Judge Latrice A. G. Byrdsong, Case Number: 23STCP01692, Date: 2023-10-30 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STCP01692, Date: 2023-10-30 Tentative Ruling

Case Number: 23STCP01692 Hearing Date: October 30, 2023 Dept: 25

Hearing Date: Monday, October 30, 2023

Case Name: ALL PREMIUM CONTRACTORS, INC. v. KENNETH CALDERA

Case No.: 23STCP01692

Motion: Petition to Confirm Arbitration Award

Moving Party: Petitioner All Premium Contractors, Inc.

Responding Party: Respondent Kenneth Caldera

Notice: OK

Tentative Ruling: Petitioner All Premium Contractors, Inc.’s Petition to Confirm Arbitration Award is DENIED.

BACKGROUND

On November 7, 2022, Arbitrator Stephen L. Backus, Esq., from the American Arbitration Association issued a Final Award of Arbitrator in favor of Petitioner All Premium Contractors, Inc. (“Petitioner”) and against Respondent Kenneth Caldera (“Respondent”) in the amount of $22,249.70. (Pet. ¶¶ 6-8, pp.16-19.)

On May 17, 2023, Petitioner filed a Petition to Confirm Arbitration Award as to Respondent. On June 20, 2023, Respondent filed a General Denial. On June 28, 2023, Respondent filed a Demand for Arbitration.

MOVING PARTY POSITION

This is a petition to confirm arbitration award.

OPPOSITION

See above.

REPLY

See above.

ANALYSIS

I. Petition to Confirm Arbitration Award

A. 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.) 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.) (Italics added.)

“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.)

B. Discussion

Service of the Petition, and Notice of Hearing

Pursuant to the Code of Civil Procedure (CCP), Section 1290.4, “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.” (CCP §1290.4(a).)

But “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…Service within this State shall be made in the manner provided by law for the service of summons in an action.” (CCP § 1290.4(b)(1).)

Here, the Petition and the notice of hearing were filed on May 17, 2023. Proof of service filed on June 7, 2023 reflects that the Petition and a notice of hearing were served by personal service. The arbitration agreement does not provide the method by which service of such petition and notice would be proper. (Attachment 4(B).) However, service by personal service is permissible under law for the service of a summons in an action. Therefore, service of the Petition and notice of hearing were proper.

Filing Requirements

The Code of Civil Procedure (CCP), Section 1285.4 states in pertinent part…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.

(CCP § 1285.4)

Here, a copy of the arbitration agreement between Petitioner and Respondent Kenneth Caldera (“Respondent”) is attached to the Petition as Attachment 4(B). The agreement is signed by both parties. Further, the Petition provides that the parties entered into a written agreement on July 26, 2018, where they agreed that “any controversy or claim arising out of or related to this contract, or the breach thereof, shall be settled by binding arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s).” (Petition § 4(a)-(c).) Moreover, the Petition states that Stephen L. Backus, Esq., was the arbitrator for this matter. Additionally, a copy of the arbitration award and written opinion of Stephen L. Backus, Esq., is attached as Attachment 8(C). As such, the Petition is in compliance with the filing requirements of the Code of Civil Procedure section 1285.4.

Service of the Arbitration Award

Pursuant the Code of Civil Procedure (CCP), Section 1283.6, “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.” (CCP § 1283.6.) Proof of service must be filed with the clerk of court along with the arbitration award within 10 days after the arbitration hearing. (Cal. Rules of Court, Rule 3.825(b)(1).) The arbitrator may use the Form LAADR-014 for this purpose. (LASC, Local Rule 3.301(a).)

Here, the Petition states that the arbitration hearing was conducted in Los Angeles, CA, and that a written award was made on November 7, 2022. (Petition § 7-8.) A copy of the award is attached as Attachment 8(C). The award provides that Petitioner All Premium Contractors, Inc. (“Petitioner”) is entitled to recover $10,731.92 for the carport material and $5,751.75 for the solar panels wrongfully withheld, for a total of $16,483.67, plus prejudgment interest at the default rate of 7 percent from March 1, 2019 to November 1, 2022, for a total award of $20,714.70. The award attached as Attachment 8(C) is signed by arbitrator Stephen L. Backus, Esq. and was allegedly served on November 7, 2022. (Petition §§6, 9(a).)

In response to the Petition, Respondent filed a general denial and demand for arbitration. Respondent argues that the parties agreed to submit any dispute between them to arbitration prior to filing a lawsuit and Petitioner violated the agreement by filing a complaint. (Demand, pp. 1.) However, this Court found that Petitioner presented sufficient evidence that the dispute was submitted to arbitration to the American Arbitration Association, Construction Arbitration Tribunal. (Min. Order 9/20/23.)

Nevertheless, this Court continued this matter because the Petitioner did not provide proof that the arbitrator served a copy of the award on each party in compliance with CCP, Section 1283.6. (Id.) Petitioner was ordered to file supplemental papers including proof of service that the arbitrator served the award on both parties in compliance with CCP, Section 1283.6. (Id.) The Court indicated that failure to file the supplemental papers as discussed within the order could result in the Petition being taken off calendar or denied. Petitioner has not filed any supplemental papers including the Form LAADR-014 completed by the arbitrator indicating that the arbitration award and proof of service on the parties was filed with the clerk of court to cure the defect of the instant petition.

II. Conclusion

Accordingly, Petitioner All Premium Contractors, Inc.’s Petition to Confirm Arbitration Award is DENIED.

Moving Party to give notice.