Judge: Peter A. Hernandez, Case: 22PSCP00156, Date: 2022-11-14 Tentative Ruling

Case Number: 22PSCP00156    Hearing Date: November 14, 2022    Dept: O

Petitioner Omar Maloof’s Petition to Vacate Contractual Arbitration Award is DENIED for lack of jurisdiction [see below].

Discussion[1]

Petitioner Omar Maloof seeks to vacate a Contractual Arbitration Award.

As a preliminary matter, the court observes that there are notice issues (see footnote #1).

Further, and notwithstanding the above notice deficiencies, the court lacks jurisdiction to rule on the petition. “As a general matter, a party seeking to vacate an arbitration award must either (1) file and serve a petition to vacate that award ‘not later than 100 days after the date of the service of a signed copy of the award’ (Code Civ. Proc., § 1288; see Elden v. Superior Court (1997) 53 Cal.App.4th 1497, 1511), or (2) file and serve a timely response (that is, within 10 days) to the other party's petition to confirm the award, which seeks to vacate the award (Code Civ. Proc., §§ 1285.2, 1290.6; Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal.App.4th 60, 66 (“Oaktree”); South Bay Radiology Medical Associates v. Asher (1990) 220 Cal.App.3d 1074, 1081.) The filing and service deadline for a petition to vacate is jurisdictional; noncompliance deprives a court of the power to vacate an award unless the party has timely requested vacation in response to a petition to confirm. (Code Civ. Proc., § 1286.4, subds. (a) & (b); Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1205-1208, 1210-1212; Oaktree, at pp. 64-65). (Santa Monica College Faculty Assn. v. Santa Monica Community College Dist. (2015) 243 Cal.App.4th 538, 544-545.)

Petitioner discloses that an arbitration award was made on September 17, 2019. (Petition, ¶ 8.) The arbitration award is submitted as Attachment 8(c). (Id., ¶ 8(c).) Petitioner advises that the signed award indicates that it was served on Petitioner on October 3, 2019. (Id., ¶ 9.) The instant petition, however, was filed on April 7, 2022, approximately 2 ½ years later. The petition is grossly untimely and cannot be considered by the court.


[1] Code of Civil Procedure § 1290.4, subdivision (b)(1) provides that “[i]f the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.” The arbitration agreement does not appear to set forth the manner of service. On April 18, 2022, Petitioner filed four proofs of service (Judicial Council Form POS-040); (1) one reflected April 13, 2022 messenger service of the petition on JTS Construction Inc. (“JTS”) and Derek Jin Chi Jiang (“Jiang”) but the “DECLARATION OF MESSENGER” portion of same was executed by Petitioner; (2) another reflected April 12, 2022 messenger service of the petition on AMCC but the “DECLARATION OF MESSENGER” portion of same was executed by Petitioner; (3) another reflected April 13, 2022 mail service of the petition on AMCC but was dated April 7, 2022, with a “DECLARATION OF MESSENGER” portion of same executed by Petitioner and dated April 15, 2022; and (4) another reflected April 13, 2022 mail service on JTS and Jiang but was dated April 7, 2022, with a “DECLARATION OF MESSENGER” portion of same executed by Petitioner and dated April 15, 2022. Petitioner, as a party to the instant proceedings, is not entitled to effectuate service.

On May 25, 2022, however, Petitioner filed a proof of service (Judicial Council Form POS-020), which reflected that the instant petition had been personally served on May 4, 2022 by registered process server Adriana Achucarro on “Jane Doe—clerk (Asian female 5 4’ 140 lbs glasses brown long hair)/ for JTS Construction Inc. Agent: Ivonne Tom.”

The matter came on calendar for hearing on May 26, 2022; on that date, the court continued the hearing, pursuant to Petitioner’s request, to November 14, 2022; notice was waived. There is no indication on ecourt (i.e., as of November 7, 2022, 11:50 a.m.) that JTS Construction Inc. was given notice of the November 14, 2022 continued hearing date.