Judge Kerry Bensinger, Case Number: 20STCV29356, Date: 2024-02-14 Tentative Ruling

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RESPONDING PARTY: Plaintiffs Patricia Hall Carlton and Richard Hall, Children and Successors in Interest of Mildred Hall

On June 4, 2021, Plaintiffs, Patricia Hall Carlton and Richard Hall, Children and Successors in Interest of Mildred Hall, filed a First Amended Complaint against Defendants, Front Porch Communities and Services (“Front Porch”), Randy Herzig, Nadine Roisman, Pamela Lowe, and Lisa Stephens LVN, arising from the retaliatory eviction of Mildred Hall from Front Porch’s facilities.

On September 22, 2021, the court granted Front Porch’s and Randy Herzig’s petition to compel arbitration.

On October 27, 2021, the court granted Nadine Roisman’s and Pamela Lowe’s petition to compel arbitration.

The Honorable David A. Thompson (Ret.) was appointed as Arbitrator. Claimants repeatedly failed to appear at conferences or comply with their discovery obligations. On September 28, 2023, the Arbitrator issued a Final Award in favor of Defendants. The Final Award determined the following: (1) all issues submitted to Arbitration are hereby determined adversely to Claimants; (2) all such issues are thus decided in favor of Respondents; (3) Claimants shall take nothing; and (4) Claimants shall pay $1,170 in monetary sanctions to Respondents pursuant to JAMS Rule 29.

On November 20, 2023, Defendants filed this motion for an order confirming the arbitration award.

The motion was heard on February 14, 2024. The court issued a tentative order stating an inclination to grant the motion pending the filing of proof of service of the arbitration award by the Arbitrator.

On February 29, 2024, Defendants filed proof of service of the arbitration award on Plaintiffs. On the same day, Plaintiffs filed additional declarations challenging proof of service of the arbitration award.

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 Civ. 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.)

Defendants request a court order confirming the arbitration award issued on September 28, 2023.

An arbitrator’s award is enforceable only after being confirmed by a court of law. (O’Hare, 107 Cal.App.4th at p. 278.) “An award that has not been confirmed or vacated has the same force and effect as a contract in writing between the parties to the arbitration.” (Code Civ. Proc., § 1287.6.) Thus, the court must first evaluate and confirm the initial arbitration award.

Code of Civil Procedure section 1285.4 states: “A petition under this chapter shall:

Here, Defendants submit the Final Award issued by Arbitrator, The Honorable David A. Thompson (Ret.) on September 28, 2023. (Schadrack Decl., Ex. 1.) Defendants also submit a copy of the arbitration agreement executed by Mildred Hall. (Schadrack Decl., Ex. 2.) Defendants have satisfied the filing requirements.

B. Service of the Arbitration Award & Timeliness of Petition (CCP §§ 1283.6, 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.” (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.)

Here, the court continued the hearing to allow Defendants to file proof that the Arbitrator served a copy of the award on Plaintiffs. Defendants have submitted proof of service showing Plaintiffs were served with the arbitration award on September 28, 2023 via the JAMS electronic filing system. (2/29/24, Shadrack Decl., Ex. 3.) The proof of service specifically includes Plaintiffs’ counsel (as confirmed by cross reference to Exhibit 1 to Shadrack Decl.) Defendants filed this motion on November 20, 2023. The motion is timely.

Code of Civil Procedure section 1290.4, the statute governing proper service of this motion 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.

Here, Defendants served Plaintiffs with a copy of this motion and notice of motion on December 22, 2023 by electronic service pursuant to an agreement of the parties to accept service by e-mail or electronic transmission. Defendants demonstrate that the motion was properly served. However, given the deficiencies noted with proof of service of the arbitration award by the arbitrator, the court will continue the hearing for this motion.

Although not explicitly stated in their opposition, Plaintiffs seek an order vacating the arbitration award. They argue the motion to confirm the arbitration award should be denied because: (1) they did not have notice of the Arbitrator’s Award issued on September 28, 2023, and did not have notice of the September 27, 2023 hearing with the arbitrator, and (2) this case is statutorily exempt from arbitration.

Plaintiffs’ opposition is untimely. “The court’s power to vacate an arbitration award is governed by sections 1286, 1286.2, and 1286.4.” (Rivera v. Shivers (2020) 54 Cal.App.5th 82, 94.) In particular, Section 1286.4 requires that a party seeking to vacate an arbitration award by petition or in a response requesting such relief do so by duly filing or serving the petition or response. (Rivera, at p. 94 citing Code Civ. Proc., § 1286.4, subd. (a).) “A response shall be served and filed within 10 days after service of the petition except that if the petition is served in the manner provided in paragraph (2) of subdivision (b) of Section 1290.4, the response shall be served and filed within 30 days after service of the petition.” (Code Civ. Proc., § 1290.6.) Failure to file and serve a response to a petition to confirm within 10 days of the petition deprives a trial court of authority to consider the response. (Rivera, at p. 94.)

Here, Defendants served and filed their motion to confirm the arbitration award on November 20, 2023. Plaintiffs filed an opposition requesting an order vacating the arbitration award. The opposition was filed on February 1, 2024—more than 30 days after service of the motion. Therefore, the court has no authority to consider Plaintiffs’ request to vacate the arbitration award.[1]

Based on the foregoing, the motion to confirm the arbitration award is GRANTED. Defendants are directed to file a proposed judgment consistent with this decision within 10 days.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Plaintiffs filed additional declarations stating they were not served with the arbitration award personally or by registered or certified mail or as provided in the agreement. This argument fails for at least three reasons. First, as discussed above, Plaintiffs’ opposition is untimely, which deprives this court of any authority to vacate the arbitration award. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 800; accord, Rivera, supra, 54 Cal.App.5th at p. 94.) Second, Defendants have demonstrated to the court’s satisfaction that the Arbirator’s Award was electronically served on counsel in compliance with the agreed upon terms pursuant to the JAMS rules. Third, just as the Court of Appeal found in Murry v. Civil Service Emp. Ins. Co. (1967) 254 Cal.App.2d 796, 799, even if there were “irregularity” in the service of he award, it must be disregarded because “a defect in service of the award does not come within the statutory grounds upon which the court in a confirmation proceeding can and should vacate an this award in view of the complete absence of any showing of any prejudice whatsoever to appellant by reason of this irregularity.” Here, even if the Arbitrator’s Award arrived by the latest on November 21, 2023 (see 2/29/24, Shadrack Decl., Ex. 4.), Plaintiffs fail to show any prejudice whatsoever by reason of the “irregularity” in receiving the Arbitrator’s Award.