Judge: John J. Kralik, Case: 22BBCP00137, Date: 2022-08-19 Tentative Ruling

Case Number: 22BBCP00137    Hearing Date: August 19, 2022    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Petition

Petitioner North American Bancard LLC (“Petitioner”) filed this petition on April 12, 2022 against Respondent Vladyslav Simanko d/b/a Vladyslav’s Constructions (“Respondent”).  Petitioner seeks to confirm a contractual arbitration award. 

The underlying action arises out of a Merchant Processing Application between Petitioner and Respondent.  (Pet., Attachment 4B.) 

The arbitration was conducted by Arbitrator Lawrence J. Kaplan of the American Arbitration Association (“AAA”) on April 1, 2022 in Fresno, California.  (Pet., ¶¶6-8.)  The Award of Arbitrator was entered on April 1, 2022.  (Pet., Attachment 8(c).) 

Petitioner seeks to have the award confirmed.  (Pet., ¶10(a).) 

The Court is not in receipt of an opposition brief from Respondent. 

The matter came for hearing on May 13, 2022.  The Court continued the hearing to August 19, 2022 in order to provide time for Petitioner to serve the petition documents on Respondent.

DISCUSSION

A.    Proof of Service and Procedural History

According to CCP § 1290.4, a copy of the petition and written notice of the time and place for the hearing thereof and any papers upon which the petition is based shall be served in the manner provided in the arbitration agreement or, if the arbitration agreement does not provide for the manner of service, then service must be made in a manner provided by law for the service of summons in the action.  (CCP § 1290.4(a)-(b); Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2018 Update) Ch. 9(I)-H, §9:413.1.) 

On April 19, 2022, Petitioner filed a Proof of Service of the notice of hearing on the petition and notice of case assignment on Respondent by mail. 

The Court has reviewed Section 1.50 of the Merchant Processing Agreement, which is entitled “Dispute Resolution.”  This section does not include instructions on how petition papers should be served.  As the arbitration provision does not provide for the manner of service, service must be made in a manner provided by law for the service of summons in an action, such as by way of personal service, substituted service, etc. 

Thus, the matter will be continued to provide Petitioner time to properly serve Respondent with the petition papers.

B.     Service of the Arbitration Award and Timeliness of the Petition

            CCP § 1288 states: “A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.”  “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.”  (CCP § 1288.4.) Under CCP § 1290.2, no less than 10 days’ notice must be provided to the responding party before any hearing on the confirmation petition. 

The arbitration took place on April 1, 2022.  (Pet., ¶7.)  The Award was entered on April 1, 2022, which required Respondent to pay damages, interest, and attorney’s fees to Petitioner, and administrative fees to AAA and arbitrator fees.  (Pet., ¶8; Attachment 8(c).)  This amount totals $54,082.

According to the petition, Petitioner alleges that a signed copy of the award was actually served on April 1, 2022.  (Pet., ¶9.)  The Award of Arbitrator attached a letter, stating that the Award of Arbitrator was served on the parties on April 1, 2022.  (See Attachment 8(c).) 

However, at this time, the Court cannot ascertain whether the petition was timely filed and served as a proper proof of service of the petition on Respondent has not been provided.  As such, the Court will continue the hearing on the motion so that proper service may be effectuated and Respondent has an opportunity to respond.

C.     Merits of Petition

            The petition includes a copy of the agreement to arbitrate (i.e., the underlying written agreement between the parties), which is attached as Attachment 4(b) to the petition.  The Dispute Resolution provision is provided in paragraph 1.50 of the agreement.  

The arbitration was conducted by Lawrence J. Kaplan on April 1, 2022 with the AAA in Fresno, California.  (Pet., ¶¶6-7.)  According to the Award of Arbitrator, Petitioner appeared and Respondent failed to appear to the arbitration hearing.  The arbitrator reviewed the evidence and determined that Respondent owed $48,662 to Petitioner, together with 10% interest beginning April 15, 2022.  The arbitrator also ordered Respondent to bear and pay to Petitioner the AAA administrative fees of $1,820 and arbitrator fees of $1,200.  Respondent was also ordered to pay Petitioner’s attorney’s fees and costs in the sum of $2,400.    According to the petition, Petitioner seeks confirmation of the Award and enter judgment according to it.  (Pet., ¶10.)  Petitioner also seeks interest at 10% and costs of suit and attorney’s fees in an amount according to proof.  (Id.) 

While no opposition has been filed, based on the moving papers there appears to be  substantive merit to granting this petition according to the terms of the Award if Arbitrator, the Court will continue the hearing on the petition in order to provide Petitioner additional time to properly serve Respondent with the petition documents.

CONCLUSION AND ORDER

            Petitioner North American Bancard LLC’s petition to confirm the Award of Arbitrator is continued to October 21, 2022 at 8:30 a.m.  Prior to the hearing, Petitioner is ordered to file a proof of service of the summons and petition on Respondent Vladyslav Simanko d/b/a Vladyslav’s Constructions.  Any opposition and reply brief shall be filed and served pursuant to the deadlines provided in the Code of Civil Procedure.

Petitioner shall provide notice of this order.