Judge: Katherine Chilton, Case: 22STCP03532, Date: 2023-04-25 Tentative Ruling
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Case Number: 22STCP03532 Hearing Date: April 25, 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:
Petitioner North American Bancard,
LLC’s Petition to Confirm Arbitration Award is DENIED without prejudice.
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 April 23,
2023. [ ] Late [X]
None
REPLY: None filed as
of April 23, 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.)
On March 6, 2023, the Court noted deficiencies in the
Petition and continued the hearing to allow Petitioner an opportunity to file
supplemental papers addressing these deficiencies. (3-6-23 Minute Order.)
On April 3, 2023, Petitioner filed proof
of serving Respondents with a notice of continuance of hearing. Petitioner also filed a supplemental
Declaration of Christopher Beyer.
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.
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.)
On March 6, 2023, the Court noted that
Petitioner filed proof that Christopher Beyer, Petitioner’s counsel, served a
copy of the award on Respondents on September 28, 2022, via USPS priority
mail. (3-6-23 Minute Order; Pet. p.
23.) However, there was no indication
that a copy of the award was served on Respondents by the neutral arbitrator. (Ibid.) Given that the Court could not determine
whether and when the neutral arbitrator served a copy of the award, it also could
not determine whether the Petition was filed timely. (Ibid.)
On April 3, 2023, Petition filed
declaration of Christopher Beyer.
However, the declaration does not address whether a neutral arbitrator
served a copy of the award on each party.
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 March 6, 2023, the
Court noted that the arbitration provision of the Merchant Processing Agreement
does not require any specific form of service of the Petition and Notice of
Hearing. (3-6-23 Minute Order.)
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.)
On March 6, 2023, the
Court noted that it could not confirm whether Respondents had been properly
served at the 1747 Hauser Blvd. address, as it did not correspond to
Respondents’ address in any other document.
(3-6-23 Minute Order.) The Merchant
Processing Application lists Respondents’ address as 655 S. Hope Street, Los
Angeles, CA 90017. (Ibid.; 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. (Ibid.) The arbitrator’s award lists Respondents’
address as 655 S. Hope St. #1404, Los Angeles, CA 90017. (3-26-23 Minute Order; Pet. pp. 26-27.) The Court ordered Petitioner to file
supplemental evidence that Respondents had been properly served with the
Petition, Notice of Hearing, and other moving papers. (3-6-23 Minute Order.)
On April 3, 2023,
Petitioner filed a supplemental declaration of Christopher Beyer. Beyer states that Petitioner has previously
sent correspondence to the 655 S. Hope St. address; however, the mail was
returned from USPS as undeliverable.
(4-3-23 Beyer Decl. ¶ 3.) Petitioner
searched for a different address, located the 1747 Hauser Blvd. address for
Respondent Tessma, and personally served her at this address. (Ibid.) Following the Court’s March 6 Order,
Petitioner’s process server went to the 655 S. Hope St. address and learned
from the current resident and a security officer that Respondent Tessma had
moved out two years ago. (Ibid.)
Petitioner has also
filed proof that he has served a notice of continuance of hearing on
Respondents at the 1747 Hauser Blvd. address by mail. (4-3-23 Notice.)
First, Petitioner
does not provide the Court with any proof that the 1747 Hauser Blvd. address
was a proper address for Respondents and how Petitioner located this address. Second, the notice of hearing indicates that
the April 25, 2023, hearing will take place at the Stanley Mosk Courthouse,
located at 111 North Hill Street, Los Angeles, CA 90012, instead of the Spring
Street Courthouse.
Thus, the Court does
not find that Petitioner has presented sufficient proof that the Notice and
Petition were properly served on Respondents.
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.)
On March 6, 2023, the Court noted
that the amount requested by Petitioner does not correspond to the amount set
forth by the Award. (3-6-23 Minute
Order.) Moreover, Petitioner does not
provide an accounting of its calculations regarding interest, attorney’s fees,
and costs. (Ibid.) Therefore, the Court ordered Petitioner to
file supplemental documents showing its calculation of the awarded sum, interest,
attorney’s fees, and costs. (Ibid.)
On April 3, 2023, Petitioner filed a
supplemental declation of Christopher Beyer.
However, the declaration does not address the attorney’s fees or costs
requested or the deficiencies noted by the Court.
The Court finds that Petitioner has
not addressed the deficiencies noted in the Court’s March 6, 2023, Order. For this reason, the Petition to Confirm
Arbitration Award is DENIED.
IV.
Conclusion
& Order
For the foregoing reasons,
Petitioner North American Bancard,
LLC’s Petition to Confirm Arbitration Award is DENIED without prejudice.
Moving party is ordered to give
notice.