Judge Gregory Keosian, Case Number: 21STCP03651, Date: 2023-07-10 Tentative Ruling

Judge: Gregory Keosian, Case: 21STCP03651, Date: 2023-07-10 Tentative Ruling

Case Number: 21STCP03651 Hearing Date: August 23, 2023 Dept: 61

Petitioner Hooshmand Eli Mobasser’s Motion to Confirm Arbitration Award and for Entry of Judgment is GRANTED, save that the award of attorney fees is reduced to $26,975.00, and the total judgment is reduced to $501,865.34.

I. MOTION TO CONFIRM ARBITRATION AWARD

Petitioner Hooshmand Eli Mobasser (Petitioner) seeks to have confirmed an arbitration award entered in their favor on December 20, 2021, against Respondents Amir Haim Moyal and NKS Laboratories, Ltd., in the amount of $502,840.34.

A. CONTENTS OF THE PETITION

“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) A petition must include (a) the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement, (b) the names of the arbitrators, and (c) a copy of the award and the written opinion of the arbitrators, if any. (Code Civ. Proc., § 1285.4.)

The petition here includes the arbitration agreement (Petition Att. 4b), the name of the arbitrators (Rabbis Nachum Sauer, Gershon Bess, and Avrohom Union), and a copy of the award. (Petition Att. 8c.) Since filing the petition, this court has denied a motion by Respondents seeking to vacate the arbitration award, and Petitioner has returned to the arbitrators to obtain an award of attorney fees in the amount of $26,975.00. (Mobasser Decl. ¶ 7, Exh. 4.) Thus the full amount of the arbitration award includes $393,099.24 in damages, prejudgment interest in the amount of $80,021.10, attorney fees in the amount of $27,950 (including $975 for the preparation of the present motion), and costs in the amount of $1,770.00. (Mobasser Decl. ¶ 8.)

The $975 sought in connection with the present motion is properly excluded from the award, as the arbitration agreement’s provision for fees is limited to those fees that the arbitrators decide to award under paragraph 10. (Petition Att. 4(b).) Accordingly, the award to be confirmed ought to include only $26,975.00 in attorney fees awarded by the arbitrator, and a total of $501,815.34.

B. Service

“No petition may be served and filed under this chapter until at least 10 days after service of the signed copy of the award upon the petitioner.” (Code Civ. Proc., § 1288.4.) “A copy of the petition 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.” (Code Civ. Proc., § 1290.4, subd. (a).)

Subdivision (b) provides:

If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision:

(1) Service within this State shall be made in the manner provided by law for the service of summons in an action.

(2) Service outside this State shall be made by mailing the copy of the petition and notice and other papers by registered or certified mail. Personal service is the equivalent of such service by mail. Proof of service by mail shall be made by affidavit showing such mailing together with the return receipt of the United States Post Office bearing the signature of the person on whom service was made. Notwithstanding any other provision of this title, if service is made in the manner provided in this paragraph, the petition may not be heard until at least 30 days after the date of such service.

(Code Civ. Proc., § 1290.4, subd. (b).)

Here, Respondents have appeared in this action and have recognized the court’s authority to proceed. (In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135.) Where a respondent has appeared in the action, service may be made upon their counsel in accordance with those Code provisions applicable to ordinary motions. (See Code Civ. Proc. § 1290.4, subd. (c).) Such service was accomplished here. No opposition to the motion has been filed.

The motion is therefore GRANTED, save that the judgment shall award $26,975.00 in attorney fees, for a total judgment of $501,865.34.

Petitioner to provide notice.