Judge Latrice A. G. Byrdsong, Case Number: 19STCP01039, Date: 2023-10-04 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 19STCP01039, Date: 2023-10-04 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 19STCP01039 Hearing Date: January 23, 2024 Dept: 25

Hearing Date: Tuesday, January 23, 2023

Case Name: ARDEN SILVERMAN dba CAPITAL ASSET PROTECTION v. MAHAFFEY LAW GROUP, PC; STRATEGIC BUINESS SERVICES, LLC

Case No.: 19STCP01039

Motion: Petition to Confirm Contractual Arbitration Award

Moving Party: Petitioner Arden Silverman dba Capital Asset Protection.

Responding Party: Respondent Mahaffey Law Group, PC

Notice: OK

Tentative Ruling: Petitioner Arden Silverman’s Petition to Confirm Contractual Arbitration Award is DENIED.

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: Filed as of November 01, 2023 [ ] Late [ ] None

REPLY: Filed as of November 27, 2023 [ ] Late [ ] None

BACKGROUND

On February 7, 2019, arbitrator Yvonne B. Burke issued an Arbitration Award in favor of nonparty Strategic Business Services, LLC (“SBS”) against Respondent Mahaffey Law Group, P.C. (“Respondent” or “Mahaffey”) in the sum of $2,233, plus $400 in attorney’s fees and all administrative fees of the arbitration. (Fourth. Am. Pet. p. 2.) On March 25, 2019, SBS assigned its rights to the Arbitration Award to Petitioner Arden Silverman dba Capital Asset Protection (“Silverman”). (Pet. p. 2 ¶ 5, Attach. 5.)

On April 2, 2019, Silverman, in propria persona, as assignee of SBS (“Petitioner”) filed a Petition to Confirm Arbitration Award (“Petition”) as to Respondent Mahaffey. Respondent filed a Motion to Vacate Arbitration Award on May 2, 2019.

On June 7, 2019, Petitioner filed a Substitution of Attorney, indicating that he had retained counsel. Through his Counsel, Petitioner filed an Amended Petition to Confirm Arbitration Award on the same day. On June 27, 2019, Petitioner filed an Opposition to Respondent’s Motion to Vacate Arbitration Award and a Request for Sanctions. On September 25, 2019, Respondent filed an Opposition to Petitioner’s Amended Petition. Respondent also filed a Reply to Petitioner’s Opposition to Motion to Vacate, on October 1, 2019.

On October 8, 2019, the Court noted that SBS was a party to the arbitration proceedings but neither Petitioner nor Respondent named SBS as a party in their moving papers. (10-8-19 Minute Order.) For this reason, the Court continued the hearing on the Amended Petition and Motion to Vacate. (Ibid.) On December 5, 2019, the Court noted that no additional papers had been filed and placed the Amended Petition and Motion to Vacate off calendar. (12-5-19 Minute Order.)

On December 13, 2019, Petitioner filed a Second Amended Petition to Confirm Arbitration Award (“SAP”), naming Mahaffey and SBS as Respondents. Respondent Mahaffey filed an Opposition and Request to Vacate Award on December 16, 2019. On June 17, 2020, Petitioner filed an Opposition to Respondent’s Request to Vacate Award. No hearings were scheduled on the Petition.

On December 9, 2022, Petitioner filed a Notice of Related Case. On January 30, 2023, the Court found that “19STCP01039 and 22STCP01747, are related within the meaning of California Rules of Court, rule 3.300(a)” and designated 19STCP01039 as the lead case. (1-30-23 Minute Order.) Both cases were assigned to Department 25 at the Spring Street Courthouse. (Ibid.)

On January 31, 2023, Petitioner filed a Motion Seeking an Order Restoring this Case to Active Status in Department 25 and to Specially Set Date to Confirm Arbitration Award and Enter Judgment. On April 19, 2023, the Court ruled that the Motion to Restore Case to Active Status was moot because the case was still in active status. (4-19-23 Minute Order.) The Court also set a hearing for the SAP on May 22, 2023. (4-19-23 Minute Order.)

On May 22, 2023, the Court noted that Petitioner had failed to file proof showing the exact date that the award was served on Petitioner and Respondents. (5-22-23 Minute Order.) First, Petitioner must file such proof to show that a neutral arbitrator served a copy of the award on each party by “personally or by registered or certified mail or as provided in the agreement” as required by Code of Civil Procedure § 1283.6. Second, the Court must determine the exact date of service to assess whether the opposition and request to vacate the award were filed timely. Accordingly, the Court continued the hearing on the Petition and ordered Petitioner to file supplemental papers showing the date and manner by which the neutral arbitrator served the final award on the parties. Furthermore, the Court noted that Petitioner did not file support for its request for attorney’s fees and costs and permitted Petitioner to file supplemental papers in support of its request. (Ibid.)

On June 1, 2023, Petitioner filed supplemental papers. On June 20, 2023, Respondent Mahaffey filed a Reply Regarding Petitioner’s Filing and the Court’s Prior Ruling. On June 21, 2023, Petitioner filed a Reply to the Opposition. On June 22, 2023, the Court, on its own motion, continued the hearing on the Petition to July 5, 2023. On July 05, 2023, the Court denied the petition noting that Petitioner did not provide sufficient proof that the neutral arbitrator properly served the final award.

On October 18, 2023, Petitioner filed the instant Fourth Petition to Confirm Arbitration Award. On December 11, 2023, the Court on its own motion continued the hearing to January 23, 2024. Respondent files in opposition. Petitioner files in reply.

MOVING PARTY POSITION

Petitioner seeks an order confirming the arbitration award entered by arbitrator Yvonne B. Burke on February 7, 2019, against Respondent in the amount of $2,233.00, as well as interest and attorney’s fees and costs.

OPPOSITION

In opposition, Respondent alleges that the Petition must be denied based on the procedural defects and inaccuracies with the Petition, noting specifically that Petitioner is a non-party to the action and as such cannot bring the motion. Mahaffey argues that SBS was not a party to the contract, rather the contract was between Mark Wald, dba SBS and Mahaffey. Mahaffey further argues that under CCP § 1288, the petition to confirm arbitration is time barred as more than four years has passed since the award was originally issued against the parties. Moreover, Respondent argues that the Arbitrator’s failure to properly serve the award by personal service as required by law compels denial of the Petition. Finally, Respondent argues that the Petition is barred under the doctrine of Res Judicata as a similar case was previously decided in small claims court and Petitioner alleges the same primary right as the previous suit.

REPLY

In reply, Petitioner argues that respondent’s opposition to the Petition is not timely as the opposition was not filed within 10 days from when Petitioner filed his initial petition on April 09, 2019. Further, Petitioner argues that Respondent does not establish proper statutory grounds to vacate the petition.

ANALYSIS

I. Legal Standard

“Any party to an arbitration award in which an award has been made may petition the court to confirm, correct, or vacate the award.” (Code Civ. Proc. § 1285.) “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.” (EHM Productions, supra, at p. 1063-64.)

II. Discussion

A. Filing Requirements (Code Civ. Proc., § 1285.4)

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 the agreement.

(b) Set forth the names of the arbitrators.

(Code Civ. Proc. § 1285.4.) “A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.” (Code Civ. Proc. § 1285.2.)

Here, Petitioner has satisfied the requirements of CCP section 1285.4 by setting forth the substance of the parties’ agreement to arbitrate within the Petition. (Pet. ¶ 4, Attachment 4(b).)

Petitioner sets forth the Arbitrator’s name, Yvonne B. Burke., and attaches a copy of the Arbitrator’s award of $2,223.00 in Petitioner’s favor along with a letter indicating the award is duly executed. (See Attachment 8(c).) The Award stipulates that the Petitioner is to be awarded the amount totaling $2,233.00 for services rendered pursuant to the contract between Strategic Business Services LLC and Mahaffey Law Group, PC plus attorney fees of $400.00. (Id.) Thus, the Court finds that Petitioner follows CCP section 1285.4.

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

Code of Civil Procedure, section 1290.4 states, in relevant 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.

(2) Service outside this State shall be made by mailing the copy of the petition and notice of hearing and other papers by registered or certified mail. Personal service is the equivalent of such service by mail. Proof of service by mail shall be made by affidavit showing such mailing together with the return receipt of the United States Post Office bearing the signature of the person on whom service was made…”

(Code Civ. Proc., § 1290.4(a)&(b).)

Here, the Petition and notice of hearing was served by substituted service on Respondents on October 17, 2023. (Pet.) Thus, the Court finds that Petitioner has satisfied CCP section 1290.4.

C. Service of the Arbitration Award & Timeliness of Petition (Code Civ. Proc. §§ 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.” (Code Civ. Proc., § 1283.6.) California Rules of Court rule 3.825(b)(1) provides that the arbitrator must file the award with the clerk, with proof of service on each party to the arbitration. (CA ST CIVIL RULES Rule 3.825(b)(1)) The Superior Court of Los Angeles County, Local Rules, rule 3.301(a) so provides that consistent with CRC 3.825 arbitrator can satisfy this by filing Form LAADR-014 with the award, and proof of service. (Super. Ct. L.A. County, Local Rules, rule 3.301(a).) Additionally, 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 on the petitioner. (Code Civ. Proc., §§ 1288, 1288.4.)

The Court notes that the Petition is timely filed. Here, the Award was issued on February 07, 2019. (See Attachment 9(b).) Petitioner provides the Court with the declaration of Mark Wald who was a witness in the arbitration hearing. Wald states that he received the arbitration award issued by the Arbitrator on February 07, 2019. (Wald Decl. ¶ 3, Exh. A.) However, the Court notes a critical deficiency with the Petition. Code of Civil Procedure § 1283.6 requires 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.) The agreement does not set forth any manner of service, thus, the neutral arbitrator had to serve the parties personally or by registered or certified mail. (SAP pp. 4-5.) Here, based on the accompanying declaration Wald states that the award was served by email which would not be proper under CCP § 1283.6. Thus, the Petition does not comply with CCP §§ 1283.6.

Therefore, because the Petition does not satisfy the requirements, the Petition is DENIED.

D. Challenge to the Award.

Code of Civil Procedure § 1285.2 provides that a response to a petition to confirm an arbitration award may request the court to dismiss the petition or to confirm, correct or vacate the award. (Code Civ. Proc., § 1285.2.) The Code further provides in § 1285.8 that a response requesting such relief “shall set forth the grounds on which the request for such relief is based. (Code Civ. Proc., § 1285.8.) Moreover, the court may not either vacate or correct the award unless the petition or response was:

(a) … duly served and filed; or

(b) … duly served and filed and;

(1) All petitioners and respondents are before the court; or

(2) All petitioners and respondents have been given reasonable notice that the court will be requested at the hearing to vacate the award or that the court on its own motion has determined to vacate the award and all petitioners and respondents have been given an opportunity to show why the award should not be vacated.

(Code Civ. Proc., §§ 1286.4, 1286.8.)

Here, the Court notes that Respondent Mahaffey filed its original Opposition to the Petition and a Request to Vacate Award on May 02, 2019. A party may seek an order vacating or correcting an award in a standalone petition “not later than 100 days after date of the service of a signed copy of the award on the petitioner.” (Darby v. Sisyphian, LLC (2023) 87 Cal.App.5th 1100, 1110, citing to Code of Civ. Proc. §§ 1285, 1288, 1288.2.) Alternatively, a party may seek an order vacating or correcting an award in its response to a prior-filed petition to confirm that award, as provided in § 1285.2. (Id.) In this case, the deadline for filing that response is 10 days from the date the responding party is served with the petition to confirm, unless the deadline is extended by the parties by an agreement in writing or by the Court for good cause. (Id. at 1110-1111, citing to Code Civ. Proc., § 1290.6.) In Darby, the Court ruled that if a petition to confirm arbitration award is filed less than 90 days after the award is served, the request to vacate the award “must be filed and served within 10 days of service of the petition to confirm.” (Id. at 1110-1111.) However, if the petition to confirm arbitration award is filed more than 90 days after an award is served, the request to vacate the award must be filed within 100 days of service of the award. (Id. at 1110-1111.) While the 10-day deadline is subject to extension by the parties or the Court, the 100-day deadline is “otherwise immovable, as the statute setting that deadline brooks no exceptions.” (Id. at 1111.) The Court concluded that if a procedurally proper petition to confirm arbitration award is filed and there is no timely filing seeking to vacate or correct the award, the “trial court ‘shall’ confirm the award.” (Id. at 1113.)

Here, Respondent’s response was filed beyond the ten days from when it was served with the petition. Petitioner provides the Court with Proof of Service which states that Respondent was served with the Petition and notice on April 09, 2019. Respondent did not file its response to the Petition until May 02, 2019. Thus, the response is considered untimely.

Moreover, it seems Respondent appears to misunderstand the purpose of a Petition to Confirm an Arbitration Award. “[I]t is the general rule that, with narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law.” (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) “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.) Here, Respondent’s claims of res judicata or in the alternative that Petitioner is not the correct party to file the Petition are not proper for the purposes of the Court’s review of the petition because those claims seek to address the merits of the dispute. CCP §§ 1285.2 and 1285.8 set for the basis in which Respondent can challenge the award. Here, Respondent has not done so. Thus, based on CCP §§ 1285.2 and 1285.8 as well as by case law, the Court finds that respondent does not challenge the Petition under proper grounds. Therefore, because Respondent’s response is improper under CCP §§ 1285.2 and 1285.8 the Court will not consider Respondent’s arguments.

Accordingly, for the forgoing reasons the Petition is DENIED.

II. Conclusion

Petitioner Arden Silverman’s Petition to Confirm Contractual Arbitration Award is DENIED.

Moving party is ordered to give notice.