Judge Latrice A. G. Byrdsong, Case Number: 23STCP04228, Date: 2024-03-22 Tentative Ruling

Judge: Latrice A. G. Byrdsong, Case: 23STCP04228, Date: 2024-03-22 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 23STCP04228 Hearing Date: March 22, 2024 Dept: 25

Hearing Date: Friday, March 22, 2024

Case Name: ROBERT K. HOLMES v. MARCUS KELLUM

Case No.: 23STCP04228

Motion: Petition to Confirm Attorney-Client Fee Arbitration Award

Moving Party: Petitioner Robert K. Holmes

Responding Party: Respondent Marcus Kellum

Notice: OK

Tentative Ruling: Petitioner Robert K. Holmes’s Petition to Confirm Attorney-Client Fee Arbitration Award is CONTINUED TO JUNE 6, 2024, at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Petitioner must serve and electronically file supplemental papers addressing the deficiencies noted in this Court’s ruling. Failure to do so will result in the Petition being placed off calendar or 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: None filed March 11, 2024 [ ] Late [X] None

REPLY: None filed as of March 15, 2024 [ ] Late [X] None

BACKGROUND

On September 22, 2023, Arbitrator Mary J. Dederick (the “Arbitrator”) issued an arbitration award (the “Award”) in the amount of $17,588.00 for Petitioner Robert K. Holmes (“Petitioner”) and against Respondent Marcus Kellum (“Respondent”).

On November 17, 2023, the Petitioner filed the instant Petition to Confirm Attorney-Client Fee Arbitration Award.

No opposition has been filed.

MOVING PARTY POSITION

Petitioner requests the Court to confirm the arbitration award for $17,588.00 and enter judgment for Petitioner. The Petitioner additionally seeks an award of interest at the statutory rate and costs of the suit.

OPPOSITION

No opposition has been filed.

REPLY

No reply has been filed.

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.)

The Court finds that the Petitioner has not satisfied all the requirements of CCP section 1285.4 by setting forth the substance of the parties’ agreement to arbitrate within the Petition. Here, the Petitioner has provided the name of the arbitrator – Mary J. Dederick. (Pet. p. 2 ¶ 4.) Petitioner has also attached a copy of the award and the written opinion of the Arbitrator. (Pet. pp. 4-10 – Attach. 6(c).) The Award provides that the Petitioner is to be awarded the amount totaling $17,588.20 representing the difference between the $22,588.20 in fees and/or costs which should have been charged in the matter, and $5,000.00 paid by Respondent. (Id. p. 9: 2-17.)

However, the Petitioner has not attached a copy of the attorney-client agreement and has not set forth the substance of the arbitration provision in accordance with CCP 1285.4(a), or otherwise denied the existence of an attorney-client agreement. Moreover, the Arbitrator refers to a written retainer in her opinion. (Pet. p.7: 27.) Thus, the Petitioner has not satisfied 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 Petitioner does not provide the Court with proof of service indicating that both the Petition and notice of hearing were served on Respondent. Thus, the Court finds that Petitioner has not 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)) 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.)

Here, included in the Petition is a copy of the proof of service indicating that the Arbitrator served the Award by mail on both Petitioner and Respondent on October 02, 2023. The instant Petition was filed on November 17, 2023, more than ten days after the award was served on the Petitioner.

Therefore, the Court finds that the Petition satisfies CCP §§ 1283.6, 1288, 1288.4.

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.)

The Court notes that no opposition has been filed in response to the instant Petition. However, as noted above, the Petitioner does not provide the Court with proof of service indicating that both the Petition and notice of hearing were served on Respondent.

Accordingly, for the reasons noted herein, the Court CONTINUES the hearing on the Petition to Confirm Attorney-Client Fee Arbitration Award.

II. Conclusion

Petitioner Robert K. Holmes’s Petition to Confirm Attorney-Client Fee Arbitration Award is CONTINUED TO JUNE 6, 2024, at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

Moving party is ordered to give notice.