Judge Katherine Chilton, Case 22STCP03532 2023-03-06 Tentative Ruling

Judge: Katherine Chilton, Case: 22STCP03532, Date: 2023-03-06 Tentative Ruling

Case Number: 22STCP03532 Hearing Date: March 6, 2023 Dept: 25

PROCEEDINGS: PETITION TO CONFIRM ARBITRATION AWARD

MOVING PARTY: Petitioner North American Bancard, LLC

RESP. PARTY: None

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

The hearing on Petitioner North American Bancard, LLC’s Petition to Confirm Arbitration Award is CONTINUED to APRIL 25, 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) UNCLEAR

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

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

OPPOSITION: None filed as of February 28, 2023. [ ] Late [X] None

REPLY: None filed as of February 28, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On August 2, 2022, Arbitrator John W. Garman, through the American Arbitration Association (“AAA”), issued an arbitration award in favor of Petitioner North American Bancard, LLC (“Petitioner”) and against Respondents Niko International Trading LLC (“Niko International”) and Kassa M. Tessema (“Tessema”), (collectively “Respondents”), for a total amount of $19,748.76, including attorney’s fees and costs. (Pet. pp. 22-34 – Attach. 8(c).)

On September 30, 2022, Petitioner filed the instant Petition to Confirm Arbitration Award (“Petition”) against Respondents.

On January 20, 2023, the Court, on its own motion, continued the hearing on the Petition to March 6, 2023. (1-20-23 Minute Order.)

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.

On August 2, 2022, Arbitrator John W. Garman, through the American Arbitration Association, issued an arbitration award in favor of Petitioner and against Respondents. (Pet. pp. 22-34 – Attach. 8(c).) Petitioner has attached a copy of the award and set forth the name of the arbitrator – John W. Garman. (Ibid.; Pet. ¶ 6.) Petitioner has also attached a copy of the Merchant Processing Agreement, which contains the requisite arbitration provision. (Pet. pp. 4-21: Art. 1.50 – Attach. 4(b).)

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.)

Petitioner has filed proof that Christopher Beyer, attorney for Petitioner, served a copy of the award on Respondents on September 28, 2022, via USPS priority mail. (Pet. p. 23.) However, there is no indication that a copy of the award was served on Respondents by the neutral arbitrator.

Given that the Court cannot determine whether and when the neutral arbitrator served a copy of the award, it also cannot determine whether the Petition was filed timely.

C. Service of the Petition, and Notice of Hearing (Code Civ. Proc., §1290.4)

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.

The Court notes that the arbitration provision of the Merchant Processing Agreement does not require any specific form of service of the Petition and Notice of Hearing.

On November 8, 2022, Petitioner filed Proof of Personal Service indicating that the Petition, Notice of Hearing, and supplemental documents were personally served on Respondents on October 4, 2022. (11-8-22 Proofs of Service.) Respondent Kassa Tessema was personally served at 1747 Hauser Blvd, Los Angeles, CA 90019, and Respondent Niko International was personally served through its agent for service of process, Kassa Tessema, at 1747 Hauser Blvd, Los Angeles, CA 90019. (Ibid.)

The Court cannot confirm that Respondents have been properly served at the 1747 Hauser Blvd. address, as it does not correspond to Respondents’ address in any other document. The Merchant Processing Application lists Respondents’ address as 655 S. Hope Street, Los Angeles, CA 90017. (Pet. pp. 4-5.) The California Secretary of State lists the agent for service of process for Niko International as Michael Kassa and his address as 655 S. Hope St. #1404, Los Angeles, CA 90017. The arbitrator’s award lists Respondents’ address as 655 S. Hope St. #1404, Los Angeles, CA 90017. (Pet. pp. 26-27.)

Accordingly, Petitioner is ordered to file supplemental evidence that Respondents have been properly served with the Petition, Notice of Hearing, and other moving papers.

D. Attorney’s Fees and Costs

Petitioner requests an award of $21,873.76, as well as interest from August 2, 2022, at a rate of 10% per year, as well as attorney’s fees and costs according to proof. (Pet. ¶¶ 8b(1), 10d-f.)

The arbitration award states that Petitioner is entiteld to recover from Respondents the sum of $17,286.16, attorney’s fees in the sum of $2,400, and costs in the sum of $62.60. (Pet. p. 33 at ¶ 89.) The administrative fees of the American Arbitration Association, in the amount of $925, and the arbirator’s compensation, in the amount of $1,2000, “shall be borne as incurred by Claimant North American Bancard, LLC.” (Ibid.) In the event that the sum of $17,286.16 is not paid “within thirty (30) days of the final date of this Award,” post-judgment interest at a rate of 10% per annum will begin to accrue. (Ibid.)

The Court finds that the amount requested by Petitioner does not correspond to the amount set forth by the Award. Moreover, Petitioner does not provide an accounting of its calculations regarding interest, attorney’s fees, and costs. Therefore, the Court orders Petitioner to file supplemental documents showing its calculation of the awarded sum, interest, attorney’s fees, and costs.

Given the deficiencies noted above, the Court continues the hearing on the Petition and allows Petitioners an opportunity to file supplemental papers addressing the Court’s Order.

IV. Conclusion & Order

For the foregoing reasons,

Moving party is ordered to give notice.