Judge Mark E. Windham, Case 22STCP04404 2023-04-24 Tentative Ruling

Judge: Mark E. Windham, Case: 22STCP04404, Date: 2023-04-24 Tentative Ruling

Case Number: 22STCP04404 Hearing Date: April 24, 2023 Dept: 26

Hofmeyer v. Penzov, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Rebecca Hofmeyer’s Petition to Confirm Arbitration Award is GRANTED IN THE AMOUNT OF $19,596.00 PRINCIPAL, $5,938.00 ATTORNEY FEES, $591.70 COSTS, AND 10 PERCENT PER ANNUM INTEREST FROM AUGUST 13, 2022 TO ENTRY OF JUDGMENT.

ANALYSIS:

Petitioner Rebecca Hofmeyer (“Petitioner”) filed the instant Petition to Confirm Arbitration Award (the “Petition”) against Ivan Penzov dba Mover Van Lines (“Respondent”), on December 19, 2022. Following the lack of any response from Respondent, the Court entered their default on March 6, 2023. Additional supporting declarations were filed by Petitioner on April 12, 2023.

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 (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.) The arbitration agreement does not indicate the manner of service required, therefore, service must be in a manner provided for service of a summons. (See Pet., Attachment 4(b).) Petitioner filed a proof of service demonstrating that the Petition papers and notice of hearing were sub-served on Respondent effective Janaury 28, 2023. (Proof of Service, filed 03/06/23.) This complies with requirements for service of a Summons pursuant to Code of Civil Procedure section 415.20. Therefore, the Court finds that the service requirements of Code of Civil Procedure section 1290.4 have been met.

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

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.) Also, 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.)

A copy of the arbitration award is attached the Petition. (Pet., Attachment 8(c).) Petitioner, having demonstrated service of the award with the instant Petition, satisfied the service requirements of Code of Civil Procedure section 1283.6. The Petition was timely served six months after the award was issued, in accordance with Code of Civil Procedure sections 1288 and 1288.4.

Merits of the Petition to Confirm Arbitration Award

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).) 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.) 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., ¶¶4-6 and Attachment 8(c).) This satisfies Code of Civil Procedure section 1285.4, subdivisions (a)-(c).

Substantively, Petitioner has demonstrated that on July 11, 2022, the arbitrator issued an award in its favor and against Respondent in the amount of $19,596.00. (Pet., Attachment 8(c), p. 3.)

Attorney’s Fees and Costs

To the extent Petitioner requests attorney’s fees and costs according to proof, those are permitted on a petition to confirm arbitration award. (Code Civ. Proc., § 1293.2; MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th.Supp. 1, 7.) Petitioner has demonstrated that they incurred costs of $591.70 and attorney’s fees of $5,938.00. (Pet., Balesh Decl., ¶¶10-11 and Barney Decl., ¶3.) Finally, Petitioner is entitled to the requested post-award, pre-judgment interest at 10 percent. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 28; Civ. Code, § 3289.)

Conclusion

Moving party is to give notice.