Cappello & Noel LLP vs Stuart Rubin et al

Case Number

22CV04486

Case Type

Hearing Date / Time

Fri, 01/16/2026 - 10:00

Nature of Proceedings

Motion to Confirm Award and Enter Judgment

Tentative Ruling

For all reasons stated herein, petitioner Cappello & Noël LLP’s motion is granted. The court confirms the arbitration award as to respondents Stuart Rubin and Annette Rubin, individually and as Trustees of the Stuart and Annette Rubin Family Trust dated November 4, 2003, and will enter judgment thereon in favor of petitioner and against these respondents pursuant to the arbitration award.

Background:

On November 14, 2022, petitioner Cappello & Noël LLP (Petitioner) initiated this action against respondents Stuart Rubin and Annette Rubin, individually and as trustees of the Stuart and Annette Rubin Family Trust dated November 4, 2003, and Dusty Berke as trustee of the Stuart Rubin Children’s Trust Dated December 21st, 2001 (collectively, Respondents), by filing a petition to confirm a contractual arbitration award in an amount exceeding $25,000.

As alleged in the petition:

On August 24, 2020, Petitioner and Respondents entered into a written agreement for legal services pursuant to which the parties agreed to arbitrate any dispute over fees, charges, costs, or expenses (Retainer Agreement). (Pet., ¶ 4, Attach 4(B).)

A dispute arose over to the failure to pay attorney fees pursuant to the Retainer Agreement. (Pet., ¶ 5.)

On August 26, 2022, an arbitration was conducted in Los Angeles County via Zoom. (Pet., ¶ 7.)

On November 1, 2022, an arbitration award was rendered requiring Respondents, as to each of them jointly and severally, to pay Petitioner $447,028.90, plus pre-award interest at ten percent per annum from March 2, 2021, plus post-award interest at 10 percent per annum from the date of the award, plus costs of arbitration in the amount of $25,996.27. (Arbitration Award). (Pet., ¶ 8, Attach. 8(C) at p. 12.)

On November 3, 2022, a signed copy of the Arbitration Award was served on Respondents. (Pet., ¶ 9.)

Petitioner requests that the court confirm the Arbitration Award, award Petitioner interest and costs of suit, and enter judgment. (Pet., ¶ 10 subds. (a), (d) & (e).)

On January 17, 2023, the court entered an order granting Petitioner additional time to serve Respondents in this action. (Ex Parte Order, Jan. 17, 2023.) The court found good cause based on evidence presented that Petitioner could not locate and personally serve Respondents, Respondents’ known properties had been sold via foreclosure sales, and Respondents did not respond to multiple emails. (Id. at ¶ 8.) Respondents’ attorneys of record in other pending actions were also contacted by email but refused to accept service. (Ibid.)

On March 29, 2023, Petitioner filed a motion for an order permitting Petitioner to serve Respondents by publication or alternative means pursuant to Code of Civil Procedure section 415.10 et seq.

On April 11, 2023, the court entered an order granting Petitioner additional time to serve Respondents in this action. (Ex Parte Order, April 11, 2023.)

On July 19, 2023, the court entered an order granting in part Petitioner’s motion for service by publication or alternative means as to respondents Stuart Rubin and Annette Rubin, both individually and in their capacities as trustees of the Stuart and Annette Rubin Family Trust dated November 4, 2003 (collectively, the Rubins), but denying the motion as to Respondent Dusty Berke, as trustee of the Stuart Rubin Children’s Trust dated December 21, 2001 (Children’s Trust). (Order, July 19, 2023, ¶¶ 1-4, Ex. A.) The Court also extended the time to serve Respondents in this action by 90 days from July 7, 2023, to October 5, 2023. (Id. at ¶ 4.)

As to the Rubins, the court permitted Petitioner to serve them “by publication in both the Santa Barbara Independent and the Los Angeles Times …. Although the Court … declined to permit service by email, it … direct[ed] that [Petitioner] provide emailed notification to the Rubins directly, and to each of their attorneys in the other pending litigations in which they are involved, of the fact that this Court has authorized their service by publication in this proceeding, and to attach a copy of this Court’s order permitting such publication to the email.” (Order, July 19, 2023, Ex. A.)

On August 29, 2025, Petitioner filed this motion to confirm the arbitration award and enter judgment in accordance therewith in favor of Petitioner and against the Rubins. The motion argues and presents evidence that the Rubins were served with process via publication in compliance with the court’s July 19, 2023, order and that Petitioner has otherwise complied with the court’s July 19 order. Petitioner argues that the court must now enter judgment.

The Rubins have not appeared in this action and did not file an opposition or response to this motion. To date, Petitioner has not presented evidence that the Children’s Trust has been served with process in this action. The Children’s Trust did not file an opposition or response to this motion.

Analysis:

(1)       Service of Process on the Rubins by Publication

Service of “the petition … shall … [¶] … [¶] … within this State … be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a) & (b)(1).)

Service of a summons by publication “is deemed complete as provided in Section 6064 of the Government Code.” (Code Civ. Proc., § 415.50, subd. (c).) “Publication … shall be once a week for four successive weeks. Four publications in a newspaper regularly published once a week or oftener, with at least five days intervening between the respective publication dates not counting such publication dates, are sufficient. The period of notice commences with the first day of publication and terminates at the end of the twenty-eighth day, including therein the first day.” (Gov. Code, § 6064.)

“Proof of publication may be made by the affidavit of the publisher or printer, or the foreman or principal clerk of the publisher or printer, showing the time and place of publication … [¶] … [¶] … or … by testimonial evidence.” (Code Civ. Proc., § 684.220, subds. (e) & (g).)

On October 4, 2023, Petitioner filed a proof of service attaching a declaration from the principal clerk of the printer of The Santa Barbara Independent, declaring that publication of the summons directed to the Rubins occurred on July 27, August 3, August 10, and August 17, 2023. (Proof of Service, filed October 4, 2023, Ex. A.) According to this declaration, “[t]he Santa Barbara Independent, a newspaper of general circulation, printed and published weekly, in the City of Santa Barbara, County of Santa Barbara, and … has been adjudged a newspaper of general circulation by the Superior court of the County of Santa Barbara, State of California.” (Ibid.; see also Declaration of Richard Lloyd ISO Motion (Lloyd Decl.), ¶ 5, Ex. C.)

The October 4, 2023, proof of service also attached a declaration from a principal clerk of the Los Angeles Times, declaring that publication of the summons directed to the Rubins occurred on July 28, August 4, August 11, and August 18, 2023. (Proof of Service, filed October 4, 2023, Ex. B.) According to this declaration, the “Los Angeles Times … was adjudged a newspaper of general circulation on May 20, 1952, Case Numbers# 598599 for the city of Los Angeles, County of Los Angeles and the State of California.” (Ibid.; see also Lloyd Decl., ¶ 5, Ex. C.)

The October 4, 2023, proof of service also attached emails dated September 25, 2023, sent to the Rubins and their current and former counsel which transmit the court’s order permitting service by publication. (Proof of Service, filed October 4, 2023, Ex. C; Lloyd Decl., ¶ 5, Ex. C.)

Petitioner established that the summons directed to the Rubins was published once a week for four successive weeks in both The Santa Barbara Independent and the Los Angeles Times as required by the court’s order dated July 19, 2023. (Proof of Service, filed October 4, 2023, Exs. A-B; Lloyd Decl., ¶ 5, Ex C.) Petitioner established it complied with the court’s July 19, 2023, order to provide email notice of the July 19 order to the Rubins and their current and former counsel. (Proof of Service, filed October 4, 2023, Ex. C, Lloyd Decl., ¶ 5, Ex. C.) Service of process by publication as to the Rubins was completed on August 18, 2023. (Proof of Service, filed October 4, 2023, Exs. A-B; Lloyd Decl., ¶ 5, Ex. C; Code Civ. Proc., §§ 415.50, subd. (c), 684.220, subds. (e) & (g), 1290.4, subds. (a) & (b)(1); Gov. Code, § 6064.)

(2)       Confirmation of Arbitration Award as to the Rubins

“Any party to an arbitration in which an award has been made may petition the court to confirm … the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” (Code Civ. Proc., § 1285.)

“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.)

“If a petition or response 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.” (Code Civ. Proc., § 1286.)

“The court may not vacate an award unless: [¶] (a) A petition or response requesting that the award be vacated has been duly served and filed; or [¶] (b) A petition or response requesting that the award be corrected has been duly served and filed ….” (Code Civ. Proc., § 1286.4, subds. (a) & (b).)

“The court may not correct an award unless: [¶] (a) A petition or response requesting that the award be corrected has been duly served and filed; or [¶] (b) A petition or response requesting that the award be vacated has been duly served and filed ….” (Code Civ. Proc., § 1286.8, subds. (a) & (b).)

“The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed….” (Code Civ. Proc., § 1290.)

Here, Petitioner alleged and established the Retainer Agreement containing the arbitration clause, the name of arbitrator, and the Arbitration Award. (Pet., ¶¶ 4-6, 8, Attachs. 4(B) & 8(C); Lloyd Decl., ¶ 3, Ex. A.) As set forth above, service of process by publication has been accomplished as to the Rubins. No response to the petition has been filed by any Respondents. Accordingly, the court will confirm the Arbitration Award as to the Rubins. (Code Civ. Proc., §§ 1286, 1290; Pet., Attach. 8(C); Lloyd Decl., Ex. A.)

(3)       Entry of Judgment as to the Rubins

“If an award is confirmed, judgment shall be entered in conformity therewith ….” (Code Civ. Proc., § 1287.4.) Pursuant to the Arbitration Award, the court will enter judgment in favor of Petitioner and against the Rubins. (Code Civ. Proc., § 1287.4; Pet., Attach. 8(C); Lloyd Decl., Ex. A.)

(4)       The Children’s Trust

No evidence has been presented to demonstrate service of process on the Children’s Trust in this action. This ruling, therefore, makes no finding as to the Children’s Trust. (See Code Civ. Proc., § 1286 [subject to exceptions court must confirm arbitration award “[i]f a petition or response under this chapter is duly served …”].)