Judge: Katherine Chilton, Case: 22STCP03960, Date: 2023-03-09 Tentative Ruling
Case Number: 22STCP03960 Hearing Date: March 9, 2023 Dept: 25
PROCEEDINGS: PETITION
TO CONFIRM ARBITRATION AWARD
MOVING PARTY: Petitioner
Andrew James Stout
RESP. PARTY: Respondent Raymond James & Assoc.
Inc.
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285, et seq.)
TENTATIVE RULING:
The hearing on Petitioner Andrew James
Stout’s Petition to Confirm Arbitration Award is CONTINUED to APRIL 10,
2023 at 10:30 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:[1]
[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 January 6, 2023. [ ] Late [
] None
REPLY: None filed as
of March 7, 2023. [ ]
Late [X] None
ANALYSIS:
I.
Background
On June 9, 2022, Arbitrators George
Herman Frisch, Robert D. Sussin, and Leslie Marie Hopp, through the Financial
Industry Regulatory Authority (“FINRA”) Dispute Resolution Services, issued a
ruling as a result of arbitration proceedings between Petitioner Andrew James
Stout (“Petitioner”), Respondent Raymond James & Associates, Inc. (“Raymond
James”), and certain third-party respondents.
(Pet. ¶¶ 6-8; Pet pp. 48-55 – Attach. 8(c).) The ruling recommends the expungement and
replacement of certain language in Petitioner’s records maintained by the
Central Registration Depository (“CRD”).
(See Pet. p. 52 – Attach. 8(c).)
On November 3, 2022, Petitioner filed the instant
Petition to Confirm Arbitration Award (“Petition”).
On January 6, 2023, Respondent filed a Response to the
Petition, indicating that it “takes no position on whether this Court should
confirm the arbitration award rendered in FINRA DR Case No. 21-00526.” (Response p. 1.)
On January 10, 2023, Petitioner filed an additional
Memorandum of Points and Authorities in Support of Petition.
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 June 9, 2022, Arbitrators George
Herman Frisch, Robert D. Sussin, and Leslie Marie Hopp, through the Financial
Industry Regulatory Authority (“FINRA”) Dispute Resolution Services, issued a
ruling as a result of arbitration proceedings between Petitioner, Respondent,
and certain third-party respondents.
(Pet. ¶¶ 6-8; Pet pp. 48-55 – Attach. 8(c).)
Petitioner has attached copies of
arbitration agreements governing his relationship with Respondent. (Pet. pp. 4-47 – Attach. 4(b).) Petitioner has also attached a copy of the
award and set forth the names of the arbitrators – George Herman Frisch, Robert
D. Sussin, and Leslie Marie Hopp. (Pet. ¶ 6;
Pet. pp. 48-55 – Attach. 8(c).
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 indicates that the award
was served on Petitioner on June 9, 2022.
(Pet. ¶ 9.) However, there is no
indication that a neutral arbitrator served a copy of the award on each party.
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)
“(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 agreements filed by Petitioner do not mandate a specific form
of service of the Petition and Notice of Hearing.
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, Petitioner filed
Proof of Service by Mail indicating that the Petition, Notice of Hearing, and
supplemental documents were served on Respondent’s attorney by mail and with
acknowledgment of receipt of service.
(12-13-22 Proofs of Service.) The
Court finds service insufficient.
Accordingly, the Court continues the
hearing on the Petition. Petitioner is
ordered to file proof that the neutral arbitrator served a copy of the award on
the parties. Petitioner is also ordered
to properly serve Respondent with the Petitioner, Notice of Hearing, and
supplemental papers, pursuant to Code of Civil Procedure § 416.10.
IV.
Conclusion
& Order
For the foregoing reasons,
The hearing on Petitioner Andrew James
Stout’s Petition to Confirm Arbitration Award is CONTINUED to APRIL 10,
2023 at 10:30 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.