Judge: Michael E. Whitaker, Case: 24SMCP00040, Date: 2024-02-27 Tentative Ruling

Case Number: 24SMCP00040    Hearing Date: February 27, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

            On or about August 22, 2023, an arbitrator issued an Arbitration Award in favor of Petitioner Gursey Schneider LLP (“Petitioner”) and against Respondent Larry Bross (“Respondent”) in the amount of $62,216.15 plus daily interest of $12.52 for each day after June 30, 2023 until the balance is paid in full.  On January 18, 2024, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”). 

On January 24, 2024, a hearing regarding the Petition was scheduled for February 27, 2024.  To date, no response to the Petition has been filed. 

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.)

            “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; and (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, subds. (a)-(c).) 

            “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.)

ANALYSIS

            Service of the Petition and Notice of Hearing

            Code of Civil Procedure section 1290.4 requires the Petition and Notice of Hearing to 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).)  

            Attached as Exhibit A to the Petition is the signed Litigation Consulting Services Engagement Agreement containing the arbitration provision.  The Agreement provides, “We agree that any petition to confirm an arbitration award may be served by mail at the last known address and that no personal service will be required.”

            The proofs of service for the Petition, Notice of Hearing, and Declaration of Andrew Wright indicate the documents were mailed to Respondent.

            Therefore, Petitioner has adequately served the Petition and Notice of Hearing on Respondent.

            Substance of Petition

            Attached to the Petition as Exhibit A is a copy of the arbitration agreement.  Attached as Exhibit B to the Petition is a copy of the arbitrator’s final award, signed by arbitrator Jack E. Freedman.

            Therefore, the Court finds Petitioner has satisfied the procedural and substantive requirements of Code of Civil Procedure sections 1285, 1285.4, and 1290.4.

            Attorneys’ Fees and Costs

Petitioner also seeks $3,160 in attorneys’ fees and $435 in costs, representing the filing fee for the petition.

Code of Civil Procedure section 1033.5, which outlines recoverable costs to a prevailing party under Code of Civil Procedure section 1032, permits the recovery of attorneys’ fees when authorized by contract, statute, or law.  (Code Civ. Proc., § 1033.5, subd. (a)(10).)  Code of Civil Procedure section 1021 provides “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]”  Similarly, Civil Code section 1717 provides “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”  (Civ. Code, § 1717, subd. (a).)

The Code of Civil Procedure defines the “prevailing party” as follows:

[T]he party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the “prevailing party” shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.

(Code Civ. Proc., § 1032, subd. (a)(4).)

            Page 4 of the arbitration agreement, attached as Exhibit A to the Petition indicates, “In the event civil proceedings to confirm the arbitration award as judgment are required, the prevailing party may be entitled to receive all reasonable attorneys’ fees and costs related to the confirmation and enforcement of the judgment.”  Therefore, Petitioner has demonstrated entitlement to the requested attorneys’ fees.

            Petitioner’s request for costs is also granted, as the “prevailing party” in the action.  (Code Civ. Proc., § 1032, subd. (a)(4).)

CONCLUSION AND ORDER

The Court grants the unopposed Petition and confirms the arbitrator’s award that Petitioner Gursey Schneider, LLP shall recover from Respondent Larry Bross the sum of $62,216.15, plus daily interest of $12.52 for each day after June 30, 2023 on the unpaid balance until paid in full.  The Court also grants Petitioner’s unopposed request for $435 in costs and $3,160 in attorneys’ fees.

Further, the Court orders Petitioner to file a proposed Order and/or Judgment in conformance with the Court’s ruling forthwith. 

Petitioner shall provide notice of the Court’s order and file a proof of service of the same. 

DATED:  February 27, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court