Judge: Katherine Chilton, Case: 22STCP01800, Date: 2022-09-13 Tentative Ruling
Case Number: 22STCP01800 Hearing Date: September 13, 2022 Dept: 25
PROCEEDINGS: PETITION
TO CONFIRM ARBITRATION AWARD
MOVING PARTY: Petitioner
Nussbaum APC
RESP. PARTY: None
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285)
TENTATIVE RULING:
Petitioner Nussbaum APC’s Petition to Confirm Arbitration
Award is CONTINUED TO OCTOBER
13, 2022 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Petitioner is ordered to file supplemental
papers addressing the issues discussed herein at least 16 days before the next
scheduled hearing. Failure to do so may
result in the Motion being placed off calendar or denied.
SERVICE:
[
] Proof of Service Timely Filed (CRC, rule
3.1300) NOT OK
[
] Correct Address (CCP §§ 1013, 1013a) NOT OK
[
] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NOT OK
OPPOSITION: None filed as of
September 8, 2022. [ ] Late [X] None
REPLY: None filed as
of September 8, 2022. [ ] Late [X] None
ANALYSIS:
I.
Background
On January 25, 2022, Arbitrator
Jeff Burke, Sole Arbitrator, issued an arbitration award in favor of Petitioner
Nussbaum, APC (“Petitioner”) and against Respondent Hillel Shamam
(“Respondent”) in the amount of $5,831.22.
(Pet. p. 12. - Attach. 8(c).) The
arbitration arose out of an attorney-client dispute regarding attorney’s fees
in an underlying unlawful detainer action.
(Ibid. p. 10.)
On May 10, 2022, Petitioner filed the instant Petition to
Confirm Arbitration Award (the “Petition”) against Respondent. No opposition has been filed.
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.)
III.
Discussion
A.
Filing Requirements (CCP § 1285.4)
Code of Civil Procedure, § 1285.4
states: “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.”
Here, Petitioner has attached a copy
of the Unlawful Detainer Litigation Retainer that sets out the arbitration
provision of the agreement. (Pet. p. 5 –
Attach. 4b.) Petitioner has provided the
name of the individual arbitrating the dispute – Jeff Burke, Esq. (Pet. p. 2, ¶ 6.) Petitioner has also attached a copy of the
award and the written opinion of the arbitrator. (Pet. pp. 9-12 – Attach. 8c.)
B.
Service of the Arbitration Award & Timeliness of Petition (CCP §§
1283.6, 1288, 1288.4)
Code of Civil Procedure § 1283.6
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.)
Here, it appears that on February 3,
2022, a copy of the arbitration award was served on Respondent Shamam by first
class mail. (Pet. p. 17.) Furthermore, the Petition to Confirm Arbitration
was filed approximately three (3) months after it was served on both parties. However, the Court notes that Petitioner has
used the wrong form to file the Petition.
Petitioner has used Form ADR-106, Petition to Confirm, Correct, or
Vacate Contractual Arbitration Award. (See
Pet.) As noted in the Notice of this
form, it is to be used to confirm an arbitration award “that does not involve
an attorney-client fee dispute.”
(ADR-106.) Petitioner should have
used Form ADR-103, Petition to Confirm, Correct, or Vacate Attorney-Client Fee
Arbitration Award. The Court CONTINUES
the hearing on the Petition and orders Petitioner to file and serve the correct
form, ADR-103.
C. Service of the
Petition, and Notice of Hearing (Code Civ. Proc., §1290.4)
“(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.
Here, Petitioner has not filed a
Proof of Service to demonstrate that the Petition and the Notice of Hearing
were served on the Respondent. Thus,
Petitioner has not satisfied the service requirements of § 1290.4.
The Court CONTINUES the hearing on
the Petition to allow Petitioner to file the Petition using the correct form,
ADR-103, and to allow Petitioner an opportunity to serve Respondent with the
necessary documents as required by § 1290.4.
IV.
Conclusion
& Order
For the foregoing reasons, Petitioner Nussbaum APC’s Petition
to Confirm Arbitration Award is CONTINUED TO OCTOBER 13, 2022 at 10:30 a.m. in Department 25 at the
SPRING STREET COURTHOUSE. Petitioner is
ordered to file supplemental papers addressing the issues discussed herein at
least 16 court days before the next scheduled hearing. Failure to do so may result in the Motion
being placed off calendar or denied.
Moving party is ordered to give
notice.