Judge: Walter P. Schwarm, Case: 30-2020-01148371, Date: 2022-08-09 Tentative Ruling
Before the court will hear Motion Nos. 1 and 2, the court requests the parties to appear to explain the status of Defendants—George Abuhamad and Joan Abuhamad.
Motion No. 1:
Petitioner’s (Fingal, Fahrney & Clark, LLP) unopposed Petition to Confirm Attorney-Client Fee Arbitration Award (Petition), filed on 3-24-22 under ROA No. 104, is GRANTED.
The Petition indicates that the Arbitration Award required the Client (Switchboard, Inc./Switchboard, Inc. dba VK Sports, Inc.) to pay Petitioner $62,651.26 after an attorney-client fee arbitration. (Petition; ¶¶ 1, 2, 4, and 6.)
Business and Professions Code section 6203, subdivision (b), provides, “(b) Even if the parties to the arbitration have not agreed in writing to be bound, the arbitration award shall become binding upon the passage of 30 days after service of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration pursuant to Section 6204. If an action has previously been filed in any court, any petition to confirm, correct, or vacate the award shall be to the court in which the action is pending, and may be served by mail on any party who has appeared, as provided in Chapter 4 (commencing with Section 1003) of Title 14 of Part 2 of the Code of Civil Procedure; otherwise it shall be in the same manner as provided in Chapter 4 (commencing with Section 1285) of Title 9 of Part 3 of the Code of Civil Procedure. If no action is pending in any court, the award may be confirmed, corrected, or vacated by petition to the court having jurisdiction over the amount of the arbitration award, but otherwise in the same manner as provided in Chapter 4 (commencing with Section 1285) of Title 9 of Part 3 of the Code of Civil Procedure.”
Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 1076, 1083 (Dixon R.) states, “The Mandatory Fee Arbitration Act (MFAA), under Business and Professions Code section 6200 et seq., provides a quick and inexpensive method for clients, at their option, to resolve fee disputes with their attorneys.” (Footnote 1 omitted.) Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1470 (Giorgianni), provides, “Under section 6203, subdivision (b), a party may petition to confirm an arbitration award in the same manner as arbitration awards may be confirmed under Code of Civil Procedure section 1285 of the California Arbitration Act. [Citations.]”
Code of Civil Procedure section 1285 states, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”
Code of Civil Procedure section 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 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 of Civil Procedure section 1286 states, “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”
Code of Civil Procedure section 1288 states, “A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.”
Code of Civil Procedure section 1288.4 states, “No petition may be served and filed under this chapter until at least 10 days after service of the signed copy of the award upon the petitioner.”
EHM Prods., Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063–1064 (EHM), states, “Once a petition to confirm an award is filed, the superior court must select one of only four courses of action: It may confirm the award, correct and confirm it, vacate it, or dismiss the petition. [Citation.] ‘[I]t is the general rule that, with narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law.’ [Citation.] Under section 1286.2, the court may vacate the award only under ‘ “very limited circumstances.” ’ [Citation.] Neither the trial court, nor the appellate court, may ‘review the merits of the dispute, the sufficiency of the evidence, or the arbitrator's reasoning, nor may we correct or review an award because of an arbitrator's legal or factual error, even if it appears on the award’s face.’ ” [Citation.] Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 347 (Roehl) states, “We do not review the merits of the dispute, the sufficiency of the evidence, or the arbitrator's reasoning, nor may we correct or review an award because of an arbitrator's legal or factual error, even if it appears on the award's face. Instead, we restrict our review to whether the award should be vacated under the grounds listed in section 1286.2. [Citations.]”
Here, the Arbitration Award was served on the Client on 2-8-22. (Petition, ¶ 6(b)(3) and Arbitration Award attached to Petition.) Petitioner timely filed the Petition on 3-24-22 which was within four years of the date of service of the signed copy of the Arbitration Award. The Proof of Service of the Petition shows service Michael C. Bock, Esq. and Jonathan Reza, Esq. on 3-24-22. Michael C. Bock, Esq. and Jonathan Reza, Esq. represented Client at the arbitration hearing. (Petition, ¶ 6(b)(3) and Arbitration Award attached to Petition.)
The Petition, however, does not comply with Code of Civil Procedure section 1285.4, subdivision (a), because it does not attach a copy of the agreement to arbitrate or set forth the substance of the agreement to arbitrate. Although the Petition does not comply with Code of Civil Procedure section 1285.4, subdivision (a), the Client’s Opposition to Motion to Compel Discovery (Opposition), filed on 7-27-22 under ROA No. 125, affirmatively states, “Plaintiff has already moved this court to confirm this award, and Defendant has not filed any opposition.” (Opposition; 3:23-24.) The Opposition also states, “Thus, the arbitration award served on February 8, 2022, is binding and final on the Parties. Defendant is thus no longer an active party to the instant case as Plaintiff has requested the confirmation of the arbitration award without dispute . . . .” (Opposition; 4:3-6.)
Therefore, the court GRANTS Since the Petition does not comply with Code of Civil Procedure section 1285.4, subdivision (a), the court DENIES Petitioner’s (Fingal, Fahrney & Clark, LLP) unopposed Petition to Confirm Attorney-Client Fee Arbitration Award, filed on 3-24-22 under ROA No. 104, without prejudice.
Petitioner is to give notice.
Motion No. 2:
Plaintiff’s (Fingal, Fahrney & Clark, LLP) Motion to Compel Defendant Switchboard, Inc.’s Further Responses to Demand for Production of Documents and Request for Sanctions (Motion), filed on 3-17-22 under ROA No. 55, is DENIED.
Code of Civil Procedure section 2031.310 provides in part, “(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: [¶] (1) A statement of compliance with the demand is incomplete. [¶] (2) A representation of inability to comply is inadequate, incomplete, or evasive. [¶] (3) An objection in the response is without merit or too general. [¶] (b) A motion under subdivision (a) shall comply with each of the following: [¶] (1) the motion shall set forth specific facts showing good cause justifying the discovery sought by the demand. [¶] (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040. . . [¶] (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”
On 11-9-20, Plaintiff served Defendant (Switchboard, Inc.) with “Demand for Production of Documents, Set No. One.” (Clark Decl., ¶ 3 and Exhibit A.) On 1-7-21, Defendant served Plaintiff with a response to this discovery request. (Clark Decl., ¶ 4 and Exhibit B.) Plaintiff filed this Motion to compel further responses to Request Nos. 7-13, and the Motion was set for hearing on 7-6-21. Before the court could decide the Motion, the case was stayed so that the parties could engage in arbitration under Business and Professions Code section 6201. (See Notice filed on 5-10-21 under ROA No. 71.) On 11-4-21, an arbitration hearing occurred resulting in the issuance of an arbitration award on 2-2-22 in the amount of $62,651.26 in favor of Plaintiff. (See Petition to Confirm Attorney-Client Fee Arbitration filed on 3-24-22 under ROA No. 104.)
SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1200-1201 (SWAB), explains, “The Court of Appeal has explained the trial court's very limited authority with respect to a pending arbitration: ‘Code of Civil Procedure section 1281.4 requires a court to stay an action submitted to arbitration pursuant to an agreement of the parties. Beyond that, the court's role is fairly limited. Once a petition is granted and the lawsuit is stayed, “the action at law sits in the twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.” (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796, 13 Cal.Rptr.2d 678.) During that time, under its “vestigial” jurisdiction, a court may: appoint arbitrators if the method selected by the parties fails ( [Code Civ. Proc.,] § 1281.6); grant a provisional remedy “but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual without provisional relief” ( [Code Civ. Proc.,] § 1281.8, subd. (b)); and confirm, correct or vacate the arbitration award ( [Code Civ. Proc.,] § 1285). Absent an agreement to withdraw the controversy from arbitration, however, no judicial act is authorized. (Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1315, 251 Cal.Rptr. 749.) [¶] In the interim, the arbitrator takes over. It is the job of the arbitrator, not the court, to resolve all questions needed to determine the controversy. (Van Tassel v. Superior Court (1974) 12 Cal.3d 624, 627, 116 Cal.Rptr. 505, 526 P.2d 969, citing Felner v. Meritplan Ins. Co. (1970) 6 Cal.App.3d 540, 546, 86 Cal.Rptr. 178.) The arbitrator, and not the court, decides questions of procedure and discovery. (East San Bernardino County Water Dist. v. City of San Bernardino (1973) 33 Cal.App.3d 942, 950–951, 109 Cal.Rptr. 510; Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1802, 13 Cal.Rptr.2d 678; McRae v. Superior Court (1963) 221 Cal.App.2d 166, 171, 34 Cal.Rptr. 346.) It is also up to the arbitrator, and not the court, to grant relief for delay in bringing an arbitration to a resolution. (Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1808, 13 Cal.Rptr.2d 678; Byerly v. Sale, supra, 204 Cal.App.3d at p. 1316, 251 Cal.Rptr. 749; see also Nanfito v. Superior Court (1991) 2 Cal.App.4th 315, 318–319, 2 Cal.Rptr.2d 876.) As the court reasoned in McRae v. Superior Court, supra, 221 Cal.App.2d at page 171, 34 Cal.Rptr. 346: “When it has been determined that arbitration should be pursued and all judicial proceedings have been suspended until completion of the arbitration, it would be wholly incompatible with established policies of the law to permit the court thereafter to intervene in, and necessarily to interfere with, the arbitration ordered. In large measure, it would not only preclude the parties from obtaining ‘an adjustment of their differences by a tribunal of their choosing,’ but it would also recreate the very “delays incident to a civil action” that the arbitration agreement was designed to avoid.” [¶] . . . [¶] “[A]n arbitration has a life of its own outside the judicial system.” (Byerly v. Sale, supra, 204 Cal.App.3d at p. 1316, 251 Cal.Rptr. 749.) The trial court may not step into a case submitted to arbitration and tell the arbitrator what to do and when to do it; it may not resolve procedural questions, order discovery, determine the status of claims before the arbitrator or set the case for trial because of a party's alleged dilatory conduct. It is for the arbitrator, and not the court, to resolve such questions.’ [Citations.]”
Since the parties pursued arbitration that resulted in a binding arbitration award (Business and Professions Code section 6203, subdivision (b)), the court does not have jurisdiction over Defendant. Further, the court has court has granted Motion No. 1 against Defendant, and Defendant is no longer an active participant in the case. Although no judgment has been entered against Defendant, all disputes between Plaintiff and Defendant that are the subject of this action have been finally resolved by the arbitration.
Based on the above, the court DENIES Plaintiff’s (Fingal, Fahrney & Clark, LLP) Motion to Compel Defendant Switchboard, Inc.’s Further Responses to Demand for Production of Documents and Request for Sanctions filed on 3-17-22 under ROA No. 55.
Plaintiff is to give notice.