Tentative Rulings

Case Number: 19STCP01975    Hearing Date: January 14, 2020    Dept: 94

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Mark Robert Fasano’s Petition is CONTINUED to MARCH 11, 2020 at 10:30 a.m. in Department 94. Petitioner is ordered to remedy all the defects identified herein.

ANALYSIS:

I. Background

Petitioner Mark Robert Fasano (“Petitioner”) asserted a claim against Respondent UBS Financial Services, Inc. (“Respondent”) seeking the expungement of a customer complaint, from his Central Registration Depository (“CRD”) records. The CRD is a database maintained by the Financial Industry Regulatory Authority (“FINRA”) for firms and individuals involved in the U.S. securities industry. On July 18, 2018, Petitioner signed a FINRA Arbitration Submission Agreement (the “Arbitration Agreement”). Respondent signed an Arbitration Agreement on August 2, 2018.

On March 21, 2019, A FINRA arbitrator awarded Petitioner expungement of all references to the customer complaint from registration records maintained by the CRD. (Pet., Attach. 8(c), p. 3.) In addition, the arbitration award specifically stated that “[u]nless waived in writing by FINRA, parties seeking judicial confirmation of an arbitration award containing expungement relief must name FINRA as an additional party and serve FINRA with all appropriate documents. (Id.) The Court notes that Petitioner did not name FINRA as an additional party.

On May 17, 2019, Petitioner filed a Petition to Confirm Attorney-Client Fee Arbitration Award. On June 3, 2019, Petitioner filed the instant Fist Amended Petition to Confirm Contractual Arbitration Award (the “Petition”).

To date, no opposition or reply briefs have been filed.

II. Legal Standard

“Regardless of the particular relief granted, any arbitrator’s award is enforceable only when confirmed as a judgment of the superior court.” (O’Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 278.) “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.” (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) “It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.) “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.” (EHM Productions at p. 1063-64.)

III. Discussion

A.

CCP § 1285.4 states: “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.

2. 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.”

Petitioner has submitted a copy of the arbitration award (Pet., Attach. 8(c)), the identity of the arbitrator (Ibid), and a copy of the Arbitration Agreement (Id., Attach. 4(b)). Accordingly, Petitioner has satisfied subsections (a) through (c) of Section 1285.4.

B. Service of the Arbitration Award, Petition, and Notice of Hearing (Code Civ. Proc., §§ 1283.6, 1290.4)

Code of Civil Procedure, section 1283.6 provides 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.”  (Italics added.)

Code of Civil Procedure, section 1290.4 states, in pertinent part:

“(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.

(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: ¶ (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.

Here, the Arbitration Agreement does not provide a manner by which to serve the petition, notice, and any other supporting papers. Thus, service of this petition must be made in the same manner as service of summons. Petitioner has not filed any proof of service in connection with this petition. Thus, Petitioner has not satisfied Code of Civil Procedure, section 1290.4.

In addition, Petitioner has not provided proof to show that FINRA served the arbitration award on Petitioner and Respondent as required by Code of Civil Procedure, section 1283.6. Thus, Petitioner has failed to satisfy section 1283.6.

C. Timeliness of Petition (Code Civ. Proc., §§ 1288, 1288.4)

A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years after the award is served on Respondents and Petitioners.  (Code Civ. Proc., §§ 1288, 1288.4.) (Italics added.)

Because there is no proof to show when the arbitrator served the arbitration award of Respondent and Petitioner, the Court cannot determine if the Petition is timely under Code of Civil Procedure sections 1288 and 1288.4.

IV. Conclusion & Order

Based on the foregoing, Petitioner Mark Robert Fasano’s Petition is CONTINUED to MARCH 11, 2020 at 19:30 a.m. in Department 94. Petitioner is ordered to remedy all the defects identified herein.

Moving party is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Case Number: 19STCP01975    Hearing Date: November 12, 2019    Dept: 94

PETITION TO CONFIRM ARBITRATION

(CCP § 1285)

TENTATIVE RULING:

The Petition to Confirm Arbitration Award is DENIED without prejudice. Petitioner is ordered to provide proof of written waiver by FINRA or proof of service of all appropriate documents in support of his Petition on FINRA in order to confirm this Arbitration Award.

ANALYSIS

: On February 11, 2019, the arbitrator, Milton N. Gross, (“Arbitrator”) issued an arbitration award (“Arbitration Award”) in favor of Petitioner Mark Robert Fasano (“Petitioner”) and against Respondent UBS Financial Services, Inc. (“Respondent”), which states in pertinent part:

“The Arbitrator recommends the expungement of all references to occurrence

number 1388583 from registration records maintained by the CRD, for Claimant

Mark Robert Fasano (CRD# 1617990), with the understanding that, pursuant to

Notice to Members 04-16, Claimant Mark Robert Fasano must obtain confirmation

from a court of competent jurisdiction before the CRD will execute the expungement

directive.

Unless specifically waived in writing by FINRA, parties seeking judicial confirmation

of an arbitration award containing expungement relief must name FINRA as an

additional party and serve FINRA with all appropriate documents.”

(Attachment 8(c), p. 3.)

After the award was issued and served on the parties, Petitioner filed a Petition to Confirm Arbitration Award (“Initial Petition”) on May 17, 2019. On May 22, 2019, Petitioner filed a notice of withdrawal of the Initial Petition. On June 3, 2019, Petitioner filed an amended petition (“Petition”) including a FINRA Arbitration Submission Agreement signed by the parties.

II. Legal Standard

“Regardless of the particular relief granted, any arbitrator’s award is enforceable only when confirmed as a judgment of the superior court.” (O’Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 278.) “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.” (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063.) “It is well settled that the scope of judicial review of arbitration awards is extremely narrow.” (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 943.) “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.” (Ibid.)

III. Discussion

A. Filing Requirements (CCP § 1285.4)

CCP § 1285.4 states: “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.

2. Set forth the names of the arbitrators.

3. Set forth or have attached a copy of the award and the written opinion of the arbitrators, if

any.”

Petitioner has submitted a copy of the arbitration agreement (Attachment 4(b)), name of the arbitrator (Attachment 8(c), p. 5), and a copy of the Arbitration Award (Attachment 8(c)). Accordingly, Petitioner has satisfied the filing requirements of CCP § 1285.4.

B. Service of the Arbitration Award, Petition, and Notice of Hearing (CCP §§ 1283.6, 1290.4)

CCP § 1283.6 provides that: “The 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.”  (Italics added.)

CCP § 1290.4 states in pertinent part:

“(a) A copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice.

(b) If the arbitration agreement does not provide the manner in which such service shall be made and the person upon whom service is to be made has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision: ¶ (1) Service within this State shall be made in the manner provided by law for the service of summons in an action.”

Petitioner has submitted proof that the arbitrators served the Arbitration Award on Respondent (Attachment 8(c), p. 5) and that the Notice of Petition and Petition were served by mail with acknowledgement of receipt requested on Respondent. (Notice of Acknowledgement of Receipt filed 6/27/19). The Notice of Acknowledgement of Receipt reflects that Respondent’s Counsel completed the acknowledgement of receipt of the Petition and notice of hearing on June 25, 2019. Thus, CCP §§ 1283.6 and 1290.4 have been satisfied.

However, the Arbitration Award provides: “Unless specifically waived in writing by FINRA, parties seeking judicial confirmation of an arbitration award containing expungement relief must name FINRA as an additional party and serve FINRA with all appropriate documents.” (Attachment 8(c), p. 3.)

Petitioner does not provide a written waiver by FINRA. It also does not appear that Petitioner named FINRA as an additional party or served FINRA with notice of this hearing, the Petition, or documents supporting his Petition.

C. Timeliness of Petition

A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years after the award is served.  (CCP §§ 1288, 1288.4.) 

Because the Petition was filed and served about three months after the Arbitration Award was served, it is timely under CCP §§ 1288, 1288.4.

IV. Conclusion

For the foregoing reasons, the Petition is DENIED without prejudice. Petitioner is ordered to provide proof of a written waiver by FINRA or proof of service reflecting service of all documents filed in support of his Petition on FINRA in order to confirm this Arbitration Award.

Moving party is ordered to give notice.