Judge: Katherine Chilton, Case: 22STCP03461, Date: 2023-05-03 Tentative Ruling
Case Number: 22STCP03461 Hearing Date: May 3, 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:
Petitioner Pinnacle Estate Properties,
et al.’s Petition to Confirm Arbitration Award as to Respondents Century Realty
& Loans and Elizabeth Guemiksizian, in the amount of $23,750 is GRANTED.
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 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 February 28, 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.
On March 30, 2023, the Court noted additional
deficiencies and once again continued the hearing. (3-30-23 Minute Order.)
Petitioner filed an additional declaration prior to the
hearing on March 29, 2023, which the Court did not receive on time. Petitioner also filed proof that a Notice of
Continuance was served on Respondents on March 30, 2023, and moving papers were
served on Respondents on April 17, 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, on March 30, 2023,
the Court noted that Exhibits A and B were not authenticated as true and
correct copies, and thus, could not be admitted into evidence. (3-30-23 Minute Order.)
On March 29, 2023, Petitioner filed
Declaration of Alana Anaya in support of the Petition. Along with the declaration, Petitioner has
submitted authenticated copies of the Code of Ethics and Standards of Practice
of the National Association of Realtors, as Exhibit A, and the California
Association of Realtor Interboard Arbitration Rules, as Exhibit B. (Anaya Decl. ¶¶ 3-4, Exs. A-B.)
The Court finds that Petitioner has
submitted sufficient proof of the arbitration rules.
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.) On March 30, 2023, the
Court noted that Exhibit C was not authenticated as a true and correct copy,
and therefore, could not be admitted into evidence. (3-30-23 Minute Order.)
Petitioners 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.)
On March 30, 2023, the Court took judicial notice of the Petition to
Vacate Arbitration Award in Case No. 22STCP00524, pursuant to Evidence Code § 451. (3-30-23 Minute Order.) However, the Court found that the Petition did
not serve as proof that a neutral arbitrator served a copy of the award on
Respondents. (Ibid.)
On March 29, 2023, Petitioners filed
confirmation of service by the California Association of Realtors. (Anaya Decl. ¶ 5, Ex. C.) The Court finds that Petitioners have satisfied
the requirement of § 1283.6 and the Petition has been filed timely.
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.
(c) If the arbitration agreement does not
provide the manner in which such service shall be made and the person on whom
service is to be made has previously appeared in the proceeding or has
previously been served in accordance with subdivision (b) of this section,
service shall be made in the manner provided in Chapter 5 (commencing with Section
1010) of Title 14 of Part 2 of this code.
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.)
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 were
not authenticated and thus, could not be admitted into evidence. (3-30-23 Minute Order.)
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, on
March 30, 2023, the Court noted that there is no indication that original
Petition was served on Respondents in the manner prescribed by the Court on
February 28, 2023. (3-30-23 Minute
Order.)
On March 29, 2023, Petitioners filed
an authenticated copy of the California Association of Realtor Interboard
Arbitration Rules, which discusses judicial confirmation of arbitration awards
under Section 30 of the CAR Rules, but does not prescribe a specific form of
service for a petition to confirm the award.
(Anaya Decl. ¶ 4, Ex. B.)
Petitioners argue that Respondents “are represented by legal counsel as
evidenced by the Opposition filed to Petition to Confirm the Arbitration Award”
and have “made an appearance with this court, [thus] service is no longer at
issue.” (Anaya Decl. ¶ 6.)
Additionally, on
April 17, 2023, Petitioners filed proof of service of the Petition and
supporting papers on Respondents.
The Court finds that Petitioners
have filed sufficient proof that Respondents were properly served with the
Notice, Petition, and supporting documents.
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.) Thus, the Court does not address the issue of
attorney’s fees and costs.
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.)
On March 30, 2023, the Court found 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. (3-30-23 Minute
Order.) 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 Opposition to the Petition to Confirm Arbitration Award does not present
sufficient evidence to support denial of the Petition. (3-30-23 Minute Order.)
As discussed above, the Court finds
that Petitioners have filed supplemental papers and addressed the deficiencies
noted. Accordingly, the Petition is GRANTED.
IV.
Conclusion
& Order
For the foregoing reasons,
Petitioner Pinnacle Estate Properties,
et al.’s Petition to Confirm Arbitration Award as to Respondents Century Realty
& Loans and Elizabeth Guemiksizian, in the amount of $23,750 is GRANTED.
Moving party is ordered to give
notice.