Judge: Mark E. Windham, Case: 23STCP02232, Date: 2023-11-14 Tentative Ruling
Case Number: 23STCP02232 Hearing Date: January 17, 2024 Dept: 26
Fateh
v. Dunn, Jr., et al.
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285, et seq.; Bus. & Profs. Code, § 6200 et seq.)
TENTATIVE RULING:
Petitioner Reza Fateh’s Petition
to Confirm Arbitration Award is GRANTED AND RESPONDENT THOMAS DUNN, JR’S
PETITION TO VACATE ARBITRATION AWARD IS DISMISSED. JUDGMENT TO BE ENTERED IN
FAVOR OF PETITIONER IN THE AMOUNT OF $15,900.00 PLUS INTEREST AT THE LEGAL RATE
FROM 30 DAYS AFTER SERVICE OF THE AWARD. PETITIONER REZA FATEH IS TO FILE A
PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.
ANALYSIS:
Petitioner Fateh Reza (“Petitioner”) filed the instant
Petition to Confirm Arbitration Award against Respondent Thomas Dunn, Jr.
(“Respondent”) on June 26, 2023. Respondent filed an opposition/response on
November 13, 2023. The Petition initially came for hearing on November 14,
2023, at which time the Court continued the matter to allow Petitioner to
correct Respondent’s name. (Minute Order, 11/14/23.) Petitioner filed an
amended Petition on November 20, 2023 and an amendment to the Petition on
December 5, 2023.
Legal Standard
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. (Petition, ¶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 at Code of Civil Procedure
sections 415.10 to 415.95. Petitioner filed personal proof of service of the
Petition, Notice of Hearing and Notice Re: Continuance of Hearing and Order.
(Proof of Service, filed 10/31/23.) 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 was served on the parties by the arbitrator only by
first-class mail, which does not satisfy the statutory requirements. (Pet.,
Attachment 6(c).) However, Petitioner has demonstrated that the award was
served on Respondent with the instant Petition. (Pet., Attachment 6(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 serving the instant Petition six months
after the award was issued on May 24, 2023.
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., ¶4.) A copy of the arbitration agreement is
also attached. (Id. at Attachment 6(c).) Substantively, the Petition
demonstrates that Petitioner is entitled to an award of $15,900.00 from
Respondent, plus interest at the statutory rate from 30 days after service of
the award. (Id. at Attachment 6(c) at p. 5.)
Respondent’s opposition seeks to vacate the arbitration
award and relies on a cross-Petition to Vacate Arbitration Award, also filed on
November 13, 2023. However, while the opposition was served on Petitioner on
November 10, 2023, the Petition to Vacate is not accompanied by a proof of
service. (Opp., filed 11/13/23, p. 7.) Additionally, the Petition to Vacate was
filed more than 100 days after service of the arbitration award by the
arbitrator on May 24, 2023. (Pet., p. 4.) 100 days thereafter was September 1,
2023. This puts it outside the deadline to bring a petition to vacate
arbitration award. (Code Civ. Proc., § 1288.) Respondent argues that the
100-day deadline can be tolled based on impossibility or impracticability but
the case on which Respondent relies does not provide for such a broad rule.
Rather, the Court of Appeals narrowly ruled that “the 100-day period in Code of
Civil Procedure section 1288 is tolled from the time the complaint
seeking trial after arbitration is filed until a final adjudication of the
superior court action.” (Shepherd v. Greene (1986) 185
Cal.App.3d 989, 993.) The tolling referred to in Shepherd, therefore,
pertains only when an action seeking trial after arbitration, pursuant to
Business & Professions Code section 6204, is filed. This action does not
seek trial after arbitration and, therefore, is not subject to the tolling rule
of Shepherd. And in any event, it remains that no proof of service of
the Petition to Vacate is in the record.
Conclusion
Based on the foregoing,
Petitioner Reza Fateh’s Petition to Confirm Arbitration Award is GRANTED AND
RESPONDENT THOMAS DUNN, JR’S PETITION TO VACATE ARBITRATION AWARD IS DISMISSED.
JUDGMENT TO BE ENTERED IN FAVOR OF PETITIONER IN THE AMOUNT OF $15,900.00 PLUS INTEREST
AT THE LEGAL RATE FROM 30 DAYS AFTER SERVICE OF THE AWARD. PETITIONER REZA
FATEH IS TO FILE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.
Moving party to give notice.