Judge Mark E. Windham, Case Number: 23STCP04310, Date: 2024-04-22 Tentative Ruling

Judge: Mark E. Windham, Case: 23STCP04310, Date: 2024-04-22 Tentative Ruling

Case Number: 23STCP04310 Hearing Date: April 22, 2024 Dept: 26

Garza, et al. v. Holder, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285, et seq.)

TENTATIVE RULING:

Petitioners Daniel Garza and Angela Dejesus’ Petition to Confirm Arbitration Award is CONTINUED TO JUNE 24, 2024 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JUNE 3, 2024, PETITIONERS ARE TO FILE PROOF OF SERVICE OF THE PETITION AND NOTICE OF HEARING DATE ON RESPONDENT LAW OFFICES OF LISA HOLDER. FAILURE TO DO SO MAY RESULT IN THE PETITION BEING DISMISSED.

ANALYSIS:

On November 27, 2023, Petitioners Daniel Garza and Angela Dejesus (“Petitioners”) filed the instant Petition to Confirm Arbitration Award against Respondents Lisa Holder, Esq. and Law Offices of Lisa Holder (“Respondents”). No response to the Petition has been filed to date.

Discussion

This Petition relates to attorney-client fee arbitration under Code of Civil Procedure section 6203. The “arbitration award shall become binding upon the passage of 30 days after service of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration pursuant to Section 6204.” (Cal. Bus. & Profs. Code, § 6203, subd. (b).) The Award was served on the parties by the arbitrator on July 14, 2022. (Pet., Exh. A, p. 30.) No trial after arbitration was sought by August 15, 2022.

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).)

Petitioners have not shown that the parties’ arbitration agreement provides for the manner of service of the Petition and Notice of Hearing. 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. Petitioners filed personal proof of service of the Petition, Notice of Hearing and Notice Re: Continuance of Hearing and Order solely with respect to Respondent Holder. (Proof of Service, filed 01/29/24.) No proof of service has been filed with respect to Respondent Law Office. Therefore, the Court cannot find that service of the Petition conforms to Code of Civil Procedure section 1290.4 for Respondent Law Office.

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 but Petitioners have demonstrated that the award was served on Respondent Holder 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.) With respect to Respondent Holder, Petitioner has demonstrated compliance with Code of Civil Procedure sections 1288 and 1288.4 by serving the instant Petition two-and-a-half months after the award was issued on July 11, 2022.

However, there is no showing of service of the arbitration award upon Respondent Law Office.

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 Petitioners are entitled to an award of $11,497.50 from Respondents. (Id. at Attachment 6(c), p. 28.)

Attorney’s Fees, Costs and Interest

To the extent Petitioners request costs of $370.00 (Pet., ¶10e), 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.) The interest sought by Petitioners, ten percent per annum from 30 days after the award was issued, is also appropriate pursuant to Civil Code section 3289, subdivision (b).

Conclusion

Court clerk to give notice.