Judge Mark E. Windham, Case 22STCP04486 2023-05-04 Tentative Ruling

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Kenneth H. South v. Oppenheimer & Co., Inc., et al.

PETITION TO CONFIRM ARBITRATION AWARD

Petitioner Kenneth H. South’s Petition to Confirm Arbitration Award is GRANTED. Judgment to be entered in Petitioner’s favor. FINRA is ordered to expunge all references to Occurrence Number 1334128 from Petitioner’s Central Registration Depository record.

On September 13, 2022, an arbitrator panel issued an Arbitration Award in favor of Kenneth H. South (“Petitioner”) and against Oppenheimer & Co., Inc. (“Oppenheimer”). The Award specifically required that Financial Industry Regulatory Authority (“FINRA”) be named as an additional party when judicial confirmation of the Award was sought. On December 29, 2022, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”).

Oppenheimer and FINRA (hereinafter referred to collectively as “Respondents”) were personally served with the Petition on January 4, 2023.

Petitioner moves to confirm the arbitration award under Code of Civil Procedure section 1285, et seq., which provides: “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 petition to confirm arbitration must be filed and served no more than four years after the award was served. (Code Civ. Proc., § 1288.)

Code of Civil Procedure, section 1290.4 requires the Petition and Notice of Hearing to 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(a)-(b).)

The arbitration agreement does not address the manner in which a petition to confirm arbitration award must be served, so service must be made in the manner provided by law for service of summons. (Pet., Exhs. 4-5.) On January 4, 2023, Respondents were personally served with the Petition. Code of Civil Procedure section 415.10 requires that a summons be personally served on a party. Accordingly, Petitioner has complied with Code of Civil Procedure section 1290.4.

Code of Civil Procedure section 1283.6 requires the arbitrator serve the signed arbitration award “personally or by registered or certified mail or as provided in the agreement.” (Code Civ. Proc., § 1283.6.) Alternatively, service of the award in conjunction with the Petition can satisfy the statutory requirements if sufficient to convey notice of the award. (See Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.)

As stated above, Petitioner personally served the Petition on Respondents. The Petition includes the singed arbitration award. (Pet., Exh. 1.) Accordingly, Petitioner has complied with Code of Civil Procedure section 1283.6.

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 general rule is that a court will not review “the merits of the controversy, the validity of the arbitrator’s reasoning, or the sufficiency of the evidence.”¿ (Jordan v. California Dept. of Motor Vehicles¿(2002) 100 Cal.App.4th 431, 443.)¿ Confirmation of the award is mandatory unless a response or petition to correct or vacate the award has been timely filed.¿ (See 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.

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

As stated above, the Petition includes the agreement to arbitrate. (Pet., Exhs. 4-5.) The Petition also includes the Award, which was issued on September 13, 2022, and sets forth the names of the Arbitrators (Neil S. Jasper and Sean Anthony Richardson). (Pet., Exh. 1.) The award provides in relevant part that all references to “Occurrence Number 1334128 from registration records maintained by the [Central Registration Depository (“CRD”)] for Claimant Kenneth H. South (CRD Number 1387390)” shall be expunged, and that Respondent must obtain a confirmation of the Award before the CRD could execute the expungement. (Pet., Exh. 1.) The Award also provided that FINRA must be added as an additional party when confirmation of the arbitration award is sought. (Id.)

On January 24, 2023, FINRA filed a notice of non-opposition to the Petition. On April 4, 2023, Petitioner filed a declaration in support of the Petition, which attached as exhibit correspondence from Oppenheimer’s counsel that they would not be opposing the Petition.

Therefore, Petitioner Kenneth H. South’s Petition to Confirm Arbitration Award is GRANTED. JUDGMENT TO BE ENTERED IN PETITIONER’S FAVOR. FINRA IS ORDERED TO EXPUNGE ALL REFERENCES TO OCCURRENCE NUMBER 1334128 FROM PETITIONER’S CENTRAL REGISTRATION DEPOSITORY RECORD.