Judge: Katherine Chilton, Case: 22STCP04499, Date: 2023-05-04 Tentative Ruling
Case Number: 22STCP04499 Hearing Date: May 4, 2023 Dept: 25
PROCEEDINGS: PETITION
TO CONFIRM FINRA DISPUTE RESOLUTION ARBITRATION AWARD
MOVING PARTY: Petitioner
Kenneth H. South
RESP. PARTY: None
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285 et seq.)
TENTATIVE RULING:
The Petition
to Confirm FINRA Dispute Resolution Arbitration Award 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: Non-Opposition filed 02-10-23
REPLY: None
ANALYSIS:
I.
Background
On September 15, 2022, arbitrators Erik R. Siering, Noel
Harvey Applebaum and Daniel Farid Yasharel, respectively, with FINRA Dispute
Resolution Services (the “Arbitrators”) rendered an award in favor of Petitioner
Kenneth H. South (“Petitioner”) and against Respondent Oppenheimer & Co.,
Inc. (“Oppenheimer”). The award requires the expungement of all references to a
complaint, Occurrence Number 1418223 from the Central Registration Depository
(the “CRD”). (Pet., para 5). The CRD is a database maintained by FINRA for firms
and individuals that participate in the U.S. securities industry. The award
also requires that FINRA be named as a party if judicial confirmation of the award
is sought. (Id.)
On December 29, 2022, Petitioner filed the instant
Petition to Confirm FINRA Dispute Resolution Arbitration Award (the “Petition”)
against Respondents Oppenheimer and FINRA. FINRA filed a Non-Opposition on February
10, 2023.
II.
Legal
Standard
“Regardless of the particular relief granted, 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.) “Once a petition to confirm an award is filed, the superior court must select one of
only four courses of action: it may confirm the award, correct and confirm it,
vacate it, or dismiss the petition.” (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. Instead, we restrict our review to whether the award should be vacated under the grounds listed in section
1286.2. [Citations.]’” (Id.)
III.
Discussion
Code of Civil Procedure section 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.”
Petitioner attached a copy of the parties’ agreement to
arbitrate their dispute with FINRA as well as a copy of the arbitration award,
which sets forth the name of the neutral arbitrators. (Pet., ¶ 4, Exhs. 1, 4, 5)
Thus, Petitioner has satisfied the filing requirements of Section 1285.4.
B.
Service
of the Arbitration Award (CCP § 1283.6) and Timing of Service of Petition (CCP §§ 1288, 1288.4)
Code of Civil Procedure section
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.” Here, the Award states
that it was served on the parties on September 15, 2022, but does not include a
separate proof of service. (Pet., Exh. 1.) However, “the sole function of the
service of an award upon the parties to an arbitration is to give them notice
of the existence and contents of the award.” (Murray v. Civil Service Emp. Ins. Co., supra, at p. 799-800.) The Court finds that function was satisfied
here. Further, a copy of the
arbitration award was also served with this Petition.
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.) Here,
the Petition was filed on December 29, 2022, more than 10 days after it was
initially served by FINRA on September 15, 2022.
Thus, the requirements of Sections
1283.6, 1288, and 1288.4 have been satisfied.
Code of Civil Procedure, section 1290.4 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.
Petitioner filed Proofs of Service showing that it served
Respondent FINRA and Respondent Oppenheimer on January 31, 2023 with copies of
the Petition and other documents. (04/06/23 Proofs of Service.).
Respondent FINRA filed a Non-Opposition to the Petition
on February 10, 2023. (02/10/23 Non-Opposition). In addition, counsel for
Petitioner confirmed that Respondent Oppenheimer does not oppose the
Petition. (04/06/23 Decl. of Mahoney, ¶
4).
Based on the above, the Court finds the service
requirements of Section 1290.4 satisfied.
IV.
Conclusion
& Order
For the foregoing reasons, the Petition to Confirm Arbitration Award is
GRANTED.
Moving party is ordered to give
notice.