Judge Katherine Chilton, Case Number: 19STCP01039, Date: 2023-05-22 Tentative Ruling

Judge: Katherine Chilton, Case: 19STCP01039, Date: 2023-05-22 Tentative Ruling

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Case Number: 19STCP01039 Hearing Date: May 22, 2023 Dept: 25

PROCEEDINGS: PETITION TO CONFIRM ARBITRATION AWARD

MOVING PARTY: Petitioner Arden Silverman dba Capital Asset Protection

RESP. PARTY: Respondent Mahaffey Law Group, PC

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

The hearing on the Second Amended Petition to Confirm Arbitration Award, filed by Petitioner Silverman is CONTINUED to JUNE 22, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on December 16, 2019. [ ] Late [ ] None

REPLY: Filed on June 17, 2020. [ ] Late [ ] None

ANALYSIS:

I. Background

On February 6, 2019, arbitrator Yvonne B. Burke issued an Arbitration Award in favor of non-party Strategic Business Services, LLC (“SBS”) against Respondent Mahaffey Law Group, P.C. (“Respondent” or “Mahaffey”) in the sum of $2,233, plus $400 in attorney’s fees and administrative fee of the arbitration. (Pet. ¶¶ 6-8, p. 6.) On March 25, 2019, SBS assigned its rights to the Arbitration Award to Petitioner Arden Silverman dba Capital Asset Protection (“Silverman”). (Pet. p. 8.)

On April 2, 2019, Silverman, in propria persona, as assignee of SBS (“Petitioner”) filed a Petition to Confirm Arbitration Award (“Petition”) as to Respondent Mahaffey.

Respondent filed a Motion to Vacate Arbitration Award on May 2, 2019.

On June 7, 2019, Petitioner filed a Substitution of Attorney, indicating that he had retained counsel. Through his Counsel, Petitioner filed an Amended Petition to Confirm Arbitration Award on the same day. On June 27, 2019, Petitioner filed an Opposition to Respondent’s Motion to Vacate Arbitration Award and a Request for Sanctions. On September 25, 2019, Respondent filed an Opposition to Petitioner’s Amended Petition. Respondent also filed a Reply to Petitioner’s Opposition to Motion to Vacate, on October 1, 2019.

On October 8, 2019, the Court noted that SBS was a party to the arbitration proceedings but neither Petitioner nor Respondent named SBS as a party in its moving papers. (10-8-19 Minute Order.) For this reason, the Court continued the hearing on the Amended Petition and Motion to Vacate. (Ibid.) On December 5, 2019, the Court noted that no additional papers had been filed and placed the Amended Petition and Motion to Vacate off calendar. (12-5-19 Minute Order.)

On December 13, 2019, Petitioner filed the instant Second Amended Petition to Confirm Arbitration Award (“SAP”), naming Mahaffey and SBS as Respondents. Respondent Mahaffey filed an Opposition and Request to Vacate Award on December 16, 2019. On June 17, 2020, Petitioner filed an Opposition to Respondent’s Request to Vacate Award. No hearings were scheduled on the Petition.

On December 9, 2022, Petitioner filed a Notice of Related Case. On January 30, 2023, the Court found that “19STCP01039 and 22STCP01747, are related within the meaning of California Rules of Court, rule 3.300(a)” and designated 19STCP01039 as the lead case. (1-30-23 Minute Order.) Both cases were assigned to Judge Katherine Chilton in Department 25 at Spring Street Courthouse. (Ibid.)

On January 31, 2023, Petitioner filed a Motion Seeking an Order Restoring this Case to Active Status in Department 25 and to Specially Set Date to Confirm Arbitration Award and Enter Judgment. On April 19, 2023, the Court ruled that the Motion to Restore Case to Active Status was moot because the case was still in active status. (4-19-23 Minute Order.) The Court also set a hearing for the SAP on May 22, 2023. (4-19-23 Minute Order.)

II. Legal Standard

Once arbitration is concluded, “any arbitrator’s award is enforceable only when confirmed as a judgment of the superior court.” (O’Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 278.). Any of the parties may file a petition with the court, which must then “confirm the award, correct and confirm it, vacate it, or dismiss the petition.” (Code of Civil Proc. §§ 1285, 1286; EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) “It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.) “Neither the trial court, nor the appellate court, may ‘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.” (EHM Productions, supra, at p. 1063-64.)

According to Code of Civil Procedure, § 1285.4: “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.

Code of Civil Procedure § 1283.6 also provides that: “The neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” (Emphasis added.) In addition, a party may seek a court judgment confirming an arbitration award by filing and serving a petition no more than four years, but not less than 10 days, after the award is served. (Code Civ. Proc. §§ 1288, 1288.4.)

Code of Civil Procedure § 1290.4, the statute governing proper service of this Petition states, in pertinent part:

“(a) 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.

(b) 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.

III. Discussion

A. Petition to Confirm Arbitration Award

Having reviewed the case record, the Court notes that its analysis will focus on the most recently filed papers, as follows:

1. Second Amended Petition to Confirm Arbitration Award, filed by Petitioner Silverman on December 13, 2019.

2. Opposition to Second Amended Petition and Request to Vacate Award, filed by Respondent Mahaffey on December 16, 2019.

3. Opposition to Respondent’s Motion to Vacate Arbitration Award, filed by Petitioner Silverman on June 17, 2020.

Petitioner seeks an order confirming the arbitration award entered by arbitrator Yvonne B. Burke on February 6, 2019, against Respondents Mahaffey and SBS in the amount of $4,983, as well as interest and attorney’s fees and costs. (SAP ¶¶ 8-10.) The Court notes that Petitioner has incorrectly checked the box indicating that “the arbitrator exceeded his or her authority. (Ibid. at ¶ 10b(1)(b).) The arbitration proceedings arose out a dispute relating to an agreement dated September 21, 2016 and from a “[c]ollection matter by bookkeeping provider against attorney firm for services rendered.” (Ibid. at ¶¶ 4-5.) The agreement between Joanne Mahaffey of Mahaffey Law Group, P.C. and Mark Wald Strategies, Supporting Strategies – Santa Monica, was filed as Attachment 4b(ii) along with the Petition. (Ibid. at pp. 4-5.) The Award of Arbitration is also filed as Attachment 8c(i). (Ibid. at p. 6.) Finally, Petitioner has filed proof that SBS assigned its rights to all claims against Mahaffey to Arden Silverman dba Capital Asset Protection, including those related to the instant Arbitration Award. (Ibid. at p. 8.)

Respondent Mahaffey filed an Opposition to the Petition and a Request to Vacate Award on December 16, 2019.

A party may seek an order vacating or correcting an award in a standalone petition “not later than 100 days after date of the service of a signed copy of the award on the petitioner.” (Darby v. Sisyphian, LLC (2023) 87 Cal.App.5th 1100, 1110, citing to Code of Civ. Proc. §§ 1285, 1288, 1288.2.) Alternatively, a party may seek an order vacating or correcting an award in its response to a prior-filed petition to confirm that award, as provided in § 1285.2. (Ibid.) In this case, the deadline for filing that response is 10 days from the date the responding party is served with the petition to confirm, unless the deadline is extended by the parties by an agreement in writing or by the Court for good cause. (Ibid. at 1110-1111, citing to Code Civ. Proc., § 1290.6.) In Darby, the Court ruled that if a petition to confirm arbitration award is filed less than 90 days after the award is served, the request to vacate the award “must be filed and served within 10 days of service of the petition to confirm.” (Ibid. at 1110-1111.) However, if the petition to confirm arbitration award is filed more than 90 days after an award is served, the request to vacate the award must be filed within 100 days of service of the award. (Ibid. at 1110-1111.) While the 10-day deadline is subject to extension by the parties or the Court, the 100-day deadline is “otherwise immovable, as the statute setting that deadline brooks no exceptions.” (Ibid. at 1111.) The Court concluded that if a procedurally proper petition to confirm arbitration award is filed and there is no timely filing seeking to vacate or correct the award, the “trial court ‘shall’ confirm the award.” (Ibid. at 1113.)

Here, Petitioner initially filed the Petition on April 2, 2019, indicating that the award was served on Petitioner on February 6, 2019. (4-2-19 Pet. ¶ 9.) A copy of the award is attached as Attachment 8c(i). (Ibid. at p. 6.) On December 13, 2019, Petitioner filed a Second Amended Petition, which also indicates that the award was served on Petitioner on February 6, 2019, and contains a copy of the award. (SAP ¶ 9.)

The Court notes that Petitioner has failed to file proof showing the exact date that the award was served on Petitioner and Respondents. First, Petitioner must file such proof to show that a neutral arbitrator served a copy of the award on each party by “personally or by registered or certified mail or as provided in the agreement” as required by Code of Civil Procedure § 1283.6. Second, the Court must determine the exact date of service to assess whether the opposition and request to vacate the award were filed timely.

For this reason, the Court continues the hearing on the Petition and orders Petitioner to file supplemental papers showing the date and manner by which the neutral arbitrator served the award on the parties in this action.

B. Attorney’s Fees and Costs

Petitioner requests attorney’s fees and costs according to proof. (SAP ¶ 10d-f.) Petitioner has failed to submit a specific request and supporting evidence for its request.

Given that the hearing on the Petition is continued, Petitioner may file supplemental documents in support of its request for attorney’s fees and costs.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.