Judge: Mark E. Windham, Case: 23STCP02676, Date: 2023-11-30 Tentative Ruling

Case Number: 23STCP02676    Hearing Date: November 30, 2023    Dept: 26

Discover Bank v. McGuire, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioner Discover Bank’s Petition to Confirm Arbitration Award is GRANTED. JUDGMENT IS TO BE ENTERED IN FAVOR OF PETITIONER AND AGAINST RESPONDENT IN THE AMOUNT OF $3,275.14.

PETITIONER IS TO FILE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Petitioner Discover Bank (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondent John McGuire (“Respondent”) on July 27, 2023. 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

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, ¶4 and Attachment 4(b), pp. 3-4.) 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 proof of service of the Petition, Notice of Hearing and Notice Re: Continuance of Hearing and Order, by substitute service. (Proof of Service, filed 11/01/23.) 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.) Petitioner demonstrated that the award was served on Respondent with the Petition. (Pet., 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 serving the instant Petition five months after the award was issued.

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, 6.) A copy of the arbitration agreement is also attached. (Id. at Attachment 4(b).) Substantively, the Petition demonstrates that Petitioner is entitled to an award of $3,275.14 from Respondent. (Id. at Attachment 8(c) at p. 11.)

Request for Costs

To the extent Petitioner requests costs according to proof (Pet., Prayer, ¶10(e), 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.

Conclusion

Based on the foregoing, Petitioner Discover Bank’s Petition to Confirm Arbitration Award is GRANTED. JUDGMENT TO BE ENTERED IN FAVOR OF PETITIONER AND AGAINST RESPONDENT IN THE AMOUNT OF $3,275.14.

PETITIONER IS TO FILE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

Moving party to give notice.