Case Number: BC680172 Hearing Date: March 07, 2018 Dept: 92

SCOTT FARBER, et al.,

Petitioner(s),

v.

State Farm Mutual Automobile Insurance Company,

Respondent(s).

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Case No.: BC680172

[TENTATIVE] ORDER DENYING WITHOUT PREJUDICE PETITION TO CONFIRM ARBITRATION AWARD

Department 92

8:30 a.m.

March 7, 2018

Petitioners Scott Farber and Misty Fodo filed this petition to confirm an arbitration award entered in their favor and against Respondent, State Farm Automobile Insurance Company. Their Motion to Confirm Arbitration Award is denied without prejudice.

Petitioners originally brought their motion in October 2017. The Court denied the motion without prejudice on January 30, 2018 for (1) failure to attach a copy of the parties’ agreement to arbitrate and (2) failure to properly serve the motion upon Respondent. Petitioners refiled on January 31, 2018.

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (C.C.P. § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) A party satisfied with an arbitration award should move to confirm the award. A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years, after the award is served. (C.C.P. §§ 1288, 1288.4.)

The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (C.C.P. § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) If the award is confirmed, an enforceable judgment is entered with the same force and effect as a judgment in a civil action. (C.C.P. § 1287.4.) The losing party cannot prevent entry of judgment by paying whatever amount has been awarded. (Pacific Law Group USA v. Gibson (1992) 6 Cal.App.4th 577, 580.) The court may enter judgment on proof the award has been paid. (C.C.P. § 724.050(d).)

As to service of the motion, Petitioners filed proof of hand delivery on February 9, 2018. The proof indicates service on Respondent’s counsel’s office on January 31, 2018. Respondent objects to service on its attorneys as improper and not pursuant to any agreement between the parties. Petitioners have provided a proof of hand delivery indicating service on CSC-Lawyers Incorporating Service, Respondent’s registered agent for service of process, on January 31, 2018. The service list in Petitioners’ January 31, 2018 filing of their motion also indicates service on CSC-Lawyers Incorporating Service. Petitioners provide information from the Secretary of State’s website indicating CSC-Lawyers Incorporating Service is Respondent’s registered agent for service of process. Accordingly, there was proper service of the motion on Respondent by and through its registered agent for service of process.

A copy of the parties’ agreement to arbitrate must be attached to the petition. (C.C.P. § 1285.4.) The Court cannot locate a copy of the agreement to arbitrate attached to the petition. While a copy is provided by Respondent in its Opposition and Petitioners in their Reply, there is no copy attached to the petition. Therefore, the requirement of section 1285.4 still has not been met. Petitioners must attach a copy to the petition to meet the statutory requirement.

Additionally, Petitioners seek an award of costs pursuant to Code of Civil Procedure section 998. When a case has gone to contractual arbitration, an award of section 998 cost-shifting penalties must be sought from the arbitrator, rather than the court; the court may not award section 998 costs that have not first been requested from the arbitrators. (Maaso v. Signer (2012) 203 Cal.App.4th 362, 377.) Petitioners have not shown in their moving papers that they made offers under section 998, nor have they shown that they sought such costs from the arbitrator. The Court notes that Petitioners, in their Reply, provided copies of their section 998 offers and an email from the arbitrator indicating he wanted the court to make the decision on section 998 costs. However, the general rule of motion practice is that new evidence is not permitted with reply papers. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.) The inclusion of additional evidence with the reply should only be allowed in an exceptional case. (Id.) The Court finds this is not an exceptional case and declines to consider the evidence first included in the Reply.

Petitioners’ motion to confirm the arbitration award is denied without prejudice for failure to attach the agreement of the parties to arbitrate to the petition. Additionally, any request for costs pursuant to section 998 is denied without prejudice for failure to provide (1) evidence of section 998 offers and (2) a request for section 998 costs from the arbitrator in the moving papers.