Judge: Mark E. Windham, Case: 22STCP01872, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCP01872    Hearing Date: December 13, 2022    Dept: 26

Fertel v. Boyce, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Owen Fertel’s Petition to Confirm Arbitration Award is DISMISSED.

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. The Petition initially came for hearing on September 19, 2022 and was continued to allow Petitioner to correct certain defects. (Minute Order, 09/19/22.) Petitioner filed a Supplemental Petition and Proof of Service on October 6, 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 Supplemental Petition and Notice of Hearing were served on Respondents by certified mail. (Proof of Service, filed 10/06/22, pp. 3-4.) The Supplemental Petition seeks to demonstrate that service by certified mail is provided for in the parties’ agreement. However, the cited provision of the parties’ agreement pertaining to “written notice” is not part of the arbitration provision and does not mention that it applies to service of a petition to confirm arbitration award and notice of the hearing. (Supp. Pet., p. 55 (Art. 13.3 of AIA Document A102 – 2007.) The arbitration provision is separately set forth at Article 15.41 and simply mentions that judgment may be entered upon an arbitration award in accordance with applicable law. (Supp. Pet., p. 60 (Art. 13.3 of AIA Document A102 – 2007.) The written notice provision appears to be for the parties’ obligations under the construction contract, not the arbitration provision or notices related to an action confirming an arbitration award.

Therefore, Petitioner still 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.)

A copy of the arbitration agreement is now attached to the Supplemental Petition. (Supp. Pet., Exh. 4(b).) Also a copy of the arbitration award and proof of the award’s service by certified mail has been filed with the Court. (Id. at 8(c).) Therefore, the requirements of Code of Civil Procedure section 1283.6 have been satisfied but it remains that because service of the Petition is improper, Petitioner has still not complied with Code of Civil Procedure sections 1288 and 1288.4.

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.  (Code Civ. Proc., § 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 now complies with the above requirements. The Supplemental Petition includes the name of the arbitrator, a copy of the arbitration agreement, and a copy of the Award. (Supp. Pet., Exhs.  at ¶8.) Therefore, the Court finds that the substantive portion of the Petition is now satisfied.

Conclusion

However, based on the remaining defects in service, Petitioner Owen Fertel’s Petition to Confirm Arbitration Award is DISMISSED.

Court clerk to give notice.