Judge Katherine Chilton, Case 22STCP02611 2022-12-19 Tentative Ruling

Petitioner Law Offices of Pyng Soon, APC’s Petition to Confirm Arbitration Award is CONTINUED TO JANUARY 17, 2023 at 10:00 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 Petition being placed off calendar or denied.

On May 9, 2022, Arbitrator Nicola Migliaccio, through the Los Angeles County Bar Association Attorney-Client Mediation and Arbitration Services (“LACBA ACMA”), issued an arbitration award in favor of Petitioner Law Offices of Pyng Soon, APC (“Petitioner”) and against Respondent HN Tea Group, Inc. (“HN” or “Respondent”) for a total amount of $7,727.50 and post-award interest at a legal rate of 10% per annum, starting 30 days after the service of the award on the parties. (Pet. pp. 9-16; Ex. 8(c).) The arbitration proceedings had been initiated by Respondent HN Tea Group, Inc., through its president Lyson Lin.

On July 13, 2022, Petitioner filed the instant Petition to Confirm Arbitration Award (“Petition”) against Respondents HN Tea Group, Inc. (“HN”) and its president Lyson Lin (“Lin”).

On November 16, 2022, the Court continued the hearing on the Petition to allow Petitioner additional time to correct deficiencies noted in its Order. (11-16-22 Minute Order.)

On the same day, Plaintiff filed supplemental papers, including a Petition on Form ADR-103 and a Supplemental Declaration.

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.)

As a preliminary matter, the Court notes that Petitioner has corrected the following deficiencies outlined in the Court’s Order on November 16, 2022. (11-16-22 Minute Order.)

Petitioner has properly filed Form ADR-103, Petition to Confirm Attorney-Client Fee Arbitration Award. Petitioner has also listed the correct address for the Spring Street Courthouse on Form ADR-103.

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.

Here, Petitioner filed the Retainer Agreement containing the arbitration provision on July 13, 2022. (7-13-22 Pet. pp. 4-8, Ex. 4(b).) Petitioner also filed the Statement of Decision and Award signed by Nicola Migliaccio, Arbitrator. (7-13-22 Pet. pp. 9-16, Ex. 8(c).) Moreover, on Form ADR-103, filed on November 16, 2022, Petitioner indicates that Nicola Migliaccio is the Arbitrator. (ADR-103 ¶ 4.)

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.)

On November 16, 2022, the Court noted that there was no indication that the neutral arbitrator had served the Statement of Decision and Award on the Respondents, as required by Code of Civil Procedure § 1283.6. (11-16-22 Minute Order.)

On the same day, Petitioner filed proof that the Award had been served on all parties by first class mail on May 11, 2022. (Supp. Decl. p. 3, Ex. 1.) Given that the arbitration provision of the Retainer Agreement does not prescribe a manner of service, the Court finds that the Award was properly served on the Respondents. (7-13-22 Pet. pp. 4-8, Ex. 4(b).)

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.

The arbitration provision of the Retainer Agreement does not prescribe a specific form of service. On November 16, 2022, the Court noted that Petitioner had not filed Proof of Service indicating that the Petition, Notice, or any other documents had been served on the Respondents. (11-16-22 Minute Order.)

On the same day, Petitioner filed Proof of Service indicating that a Notice of Continuance of hearing to December 19, 2022, and Form ADR-103 had been served on Respondents. (11-16-22 Pet. pp. 4-5; Supp. Decl. pp. 4-5, Ex. 2.)

However, the Proof of Service is still deficient. First, it does not appear that all the papers filed on July 13, 2022, including the Retainer Agrement and a copy of the Statement of Decision and Award have been served on Respondents.

Second, the Notice of Continuance and Form ADR-103 were not properly served. Code of Civil Procedure § 1290.4(b) states that if no form of service is prescribed by the arbitration provision and the parties being served have not appeared in the proceeding, documents must be served in the same “manner provided by law for the service of summons in an action. Section 416.10 indicates that “[a] summons may be served on a corporation by delivering a copy of the summons and the complaint by” personally serving it on the agent for service of process, the president, chief executive office, or other statutorily permitted individual. (Code of Civ. Proc. § 416.10.) Here, Respondents were served by USPS express overnight mail at 14001 Newport Ave, Tustin, CA 92780. However, the documents should have been personally served on Michelle Zhang, Respondent’s Agent for Service of Process, at 113 Pumpkin, Irvine, CA 92620, as indicated on the California Secretary of State website.

For this reason, the Court again continues the hearing on the Petition. Petitioner is ordered to serve Respondents with all documents filed with the Court via personal service at the address for its agent for service of process.

[1] The Court notes the following deficiencies with the Proof of Service – not all documents in the case have been served, Respondents have not been served by the proper form of service, and they have not been served at the correct address for their agent for service of process.