Supercluster, Inc., v. BMW of North America, LLC, et al.

PETITION TO CONFIRM ARBITRATION AWARD

 

MOVING PARTY: Petitioner Supercluster, Inc.

RESPONDING PARTY(S): Respondents BMW of North America, LLC, and An Luxury Imports of San Diego, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Supercluster, Inc., brought this action against Defendants BMW and An Luxury Imports of San Diego, Inc., for violations of the Song-Beverly Act. On April 1, 2021, this Court (Judge Stuart Rice) granted Defendants’ motion to compel arbitration. 

Plaintiff BMW now moves to confirm the arbitration award. Defendants filed a “Response” opposing the petition.

TENTATIVE RULING:

Petitioner’s Petition to Confirm Arbitration Award is CONTINUED to a date TBD at the hearing. 

Moving party to give notice, unless waived. 

DISCUSSION:

Petition to Confirm Arbitration Award

A. Legal Standard

Any party to an arbitration may petition the court to confirm an arbitration award. (CCP § 1285.) If a petition to confirm an arbitration award is duly served and filed, the court must confirm the award as made, unless the court corrects or vacates the award pursuant to a response to the petition or a petition to correct or vacate the award. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818 [no authority to alter terms of award absent petition to correct].) 

A petition to confirm an arbitration award must set forth the substance of or attach the arbitration agreement, include the name of the arbitrator, and attach a copy of the award and the written opinion of the arbitrator, if any. (CCP § 1285.4.) The petition must be served no earlier than 10 days, but no later than 4 years, after service of the award on the petitioner. (CCP §§ 1288, 1288.4.)  

The petition, written notice of the time and place of the hearing on the petition, and any other papers upon which the petition is based must be served in the manner provided in the arbitration agreement for service of such petition and notice. (CCP § 1290.4(a).) If the arbitration agreement does not specify the required manner of service and the person being served has not yet appeared in the proceeding and has not yet previously been served, then service of the petition within the State must be made in the same manner as service of a summons and complaint pursuant to CCP section 415.10 et seq. (CCP § 1290.4(b)(1).) At least 10 days’ notice of the date set for the hearing on the petition must be given. (CCP §1290.2.) Service outside the state must be made by registered or certified mail, return receipt requested. (CCP § 1290.4(b)(2).) The proof of service must show such mailing together with the return receipt signed by the person served. (Id.) If service is made by registered or certified mail, return receipt requested, the hearing on the petition may not be held until at least 30 days after the date of such notice. (Id.)

B. Analysis

Plaintiff Supercluster, Inc., moves to confirm the arbitration award following binding arbitration between the parties. Defendants filed a “Response” to the Motion opposing the petition.

The parties arbitrated the dispute before the Honorable Raymond J. Ikola (Ret.) on March 2, 3, and 6, 2023. (See Petition ¶¶ 6, 7.) Under the award dated June 23, 2023, the Arbitrator awarded Plaintiff a total of $178,766.00 against Defendant BMW North America, LLC. (Id. ¶ 8; Attachment 8c.)

Defendants oppose the Petition. They argue that Plaintiffs’ Petition is premature because they intend to file a Petition to vacate the award within the 100-day deadline to do so. However, the opposition brief itself provides no argument as to why the petition should be vacated. 

“A request to vacate [an arbitration award] may be made either in a petition to vacate or in a response to the petition to confirm.” (L. Fin. Grp., LLC v. Key (2023) 14 Cal. 5th 932, 946, internal citations omitted.) Under the plain terms of sections 1288 and 1288.2, a party challenging an arbitration award has 100 days from the service of the final award to request that the arbitration award be vacated, and may do so via a standalone petition to vacate or via a response to a petition to confirm the award. (L. Fin. Grp., LLC v. Key (2023) 14 Cal. 5th 932, 946.)

“[W]hile a petition to confirm an award may be served and filed within four years, the petition to vacate or correct an award must be served and filed within 100 days after the service of the award on the petitioner. [Citations.] The same 100–day limitation applies when vacation or correction of the award is sought by response…. To this latter rule there is only one exception. When the party petitions the court to confirm the award before the expiration of the 100–day period, respondent may seek vacation or correction of the award by way of response only if he serves and files his response within 10 days after the service of the petition (Civ. Proc. Code, § 1290.6).” (Oaktree Capital Management, L.P. v. Bernard (2010) 182 Cal. App. 4th 60, 66-67.)

Although the court would have expected Respondents “response” to address the reasons for vacating the award in their opposition to the motion to confirm, Respondents are still within the 100-day timeline to file their own separate petition to vacate the award. Petitioner has not filed a reply, and therefore has not provided authority stating that the filing of a motion to confirm the petition cuts off Respondents’ opportunity to file a separate motion to vacate same.

Accordingly, Petitioner’s Petition to Confirm Arbitration Award is CONTINUED to a date TBD at the hearing.  It is expected that Respondents shall timely file and serve a Petition to Vacate the award. If Petitioners do not file their motion to vacate within the 100-day statutory period to do so, they may instead file a supplemental opposition to the pending petition to confirm award.

IT IS SO ORDERED.

Dated:   November 15, 2023 ___________________________________