Judge: Mark E. Windham, Case: 23STCP02110, Date: 2023-10-19 Tentative Ruling

Case Number: 23STCP02110    Hearing Date: March 21, 2024    Dept: 26

Fang v. Chen, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Qiang Fang’s Petition to Confirm Arbitration Award is DISMISSED.

ANALYSIS:

On August 18, 2022, an Arbitration Award was issued in favor of Petitioner Qiang Fang (“Petitioner”) and against Respondent Thomas T. Chen (“Respondent”). Petitioner, in propria persona, filed the instant Petition to Confirm Arbitration Award (the “Petition”) on June 15, 2023. The Petition initially came for hearing on October 19, 2023, at which time the matter was continued to allow Petitioner to file a proof of service and notice of hearing date in compliance with the statutory requirements. (Minute Order, 10/19/23.) At the next hearing on January 18, 2024, the Court again continued the matter to March 21, 2024. (Minute Order, 01/18/24.) Petitioner filed a Proofs of Service by Mail on February 20, 2024 and March 7, 2024.

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 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).)

No copy of the arbitration agreement has been filed so the Court finds service of the Petition and Notice of Hearing had to conform to the requirements for service of a summons. However, no code-compliant proof of service of the Petition and Notice of Hearing has been filed with the Court. The proofs of service by mail filed on February 20, 2024 and March 7, 2024 only show that the Petition and Notice of Hearing were served on Respondent by first class mail. (Proof of Service, filed 02/20/24, ¶6.) This does not conform to any manner of service permitted for service of a summons. (See Code Civ. Proc., §§ 415.10 – 415.95.) Therefore, the Court cannot find that the requirements of Code of Civil Procedure section 1290.4 are satisfied.

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.)

As no copy of the arbitration agreement is attached to the Petition, Petitioner must show that the Award was served personally or by registered or certified mail. However, no proof of service is attached to the award. (Pet., Attachment 8(c).) Therefore, the Court cannot find that the requirements of Code of Civil Procedure section 1283.6 are met.

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.) As no code-compliant proof of service of the Petition has been filed, the Court cannot find that the Petition has been timely served as required by Code of Civil Procedure sections 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.  (CCP § 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 agreement to arbitrate and the name of the Arbitrator. (Pet., ¶¶4-6.) The Petition also attaches a copy of the Award, which awards Petitioner $7,122.91 against Respondent. (Pet., Attachment 8(c).) The Court finds that the substantive portion of the Petition has been satisfied.

Attorney’s Fees and Costs

To the extent Petitioner requests attorney’s fees and costs according to proof (Pet., Prayer, ¶¶10(e)-(f)), those expenses are permitted on a petition to confirm arbitration award, if granted. (Code Civ. Proc., § 1293.2; MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th.Supp. 1, 7.) However, as Petitioner is in pro per, attorney’s fees would be denied. (See Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1218 [citing Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1180-1181].)

Conclusion

Based on Petitioner Qiang Fang’s failure to meet the statutory requirements for service as set forth above, the Petition to Confirm Arbitration Award is DISMISSED.

Court clerk to give notice.