PAUL SELVIN VS MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., ET AL.

Tentative Rulings

Case Number: 20STCP03084    Hearing Date: March 30, 2021    Dept: 25

HEARING DATE: Tue., March 30, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Selvin v. Merrill Lynch, Pierce, Fenner & Smith Inc., et al.

PROCEEDINGS: PETITION TO CONFIRM FINRA DISPUTE RESOLUTION ARBITRATION AWARD

MOVING PARTY: Petitioner Paul Selvin

RESP. PARTY: None

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Paul Selvin’s Petition to Confirm FINRA Dispute Resolution Arbitration Award is GRANTED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of March 26, 2021 [ ] Late [X] None

REPLY: None filed as of March 26, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On August 28, 2020, Arbitrator Arthur Neil Tolciss (the “Arbitrator”) with FINRA Dispute Resolution Services issued an Arbitration Award in favor of Petitioner Paul Selvin (“Petitioner”) and against Respondent Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”). The Award required the expungement of all references to Occurrence Number 177393 from the registration records maintained by the Central Registration Depository (the “CRD”), Number 1849289. (Pet., Exh. 1.) The CRD is a database maintained by FINRA for firms and individuals that participate in the U.S. securities industry.

Petitioner filed the instant Verified Petition to Confirm FINRA Dispute Resolution Arbitration Award (the “Petition”) against Respondent Merrill Lynch and the Financial Industry Regulatory Authority (“FINRA”) (collectively, “Respondents”) on September 25, 2020. No oppositions were filed.

At the initial hearing on January 29, 2021, the Court continued the hearing because Petitioner had not filed proofs of service demonstrating the Petition was properly served on Respondents. (1/29/20 Minute Order.) Notably, proofs of service were untimely filed, so the Court did not have an opportunity to review and consider them before issuing its January 29 ruling.

On March 22, Respondent Merrill Lynch filed a response to the Petition. (3/22/21 Response, ¶¶ 2-3.)

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, supra, at p. 1063-64.)

III. Discussion

A. Filing Requirements (Code Civ. Proc., § 1285.4)

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.”

Petitioner attached a copy of the parties’ agreement to arbitrate their dispute with FINRA and attached a copy of the Arbitration Award, which includes the name of the neutral Arbitrator. Thus, Petitioner satisfied Section 1285.4

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

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.

The parties' agreement to arbitrate does not set forth the appropriate means of service for a petition to confirm an arbitration award. Thus, the Petition must be served in the same manner as service of summons. Service of a summons may be accomplished by personal service, by substitute service, by mail with acknowledgment of receipt, or by publication. (Code Civ. Proc., § 415.10, et seq.)

Petitioner filed proofs of service demonstrating Respondent FINRA was personally served on October 21, 2020. (1/26/20 FINRA Proof of Service.) Petitioner also filed a proof of service demonstrating Respondent Merrill Lynch was electronically served with the Petition and Notice of Hearing on October 21, 2020. (1/26/20 Merrill Lynch Proof of Service.) Electronic service is not an appropriate means by which to serve a summons and complaint. (See Code Civ. Proc., § 415.10, et seq.) However, given that Respondent Merrill Lynch filed a response on March 22, 2021 notifying the Court it did not oppose and, in fact, affirmatively consented to the Petition, the Court finds the service requirements satisfied.

C. Service of the Arbitration Award (CCP § 1283.6) and Timing of Service of Petition (CCP §§ 1288, 1288.4)

Code of Civil Procedure section 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.” Here, the Arbitration Award states it was served on August 28, 2020 but does not include a proof of service. (Pet., Exh. 1.) However, “the sole function of the service of an award upon the parties to an arbitration is to give them notice of the existence and contents of the award.” (See Murray v. Civil Service Emp. Ins. Co., supra, at p. 799.) The Court finds that function was satisfied here.

In addition, a party may seek a court judgment confirming an arbitration award by filing and serving a petition no more than four years, but not less than 10 days, after the award is served. (Code Civ. Proc., §§ 1288, 1288.4.) Here, Petitioner filed the Petition on September 25, 2020, at least 10 days not more than four years after the parties were initially served with the Award on August 28, 2020. Thus, the requirements of Sections 1283.6, 1288, and 1288.4 are also satisfied.

IV. Conclusion & Order

For the foregoing reasons, Petitioner Paul Selvin’s Petition to Confirm FINRA Dispute Resolution Arbitration Award is GRANTED.

Moving party is ordered to give notice.

Case Number: 20STCP03084    Hearing Date: January 29, 2021    Dept: 25

HEARING DATE:   Fri., January 29, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME:  Selvin v. Merrill Lynch, Pierce, Fenner & Smith Inc.

PROCEEDINGS:     PETITION TO CONFIRM FINRA DISPUTE RESOLUTION ARBITRATION AWARD

MOVING PARTY:   Petitioner Paul Selvin

RESP. PARTY: None

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Paul Selvin’s Petition to Confirm FINRA Dispute Resolution Arbitration Award is CONTINUED TO MARCH 39, 2021 at 10:30_ a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Petition being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[   ] Correct Address (CCP §§ 1013, 1013a) NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of January 27, 2021 [   ] Late [X] None

REPLY: None filed as of January 27, 2021 [   ] Late [X] None

ANALYSIS:

1. Background

Petitioner Paul Selvin (“Petitioner”) filed the instant Verified Petition to Confirm FINRA Dispute Resolution Arbitration Award (the “Petition”) against Respondents Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) and the Financial Industry Regulatory Authority (“FINRA”) (collectively, “Respondents”) on September 25, 2020.

To date, no opposition has been filed.

1. 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, supra, at p. 1063-64.)

1. Discussion

A. Service of the Petition and Notice of Hearing (Code Civ. Proc., § 1290.4.)

As an initial matter, the Court notes Petitioner did not file a proof of service demonstrating Respondents were properly served with the Petition and notice of hearing.

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.

Thus, Petitioner is ordered to file a proof of service demonstrating the requirements of Section 1290.4 have been met.

1. Conclusion & Order

For the foregoing reasons, Petitioner Paul Selvin’s Petition to Confirm FINRA Dispute Resolution Arbitration Award is CONTINUED TO MARCH 30, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file supplemental papers addressing the deficiencies noted herein. Failure to do so may result in the Petition being placed off calendar or denied.

Moving party is ordered to give notice.