Judge Mark E. Windham, Case Number: 23STCP04632, Date: 2024-05-01 Tentative Ruling

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TENTATIVE RULING:

Petitioner Ava, Inc.’s Petition to Confirm Arbitration Award is GRANTED. PETITIONER IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

On December 27, 2023, Petitioner Ava, Inc. (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondent Tracy Fontenette (“Respondent”). Respondent filed an opposition on April 29, 2024.

“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.)

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).) Although no proof of service has been filed, Respondent filed an opposition which constitutes a general appearance and submission to the jurisdiction of the Court. (See Code Civ. Proc., § 418.10; City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 679.)

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 certified mail on January 13, 2023. (Pet., Attachment 8(c), p. 3.)

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.) Although Petitioner has not demonstrated compliance with Code of Civil Procedure sections 1288 and 1288.4 by filing proof of service of the instant Petition, this defect is also waived by Respondent’s substantive opposition. (Horspool, supra, 223 Cal.App.4th at 679.)

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.

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., ¶¶5-6.) A copy of the arbitration agreement is also attached. (Id. at Attachment 8(c).) Substantively, the Petition demonstrates that Petitioner is entitled to an award of $10,500.00 principal, $2,520.00 interest, and $2,000.00 in arbitration fees from Respondent. (Id. at Attachment 8(c), p. 2.)

Respondent’s opposition to the Petition does not demonstrate a legal basis to deny confirmation of the award. Those grounds are set forth in Code of Civil Procedure section 1286.2, which is not cited in the opposition. Second, the opposition is not accompanied by a proof of service demonstrating it was served on Petitioner. Finally, assuming service at the same time of filing, the opposition was untimely because it was not served within 100 days of January 13, 2023. Th

Petitioner’s request for costs incurred bringing this Petition is granted. (Code Civ. Proc., § 1293.2; MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th.Supp. 1, 7.) The calculation of interest sought by Petitioner may be included in the proposed judgment, pursuant to Civil Code section 3289, subdivision (b).

Petitioner Ava, Inc.’s Petition to Confirm Arbitration Award is GRANTED. PETITIONER IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.