MICHAEL JOSEPH LEHMAN VS ANDY HERNANDEZ

Tentative Rulings

Case Number: 19STCP04787    Hearing Date: March 11, 2020    Dept: 26

Lehman v. Hernandez, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

*** MATTER WILL BE HEARD AT 10:30 AM, NOT 8:30 A.M.***

TENTATIVE RULING:

Petition of Michael Joseph Lehman to Confirm Arbitration Award is GRANTED. PETITIONER TO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS.

ANALYSIS:

Petitioner Michael Joseph Lehman (“Petitioner”) filed the instant Petition to Confirm Arbitration Award against Respondent Andy Hernandez (“Respondent”) on November 6, 2019. Default was entered against Respondent on December 31, 2016. To date, no opposition has been filed to the Petition.

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 Respondents “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 filed proof of service demonstrating substitute service of the Petition and Notice of Hearing on Respondent on November 16, 2019. (Proof of Service, filed 12/13/19.) The arbitration agreement does not set forth a manner of service of the Petition and Notice of Hearing. (Pet., Attachment 4(b).) As this service satisfies the requirements for service of a summons, the requirements for service under Code of Civil Procedure, section 1290.4 have been met.

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

Petitioner also demonstrates service of the arbitration award as required by Code of Civil Procedure section 1283.6. No proof of service is attached to the Arbitration Award, but it was served on Respondent in conjunction with the instant Petition. (Pet., Attachment 8(c).) This satisfies the statutory requirements as service of the arbitration award with the Petition is sufficient to overcome any irregularity in service of the Petition by the arbitrator. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.)

Also, under Code of Civil Procedure section 1288, a petition to confirm arbitration must be filed and served no more than four years after the award was served. The Award was issued on January 16, 2019, making the Petition timely filed and served. (Pet., ¶8 and Attachment 8(c).)

Therefore, the Court finds that the requirements of Code of Civil Procedure, sections 1283.6 and 1288 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:

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.

(Code Civ. Proc., § 1285.4.) The Petition complies with the above requirements. It sets forth the nature of the agreement to arbitrate, which is in a swimming pool construction contract. (Pet., Attachment 4(b).) It also sets forth the name of the Arbitrator (Stephen L. Backus, Esq.) and attaches a copy of the Award to the Petition. (Pet., Attachment 8(c).) The Petition demonstrates that on January 16, 2019, the arbitrator issued an award requiring Respondent to reimburse Petitioner $2,295.00. Accordingly, Petitioner has complied with the requirements of Code of Civil Procedure, section 1285.4.

Attorney’s Fees and Costs

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.

Conclusion

Based on the foregoing, the Petition of Michael Joseph Lehman to Confirm Arbitration Award is GRANTED. PETITIONER TO FILE A PROPOSED JUDGMENT WITHIN TEN (10) DAYS.

Moving party to give notice.