Judge Mark E. Windham, Case 22STCP01872 2022-09-19 Tentative Ruling

Judge: Mark E. Windham, Case: 22STCP01872, Date: 2022-09-19 Tentative Ruling

Case Number: 22STCP01872 Hearing Date: September 19, 2022 Dept: 26

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Owen Fertel’s Petition to Confirm Arbitration Award is CONTINUED TO NOVEMBER 14, 2022 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY NOVEMBER 1, 2022, PETITIONER IS TO FILE SUPPLEMENTAL PAPERS CORRECTING THE DEFECTS NOTED HEREIN. FAILURE TO DO SO MAY RESULT IN THE PETITION BEING DISMISSED.

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

[X] Manner of Service (CCP § 1290.4) NO

SUMMARY OF PROCEEDINGS: Petitions to confirm arbitration award.

RELIEF REQUESTED: Enter judgment against Respondent pursuant to the terms of the arbitration award.

OPPOSITION: None filed as of September 15, 2022.

REPLY: None filed as of September 15, 2022.

ANALYSIS:

Petitioner Owen Fertel (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondents Alexander Boyce and Miltbuilt, Inc. (“Respondents”) on May 16, 2022. Proof of service of the Petition and Notice of Hearing was filed on July 27, 2022. No opposition has been filed to date.

Legal Standard

“Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” (Code Civ. Proc., § 1286.)

A response to a Petition to Confirm Arbitration Award that seeks to vacate or correct the award must be served and filed no later than 100 days after the date of the service of a signed copy of the award on the respondent. (Code Civ. Proc., § 1288.2.)

Discussion

Service of the Petition and Notice of Hearing

Code of Civil Procedure, section 1290.4 requires that the Petitions and Notice of Hearing be served on Respondent “in the manner provided in the arbitration agreement for the service of such petition and notice” or “[i]f the arbitration agreement does not provide the manner in which such service shall be made . . . [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a), (b).)

The Petition and Notice of Hearing were served on Respondents by first class mail. (Proof of Service, filed 07/27/22.) However, the Petition does not attach a copy of the arbitration agreement, nor any other exhibits. (Petition, filed 05/16/22.) Therefore, the Court cannot determine whether the Petition and Notice of Hearing can be served in a manner other than the manner provided for by law for service of a summons, which is set forth at Code of Civil Procedure sections 415.10 through 415.95. Service by mail is only allowed pursuant to the requirements of Code of Civil Procedure section 415.30, which requires two copies of the notice and acknowledgment provided for in subdivision (b). The service by mail of the instant Petition and Notice of Hearing did not comply with Code of Civil Procedure section 415.30.

Therefore, Petitioner has not demonstrated compliance with Code of Civil Procedure section 1290.4.

Service of the Arbitration Award and Timing of Service of Petition (CCP §§ 1283.6, 1288, 1288.4)

Code of Civil Procedure section 1283.6 requires that “[t]he 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.) This requirement may be satisfied by service by the arbitrator, or upon proper service of the Award with the Petition. (See Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.)

Also, a party seeking a court judgment confirming an arbitration award must file and serve the petition no more than four years, but not less than 10 days, after the award is served. (Code Civ. Proc., §§ 1288, 1288.4.)

Again, no copy of the arbitration agreement, the arbitration Award, or proof of service of the latter has been filed with the Court. The Court cannot determine if the requirements of Code of Civil Procedure sections 1283.6, 1288 and 1288.4 have been satisfied.

Confirmation of the Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (Code Civ. Proc. § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) 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 such an agreement.

b) Set forth the names of the arbitrators.

c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.

(Code Civ. Proc., § 1285.4.) The Petition does not comply with the above requirements. Only the name of the arbitrator, Carlos Marquez, is set forth. (Pet., ¶6.) No copy of the arbitration agreement nor statement of its substance is provided. (Id. at ¶¶4-5.) Likewise, as noted above, no copy of the Award is attached. (Id. at ¶8.) Therefore, the Court also finds that the substantive portion of the Petition is not satisfied.

Conclusion

Moving party to give notice.