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Wells Fargo Bank, N.A. v. Diaz

Case Number

23CV03321

Case Type

Civil Law & Motion

Hearing Date / Time

Tue, 09/19/2023 - 08:30

Nature of Proceedings

Petition to Confirm Arbitration Award

Tentative Ruling

On July 31, 2023, petitioners Wells Fargo Bank, N.A. and Vera Biely (petitioners) filed a petition to confirm a contractual arbitration award (petition) against respondent Sabrina Villareal Diaz (respondent), pursuant to Code of Civil Procedures section 1285.[1]  The petition has been filed on Judicial Council form ADR-106, and is supplemented with a notice of hearing and memorandum of points and authorities; a declaration from attorney Paul Berkowitz; a copy of the arbitration agreement (indicating among other things that arbitration is governed by the Federal Arbitration Act (FAA)); the first amended complaint filed with the arbitrator; and the written arbitration award.  Briefly, respondent advanced six causes of action predicated on violations of the Fair Employment and Housing Act (the FEHA), involving unlawful harassment, discrimination, and retaliation stemming from respondent’s disability.  The arbitration hearing occurred on July 13, 2023, before “Sole Neutral Arbitrator” Fredric Horowitz, Esq.  In a written order, Mr. Horowitz ultimately granted summary judgment in favor of petitioners, concluding there were no triable issues of disputed fact as to any of the six causes of action; the arbitrator dismissed all six causes of action, dismissed respondent’s prayer for relief in its entirety, and denied respondent’s request for an award of attorney’s fees pursuant to Government Code section 12965, subdivision (c)(6).  As of this writing no response has been filed. 

            Pursuant to the statutory scheme, a petition must set forth the substance of the agreement to arbitrate the name(s) of the arbitrator, and attach a copy of the written arbitration award.  (Code Civ. Proc.,[2] § 1285.4, subd. (a)-(c); Loeb v. Record (2008) 162 Cal.App.4th 431, 4650.)  The petition (and associated documents) must be served and filed at least 10 days after service of the signed copy of the award  upon petitioner (§ 1288.4) and “not later than four years after the date of service of a signed copy of the award on the petitioner. . . .”  (§ 1288.)[3]  If these requirements are satisfied, the court must enter the arbitration award as a judgment.  That is, unless a petition to correct or vacate the award has been timely filed, the court must render judgment confirming the arbitrator’s award.  (§ 1286 [the court “shall confirm the award as made”]; see Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 9 [the strict limitations of § 1286 are seldom acknowledged in the case law; if the trial court does not dismiss or correct or vacate it must confirm the award, and entry of judgment in conformity therewith is required]; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818 [same].)  Costs incurred in judicial proceedings to confirm an arbitration award are recoverable by the prevailing party as a matter of right. (§ 1293.2; Austin v. Allstate Ins. Co. (1993) 16 CA4th 1812, 1815-1816; see also Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 805-808.)  A judgment so entered has the same force and effect as, and is subject to the provisions of law relating to, a judgment in a civil action of the same jurisdictional classification, and may be enforced like any other judgment.  (§ 1287.4.) 

            One additional requirement should be noted (although not addressed by petitioners in their briefing), as the arbitration agreement clearly indicates the arbitration was governed by the FAA. (9 U.S.C. §1.)  Generally, an arbitration award under the FAA is confirmable only if the parties have agreed judgment may be entered on the award.  (9 U.S.C § 9 (hereafter, section 9).)  Nevertheless, published California appellate authority has concluded that the latter provision is procedural only, not substantive, and therefore “does not apply in state court proceedings.”  (Swissmex-Rapid S.A. de C.V. v. SP Systems, LLC (2012) 212 Cal.App.4th 539, 541.)  In any event, even should the court assume arguendo that section 9 does apply to state court proceedings so as to require the parties’ prior consent to judicial confirmation of any arbitration award, an arbitration agreement does so when it expressly provides that disputes are to be resolved under the arbitration rules of the American Arbitration Association (AAA).[4]  (Id. at pp. 541-542.) 

            All statutory requirements appear to have been satisfied.  Petitioners have submitted all documents, including the arbitration agreement, the arbitration award, and offered the name of the arbitrator.  All submissions, including a notice of hearing, were personally served on respondent and served by express mail (both at the same address).  The hearing is timely.  Respondent has not filed a response of any kind.  And as noted above in fn. 2, ante, even if the court assumes that section 9 applies substantively to the present matter, respondent, by agreeing to the AAA Employment Arbitration Rules, consented to a judicial confirmation of the arbitration award in compliance with the FAA.  Finally, while petitioners in their Judicial Council form generically request costs, no actual costs have been detailed either in the briefing or in the proposed order.  Accordingly, no costs will be awarded.    

             The court will grant the petition, enter the arbitration award as a judgment, award no costs, and sign petitioner’s proposed order.  The court directs the clerk to send a notice of entry of judgment to the parties. 

[1]              This provision provides as follows: “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 respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.” 

[2]              All further statutory references are to the Code of Civil Procedure. 

[3]              Section 1290.4 provides that a copy of the petition and written notice of the time and place of the hearing  and any other papers shall be served in manner provided in the arbitration agreement.  If the arbitration agreement is silent on this topic, 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, service within this state shall be made in the manner  provided for the service of summons and a complaint.  (§ 1290.4, subds. (a), (b).)

[4]              The arbitration agreement here expressly indicates that the AAA’s “Employment Arbitration Rules” apply.  Effective January 1, 2023, Rule 42(c) of “Employment Arbitration rules and Mediation Procedures” from the AAA  provided that parties “to these procedures shall be deemed to have consented that judgment upon the arbitration award may be entered in any federal or state court having jurisdiction.”  This is the exact language in the AAA Commercial Arbitration Rules Rule R-48(c) at issue in Swissmex-Rapid S.A. de C.V., supra, 212 Cal.App.4th at page 542, pursuant to which the Swissmex-Rapid court concluded the parties had consented to judicial confirmation to any arbitration award as required under the FAA.    

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