Judge: Michael P. Linfield, Case: 23STCP04165, Date: 2024-04-03 Tentative Ruling

Case Number: 23STCP04165    Hearing Date: April 3, 2024    Dept: 34

SUBJECT:        Petition to Confirm Contractual Arbitration Award

Moving Party: Petitioner Glaser Weil Fink Howard Avchen & Shapiro LLP

Resp. Party:    Respondent Rivas - Stoller Equities, LLC

The Petition is GRANTED in part.

The Arbitration Award is CONFIRMED in the total amount of $569,052.15.  Attorney’s fees, costs, and post-award, pre-judgment interest are AWARDED in the total amount of $30,068.49 for a total award of $599,120.64.

BACKGROUND:

        On November 13, 2023, Petitioner Glaser Weil Fink Howard Avchen & Shapiro LLP filed Judicial Council Form ADR-106, Petition to Confirm Contractual Arbitration Award against Respondent Rivas - Stoller Equities, LLC.

        On November 15, 2023, Petitioner filed: (1) Notice of Hearing of Petition; (2) Memorandum of Points and Authorities; (3) Declaration of Claudia Stone; (4) Proposed Judgment; and (5) Proof of Service.

        On December 11, 2023, Respondent filed its Opposition to the Petition.

        On January 8, 2024, Petitioner filed its Reply in support of the Petition.

        On January 24, 2024, prior to the Court posting its tentative or ruling on the Petition to Confirm, the Court disclosed that it had certain prior interactions with Patricia Glaser, principal of Plaintiff’s law firm.  The Court stated that it did not believe it needed to recuse itself, but nonetheless disclosed the contact.  Defendant asked that the Court continue the hearing so that it could file a motion to disqualify. 

        On February 8, 2024, the Court struck Defendant’s Statement of Disqualification; Defendant did not take a writ or otherwise challenge the Court’s striking of its motion to disqualify.

        On March 15, 2024, Petitioner filed its: (1) Supplemental Declaration of Claudia Stone; and (2) Proposed Judgment.

ANALYSIS:

I.          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 respondents 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 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, 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 proceedings.” (Code Civ. Proc., § 1286.)

“If an award is confirmed, judgment shall be entered in conformity therewith. The judgment so entered has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action of the same jurisdictional classification; and it may be enforced like any other judgment of the court in which it is entered, in an action of the same jurisdictional classification.” (Code Civ. Proc., § 1287.4.)

II.       Discussion

A.      Procedural Items

        Petitioner followed all the requirements of Code of Civil Procedure sections 1285, 1285.4, and 1286.

B.      The Parties’ Arguments

On October 27, 2023, the Arbitrator, the Honorable Gerald Rosenberg (retired), found in favor of Petitioner (who was the respondent before the Arbitrator) and against Respondent (who was the claimant before the Arbitrator). The Arbitrator awarded a total amount of $569,052.15 to Petitioner, which comprised of: (1) $280,790.44 in damages; (2) $128,143.01 in interest; (3) $94,181.00 in attorneys’ fees; and (4) $65,937.70 in arbitration costs.

Petitioner moves the Court to confirm the Arbitrator’s award and enter judgment in favor of Petitioner and against Respondent. (Memorandum, p. 7:22–23.) Petitioner requests that these amounts be entered in the judgment: (1) $569,052.15 for the amount of the Arbitrator’s award; (2) $12,602.30 in post-award, pre-judgment interest; (3) $5,300.00 in post-award attorneys’ fees; and (4) $496.65 in post-award costs. (Id. at pp. 7:24, 8:1–7.)

Respondent opposes the Petition, arguing that the Court should vacate the award or reduce it by $98,215.75 (as well as reduce any award of interest). (Opposition, p. 5:9–10.) According to Respondent, the Arbitrator exceeded his powers since he did not consider evidence presented regarding Petitioner’s negligence regarding mediation. (Id. at p. 3:10–12.)

In its Reply, Petitioner argues that Respondent lost the arbitration because the evidence did not support Respondent’s claims against Petitioner. (Reply, p. 3:16–18.)

C.      The Arbitrator’s Consideration of the Evidence

Petitioner has the better argument here.

On October 27, 2023, the Arbitrator issued his thirty-four page “Final Arbitration Award.” As a general note, the Arbitrator noted that “[t]he Arbitrator has considered all evidence presented and all theories and arguments of counsel.” (Decl. Stone, Exh. 2, p. 34 [actual page 50 of 59].) As to the specific issue of the mediation, the Arbitrator considered Respondent’s arguments about Petitioner’s alleged negligence. (Decl. Stone, Exh. 2, pp. 30:14–27, 31:1–13 [actual pages 46–47 of 59].) The Arbitrator then wrote:

“The Arbitrator holds that these contentions are not supported by the evidence set forth in the Findings of Fact. And, again, many of the contentions require expert testimony to show that Respondent breached the standard of care. No such testimony was presented.” (Decl. Stone, Exh. 2, p. 31:15–17 [actual page 47 of 59].)

While the Court generally agrees with Respondent’s argument that not all breaches of the standard of care require expert testimony, the Arbitrator did two things: (1) the Arbitrator held that the Respondent’s arguments were not support by the evidence; and (2) the Arbitrator noted that no expert testimony was presented. The Arbitrator’s use of the word “And” between these two arguments clearly indicates in this context that these were two independent bases for the Arbitrator’s determination.

Thus, regardless of whether expert testimony was or was not required in this specific circumstance, the Arbitrator considered the evidence presented and held that Respondent’s contentions were not supported by that evidence. Even under Respondent’s argument in opposition to the Petition, it appears that the Arbitrator did not exceed his authority in a manner that warrants disturbing the Final Arbitration Award.

D.      The Relief Requested

        As Petitioner is the prevailing party and there is an applicable attorney’s fees provision, Petitioner is entitled to additional attorney’s fees and costs incurred during the post-award, pre-judgment period. (Petition, Attachment 4(b); Code Civ. Proc., §§ 1032, subds. (a)(4), (b), 1033.5, subd. (a)(10)(B), 1293.2; see also Marcus & Millichap Real Estate Inv. Brokerage Co. v. Woodman Inv. Grp. (2005) 129 Cal.App.4th 508, 513.)

However, the fees and costs must be reasonable. Here, Petitioner requests an additional $8,798.00 in fees (16.6 hours of work at $530.00 per hour) and an additional $496.65 in costs. While the costs and the hourly rate claimed are both reasonable, ten hours for this simple Petition is unreasonable. Considering the petition, opposition and reply, the Court will allow nine hours of work at the requested hourly rate (totaling $4,770.00 in fees) and $496.65 in costs.

Finally, Petitioner is also entitled to the requested relief of post-award, pre-judgment interest. (Civ. Code, § 3287, subds. (a), (b); see Tenzera, Inc. v. Osterman (2012) 205 Cal.App.4th 16, 21–22 [“Section 3287 applies to arbitration awards. A prevailing party in arbitration is entitled to prejudgment interest as of the date of the final award to entry of judgment.”].) The Court does not see any error with Petitioner’s calculation of this interest.

III.     Conclusion

The Petition is GRANTED in part.

The Arbitration Award is CONFIRMED in the total amount of $569,052.15.

Attorney’s fees of $4,770.00, costs of $496.65  and post-award, pre-judgment interest of $24,801.84 are AWARDED, for a total of an additional of $30,068.49.