Judge: H. Jay Ford, III, Case: 24SMCP00066, Date: 2024-09-24 Tentative Ruling

Case Number: 24SMCP00066    Hearing Date: September 24, 2024    Dept: O

 Case Name:  Namecheap, Inc v. Internet Corporation for Assigned Names and Numbers

SUBJECT:                 DEMURRER WITHOUT MOTION TO STRIKE

MOVING PARTY:   Defendant Internet Corporation for Assigned Names and Numbers

RESP. PARTY:         Plaintiff Namecheap, Inc.  

TENTATIVE RULING

            Defendant Internet Corporation for Assigned Names and Numbers’ (ICANN) Demurrer to Plaintiff Namecheap, Inc.’s Petition to Confirm an Arbitration Award is OVERRULED. Plaintiff’s petition states a proper proper petition claim for relief  under CCP §§ 1286.2 and 1286.4.  To the extent Defendant’s demurrer seeks an order to vacate the arbitration award CCP §§ 1286.2 and 1286.4. that request is DENIED.

            Nothing in this order precludes the Court’s consideration of the merits of the petition, including any objection to the scope of Plaintiff’s proposed order or judgment confirming the award that seeks relief that is not in conformity with the arbitration award.

Defendant’s and Plaintiff’s respective RJNs are DENIED. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113 [“The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.”]

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E428.50Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

“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 to confirm, correct, or vacate an arbitration award must include the following:

(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.)

“If an award is confirmed, judgment shall be entered in conformity therewith....”

(Code Civ. Proc., § 1287.4)

“A response to a petition may request that the court dismiss the petition or confirm, correct or vacate the award. (Code of Civ. Proc., § 1285.2.) A petition or a response requesting that the court correct or vacate an award must set forth the grounds for the relief. (Code of Civ. Proc, § 1285.8.).” (Soni v. SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1085.)

Plaintiff Namecheap, Inc. (“Namecheap”) pleads the following allegations in its petition to confirm an arbitration award:

1.     Namecheap sets forth the substance of the agreement to arbitrate stating that the Independent Review process (“IRP”) “proceedings allow independent review of ICANN’s actions that are alleged to violate the Articles or Bylaws, and “[o]n February 25, 2020, Namecheap initiated the IRP pursuant to ICANN’s Bylaws.” (Petition, ¶¶ 6, 7, 38.)

2.     Namecheap provides the Bylaws sections allowing the IRP. (See Petition., Exhibit A, ¶¶ 443, 455-456, citing Bylaws Sections 4.3(r), 4.3(o)(iii))

3.     Namecheap includes the names of the arbitrators within the “Final Declaration of the Independent Review Process Panel” on the cover page of Exhibit A attached to the Petition. (See Petition, Ex. A at p. 15 of Petition.)

4.     Namecheap attaches the “Final Declaration of the Independent Review Process Panel” as Exhibit A to Petition. (See Petition, ¶ 8; Ex. A.)

ICANN does not argue that Arbitrators exceeded the boundaries of their duty, or any other means to vacate the arbitration award pursuant to CCP §§ 1286.2 and 1286.4. In turn, Namecheap pleads all the necessary elements of a petition to confirm an arbitration award.

“‘Our analysis begins and ends with Code of Civil Procedure section 1286.... 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.” The Legislature's use of the word “shall” renders this provision mandatory. (Citation.) “Under Code of Civil Procedure section 1286, once a petition to confirm, correct, or vacate is filed, the superior court has only four choices: It may (1) confirm the award, (2) correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the proceedings.” (Citation.) “A party to an arbitration may seek to vacate or correct the award or to have it confirmed. [Citation.] Upon a petition seeking any of those results, the court must confirm the award, unless it either vacates or corrects it. [Citations.]” Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8:

ICANN demurs to Namecheap’s Petition to Confirm Arbitration Award arguing that the petition is improper as a matter of law because the petition seeks  “additional requirements on ICANN that go well beyond the scope of the arbitration award.” (Demurrer, p. 17:1–9.) ICANN argues that the petition “transforms the Panel’s non-binding recommendations into mandatory requirements, sets arbitrary deadlines on ICANN to implement the Final Declaration’s non-binding recommendations, and includes relief that was neither mentioned in the Final Declaration nor considered by the Panel.” (Ibid.)

ICANN relies on SunLine Transit Agency v. Amalgamated Transit Union, Local 1277 (2010) 189 Cal.App.4th 292 for the proposition that the Court can dismiss the petition because Plaintiff the petition seeks an order that exceeds the bound of the award itself.  In Sunline, the defendant was petitioning the court for the arbitration award to be vacated due to the arbitrator exceeding their “express and implied powers under the MOU.” (SunLine, supra, 189 Cal.App.4th at p. 309.) Sunline does not stand for the proposition that a party can demur to a petition to confirm an arbitration award just because the petition itself exceeds the bounds of the award.  ICANN is not arguing that the arbitrators exceeded the bounds of their powers.  ICANN provides no authority showing the court can sustain a demurrer to a petition to confirm a award, based solely  on the grounds the petition seeks an order that seeks relief that exceeds that granted by the award.

Finally, ICANN argues the petition to confirm the arbitration award is moot and fails as a matter of law because “ICANN has already considered the Final Declaration and passed a formal Board Resolution acknowledging the Panel’s declarations that Namecheap prevailed on certain of its claims IRP, that ICANN violated its Articles of Incorporation and/or Bylaws in the manner set forth in the Final Declaration, and that ICANN reimburse Namecheap the sum of the fees and expenses the Panel declared ICANN owed (which it has done). (RJN, Exhibit A).” (Demurrer, p. 19.) However, the Court cannot take judicial notice to the facts of what ICANN claims it has considered or passed in relation to the arbitration award. The Court must accept all the pleaded facts as true upon demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

Thus, ICANN’s demurrer is OVERRULED.