Judge Mark E. Windham, Case 22STCP01893 2023-01-11 Tentative Ruling

Judge: Mark E. Windham, Case: 22STCP01893, Date: 2023-01-11 Tentative Ruling

Case Number: 22STCP01893 Hearing Date: January 11, 2023 Dept: 26

Iannarelli v. Ameritas Investment Corp., et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Toni Lynn Iannarelli’s Petition to Confirm Arbitration Award is CONTINUED TO MARCH 7, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY FEBRUARY 14, 2023, PETITIONER IS TO FILE AND SERVE AN AMENDED PETITION NAMING FINRA. PROOF OF SERVICE OF THE SAME IS ALSO TO BE FILED BY FEBRUARY 14, 2023. FAILURE TO DO SO MAY RESULT IN THE PETITION BEING DISMISSED.

ANALYSIS:

Petitioner Toni Lynn Iannarelli (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondent Ameritas Investment Corporation (“Respondent”) on May 17, 2022. The Petition seeks to confirm the arbitration award issued on December 15, 2021 in favor of Petitioner, requiring expungement of all references to certain customer dispute information maintained by the Financial Industry Regulatory Authority (“FINRA”) in the Central Registration Depository (“CRD”). (Pet., p. 4:1-6.) The Petition initially came for hearing on September 20, 2022, at which time the Court found that Petitioner had not demonstrated proper service of the arbitration award, Petition papers, or notice of hearing. (Minute Order, 09/20/22.) The hearing was continued to allow Petitioner to file supplemental papers. (Ibid.) On October 11, 2022, Petitioner filed a Notice and Acknowledgment of Receipt. No response to the Petition 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.)

Discussion

Filing Requirements of a Petition to Confirm Arbitration Award (CCP § 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 such an agreement.

(b) Set forth the names of the arbitrators.

(Code Civ. Proc., § 1285.4 (emphasis added).) Petitioner has set forth the substance of the arbitration award, and submitted a copy of the Arbitration Agreement with the name of the arbitrator. (Pet., ¶¶1-4; Notice of Decision.) This satisfies Code of Civil Procedure section 1285.4, subdivisions (a)-(c).

Service of the Petition and Notice of Hearing (CCP § 1290.4)

Code of Civil Procedure section 1290.4 states in pertinent 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.”

(Code Civ. Proc., § 1290.4.) Petitioner filed a Notice and Acknowledgment of Receipt demonstrating that the Petition papers and notice of hearing were served on Respondent on October 10, 2022 by mail with confirmation of receipt. (Notice and Acknowledgment, filed 10/11/22.) This complies with requirements for service of a Summons pursuant to Code of Civil Procedure section 415.30.

However, a review of the arbitration award itself demonstrates that the Petition must name FINRA as an additional party and service of the Petition and Notice of Hearing must also be made on FINRA, unless these requirements have been waived. (Pet., Notice of Decision, p. 3, ¶1.) FINRA is neither named in the Petition, nor has service of the papers on FINRA been demonstrated. Finally, Petitioner does not indicate that these requirements have been waived. Therefore, the Court finds that the service requirements of Code of Civil Procedure section 1290.4 still have not been met.

Service of the Arbitration Award (CCP § 1283.6)

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.” (Emphasis added.) This requirement may be satisfied by service by the arbitration, 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.) Petitioner has demonstrated proper service of the Award with the instant Petition. Therefore, the Court finds that the service requirements of Code of Civil Procedure section 1283.6 have been met.

Timing of Service of Petition (CCP §§ 1288, 1288.4)

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. (Code Civ. Proc., §§ 1288, 1288.4.) Until FINRA is named and served as a party, the timing of the Petition does not comply with Code of Civil Procedure sections 1288 and 1288.4.

Merits of the Petition to Confirm Arbitration Award

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.) Substantively, Petitioner has demonstrated that on December 15, 2021, the arbitrator issued an Arbitration Award in their favor and against Respondent requiring expungement of all references to certain customer dispute information as to Petitioner maintained by FINRA in the CRD. (Notice of Decision, filed 05/23/22, pp. 3-5.)

Conclusion

Moving party is to give notice.