Judge Layne H. Melzer, Case 2022-01250609 2022-09-08 Tentative Ruling

Judge: Layne H. Melzer, Case: 2022-01250609, Date: 2022-09-08 Tentative Ruling

Pet. Home Of Christians, Los Angeles
Petition to Confirm Arbitration Award

The court confirms Home of Christians, Los Angeles’ Petition to Confirm the 8/31/21 Arbitration Award issued by Ret. Judge Mary Fingal Schulte against Respondents General Legend Construction and Wilbur Chang. Petitioner is to file and serve a proposed judgment.

Under CCP § 1286, the court must confirm, correct or vacate the award or dismiss the petition. (Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 9—§ 1286 is mandatory in this respect).

Unless a petition to correct or vacate the award has been timely filed, the court must render a judgment confirming the arbitrator's award. (See CCP § 1286—“the court shall confirm the award as made …”; see also Valsan Partners Ltd. Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818—no authority to alter terms of award absent petition to correct; Weinberg v. Safeco Ins. Co. (2004) 114 Cal.App.4th 1075, 1083-1084 (disapproved on other grounds by Barnett v. First Nat'l Ins. Co. of America (2010) 184 Cal.App.4th 1454, 1460-1461.)

Here, Respondents filed an opposition to the Petition asking the court to vacate the arbitration award.

The Response asking the court to vacate the award is untimely.

Once a party to an arbitration files a petition to confirm, correct, or vacate an award, a response must be filed and served within 10 days after service of the petition, unless a judge extends, or both parties agree to extend, this deadline. (CCP § 1290.6).

If a response is not filed by the deadline, the allegations of the petition are deemed admitted by the respondent. (CCP § 1290; Law Finance Group, LLC v Key (2021) 67 CA5th 307, 316, 319, 321, 323–324 (request to vacate arbitration award may be included in party's response to petition to confirm (CCP § 1285.2) but this request is subject to 100-day rule of CCP § 1288 (CCP § 1288.2); this 100-day deadline cannot be extended by parties' agreement); Rivera v Shivers (2020) 54 CA5th 82, 93–94 (100-day time limitation of CCP § 1288 applies when vacation or correction of award is sought by response, except when party petitions court to confirm award before expiration of 100-day period; in this event, respondent may seek vacation or correction of award only by serving and filing response within 10 days after service of petition under CCP § 1290.6); Oaktree Capital Mgmt., L.P. v Bernard (2010) 182 CA4th 60, 64, 66–67 (this 10-day time limit overrides 100-day period specified in CCP § 1288.2 to file response after other side files petition to confirm arbitration award; response is invalid if not filed within 10-day period, even if filed within 100 days after service of award; these time deadlines are not inherently inconsistent because 100 days is measured from service of arbitration award, while 10 days is measured from service of petition to confirm).

Here, the Award was mail-served to the parties on August 31, 2021. Petitioner filed the Petition to confirm the Award on March 18, 2022 and served it by substitute service on April 9, 2022. Respondents had 10 days after service was effectuated to file an opposition.

The Response was not filed until May 24, 2022, which is more than 10 days after service and more than 100 days from service of the Award. (See Douglass v Serenivision, Inc. (2018) 20 CA5th 376, 384–385 (response containing request to vacate award must be served and filed within 100 days after responding party was served with signed copy of award in accordance with CCP § 1288.2).

Further, even if the court were to analyze the merits of the opposition, the court would still confirm the award. Respondents argue that the Arbitrator exceeded her authority because the disgorgement part of the award was punitive and therefore unconstitutional. Although it is not clear exactly what Respondent is trying to argue, Business and Professions Code §

7031(b) is a penalty. (Eisenberg Village of Los Angeles Jewish Home for the Aging v. Suffolk Construction Company, Inc. (2020) 53 Cal.App.5th 1201, 1212.) Respondent has not shown that the money ordered disgorged was not paid to them or made any other argument about why the award is unconstitutional.

The court confirms the Award.