Judge Mark E. Windham, Case Number: 23STCP01642, Date: 2023-09-18 Tentative Ruling

Judge: Mark E. Windham, Case: 23STCP01642, Date: 2023-09-18 Tentative Ruling

Case Number: 23STCP01642 Hearing Date: November 20, 2023 Dept: 26

St. Martin v. Marsh., et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

In light of the continuing lack of proof of service of the Petition and Notice of Hearing on Respondent Cash Cards Unlimited, Inc., Petitioner Jerome St. Martin’s Petition to Confirm Arbitration Award is DENIED.

ANALYSIS:

Petitioner Jerome St. Martin (“Petitioner”) filed the instant Petition to Confirm Arbitration Award (the “Petition”) against Respondents Cassius Marsh and Cash Cards Unlimited, Inc. (“Respondents”), on May 15, 2023. The Petition initially came for hearing on September 18, 2023 and was continued to allow Petitioner to file proof of service of the Petition and arbitration award on Respondent Cash Cards Unlimited, Inc. in compliance with the statutory requirements. (Minute Order, 09/18/23, p. 1.) On October 31, 2023, Petitioner filed a supplemental declaration and proof of service of the supplement and arbitration award. 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.)

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 for the Petition and Notice of Hearing, therefore, service must be in a manner provided for service of a summons. (See Pet., Attachment 4(a) at ¶VIII.) Petitioner sub-served Respondent Marsh with the Petition and Notice of Hearing. (Proof of Substitute Service, filed 08/14/23.)

However, as the Court previously noted, the proof of personal service with respect to Respondent Cash Cards Unlimited is incomplete. It does not set forth the name of the person served on behalf of Respondent Cash Cards Unlimited. (Proof of Substitute Service, ¶3b.) No compliant proof of service of the Petition and Notice of Hearing with respect to Respondent Cash Cards Unlimited has been filed. As it remains that this service defect has not been corrected, the Court cannot find that the service requirements of Code of Civil Procedure section 1290.4 have been met with respect to Respondent Cash Cards Unlimited, Inc.

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 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 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 to the Petition but does not include any proof of service from the arbitrator. (Pet., Attachment 8(c).) Petitioner has now demonstrated service of the award on the parties by the arbitrator on August 11, 2022. (Supp. Wallin Decl., Exh. A.) Therefore, the Court finds that service of the award complies 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 August 11, 2022, the arbitrator issued an award in his favor and jointly and severally against Respondents in the amount of $11,910.40 principal, $1,548.50 interest plus $3.26 per diem from August 1, 2022, $5,000.00 attorney’s fees, and $1,400.84 administrative fees and arbitrator compensation. (Pet., Attachment 8(c), pp. 1-2.)

Attorney’s Fees, Costs and Interest

To the extent Petitioner requests attorney’s fees and costs according to proof, such an award is 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.) If the Petitioner were granted, Petitioner may be awarded attorney’s fees of $2,500.00 and costs of $370.00.

Conclusion

Court clerk is to give notice.