Case Number: 20STCP01974 Hearing Date: October 26, 2020 Dept: 26
Shalant v. Bickenbach, et al.
PETITION TO CONFIRM ARBITRATION AWARD
(CCP § 1285)
Petitioner Joseph L. Shalant’sPetition to Confirm Arbitration Award is CONTINUED TO JANUARY 25, 2021 AT 09:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.
On October 4, 2019, an arbitrator issued an Arbitration Award in favor of Joseph L. Shalant (“Petitioner”) and against Paul Bickenbach (“Respondent”). Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”) on June 23, 2020. To date, no response has been filed.
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.”
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).)
No copy of the arbitration agreement is attached to the Petition so the Court cannot determine what manner of service it permits. Furthermore, Petitioner has not filed proof of service of either the Petition or Notice of Hearing on Respondent. Therefore, the Court cannot find that the requirements of Code of Civil Procedure section 1290.4 have been satisfied.
Service of the Arbitration Award and Timing of Service of Petition (CCP §§ 1283.6, 1288, 1288.4)
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 arbitration award was served by the arbitrator on November 5, 2019 by regular mail. (Pet., Attachment 6(c), Proof of Service.) Service by regular mail is not sufficient to meet the requirements of Code of Civil Procedure section 1283.6. Service of the Award with the Petition can stand in for service under section 1283.6, but as noted above, Petitioner has not yet demonstrated proper service of the Petition. (See Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.)
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.) Without proper proof of service of the Award, Petition or Notice of Hearing, the Court cannot find that the requirements of Code of Civil Procedure sections 1283.6, 1288 or 1288.4 regarding service of the award and timing of the Petition have been satisfied.
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, which is an attorney-client fee dispute arbitration agreement. (Pet., Attachment 4(b).) It also sets forth the name of the Arbitrator, D. Steve Cameron. (Pet., ¶4.) Finally, the Petition attaches a copy of the Award. (Pet., Attachment 6(c).) The Court, therefore, finds the substantive portion of the Petition has been satisfied.
Attorney’s Fees, Costs and Other Charges
To the extent Petitioner requests attorney’s fees and costs according to proof (Pet., ¶¶10(e)-(f)), those are permitted on a petition to confirm arbitration award. (Code Civ. Proc., § 1293.2; MBNA America Bank, N.A. v. Gorman (2006) 147 Cal.App.4th.Supp. 1, 7.) Petitioner may file a memorandum of costs pursuant to Cal. Rules of Court Rule 3.1700 and a noticed motion for attorney’s fees pursuant to Cal. Rules of Court Rule 3.1702.
Based on the foregoing, the Petition to Confirm Arbitration Award is CONTINUED TO JANUARY 25, 2021 AT 09:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE CONTINUED HEARING DATE PETITIONER IS ORDERED TO FILE AND SERVE PAPERS DEMONSTRATING PROPER SERVICE OF THE ARBITRATION AWARD, NOTICE OF HEARING AND PETITION IN ACCORDANCE WITH THE STATUTORY REQUIREMENTS. FAILURE TO DO SO MAY RESULT IN THE PETITION BEING PLACED OFF CALENDAR OR DENIED.Moving party to give notice