Judge Mark E. Windham, Case Number: 23STCP01874, Date: 2023-12-06 Tentative Ruling

Judge: Mark E. Windham, Case: 23STCP01874, Date: 2023-12-06 Tentative Ruling

Case Number: 23STCP01874 Hearing Date: December 6, 2023 Dept: 26

Simpson v. Valk, et al.

PETITION TO CONFIRM ARBITRATION AWARD;

PETITION TO VACATE ARBITRATION AWARD

(Bus. & Profs. Code § 6200, et seq.)

TENTATIVE RULING:

Petitioner Keith Simpson’s Petition to Confirm Arbitration Award is GRANTED. JUDGMENT IS ENTERED IN FAVOR OF PETITIONER KEITH SIMPSON AND AGAINST RESPONDENT SHARRON VALK IN THE AMOUNT OF $14,643.21 PRINCIPAL. RESPONDENT SHARRON VALK’S PETITION TO VACATE ARBITRATION AWARD IS DENIED. COSTS AND ATTORNEY’S FEES MAY BE SOUGHT PURSUANT TO CAL. RULES OF COURT RULES 3.1700 AND 3.1702. PETITIONER KEITH SIMPSON IS TO FILE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER, WHICH MAY INCLUDE THE PROPOSED INTEREST CALCULATION.

ANALYSIS:

On May 30, 2023, Petitioner Keith Simpson (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondent Sharron Valk (“Respondent”). The Petition was set for hearing on October 3, 2023 in Department 25 of the Spring Street Courthouse. On that date, the case was transferred to Department 26 of the Spring Street Courthouse and then re-set for hearing on December 6, 2023. (Minute Order, 10/03/23.)

On October 25, 2023, the Court related this action to Valk v. Simpson, LASC Case No. 23STCP02528, which was filed by Respondent on July 20, 2023. Respondent filed a Petition to Vacate Arbitration Award, which was set for hearing on November 27, 2023. At the hearing on the Petition to Vacate on November 27, 2023, the Court consolidated these actions with the instant action being the lead case. (LASC Case No. 23STCP02528, Minute Order, 11/27/23.) Petitioner filed an opposition to the Petition to Vacate on the same date.

Legal Standard

The instant Petition relates to attorney-client fee arbitration under Code of Civil Procedure section 6203. The “arbitration award shall become binding upon the passage of 30 days after service of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration pursuant to Section 6204.” (Cal. Bus. & Profs. Code, § 6203, subd. (b).)

As there is no pending action regarding the arbitration award, its confirmation may be sought in the same manner as provided in Code of Civil Procedure section 1285, et seq. “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 Petition 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).)

Petitioner has not shown that the parties’ arbitration agreement provides for the manner of service of the Petition and Notice of Hearing. (Pet. to Confirm, ¶2.) 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 in Code of Civil Procedure sections 415.10 to 415.95. Respondent was personally served on October 22, 2023. (Proof of Personal Service, filed 10/23/23, ¶¶2-5.) Therefore, the Court finds that service of the Petition conforms to Code of Civil Procedure section 1290.4.

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.) The arbitration award is not accompanied by a proof of service. (Pet. to Confirm, Attachment 8(c).) Petitioner has demonstrated that the award was served on Respondent with the instant Petition. (Pet. to Confirm, Attachment 8(c).)

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.) Petitioner has demonstrated compliance with Code of Civil Procedure sections 1288 and 1288.4 by service of the Petition one-and-a-half months after the award was issued. The Court finds that Petitioner has complied 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 of the arbitration agreement and the name of the arbitrator. (Pet., ¶¶2-6 and Attachment 6(b).) A copy of the arbitration agreement is also attached. (Id. at Attachment 6(b).) Substantively, the Petition demonstrates that Petitioner is entitled to an award of $14,643.21 from Respondent. (Id. at Attachment 6(b) at pp. 6-7.)

Respondent’s Petition to Vacate contends the arbitration award issued must be vacated because (1) the arbitrator substantially prejudiced Petitioner’s rights; and (2) the arbitrator failed to make proper disclosures. (Pet. to Vacate, Valk Decl., pp. 4:26-5:2.) Respondent contends that the Award was served on April 11, 2023 but that she did not receive it until April 27, 2023 and that it lacked any proof of service. (Pet. to Vacate, ¶7; Valk Decl., p. 5:5-14.) Respondent then asks the Court to accept May 24, 2023—the date she was mailed a copy of the proof of service—as “the start date for the proof of service.” (Ibid.)

Regardless of the service date of the Award being April 11, 2023, or May 24, 2023, the instant Petition to Vacate was not timely served. Respondent filed a proof of personal service indicating that the papers were served on Petitioner on October 20, 2023. (Amended Proof of Service, filed 11/29/23, ¶¶3-5.) October 20, 2023 was 149 days after May 24, 2023. Therefore, the instant Petition to Vacate was not timely filed as required by Code of Civil Procedure section 1288. While the statutory limitations period is subject to equitable tolling under appropriate circumstances, the Petition to Vacate demonstrates no such circumstances. (See Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 953.)

Even if the Court were able to consider the merits of the Petition to Vacate, Respondent has not shown (1) the arbitrator substantially prejudiced Petitioner’s rights; or (2) the arbitrator failed to make proper disclosures. (See Code Civ. Proc., § 1286.2, subd. (a).) Rather, the declaration in support of the Petition to Vacate reiterates Respondent’s arguments regarding the merits of her claim against Petition and her contention that the arbitrator’s evaluation of the merits was incorrect. (Petition to Vacate, Valk Decl., ¶¶1-8.) This is not a proper basis to vacate an award under Code of Civil Procedure section 1286.2. Respondent also makes an argument that service of the award did not include a proof of service, which has no bearing on required disclosures. (Id. at p. 4, ¶2.) Therefore, the Petition to Vacate is denied.

Attorney’s Fees, Costs, and Interest

To the extent Petitioner requests attorney’s fees and costs according to proof (Pet., Prayer, ¶¶10(e)-(f)), 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 may file a memorandum of costs pursuant to Cal. Rules of Court Rule 3.1700 and a noticed motion for attorney’s fees pursuant to Cal. Rules of Court Rule 3.1702. The interest sought by Petitioner may be sought by setting forth the interest calculation in the proposed judgment.

Conclusion

Court clerk to give notice.