Judge Mark E. Windham, Case 22STCP02658 2023-01-23 Tentative Ruling

Judge: Mark E. Windham, Case: 22STCP02658, Date: 2023-01-23 Tentative Ruling

Case Number: 22STCP02658 Hearing Date: January 23, 2023 Dept: 26

Forward Financing, LLC v. Chloe’s Outlet Corp., et
al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Forward Financing, LLC’s Petition to Confirm Arbitration Award is CONTINUED TO FEBRUARY 27, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY FEBRUARY 14, 2023, PETITIONER IS TO FILE PROOF OF SERVICE OF THE NEW HEARING DATE.

ANALYSIS:

Petitioner Forward Financing, LLC (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondents Chloe’s Outlet Corporation dba Chloe’s Discount Outlet (“Respondent Chloe’s Outlet”) and Evelin Andino (“Respondent Andino”) on July 18, 2022. The Petition came for hearing on November 21, 2022 and was continued to allow Petitioner to demonstrate service of the Petition papers on Respondent Chloe’s Outlet. (Minute Order, 11/21/22.) Petitioner filed proof of personal service on November 18, 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 parties’ arbitration agreement does not provide for the manner of service of the Petition and Notice of Hearing. (Petition, Attachment 4(b), ¶10.) It follows that the Petition and Notice of Hearing must be served in the manner provided by law for service of a summons, which is set forth at Code of Civil Procedure section 415.10 to 415.95. Proofs of personal service of the Petition and the initial hearing date have now been filed as to both Respondents. (Proofs of Personal Service, filed 09/21/22 and 11/18/22.) Therefore, Petitioner has demonstrated compliance with Code of Civil Procedure section 1290.4.

However, no proof of service of the new hearing date has been filed by Petitioner, who appeared at the hearing on November 21, 2022 and was instructed to give notice. (Minute Order, 11/21/22.) Failure to give notice of a hearing date is a violation of due process. (Jones v. Otero (1984) 156 Cal.App.3d 754, 757.)

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, the arbitration agreement does not provide for the manner of service of the Arbitration Award, so it must have been served personally or by registered or certified mail. The Award, however, was only served on the parties by electronic mail and/or electronic mail. (Pet., Attachment 8(c), p. 1.) Now, Petitioner has shown that service of the Award with the instant Petition corrected for the manner of service. The Petition was also timely served three and six months after the Award was issued. (Pet., Attachment 8(c).) Petitioner has demonstrated compliance with Code of Civil Procedure sections 1283.6, 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. (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 complies with the above requirements. It sets forth the nature to the arbitration agreement and name of the arbitrator. (Pet., ¶¶4-6.) A copy of the arbitration agreement is also provided. (Id. at Attachment 8(c).) Substantively, the Petition demonstrates that Petitioner is entitled to an award of $24,414.90 from Respondents. (Ibid.)

Conclusion

Moving party to give notice.