LAWRENCE ROSE VS KIRK RETZ

Tentative Rulings

Case Number: BC493252    Hearing Date: November 14, 2019    Dept: 48

PETITION TO CONFIRM ARBITRATION AWARD

MOVING PARTY: Petitioner/Defendant/Cross-Complainant Kirk J. Retz

RESPONDING PARTY(S): Respondent/Plaintiff/Cross-Defendant Lawrence Rose

PROOF OF SERVICE:

• Correct Address: No proof of service re: notice of hearing date.
• 16/21 (CCP § 1005(b)): No proof of service re: notice of hearing date; however, an opposition was filed on the merits without objecting to any defect in notice, thereby waiving any such defect.

• GRANT petition to confirm arbitration award.

  Petition to Confirm Arbitration Award

  Request for Judicial Notice

  Respondent’s request that the Court take judicial notice of the Declarations filed regarding court documents pertaining to this action is GRANTED per Evid. Code § 452(d)(court records).

  Petitioner’s request that the Court take judicial notice of the March 1, 2019 notice of ruling filed in this case is GRANTED.

  Discussion

  On February 7, 2019, the Court denied Plaintiff/Cross-Defendant Rose’s petition to correct the arbitration award. The Court only addressed the sole ground specified in the Petition to Correct that the award should be corrected because the arbitrator exceeded his authority by issuing a monetary award that was in part attributable to claims of a nonparty to the arbitration agreement. CCP § 1286.6(b). The Court rejected this argument, finding that the Court must defer to the arbitrator’s implied findings in the award, and that the Court may not correct an award based upon a legal or factual error. The Court also noted that although Attachment 10(b)(2) to the Petition to Correct indicated that the arbitrator and attorney Lundy were classmates at Loyola Law School and are Facebook friends, Petitioner expressly does not seek to vacate the arbitration award based on this ground. Petition to Vacate, Attachment 10(b)(2), Page 7.

  Rose did not bring a timely motion for reconsideration of the Court’s denial of the Petition to Correct in accordance with CCP § 1008. Instead, Rose now seeks to vacate the arbitration award by way of his response to Retz’s Petition to Confirm Arbitration Award. Unfortunately for Rose, such an attempt is time-barred because a response requesting that the award be vacated must be served and filed not later than 100 days after the date of the signed copy of the award upon the respondent. CCP § 1288.2. Here, the Interim Award was served by mail on September 6, 2018, and became final after 30 days by virtue of no further action having been taken before that time. Petition, Attachment 8(c).

  A response requesting that an award be vacated or that an award be corrected shall be served and filed not later than 100 days after the date of service of a signed copy of the award upon:

  (a)  The respondent if he was a party to the arbitration; or

  (b)  The respondent’s representative if the respondent was not a party to the arbitration.

  CCP § 1288.2 (bold emphasis and underlining added).

  The time for Rose to serve and file a response requesting that the award be vacated expired on December 15, 2018.

  Not only is Rose precluded from filing a response seeking vacation of the arbitration award, his response was not timely served and filed within 10 days after service of the petition or even 30 days after service of the petition—CCP § 1290.6:

  A response shall be served and filed within 10 days after service of the petition except that if the petition is served in the manner provided in paragraph (2) of subdivision (b) of Section 1290.4[1], the response shall be served and filed within 30 days after service of the petition. The time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court.

  CCP § 1290.6.

  Here, the Petition to Confirm Arbitration Award was served upon Respondent Rose’s counsel on July 11, 2019. Rose’s Opposition (Response) to the Petition to Confirm was not served and filed until October 31, 2019—301 days after service of the Petition upon Rose’s counsel.

  For the above reasons, Rose’s request that the Court vacate the arbitration award is untimely.

  Any party to an arbitration award may petition the court to confirm, correct, or vacate the award. CCP § 1285. “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.” CCP § 1286 (bold emphasis added). A petition to confirm a binding arbitration shall name as respondents all parties to the arbitration and may name any other parties to be bound by the award. CCP § 1285. The petition shall (1) set forth the substance of or have attached a copy of the agreement to arbitrate unless petitioner denies the existence of such an agreement; (2) set forth the name(s) of the arbitrator(s); and (3) set forth or have attached a copy of the award and written opinion of the arbitrator. CCP § 1285.4(a)-(c).

  The petition to confirm must be served and filed no later than four years after the date of service of a signed copy of the award on the petitioner (CCP § 1288) but may not be served and filed until at least 10 days after service of the signed copy of the award upon the petitioner. CCP § 1288.4.

  Because Respondent Rose previously appeared in this proceeding as the Plaintiff who filed a Complaint for malpractice, service of the Petition by mail was proper. CCP § 1290.4(c).