition to confirm arbitration award is DENIED without prejudice.

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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 

Two Nine Sports Inc.’s Petition to Confirm Arbitration Award came on regularly for hearing on March 8, 2024, 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 PETITION TO CONFIRM ARBITRATION AWARD IS DENIED WITHOUT PREJUDICE.