Judge Gary I. Micon, Case Number: BC709434, Date: 2024-12-03 Tentative Ruling

Judge: Gary I. Micon, Case: BC709434, Date: 2024-12-03 Tentative Ruling

Case Number: BC709434 Hearing Date: December 3, 2024 Dept: F43

Dept. F43

Date: 12-03-24

Case # BC709434, Robinson, et al. v. Paseo Dorena Owners, et al.

Trial Date: Held in May 2023

MOTION TO CONFIRM ARBITRATION AWARD

MOVING PARTY: Weissman Law Firm and I. Donald Weissman

RESPONDING PARTIES: Plaintiffs Natasha Robinson and David Maxim

RELIEF REQUESTED

Court order confirming arbitration award and judgment following binding arbitration.

RULING: The Court grants the petition and confirms the arbitration award of $9,996.39.

SUMMARY OF ACTION

Weissman Law Firm and I. Donald Weissman represented Natasha Robinson and David Maxim (plaintiffs) in a premises liability and personal injury action, under a contingency fee Retainer Agreement. In November 2022, the Court granted Weissman’s motion to withdraw as counsel over plaintiffs’ opposition.

The case proceeded to trial, and the Court entered judgment for Plaintiffs.

In December 2022, Weissman filed and served an Attorney’s Lien against any judgment in the case for attorney’s fees and costs, based upon the Retainer Agreement between Weissman, Robinson, and Maxim. The Court denied Plaintiffs’ ex parte application challenging the lien but granted their request to strike expert witness fees.

Weissman then demanded that Plaintiffs reimburse the costs of litigation pursuant to the Retainer Agreement in the amount of $9,996.39. Plaintiffs did not make payments.

Plaintiffs filed a petition with the San Gabriel Valley Bar Association to arbitrate their dispute. Arbitration occurred by videoconference on July 10, 2024; the Arbitrator awarded Weissman $9,996.39 on August 23, 2024. Weissman served notice of the award on Plaintiffs on August 31, 2024.

Plaintiffs petitioned to correct or vacate the award; the petition was denied on September 24, 2024.

Weissman filed a petition to confirm the arbitration award and judgment on October 18, 2024. Plaintiffs oppose the petition. No reply has been filed.

Summary of Arguments

Weissman moves to confirm the arbitration award issued August 23, 2024 and a judgment.

In opposition, plaintiffs argue the Court should vacate the award because the Arbitrator’s misconduct substantially prejudiced their rights by postponing the arbitration hearing and showing preferential treatment for Weissman. The Arbitrator also incorrectly calculated the award amount and claimed he never received a substantial portion of Plaintiffs’ original exhibits. The Arbitrator also never responded to Robinson’s concerns and email inquiries.

Plaintiffs also argue that the denial of their petition to vacate or correct the arbitration award was procedurally deficient because Weissman served the opposition and proof of service to the petition via email without all parties first consenting to electronic service. Even though the San Gabriel Arbitration rules state that proofs of service must be mailed, the Program allowed Weissman to email his opposition.

In the alternative, if the Court still deems the arbitration award is justified, respondents assert the Court should correct the arbitration award by determining what fees petitioner is entitled to, removing the attorney’s lien dated December 20, 2022, and awarding reasonable fees to Plaintiffs from the defendants in this case. The arbitration award includes fees not allowed under Code of Civil Procedure section 1033.5 such as expert fees. Plaintiffs also challenge the adequacy of Weissman’s work on their behalf.

ANALYSIS

“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.” (Code Civ. Proc., § 1285.) The petition must state the substance, or attach copies of the arbitration agreement, the award, and any written opinion. (Code Civ. Proc., § 1285.4.) The petitioner must serve the petition between 10 days and 4 years from the date the award was served on the petitioner. (Code Civ. Proc., §§ 1288, 1288.4.) The other party may respond to the petition. (Code Civ. Proc., § 1285.2.)

“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.” (Code Civ. Proc., § 1286.) The court may not vacate or correct an award unless a petition or response requesting that the award be vacated or corrected has been duly served and filed. (Code Civ. Proc., §§ 1286.4 & 1286.8.)

“Once a petition to confirm an award is filed, the superior court must select one of only four courses of action: It may confirm the award, correct and confirm it, vacate it, or dismiss the petition. [Citation.]” (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) “If an award is confirmed, judgment shall be entered in conformity therewith.” (Code Civ. Proc., § 1287.4.)

The court may not review “the merits of the dispute, the sufficiency of the evidence, or the arbitrator’s reasoning, nor may we correct or review an award because of an arbitrator’s legal or factual error, even if it appears on the award’s face. Instead, we restrict our review to whether the award should be vacated under the grounds listed in section 1286.2. [Citations.]” (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 347.) “Absent proof of one of the five grounds contained in section 1286.2, a court may not vacate an award for legal or factual error even if the error clearly appears on the face of the award and it causes substantial injustice.” (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1344.)

The court may vacate an arbitration award if it determines:

(1) The award was procured by corruption, fraud or other undue means;

(2) There was corruption in any of the arbitrators;

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator;

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted;

(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title; and

(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.

(Code Civ. Proc., § 1286.2, subd. (a); Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 347.)

Timeliness of the Petition

The award was made on August 23, 2024 and served on Weissman on August 27, 2024. Weissman filed and served this petition on October 18, 2024, more than 10 days after August 27, 2024, but 4 years before August 24, 2028.

The petition is timely.

Service of the Petition and Notice of Hearing

The petitioner must serve the petition and notice of the hearing on the 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, subd. (a), (b).)¿¿

Weissman filed the petition, notice of hearing, and proof of service on October 18, 2024. The proof of service reflects that Weissman served Robinson the petition and notice of hearing to Robinson via email on that same date.

Service of the petition and notice of hearing was proper.

Confirmation of Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered.¿ (Code Civ. Proc., § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.)

On the merits, the court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding.¿ (Code Civ. Proc., § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) The petition must:¿

(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.¿

(Code Civ. Proc., § 1285.4.)

Weissman’s petition includes copies of the arbitration opinion and award, along with the ruling on Plaintiffs’ petition to correct or vacate the arbitration award. (Weissman Dec., Exhs. A, B.) The petition does not include the arbitrator’s name, but his attached exhibits identify Alex Hartounian as the arbitrator.

Weissman also failed to attach a copy of the arbitration agreement to his petition. However, neither party disputes the agreement’s existence, and and Plaintiffs attached a copy of the arbitration agreement to their opposition. The court may therefore reach the merits of Weissman’s petition. (See Puccinelli v. Nestor (1956) 145 Cal.App.2d 48, 50.)

Plaintiffs’ opposition to the petition raises factual issues that must be supported by admissible evidence. However, Robinson’s declaration does not authenticate or lay the foundation for any of Plaintiffs’ attached exhibits. Because these exhibits are inadmissible, Robinson’s opposition lacks evidentiary support. (See Dept. of Human Resources v. Int’l Union of Operating Engineers (2020) 58 Cal.App.5th 861, 882; Code Civ. Proc., § 1290.2.) Additionally, although Plaintiffs cite the applicable code sections, they cite no case authority to support their arguments and likewise fail to discuss or analyze those issues. The Court therefore finds no grounds for denying the petition to confirm the arbitration award.

CONCLUSION

The Court grants Weissman’s petition and confirms the arbitration award of $9,996.39.

ORDER

Robinson is ordered to remit payment to Weissman within 30 days of the date of this order.

Moving party to give notice.