PATRICIA BENNER LANDSCAPE DESIGN VS GERALD MALANGA

Tentative Rulings

Case Number: 20STCP00243    Hearing Date: August 06, 2020    Dept: 26

Patricia Brenner Landscape Design v. Malanga, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Patricia Brenner Landscape Design’s Petition to Confirm Arbitration Award is CONTINUED TO DECEMBER 3, 2020 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

ANALYSIS:

On November 18, 2019, an arbitrator issued an Arbitration Award in favor of Patricia Brenner Landscape Design (“Petitioner”) and against Gerald Malanga (“Respondent”). On January 17, 2010, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”). 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).)

The arbitration agreement does not provide for the manner of service of the Petition and Notice of Hearing, therefore, those documents must be served in the manner provided for service of a Summons. Here, Petitioner has only filed proof of service of the Notice of Hearing, and that only demonstrates service by mail. (Proof of Service, filed 1/21/20.) Similarly, proof of service of the Petition only demonstrates service by mail. (Pet., Proof of Service.) Service by first-class mail does not satisfy the requirements for service of summons in an action.

Therefore, Petitioner has not demonstrated 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.) Service of the arbitration award with the Petition itself 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.)

Here, the arbitration agreement does not provide for the manner of service, therefore, service of the award must be personally or by registered or certified mail. The only proof of service of the award, however, is by electronic mail on November 19, 2019. (Pet., Attachment 8(c).) Nor is service of the arbitration award with the instant Petition sufficient to meet the requirements of CCP section 1283.6. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.) As discussed above, service of the Petition does not comply with the statutory requirements.

Furthermore, 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 service, the Court cannot find that the requirements of Code of Civil Procedure sections 1283.6, 1288 and 1288.4 regarding service of the award and Petition 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. (Pet., Attachment 4(c).) It also sets forth the name of the Arbitrator, Leslie Steven Marks, Esq. (Pet., Attachment 4(b).) Finally, the Petition attaches a copy of the Award to the Amended Petition. (Pet., Attachment 8(c).) The Court, therefore, finds the substantive portion of the Petition has been satisfied.

Costs

To the extent Petitioner requests 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.

Conclusion

Based on the foregoing, the Petition to Confirm Arbitration Award is CONTINUED TO DECEMBER 3, 2020 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, PETITIONER IS TO FILE AND SERVE PAPERS CORRECTING THE DEFECTS NOTED ABOVE. FAILURE TO DO SO MAY RESULT IN THE PETITION BEING PLACED OFF CALENDAR OR DENIED.

Moving party to give notice.