TENTATIVE RULING

Calendar: 1

Date: 02/10/2023

Case No. 22 GDCP00178 

Case Name: Forward Financing, LLC v. Goldencare Home Health Agency, Inc., et al.

MOTION/PETITION TO CONFIRM ARBITRATION AWARD

Moving Party: Petitioner Forward Financing, LLC 

Responding Party: Respondents Goldencare Home Health Agency, Inc. dba Goldencare Home 

Health Agency and Asmik Babloyan (No Opposition)     

Personal Service? (CCP §1290.4)    No POS 

MOTION TO CONFIRM ARBITRATION AWARD

Written arbitration agreement attached or included verbatim (§1285.4(a)):  ok, Petition, Exhibit 4(b), para. 10 

Arbitrator(s) name(s) (§1285.4(b)): Thomas M. Haskins (American Arbitration Association)    

Arbitration award and written opinion set forth (§1285.4(c)): Petition, Exhibit 8(c)

Petition served and filed not earlier than 10 days after service of the award (§1288.4) and no more than 4 years (§1288) after signed copy of award is served on petitioner: No POS  

Petition verified or facts evidenced by declaration:    No  

DECLARATION OF MOVING PARTY (CCP §2015.5) No   

GROUNDS FOR RELIEF:

This matter is a file opened by a petition to confirm a contractual arbitration award, based on an arbitration which was conducted arising from a dispute between petitioner and respondents covered by an arbitration agreement concerning an alleged breach of a future receipts sale agreement.  

The parties submitted to arbitration pursuant to the agreement and oral hearing having been waived in accordance with the agreement, the arbitrator considered the written documents submitted by the representative for claimant.   Respondents failed to appear or submit documents after notice by mail.  On August 23, 2022, the arbitrator made the award, awarding the petitioner/claimant $37,079.80.  The award was served on August 24, 2022.  [Petition, para. 9(b)]     

Petitioner seeks an order confirming the award and entering judgment according to it and awarding costs of suit according to proof. 

This petition was originally noticed to be heard on December 9, 2022.   The court issued its tentative ruling via posting on LACourt.org website.  The tentative was to deny the petition based on lack of proof of service or of notice of the hearing on petition on the respondents, or, if proof of service and notice were shown, to grant the petition.   

At the hearing, the court heard from the moving party, and pursuant to the request of plaintiff, the hearing on the petition was continued to February 10, 2023.  The minute order states, “Moving party is to provide notice.”    There have been no further papers filed since the December 9, 2023 hearing.   

OPPOSITION:   

No opposition. 

ANALYSIS:

Procedural

No Proof of Service

There continues to be no proof of service showing that this petition or notice of hearing have been served on either of the respondents.  

CCP § 1286 provides:

“If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made... unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” 

The petition accordingly is required to be served, and given that this is a new proceeding, and the petition does not point to any manner of service provided in the arbitration agreement, the service would have to be in a manner provided by law for service of summons, so that the court would obtain personal jurisdiction over respondents. See CCP § 1290.4.  The file shows that on November 9, 2022, the court issued and served on petitioner a Notice of Hearing on Petition, setting the hearing for this date, and ordering petitioner or counsel for the petitioner “to give notice of this hearing by serving a copy of this notice on all parties to this action, and file proof of service thereof.”   There is no such proof of service so far in the file. 

As noted above, the court at the previous hearing was prepared to deny the petition for lack of proof of service and notice, and, after continuing the hearing, also expressly required, “Moving party is to provide notice.”   [Minute Order, 12/09/2022, p. 1 of 8].  No notice of the continuance of the hearing has been filed.  

Unless petitioner submits proof of service of the petition on the respondents by personal service or other recognized means of service of summons, as well as proof of service of notice of the current hearing date, the petition must be denied.  

No opposition

Assuming appropriate service and notice can be shown prior to or at the hearing, there has been no timely opposition filed to the petition. 

With respect to the enforcement of arbitration awards, CCP § 1286 provides:

“If a petition...under this chapter is duly served and filed, the court shall confirm the award as made... unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”

Under CCP §§ 1286.4 and 1286.8, governing the conditions for vacating or correcting an award, the court may not vacate or correct an award unless a response requesting that the award be corrected or vacated has been duly served and filed.   Such a response to a petition must be filed within 10 days after service of the petition.  CCP § 1290.6.   Under CCP § 1290, “The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed.”    In this case, assuming that service of the petition and notice of hearing can be established, there has been no opposition filed, and the petition could be granted, and the award could be confirmed.  

No declaration or verification

The petition in this case is not accompanied by a declaration, and the petition is not signed under penalty of perjury, as would ordinarily be required where proof is required and attached.   See CCP section 2015.5.   With respect to petitions concerning arbitration, however, the code specifically provides that the allegations of an unopposed petition are deemed admitted:

"The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed."

Under CCP section 1290.6, a response must be filed within ten days after service of a petition.  As discussed above, assuming service can be shown, there is no opposition to the petition, so the court would deem the allegations of the petition admitted.   

Substantive 

CCP § 1285.4 provides:

“A petition under this chapter shall:

(a) Set forth the substance of or have attached a copy of the agreement to arbitrate...

(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.”

The petition satisfies these requirements.  As indicated above, if a petition is duly served and filed, the court shall confirm the award, unless it either corrects or vacates the award or dismisses the proceeding in accordance with the sections governing those proceedings.  CCP § 1286.   A trial court decision confirming an arbitration award will be upheld on review if it is supported by substantial evidence.   Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530.   

The attached Award of Arbitrator awards to claimant Forward Financing, LLC, against both respondents Goldencare Home Health Agency, Inc. dba Goldencare Home Health Agency and Asmik Babloyan, jointly and severally, the sum of $37,079.80, “being the sum of all compensatory damages together with costs, fees, and expenses incurred by Claimant in these proceedings.” [Attach.8 (c)].  The award would be confirmed, assuming proof of service.  

 

Under CCP § 1293.2, the court shall award costs upon any judicial proceeding under title 9 (governing arbitration) as provided in CCP §1032.   The petition seeks costs of this proceeding “according to proof.”  There is no proof attached to the petition.  Petitioner accordingly will be awarded costs not already awarded, if appropriate, pursuant to a timely filed and served memorandum of costs. 

RULING:

[No opposition]

UNOPPOSED Petition to Confirm Contractual Arbitration Award is DENIED.  There is no proof of service showing the petition has been served on the respondents.  Petitioner has also failed to file proof of service on the respondents of Notice of Hearing on Petition, as ordered by the court by order filed and served on petitioner on November 9, 2022, and again by minute order dated December 9, 2022 (page 1 of 8).

ONLY IF PROOF OF SERVICE OF PETITION AND NOTICE OF HEARING ON RESPONDENTS IS SHOWN:

UNOPPOSED Petition to Confirm Contractual Arbitration award is GRANTED.  The Court notes that no response to the petition has been served or filed, and, accordingly, under CCP § 1290, the allegations of the petition are deemed admitted by respondents.  

Judgment to be entered in conformance with the Award of Arbitrator, dated August 23, 2022, in the sum of $37,079.80, as against both of the respondents, Goldencare Home Health Agency, Inc. dba Goldencare Home Health Agency and Asmik Babloyan, jointly and severally.

Petitioner to seek costs pursuant to a duly filed Memorandum of Costs.

  GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.