Case Number: EC064430 Hearing Date: February 05, 2021 Dept: D
Case No. EC064430 Trial Date: None Set
Case Name: Hotvet v. First Wilshire Securities Management, Inc.
PETITION TO CONFIRM ARBITRATION AWARD
Moving Party: Petitioner First Wilshire Securities Management, Inc.
Responding Party: Respondent Jill Brightwell Hotvet (No Opposition)
MOTION TO CONFIRM ARBITRATION AWARD
FACTUAL and PROCEDURAL BACKGROUND:
Plaintiff Jill Brightwell Hotvet brings this action against her former employer, defendant First Wilshire Securities Management, Inc., alleging that from March of 2003 through February 28, 2015, she worked as Director of Client Relations, pursuant to Agreements setting forth commissions that defendant employer was to pay plaintiff. Plaintiff alleges that defendant altered plaintiff’s commission formula in 2010 as part of a scheme to intimidate plaintiff, and also changed other employment conditions, and maintained a hostile and unfair work environment. Plaintiff alleges that defendant ultimately terminated plaintiff after blaming her for an incident with a client, and unlawfully deducting sums connected with the incident from plaintiff’s expected commissions, after plaintiff had complained that the deduction was unlawful.
The complaint alleges causes of action for wrongful termination in violation of public policy, violation of Labor Code section 1102.5, various wage and hour violations, breach of contract, breach of implied covenant of good faith and fair dealing, declaratory relief, and violation of Business & Professions Code § 17200.
On February 26, 2016, the court heard a petition brought by defendant First Wilshire to compel arbitration. The court denied the petition. Defendant appealed the court’s order.
On May 7, 2018, the court of appeal filed its decision and remittitur. The trial court’s order was affirmed in part, reversed in part and remanded with directions.
The order denying Management’s petition to compel arbitration of plaintiff Hotvet’s fifth through tenth and twelfth cause of action was reversed, and the superior court directed to enter a new order granting Management’s petition to compel arbitration of those claims. In all other respects the order denying arbitration was affirmed. The court of appeal also directed, “On remand the superior court will have the opportunity to exercise its discretion under Code of Civil Procedure section 1281.2 to determine the timing of the arbitration.” The parties were ordered to bear their own costs on appeal.
On August 22, 2018, the court conducted a Status Conference Re Arbitration, and ordered defendant to pay the cost of arbitration, lifted the automatic stay “only as to the Non Arbitrable Issues,” and indicated that “Pursuant to Section 1281.2 of the Code of Civil Procedure the 13th Cause of Action (PAGA Claim) is reserved for this Court.”
On February 1, 2019, the court heard a motion brought by defendant to amend or vacate the August 22, 2018 order. The motion was granted in part and denied in part. The court modified the August 22, 2018 order to require plaintiff to pay no more than $200 in fees as determined by FINRA, denied a request that the court order the 13th Cause of Action (PAGA) to arbitration, and granted a request to stay the entire matter. The court instead ordered the matter stated in its entirety until the arbitration was conducted.
With respect to the enforcement of arbitration awards, CCP § 1286 provides:
“If a petition...under this chapter is duly served and filed, the court shall confirm the award as made... unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”
Under CCP §§ 1286.4 and 1286.8, governing the conditions for vacating or correcting an award, the court may not vacate or correct an award unless a response requesting that the award be corrected or vacated has been duly served and filed. Such a response to a petition must be filed within 10 days after service of the petition. CCP § 1290.6. Under CCP § 1290, “The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed.” In this case, the petition was served by email on September 29, 2020. Permitting an additional two days for service by electronic service, any opposition was to be filed by October 11, a Sunday. As Monday, October 12, 2020 was a court holiday, opposition was due to be filed by October 13, 2020. No opposition has been filed. The petition is granted on the simple ground that there has been no request that the award by corrected or vacated.
CCP § 1285.4 provides:
“A petition under this chapter shall:
(a) Set forth the substance of or have attached a copy of the agreement to arbitrate...
(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.”
The petition satisfies these requirements. As indicated above, if a petition is duly served and filed, the court shall confirm the award, unless it either corrects or vacates the award or dismisses the proceeding in accordance with the sections governing those proceedings. CCP § 1286. A trial court decision confirming an arbitration award will be upheld on review if it is supported by substantial evidence. Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4th 1530.
The Petition indicates that the parties participated in a seven-day arbitration hearing before a panel of three arbitrators selected pursuant to FINRA arbitration rules in February and August of 2020, and that the panel issued its award on September 2, 2020.
The Award provides, in pertinent part:
“On August 28, 2019, the parties submitted a Stipulation Regarding Causes of Action at Issue in Arbitration which outlined which causes of action were compelled to arbitration and which would be heard in the civil court case. Based on the stipulation, the following causes of action from Claimant’s
Statement of Claim are to be decided by the Panel:
• First – failure to pay minimum wages;
• Second – failure to pay overtime wages;
• Third – failure to pay rest period premiums;
• Fourth – violation of Labor Code section 226;
• Fifth – breach of contract;
• Sixth – breach of the covenant of good faith and fair dealing;
• Seventh – declaratory relief; and
• Eighth – violation of business and professions code section 17200.
The Award in this matter may be executed in counterpart copies.
After considering the pleadings, the testimony and evidence presented at the hearing, and any post-hearing submissions, the Panel has decided in full and final resolution of the issues submitted for determination as follows:
1. Claimant’s claims are denied in their entirety.
2. Any and all claims for relief not specifically addressed herein, including any requests for punitive damages and attorneys’ fees, are denied.”
[Petition, Attach 8(c), Lieb Decl., Ex. B].
The petition requests that the court confirm the award and enter judgment according to it. There is no opposition, and no apparent basis to correct or vacate the award as issued, and the court will confirm the award and enter judgment in accordance with the Award served September 2, 2020.
UNOPPOSED Petition to confirm contractual arbitration award is GRANTED. The Court notes that there has been no timely response to the petition pursuant to CCP § 1290.6, and, accordingly, under CCP § 1290, the allegations of the petition are deemed admitted by respondent. Judgment to be entered in conformance with the Award served September 2, 2020.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.