Judge: Randolph M. Hammock, Case: 23STCP02115, Date: 2023-08-30 Tentative Ruling

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If the interested parties wish to submit on the tentative ruling, they should call the judicial assistant together prior to the date of the scheduled hearing. 


Case Number: 23STCP02115    Hearing Date: October 19, 2023    Dept: 49

Weinstock Manion v. Sloan Schaffer

PETITION TO CONFIRM ARBITRATION AWARD
 

MOVING PARTY: Petitioner Weinstock Manion, A Law Corporation

RESPONDING PARTY(S): No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Petitioner Weinstock Manion, a Law Corporation, represented Respondent Sloan Schaffer regarding a proposed conservator of Respondent’s soon to be ex-wife. Respondent failed to make all payments owed under the parties’ Letter Retainer Agreement. The fee dispute proceeded to arbitration on February 28, 2023, before Arbitrator Hon. John P. Shook (Ret.). On March 4, 2023, the arbitrator awarded Petitioner $89,744.00 for attorney’s fees owed under the parties’ Letter Retainer Agreement.

Petitioner Weinstock Manion thereafter filed this petition and now moves to confirm the arbitration award. No opposition was filed. 

The matter initially came for hearing on August 20, 2023. Finding service of the petition was insufficient, the court continued the hearing to this date with instructions to re-serve the petition on respondent in a manner prescribed by CCP § 415.10 et seq.

TENTATIVE RULING:

Petitioner’s Motion to Confirm Arbitration Award is GRANTED.

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

Moving party to give notice.

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

Petitioner moves to confirm the arbitration award following binding arbitration between the parties. The Petition is unopposed. 

Petitioner initially filed a Proof of Service of Summons indicating service on Petitioner on June 23, 2023, “via email per [Petitioner’s] instruction.” (06/23/2023 Proof of Service, ¶ 5(d).) Petitioner gave Respondent notice of the hearing date, again by email, on July 24, 2023. (See 07/24/2023 Notice.) This court found that service by email was insufficient under CCP 1290.4(a), and continued this motion with instructions to Petitioner to re-serve the Respondent. (See 08/30/2023 Ruling and Minute Order.)

On September 14, 2023, Petitioner filed a Proof of Service showing personal service of the petition and related documents on Respondent Sloan Schaffer on September 8, 2023, at 1:04 PM. (See 09/14/2023 Proof of Service.) Service occurred at 210 Cold Springs Road, Hudson, NY 12534.

Where, as here, the arbitration agreement did not provide for the manner of service, and where service occurs outside of California, CCP section 1290.4(b)(2) provides: 

Service outside this State shall be made by mailing the copy of the petition and notice and other papers by registered or certified mail. Personal service is the equivalent of such service by mail. Proof of service by mail shall be made by affidavit showing such mailing together with the return receipt of the United States Post Office bearing the signature of the person on whom service was made. Notwithstanding any other provision of this title, if service is made in the manner provided in this paragraph, the petition may not be heard until at least 30 days after the date of such service.

(Emphasis added.)

Here, by personally serving the petition on Respondent at the New York address—which is the equivalent of service by mail—Petitioner has adequately served the Respondent. Moreover, based on a date of service of September 8, 2023, this motion now comes for hearing more than 30-days after the date of such service. 

The only potential issue is that the new Proof of Service shows one of the documents served was the “Notice of Hearing on Plaintiff's Petition to Confirm Attorney-Client Fee Arbitration Award originally served via email on July 24, 2023 filed on July 24, 2023.” (09/14/23 Proof of Service, ¶ 2.) It is noted that the referenced July 24, 2023, “Notice of Hearing” listed the former hearing date of August 30, 2023. (See 07/24/2023 Notice of Hearing.) It is not apparent from the Proof of Service, or from any other documents filed with the court, that Petitioner served Respondent with an Amended Notice of Hearing reflecting the continued hearing date of October 19, 2023.

Be that as it may, Petitioners’ new Proof of Service does show service of the Court’s August 30, 2023, Final Ruling on Respondent. (See 08/30/23 Final Ruling.) That Ruling stated that the hearing date had been continued to October 19, 2023 at 8:30 am. (Id.)  Therefore, at a minimum, Respondent received adequate notice of the continued hearing date through that Ruling.

Considering the above, this court concludes that Respondent was validly served, and received notice of the continued hearing date. Accordingly, the procedural requirements are now satisfied. 

Moving to the merits, Petitioner included the name of the arbitrator and a copy of the award and written opinion. The Arbitration occurred on February 28, 2023. On March 4, 2023, Arbitrator Hon. John P. Shook (Ret.) awarded Petitioner $89,744.00 for attorney’s fees owed under the parties’ Letter Retainer Agreement. (See Award, ¶ 1.)

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

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

Moving party to give notice.

IT IS SO ORDERED.

Dated:   October 19, 2023 ___________________________________
Randolph M. Hammock
Judge of the Superior Court