Judge: H. Jay Ford, III, Case: 20SMCV01995, Date: 2023-01-26 Tentative Ruling

Case Number: 20SMCV01995    Hearing Date: January 26, 2023    Dept: O

  Case Name:  Ornstein, et al. v. Farag, et al.

SUBJECT:                 MOTION TO CONFIRM ARBITRATION AWARD

MOVING PARTY:   Plaintiff Jonathan Ornstein, as Trustee of the Ornstein Family Trust

RESP. PARTY:         Defendant Michael Farag d/b/a 413 Builders

TENTATIVE RULING

            Plaintiff’s Motion to Confirm Arbitration Award is GRANTED.  The proposed order and judgment are amended to include a dismissal of Plaintiff’s 2^nd, 3^rd and 4^th causes of action for negligent misrepresentation, CC §895, et seq. and negligence.  Plaintiff is to submit a new proposed order.

            “Any party to an arbitration which an award has been made may petition the court to confirm, correct or vacate the award.”  CCP §1285.  “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.

            Plaintiff attaches a copy of the parties’ arbitration agreement, the C.A.R. Purchase Agreement for 2120 Marine Street, Santa Monica, CA 90402.  See Petition, Ex. 2.  Plaintiff also attaches a copy of the arbitration award.  See Petition, Ex. 1.  Based on the arbitration award, the only claims Plaintiff submitted to arbitration were breach of contract, violation of CC §1102, et seq fraud.  See Petition, Ex. 1, Final Arbitration Award, 2:1-6.  Plaintiff did not submit his claims for negligent misrepresentation, violation of CC §895, et seq. or negligence to arbitration. 

            Defendant does not seek to vacate or correct the award.  Defendant asks that the Court stay confirmation of the award and entry of judgment until after this action is concluded.  However, Plaintiff agrees to dismiss any remaining claims in this action upon confirmation of this award. 

            In light of these facts, Plaintiff’s motion to confirm the arbitration award must be granted.  “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.”  CCP §1286.  Defendant has not requested that the award be corrected or vacated pursuant to CCP §1285, nor are there any grounds to vacate or correct identified in the papers. 

Petitioner is entitled to prejudgment interest on the arbitrator’s award at the requested rate of 10% per annum.  Petitioners are entitled to prejudgment interest on the arbitration award from the date of the award to the date of entry of judgment pursuant to CC §3287.  “The arbitration award was the contractual equivalent of a judgment in respondents' favor. In the context of a judicial judgment, it is clear that interest after judgment accrues as to the entire award, including attorney fees.  The prejudgment interest awarded respondents served the same purpose here. Although the interest was pre-‘judicial judgment,’ it was post-‘contractual judgment.’ Any result that denied respondents this post-award interest would punish them for using arbitration instead of the court system to resolve their dispute with appellants.”  Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1107; Pierroti v Torian (2000) 81 Cal.App.4^th 17, 27 (court erred when it failed to award post-award, pre-judgment interest under Civil Code section 3287, subdivision (a)). 

            Petitioner is also entitled to attorney’s fees and costs incurred in connection with this petition to confirm the arbitration award.  Pursuant to CCP §1293.2, “the court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” Under CCP §1033.5(a)(10), attorney’s fees are only recoverable if provided for by contract, statute or law.  As found by the arbitrator and this Court’s judgment, Petitioner is entitled to recovery of attorney’s fees pursuant to the Purchase Agreement. 

            Petitioner requests attorney’s fees in the amount of $3,200 for 8 hours @ $400/hr of attorney time on this petition to confirm and the stipulation to the Court’s jurisdiction to hear the petition to confirm.  Petitioner’s request for fees is reasonable. 

            Petitioner’s request for costs in the amount of $94.52 for filing fees is granted pursuant to CCP §1293.2.  Petitioner is entitled to recover filing fees pursuant to CCP §1033.5(a)(1).