TENTATIVE RULING

Petitioner Law Offices of Levin & Margolin’s Verified Petition to Compel Binding Arbitration and for Court Appointment of an Arbitrator is CONTINUED to a date to be determined.  Petitioner Law Offices of Levin & Margolin shall file proof of service of this petition upon Respondent Samuel Foy in compliance with Code of Civil Procedure section 1290.4, subdivision (a).

Petitioner Law Offices of Levin & Margolin to give notice. 

REASONING

Petitioner Law Offices of Levin & Margolin (“Petitioner”) moves to compel Respondent Samuel Foy (“Respondent”) to submit to arbitration pursuant to a written agreement wherein Petitioner agreed to perform legal services for Respondent in connection with parentage proceedings. (Pet., Ex. A, at p. 4.) Petitioner represents that page 4 of the written agreement requires the parties to submit to binding arbitration if there is any disagreement or dispute between the parties concerning fees, and a dispute has arisen between the parties regarding the fees due, but Respondent failed to respond after Petitioner sent a Notice of Right to Arbitrate. The petition is unopposed.

Code of Civil Procedure section 1290.4, subdivision (a), provides that “[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.” The subject agreement provides no manner for serving a petition and notice. Code of Civil Procedure section 1290.4, subdivision (b), provides, in relevant part, that “[i]f 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, the initial petition includes no proof of service. On March 11, 2024, Petitioner filed a proof of service by an individual named Steven F. Holland, who states that he served Respondent by substituted service on March 5, 2024. 

Code of Civil Procedure section 415.20, subdivision (b), provides as follows, in the case of serving an individual by substituted service:

If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, . . . a summons may be served by leaving a copy of the summons and complaint at the person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

The proof of service does not include a declaration of diligence describing attempts to first serve Respondent by personal service, nor is there proof that the subject documents were mailed thereafter. Accordingly, the petition has not been served as required by Code of Civil Procedure section 1290.4, subdivision (b). Petitioner Law Offices of Levin & Margolin’s Verified Petition to Compel Binding Arbitration and for Court Appointment of an Arbitrator is, therefore, CONTINUED to be determined.  Petitioner Law Offices of Levin & Margolin shall file proof of service of this petition upon Respondent Samuel Foy in compliance with Code of Civil Procedure section 1290.4, subdivision (a).