Judge: Katherine Chilton, Case: 22STCP03461, Date: 2023-03-30 Tentative Ruling
Case Number: 22STCP03461 Hearing Date: March 30, 2023 Dept: 25
PROCEEDINGS: PETITION
TO CONFIRM ARBITRATION AWARD
MOVING PARTY: Petitioners
Pinnacle Estate Properties, et al.
RESP. PARTY: Respondent Elizabeth Guemiksizian
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285)
TENTATIVE RULING:
The hearing on Petitioners Pinnacle
Estate Properties, et al.’s Petition to Confirm Arbitration Award is CONTINUED
to MAY 3, 2023 at 10:00 a.m. in DEPARTMENT 25, 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.
SERVICE:
[X]
Proof of Service Timely Filed (CRC, rule 3.1300) OK
[X]
Correct Address (CCP §§ 1013, 1013a) NOT
OK
[X]
16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed on March 13, 2023. [ ] Late [
] None
REPLY: Filed on March
14, 2023. [ ] Late [
] None
ANALYSIS:
I.
Background
On September 27, 2021, Arbitrators
Valerie Ho, Samuel D. Cadelinia, and Michael Simpson, through the Interboard
Arbitration of the California Association of Realtors (“CAR”), issued an
arbitration award in favor of Petitioners Pinnacle Estate Properties
(“Pinnacle”), Craig Dubron (“Dubron”), Gary Keshishyan (“Keshishyan”), and Rana
Linka (“Linka”), (collectively “Petitioners”), and against Respondents Century Realty & Loans, Inc. (“Century
Realty”) and Elizabeth Guemiksizian (“Guemiksizian”), (collectively “Respondents”),
for a total amount of $23,750.00. (Pet. p.
5 – Attach. 8(c).) Respondents requested
a director’s review of the arbitrators’ findings and on December 2, 2021, the
arbitration award was affirmed. (Pet. p.
14.)
On September 19, 2022, Petitioners filed the instant
Petition to Confirm Arbitration Award (“Petition”) against Respondents.
On January 12, 2023, the Court noted deficiencies in the
Petition and continued the hearing to February 28, 2023. (1-12-23 Minute Order.)
On March 6, 2023, Petitioners filed a Supplemental Brief
and Request for Judicial Notice.
On March 13, 2023, Respondent Guemiksizian filed an
Opposition to the Petition (“Opposition”).
Petitioners filed a Reply to the Opposition (“Reply”) on March 14, 2023.
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.
On September 27, 2021, Arbitrators
Valerie Ho, Samuel D. Cadelinia, and Michael Simpson, through the Interboard
Arbitration of the California Association of Realtors, issued an arbitration
award in favor of Petitioners Pinnacle, Dubron, Keshishyan, and Linka, and
against Respondents Century Realty and
Guemiksizian for a total amount of $23,750.00. (Pet. p. 5 – Attach. 8(c).) Respondents requested a director’s review of
the arbitrators’ findings and on December 2, 2021, the arbitration award was
affirmed. (Pet. p. 14.)
On February 28, 2023, the Court found
that a copy of the award as well as the decision to affirm the award has been
filed with the Court and the names of the arbitrators has been provided. (2-28-23 Minute Order; Pet. ¶ 6, pp. 5, 14.)
However, the Court noted that
Petitioners had not filed an agreement to arbitrate or the rules of the
California Association of Realtors (“CAR”) that mandate arbitration. (2-28-23 Minute Order.)
On March 6, 2023, Petitioners filed
the Code of Ethics and Standards of Practice of the National Association of
Realtors, which requires a dispute between realtors to be submitted to
arbitration, as Exhibit A. (Supp. Brief.
p. 1.) Petitioners also filed the
California Association of Realtors Arbitration rules which mandate binding
arbitration, as Exhibit B. (Ibid.
at p. 2.) However, the Court notes that Exhibits
A and B are not authenticated as true and correct copies, and thus, cannot be
admitted into evidence.
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.)
Petitioners indicate that a copy of
the award was served on Respondents on September 27, 2021. On February 28, 2023, the Court noted that
Petitioners had not filed any evidence indicating that the neutral arbitrator
served a copy of the award on each party.
(2-28-23 Minute Order.) Given
that the Court was not presented with evidence regarding when the award was
served, the Court could not determine whether the Petition was filed
timely. (Ibid.)
On March 6, 2023, Petitioners filed
proof that the California Association of Realtors served Respondents with the
arbitration award, as Exhibit C. (Supp.
Brief p. 2.) The Court notes that Exhibit
C is not authenticated as a true and correct copy, and therefore, cannot be
admitted into evidence.
Petitioner have also filed a Request
for Judicial Notice of Respondent Guemiksizian’s Petition to Vacate Arbitration
Award, in Los Angeles Superior Court, Case No. 22STCP00524, which confirms that
the neutral arbitrator served a copy of the award on Respondent. (RJN, Ex. A.)
The Court takes judicial notice of the Petition to Vacate Arbitration
Award in Case No. 22STCP00524, pursuant to Evidence Code § 451. However, this Petition does not serve as
proof that a neutral arbitrator served a copy of the award on Respondents.
For this reason, Petitioners are
ordered to file authenticated evidence that the neutral arbitrator served the
Respondents with a copy of the award.
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.
On Feburary 28, 2023,
the Court noted that Petitioners have not filed any agreement or the rules of
the California Association of Realtors that provide guidance regarding the
proper manner of service. (2-28-23
Minute Order.) Moreover, Petitioners
filed Proof of Service indicating that the Petition and Notice were served on
Petitioners’ counsel via email. (Ibid.;
Pet. p. 15; 9-26-22 Notice p. 3; 1-19-23 Notice p. 2.) If the CAR rules do not mandate a specific
form of service, pursuant to Code of Civil Procedure § 1290.4(b), the Petition and Notice
must be served in a manner consistent with service of summons. (2-28-23 Minute Order.) Thus, the Petition must be served on
individual Respondent Guemiksizian in accordance with Code of Civil Procedure
§§ 415.10 or 415.20 and on Century Realty in accordance with § 416.10. (Ibid.)
As discussed above, on March 6, 2023,
Petitioners filed the Code of Ethics and Standards of Practice of the National
Association of Realtors, which requires a dispute between realtors to be
submitted to arbitration, as Exhibit A.
(Supp. Brief. p. 1.) Petitioners
also filed the California Association of Realtors Arbitration rules which
mandates binding arbitration, as Exhibit B.
(Ibid. at p. 2.) However, these
exhibits are not authenticated and thus, cannot be admitted into evidence.
Petitioners’ Supplemental Brief also
indicates that Respondents were served with the Supplemental Brief and Request
for Judicial Notice by mail on March 6, 2023.
(Supp. Brief p. 36.) However,
there is no indication that original Petition was served on Respondents in the
manner prescribed by the Court on February 28, 2023.
D. Attorney’s Fees and
Costs
Petitioners request interest at a
rate of 10% per year, as well as attorney’s fees and costs according to proof. (Pet. ¶ 10d-f.) On February 28, 2023, the Court noted that
the Award of the Arbitrators does not award interest and states that “[e]ach
party shall bear its own costs. (NO costs awarded.).” (2-28-23 Minute Order; Pet. p. 5 – Attach.
8(c).) The Court ordered Petitioners to
submit supplemental proof to show that they are entitled to interest and costs. (2-28-23 Minute Order.)
In the Supplemental Brief, filed on
March 6, 2023, Petitioners state that their “request for interest is hereby
withdraw.” (Supp. Brief p. 2.) They also argue that costs and reasonable
attorney’s fees are permitted under the California Association of Realtors,
attached as Exhibit B. (Ibid.) As noted above, the Court cannot admit
Exhibit B into evidence as it is not authenticated.
E.
Opposition
and Reply
On
March 13, 2023, Respondent Elizabeth Guemiksizian filed an Opposition to the
Petition. Respondent opposes the
Petition on the grounds that the arbitration award “was obtained by ‘unfair
means’ and that ‘the arbitrator unfairly refused to postpone the hearing or
hear evidence useful to settle the dispute.’”
(Oppos. p. 2.) Moreover, Guemiksizian
“attempted to submit documents and exhibits to the arbitrator prior to the
hearing but was unable to do so, and the arbitrators would not postpone the
hearing.” (Ibid.) The exhibits Guemiksizian attempted to submit
“were material evidence proving that respondent has earned the fee in question,
not the petitioners” and “[t]he arbitrator’s refusal to continue the hearing –
especially in light of the fact that respondent was unrepresented at the
hearing – was highly prejudicial.” (Ibid. at p. 3.) Alternatively,
Respondent “requests that the court permit discovery and set an evidentiary
hearing on this matter to establish a more complete record upon which this
issue may be adjudicated.” (Ibid. at p. 4.)
In
its Reply, Petitioners state that Respondent has previously filed a Petition to
Vacate Arbitration Award, in Los Angeles Superior Court Case No. 22STCP00524,
which was denied by the Court. (Reply p.
1; RJN Ex. A; Case No. 22STCP00524 – 7-20-22 Minute Order.) Petitioners also argue that the Opposition
does not contain any grounds to deny the instant Petition as enumerated in Code
of Civil Procedure §
1286.2. (Reply pp. 2-3.) Respondent has failed to establish any of the
grounds in this section and presents an opposition making the same arguments as
the Petition to Vacate the Award, which was already denied. (Ibid. at pp. 3-5.)
The Court finds that Respondent’s Opposition contains the same arguments
and evidence as the Petition to Vacate Arbitration Award, filed in Case No. 22STCP00524, on February 14, 2022. On July 20, 2022, the Court denied the
Petition in that case due to lack of evidence to support Guemiksizian’s grounds
for vacating the award. (Case No.
22STCP00524, 7-20-22 Minute Order.)
Here, the Court also finds that Opposition to the Petition to Confirm
Arbitration Award does not present sufficient evidence to support denial of the
Petition.
However, as discussed above, the
Court still finds several deficiencies in the Petition. Accordingly, the Court once again continues
the hearing on the Petition and provides Petitioners an opportunity to file
supplemental papers correcting these deficiencies.
IV.
Conclusion
& Order
For the foregoing reasons,
The hearing on Petitioner Pinnacle
Estate Properties, et al.’s Petition to Confirm Arbitration Award is CONTINUED
to MAY 3, 2023 at 10:00 a.m. in DEPARTMENT 25, 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.
Moving party is ordered to give
notice.