Judge: Mark E. Windham, Case: 23STCP03478, Date: 2024-02-26 Tentative Ruling
Case Number: 23STCP03478 Hearing Date: February 26, 2024 Dept: 26
BMW Financial Services, NA v. Coleman, et al.
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285, et seq.)
TENTATIVE RULING:
Petitioner BMW
Financial Services, NA’s Petition to Confirm Arbitration Award is CONTINUED TO
APRIL 29, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY
APRIL 8, 2024, PETITIONER IS TO FILE PROOF OF SERVICE OF THE PETITION AND
NOTICE OF HEARING IN ACCORDANCE WITH THE STATUTORY REQUIREMENTS. FAILURE TO DO
SO MAY RESULT IN THE PETITION BEING DISMISSED.
ANALYSIS:
Petitioner BMW Financial Services, NA (“Petitioner”) filed
the instant Petition to Confirm Arbitration Award against Respondent Tiffany
Coleman (“Respondent”) on September 20, 2023. The Petition initially came for
hearing on January 24, 2024 in Department 25 of the Spring Street Courthouse,
at which time Respondent appeared. (Minute Order, 01/24/24.) The case was then
transferred to Department 26 in the Spring Street Courthouse. (Ibid.) No
response to the Petition has been filed to date.
“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., Attachment 4(b) at ¶38.) It follows that the Petition
and Notice of Hearing must be served in the manner provided by law for service
of a summons, as set forth in Code of Civil Procedure sections 415.10 to
415.95. The Petition and Notice of Hearing were served by certified and
electronic mail. (Proofs of Service, filed 01/18/24.) The proof of service by
certified mail does not demonstrate that Respondent completed and returned the
acknowledgment form, as required by Code of Civil Procedure section 415.30,
subdivision (c). Nor is service by electronic mail an authorized method to
serve a summons. Additionally, Petitioner was ordered to give notice of the
continued hearing date, which has not yet been filed. (Minute Order, 01/24/24.)
Therefore, the Court finds that service of
the Petition and Notice of Hearing do not conform 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., Attachment
8(c).) Nor has Petitioner demonstrated that the award was properly served on
Respondent with the instant Petition. (Ibid.)
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 not has demonstrated compliance with Code of Civil Procedure sections 1288 and 1288.4 because service of the
Petition remains defective. Therefore, the Court finds that Petitioner
has not 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., ¶¶4,
6.) A copy of the arbitration agreement and award are also attached. (Id.
at Attachments 4(b) and 8(c).) Substantively, the Petition demonstrates that
Petitioner is entitled to an award of $3,446.75 from Respondent. (Id. at
Attachment 8(c).)
Attorney’s Fees, Costs, and
Interest
Conclusion
Based on the
foregoing, Petitioner BMW Financial Services, NA’s Petition to Confirm
Arbitration Award is CONTINUED TO APRIL 29, 2024 AT
8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY APRIL 8, 2024,
PETITIONER IS TO FILE PROOF OF SERVICE OF THE PETITION AND NOTICE OF HEARING IN
ACCORDANCE WITH THE STATUTORY REQUIREMENTS. FAILURE TO DO SO MAY RESULT IN THE
PETITION BEING DISMISSED.
Moving party to give notice.