Judge Ronald F. Frank, Case 23TRCP00008 2023-05-16 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCP00008, Date: 2023-05-16 Tentative Ruling

Case Number: 23TRCP00008 Hearing Date: May 16, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: May 16, 2023¿¿

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CASE NUMBER: 23TRCP00008

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CASE NAME: Nardiello Law Firm v. John Rodgers

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MOVING PARTY: Plaintiff/Petitioner, Nardiello Law Firm

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RESPONDING PARTY: Defendant/Respondent, John Q. Rodgers

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TRIAL DATE: None Set.

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MOTION:¿ (1) Motion to Confirm Arbitration Award

Tentative Rulings: (1) Plaintiff/Petitioner’s Motion to Confirm Arbitration Award is GRANTED.

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I. BACKGROUND¿¿

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On February 9, 2023, Plaintiff/Petitioner, Nardiello Law Firm filed a motion petitioning this Court to Confirm an Arbitration Award. There was an initial hearing on this motion on March 14, 2023, where the Court posted a written tentative ruling. Give that defendant is self-represented litigant who states he has little if any experience with litigation matters, the Court continued the hearing and set a briefing schedule so Defendant could file any opposing briefs or evidence he needed to respond. On May 2, 2023, Defendant filed an opposition. On May 4, 2023, Plaintiff filed a reply brief.

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¿II. ANALYSIS¿

A. Legal Standard ¿

“Any party to an arbitration award in which an award has been made may petition the court to confirm, correct or vacate the award.” (Code Civ. Proc. § 1285.) “A petition under this chapter shall: (1) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. (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.” (Code Civ. Proc. § 1285.4.) “A response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.” (Code Civ. Proc. § 1285.2.) An arbitration award is not directly enforceable; it must be either confirmed or vacated by proceedings in the courts or this State. (Loeb v. Record (2008) 162 Cal.App.4th 431, 449.) Thus, the courts are generally involved after the arbitration has been completed and the arbitrator submits her or his decision. The prevailing party in an arbitration typically files a petition in court to confirm an award; the losing party may petition to modify or vacate the award entirely. (Code Civ. Proc § 1285; Cinel v. Christopher (2012) 203 Cal.App.4th 759, 765.)

“A petition to confirm an arbitration award, if procedurally proper, “shall” be confirmed unless the trial court (1) vacates or corrects the award, or (2) dismisses the petition to confirm. (Code Civ. Proc § 1286.) A petition to confirm is procedurally proper as long as it (1) sets forth a copy of the agreement to arbitrate, the names of the arbitrator(s), and a copy of the arbitration award.” (Darby v. Sisyphian, LLC (2023) 87 Cal.App.5th 1100, 1112.)

B. Discussion

Plaintiff/Petitioner notes that a party who wishes to request that the award be corrected or vacated generally must serve and file a request within one-hundred (100) days after the award was served on such party. (Code Civ. Proc. § 1288). Here, Plaintiff/Petitioner asserts that the petition was filed with the Court on January 4, 2023, approximately 112 days following the service of the arbitration award by the Arbitrator on September 14, 2022, via email to all parties’ counsel. (Jen Decl., ¶5; Exhibit C). Plaintiff also notes that it has timely filed the accompanying Petition to confirm the award, as the petition was filed less than four years after the date of service of the signed copy of the award on September 14, 2022. (Code Civ. Proc. §1288) (Jen Decl., ¶ 3; Exhibit A). However, Plaintiff further asserts that no petition to vacate or correct the Final Arbitration Decision has been filed, not has such been received by Plaintiff or its counsel as of February 9, 2022. (Jen Decl., ¶ 6.) In other words, Defendant did not follow the procedure for disputing the amount or reasoning of the Arbitrator’s decision.

Based on this, Plaintiff requested this Court confirm the Arbitration Award dated September 14, 2022, by granting Plaintiff’s order, and entering judgment in favor of Plaintiff and against Defendant, in the principal sum of $75,000 as set forth by the Arbitration Award (Exhibit A), simple interest in the sum of $3,895.12, calculated from the date of the award of September 14, 2022 to the date of this hearing on March 14, 2023 (Jen Decl., ¶ 8), and filing fees in the total sum for $495.00, which consists of $435.00 for the first appearance fee, and $60.00 for filing fee of this motion as set forth by the accompanying declaration. (Jen Decl., ¶ 7.)

The moving papers attach the AAA Arbitrator’s award as well as the typed analysis of the same. The Arbitrator in his analysis and findings noted that Respondent Rogers is an attorney with 35 years of experience and is a licensed CPA, and that the “sophisticated” Rogers retained Petitioner Nardiello Law Firm in a federal district court matter which was “specialized, complex, and hotly contested.” There were 10 depositions in the underly federal court case, several trips to the Ninth Circuit, and the opposing party was the US Government. Over $500,000 was billed of which less than 40% remained owing according to the Nardiello Law Firm. The arbitrator in his award and findings appears to have scrutinized the bills, making adjustments, reductions, and disallowances. The final award was a considerable reduction from the amount claimed. Defendant’s Opposition to the motion notes that the arbitrator did not read every page of every exhibit submitted in the arbitration.

In opposition, Defendant notes that the Arbitrator Jossen’s opinion in this matter erred in over-estimating Defendant’s degree of sophistication and expertise. Defendant claims its inexperience with litigation prevented him from realizing the extent of overbilling until months after he had been invoiced. Defendant contends that the Arbitrator’s opinion states “Claimant and Respondent are sophisticated patties with respect to the matters which led to Claimant's retention by Respondent. For purposes of this case, this is a relevant fact with respect to the nature and extent of the services provided in this case and any amount due therefore." However, Defendant argues that he does not have extensive experience with litigation or contracts. Defendant notes that he trusted his attorney with carrying out effective legal representation, and he received the exact opposite of such. Defendant notes that it was not until claimant filed for arbitration that the Respondent was presented with all of the invoices throughout the engagement. Defendant notes that he discovered charges for two additional undisclosed engagements that Claimant had been billed yet had not been retained for.

Defendant also argues that the Arbitrator’s opinion confirms Defendant’s contention that the claimant overbilled him. Defendant points out that the Arbitrator’s Opinion says:

“The Arbitrator. is concerned with and about some of Claimant's charges and particularly the amount of time spent on certain tasks."

Further down, it notes instances of excessive billing:

"The Arbitrator does not agree with the imposition of the 'Cost Percentage' in this case. For that reason, the amount of the Cost Percentage, which was represented by Claimant to be approximately $7,000.00 in total, is deducted from the amount in dispute. The Arbitrator believes that the better practice is to specifically bill for costs incurred or advanced including postage and photocopy on a per page basis. The imposition of a blanket cost percentage seems onerous in this case."

"Upon review of the legal fees, some of the entries appear to be excessive. By way of example, Claimant spent 13 hours drafting the Complaint which is short and simple. On July 1, 2016, Claimant spent 3.3 hours regarding document production which is unspecified. In November 2016 there is an excessive amount of time researching legislative history regarding section 6694, particularly when there are other entries for the same research. In December 2016, 6 hours were spent researching the preparation of a Memorandum of Contentions of Fact and Law and there were subsequent entries regarding drafting and preparing Memorandums of Fact and Law as on January 3, 2017. This is excessive and duplicative. Additionally, the Memorandum of Fact and Law would be built on each other. These entries are excessive. In February 2017 there was 65.30 hours totaling $35,935.00 billed for a motion to limit what the jury is allowed to see IN A NON-JURY TRIAL."

"On February 25, 2017, more than 13 hours were spent drafting Proposed Findings of Fact and Conclusions of Law. On March 2nd, 3rd, and 6th, an additional 6 to 20 hours were spent drafting the Proposed Findings of Fact and Conclusions of Law, The document would reflect and follow previous Memorandums of that type eliminated those hours billed. March 2nd, 3rd, and 6th, an additional 17 hours were spent drafting the same Proposed Findings of Fact and Conclusions of Law."

Defendant argues that the Arbitrator does not dispute that the Claimant engaged in inappropriate and excessive block billing practices. Defendant also notes that towards the end of the Opinion, the Arbitrator admits he has not reviewed all of Defendant’s exhibits and spreadsheets relative to the administrative, duplicative, interest charged revisions, conferences, and motions in limine by block billing items totaling $268,408.89. Defendant suggests that this Court should not award any additional funds to Claimant, and that the balance due to him should be of $69,136.36.

In its reply brief, Plaintiff argues that Defendant fails to provide any legal or statutory basis as to why the Arbitration Award should not be entered and confirmed by this Court. Plaintiff also notes that Defendant is time-barred from challenging the arbitration award, nor can he seek to relitigate the basis of the award. Plaintiff cites Code of Civil procedure §1288, noting that a party who wishes to request that the award be corrected or vacated must serve and file such a request within one-hundred (100) days after the award was served on such party. However, Plaintiff notes that the petition was filed with the court on January 4, 2023, approximately 112 days following the service of the arbitration award. As such, Defendant did not do so.

The Court finds that Plaintiff/Petitioner has satisfied the requirements of Code of Civil Procedure section 1285.4 by attaching the parties’ agreement to arbitrate, setting forth the arbitrator’s name (Stanford Jossen), and attaching a copy of the written arbitration award in Plaintiff/Petitioner’s favor. Defendant has not raised any legal ground or basis for the Court to deny confirmation of the award. “Pursuant to section 1286.8, the court may not correct an arbitration award unless a response requesting that the award be corrected or vacated has been Duly served and filed.” (DeMello v. Souza (1973) 36 Cal.App.3d 79, 84 (emphasis added).) Since Defendant failed to seek correction or vacating of the arbitrator’s award under both sections 1288.2 and 1290.6 in a timely fashion, this Court as a matter of law is barred from correcting the award in question. (Id.) As such, the Court GRANTS the Motion to Confirm Arbitration Award. Plaintiff is to submit a proposed judgment accordingly.

III. CONCLUSION

Based on the foregoing, this Court GRANTS Plaintiff’s Motion to Confirm Arbitration Award issued by Stanford Jossen on September 14, 2022 in the matter entitled Nardiello Law Firm v. John Rodgers, Case No. 01-21-0001-9143.