500 7th Avenue Tenant, LLC v. Open Influence, Inc.

 

PETITION TO CONFIRM ARBITRATION AWARD

 

MOVING PARTY: Petitioner 500 7th Avenue Tenant LLC

RESPONDING PARTY(S): Defendant Open Influence, Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Petitioner 500 7th Avenue Tenant LLC brings this petition to confirm the arbitration award entered after binding arbitration between Petitioner and Respondent, Open Influence, Inc.

The Petition is unopposed.

TENTATIVE RULING:

Petitioner’s Petition to Confirm Arbitration Award is GRANTED.

Petitioner is ordered to file and serve a new [Proposed] Judgment within 15 days incorporating the Arbitrator’s Award, and as consistent with this ruling. 

Movant to give notice. 

DISCUSSION:

Petition to Confirm Arbitration Award

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.)

Analysis

Petitioner moves to confirm the arbitration award following binding arbitration between the parties. The Petition is unopposed. On November 17, 2022, Petitioner served the Petition on Respondent’s Agent for Service of Process, Eric Dahan, by personal service at 603 N. Martel Ave, Los Angeles, CA. (See Proof of Service, filed 11/18/2022.)

Petitioner represents that the “dispute concerned Respondent's payment obligations to Petitioner in connection with the Agreement, executed on or about February 22, 2018, governing Respondent's access to and use of the commercial office space and related services at 500 7th Avenue, in New York, New York.” (Petition ¶ 5.) 

Pursuant to the written Agreement for the use of commercial office space, the parties agreed:

Except that either party may seek equitable or similar relief from any court of competent jurisdiction, any dispute, controversy or claim arising out of or in relation to this Agreement, or at law, or the breach, termination or invalidity of this Agreement, that cannot be settled amicably by agreement of the parties to this Agreement shall be finally settled in accordance with the arbitration rules of JAMS then in force, by one or more arbitrators appointed in accordance with said rules.

…

The award rendered shall be final and binding on both parties. Judgment on the award may be entered in any court of competent jurisdiction. In any action, suit or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded, the prevailing party’s reasonable attorneys’ fees and other fees, costs and expenses of every kind in connection with the action, suit or proceeding, any appeal or petition for review,

the collection of any award or the enforcement of any order, as determined by the arbitrator(s) or court, as applicable.

(See Petition, Attachment 4(b), p. 7, ¶ 8.)

On June 29, 2022, Arbitrator Vivian B. Shelanski of JAMS ruled that “Respondent breached the Membership Agreement and is entitled to recover its accrued and unpaid Membership Fees and late fees” in the amount of 340,068.94, plus interest of $36,916.23. (See Petition, Attachment 8(c), p. 9.) The Arbitrator also concluded that the parties’ agreement entitled the prevailing party to recover its legal fees and costs in the amount of $353,389.97.  (Id., p. 13.) Accordingly, the Arbitrator issued an Award in favor of Petitioner and against Respondent at the calculated amount of $730,375.14. (Petition ¶¶ 8; Attachment 8(c).) 

Petitioner has therefore provided the arbitration agreement, the name of the arbitrator, and the arbitrator’s written opinion. (CCP § 1285.4.) The petition has also been served no earlier than 10 days, but no later than 4 years, after service of the award on the petitioner. (CCP §§ 1288, 1288.4.)  Finally, as the Petition is unopposed, Respondent has failed to timely ask that the award be vacated or modified. (See Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745, [“If [the party who lost in the arbitration does] not serve and file a petition to vacate or a response to [a] petition to confirm within the 100-day period from the date of service of the award ..., the award must be treated as final.”].)

Accordingly, Petitioner’s Petition to Confirm Arbitration Award is GRANTED. 

Petitioner is ordered to file and serve a new [Proposed] Judgment within 15 days incorporating the Arbitrator’s Award, and as consistent with this ruling.

Movant to give notice.

IT IS SO ORDERED.

Dated:   December 15, 2022 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.