Judge Mark E. Windham, Case Number: 23STCP03420, Date: 2024-01-22 Tentative Ruling

Judge: Mark E. Windham, Case: 23STCP03420, Date: 2024-01-22 Tentative Ruling

Case Number: 23STCP03420 Hearing Date: January 22, 2024 Dept: 26

DeVitt v. Garofano, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Sean Daniel McDevitt’s Petition to Confirm Arbitration Award is GRANTED. THE COURT ORDERS EXPUNGEMENT OF ALL REFERENCES TO THE SUBJECT ARBITRATION PROCEEDING FROM REGISTRATION RECORDS MAINTAINED IN THE CENTRAL REGISTRATION DEPOSITORY FOR PETITIONER SEAN DANIEL MCDEVITT. PETITIONER IS TO FILE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

Petitioner Sean Daniel McDevitt (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondents Eric Garofano and The Advisory and Mangement Group, Inc. (“Respondents”) on September 18, 2023. The Petition seeks to confirm the arbitration award issued on July 31, 2023, in favor of Petitioner, requiring expungement of all references to certain customer dispute information maintained by the Financial Industry Regulatory Authority (“FINRA”) in the Central Registration Depository (“CRD”). (Pet., ¶¶7-8.) No response 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.)

Discussion

Filing Requirements of a Petition to Confirm Arbitration Award (CCP § 1285.4)

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).) Petitioner has set forth the substance of the arbitration award and submitted a copy of the parties’ arbitration agreement with the names of the arbitrators. (Pet., ¶4-6 and Attachment 4(b).) This satisfies Code of Civil Procedure section 1285.4, subdivisions (a)-(c).

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 provide for the manner of service of the Petition and notice of hearing. (Pet., Attachment 4(b).) Accordingly, service must be in a manner approved for service of a summons. On January 16, 2024, Petitioner filed Notices and Acknowledgment of Receipt signed by Respondents following service by mail. (Notices and Acknowledgment of Receipt, 01/16/23.) This comports with service by mail under Code of Civil Procedure section 415.30. Therefore, the Court finds the Petition complies with Code of Civil Procedure section 1290.4.

Service of the Arbitration Award (CCP § 1283.6)

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 arbitration, 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 Petition attaches a copy of the arbitration award, which indicates that it was served on July 31, 2023. (Pet., Attachment 8(c), p. 6.) However, it does not indicate the manner of service. Therefore, Petitioner has not demonstrated proper service of the award by the arbitrator. However, Petitioner has demonstrated service of the award with the instant Petition. (Pet, Attachment 8(c).) Therefore, the Court finds the requirements of Code of Civil Procedure section 1283.6 have been met.

Timing of Service of Petition (CCP §§ 1288, 1288.4)

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.) The Court determines that the Petition was timely filed approximately six months after the award was issued.

Merits of the Petition to Confirm Arbitration Award

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.) Substantively, Petitioner has demonstrated that on July 31, 2023, the arbitrators issued an award in their favor and against Respondents requiring expungement of all references to certain customer dispute information as to Petitioners maintained by FINRA in the CRD. (Pet., Attachment 8(c), pp. 3-5.)

Conclusion

Moving party is to give notice.