CAROLYN C. PHILLIPS VS RANDY ROSE

Tentative Rulings

Case Number: 19STCP04189    Hearing Date: December 02, 2020    Dept: 26

Phillips v. Rose, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Carolyn C. Phillips’ Petition to Confirm Arbitration Award is GRANTED. Judgment to be entered in favor of Petitioner in the amount of $6,078.94. Proposed order to be filed within ten (10) days’ service of this order.

ANALYSIS:

On July 16, 2019, an arbitrator issued an Arbitration Award in favor of Carolyn C. Phillips (“Petitioner”) and against Randy Rose (“Respondent”). On September 26, 2019, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”). The Petition was initially set for hearing on January 30, 2020 but the hearing was continued prior to that date. At the initial hearing on September 3, 2020, the Court found Petitioner had not demonstrated proper notice of the Petition and Notice of Hearing. (Minute Order, 9/3/20.) The Court continued the hearing to December 2, 2020.

On September 30, 2020, Petitioner filed proof of service of the Summons by publication. To date, no response has been filed.

Legal Standard

Per Code of Civil Procedure section 1285, “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 respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”

Per Code of Civil Procedure section 1285.4, “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 arbitrator; and (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”

Per Code of Civil Procedure section 1286, “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.”

Discussion

Service of the Petition and Notice of Hearing

Code of Civil Procedure, section 1290.4 requires the Petition and Notice of Hearing to be served on Respondent “in the manner provided in the arbitration agreement for the service of such petition and notice” or “[i]f the arbitration agreement does not provide the manner in which such service shall be made . . . [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a), (b).)

Petitioner has now shown compliance with Code of Civil Procedure, section 1290.4. Proof of service of the Summons by publication was filed on September 30, 2020. Therefore, the Court has obtained personal jurisdiction over Respondent, who has yet to file a response to the Petition.

Service of the Arbitration Award (CCP §§ 1283.6, 1288)

Code of Civil Procedure section 1283.6 requires that “[t]he neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” (Code Civ. Proc., § 1283.6.)

The proof of service of the arbitration award is attached to the Petition. (Pet., Attachment 6(c), Proof of Service.) It shows service of the arbitration award by regular, first-class mail on July 31, 2019. (Pet., Attachment 6(c), Proof of Service.) Proof of service by first-class mail does not satisfy the statutory requirements, however, proper service of the award with the Petition is sufficient to meet the requirements of section 1283.6. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.) As Petitioner has now demonstrated proper service by publication, the Court finds service of the arbitration award sufficient under section 1283.6.

Finally, a party seeking a court judgment confirming an arbitration award must file and serve the petition no more than four years, but not less than 10 days, after the award is served. (CCP §§ 1288, 1288.4.) The Petition was timely served a year after the award was initially served. The Court finds that Petitioner has satisfied Code of Civil Procedure sections 1288 and 1288.4.

Confirmation of the Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) Code of Civil Procedure, section 1285.4 states 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 Civ. Proc., § 1285.4.) The Petition complies with the above requirements. It sets forth the nature of the agreement to arbitrate. (Pet., ¶2.) It also sets forth the name of the Arbitrator, Richard D. Burstein. (Id. at ¶4.) Finally, a copy of the Award is attached to the Petition. (Id. at Attachment 6(c).) The Court, therefore, finds the substantive portion of the Petition has been satisfied.

Conclusion

Based on the foregoing, the hearing on the Petition to Confirm Arbitration Award is GRANTED. Judgment to be entered in favor of Petitioner in the amount of $6,078.94. Proposed order to be filed within ten (10) days’ service of this order.

Moving party to give notice.

Case Number: 19STCP04189    Hearing Date: September 03, 2020    Dept: 26

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Carolyn C. Phillips’ Petition to Confirm Arbitration Award is DENIED..ANALYSIS:

On July 16, 2019, an arbitrator issued an Arbitration Award in favor of Carolyn C. Phillips (“Petitioner”) and against Randy Rose (“Respondent”). On September 26, 2019, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”). The Petition was initially set for hearing on January 30, 2020 but the hearing was continued prior to that date. Petitioner was ordered to give Respondent notice of the current hearing date. To date, no response has been

filed.

Legal Standard

Per Code of Civil Procedure section 1285, “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 respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”

Per Code of Civil Procedure section 1285.4, “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 arbitrator; and (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”

Per Code of Civil Procedure section 1286, “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.”

Discussion

Service of the Petition and Notice of Hearing

Code of Civil Procedure, section 1290.4 requires the Petition and Notice of Hearing to be served on Respondent “in the manner provided in the arbitration agreement for the service of such petition and notice” or “[i]f the arbitration agreement does not provide the manner in which such service shall be made . . . [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a), (b).)

Petitioner has not shown compliance with Code of Civil Procedure, section 1290.4. No proof of service is on file with respect to the Petition or Notice of Hearing. An Application for Service by Publication was filed by Petitioner on August 24, 2020 and is currently pending with the Court. Petitioner, therefore, has not demonstrated compliance with the requirements of Code of Civil Procedure, section 1290.4 at this time and the Court lacks personal jurisdiction over Respondent. (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206 (explaining that “[p]roper service of process of a petition or complaint is the means by which a court obtains personal jurisdiction over a party.”))

Service of the Arbitration Award (CCP §§ 1283.6, 1288)

Code of Civil Procedure section 1283.6 requires that “[t]he neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” (Code Civ. Proc., § 1283.6.)

The proof of service of the arbitration award is attached to the Petition. (Pet., Attachment 6(c), Proof of Service.) However, it only shows service of the arbitration award by regular, first-class

mail. (Pet., Attachment 6(c), Proof of Service.) This does not satisfy the statutory requirements. The Court notes that proper service of the award with the Petition is sufficient to meet the requirements of section 1283.6. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.) Until such service is accomplished in this case, however, the Court cannot find the requirements for service of the arbitration award are met.

Finally, a party seeking a court judgment confirming an arbitration award must file and serve the petition no more than four years, but not less than 10 days, after the award is served. (CCP §§ 1288, 1288.4.) Again, the Court cannot find satisfaction of these deadlines until Petitioner demonstrates proper service of the Award.

Confirmation of the Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) Code of Civil Procedure, section 1285.4 states 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 Civ. Proc., § 1285.4.) The Petition complies with the above requirements. It sets forth the nature of the agreement to arbitrate. (Pet., ¶2.) It also sets forth the name of the Arbitrator, Richard D. Burstein. (Id. at ¶4.) Finally, a copy of the Award is attached to the Petition. (Id. at Attachment 6(c).) The Court, therefore, finds the substantive portion of the Petition has been satisfied.

Conclusion

Based on the foregoing, the hearing on the Petition to Confirm Arbitration Award is DENIED.