Petition: Confirm Arbitration
Case Number
Case Type Civil Law & Motion Hearing Date / Time Fri, 06/26/2026 - 10:00 Nature of Proceedings Petition: Confirm Arbitration Tentative Ruling For the reasons stated herein, the petition of Marcus & Millichap Real Estate Investment Services, Inc., to confirm contractual arbitration award is ordered off-calendar.
Background: On February 18, 2026, petitioner Marcus & Millichap Real Estate Investment Services, Inc., (Petitioner) filed a petition against respondent Kevin Boeve (Respondent) to confirm a contractual arbitration award.
As alleged in the petition: On January 1, 2017, Petitioner and Respondent entered into a written agreement entitled "California Salesperson Agreement" (the Agreement), which provides for arbitration of "'[a]ll past, present, or future disputes or claims arising from or related to this Agreement or [Respondent's] affiliation with [Petitioner], including disputes or claims relating to any contract between [Petitioner] and [Respondent] shall be decided exclusively through mutual, binding arbitration before a single arbitrator' of the American AAA in accordance with its commercial rules and procedures." (Petition, P. 4(a), (b), (c) & attachment 4(b).)
A dispute arose between Petitioner and Respondent concerning matters which are covered by the agreement to arbitrate set forth above, as follows: As part of the Agreement, which included a "Business Support and Forgivable Loans" appendix, Respondent agreed that in the event his affiliation as an independent contractor for Petitioner terminated, he would pay back certain "loans" and "support" (for business development) provided to him by Petitioner. (Petition, P. 5.)
Respondent's affiliation terminated and per the terms of the parties' agreement, Respondent owed Petitioner for "loans" and "support" which Respondent failed to pay. (Ibid.)
After arbitration commenced, Petitioner and Respondent entered into a "Settlement Agreement" in which Respondent agreed to make installment payments to Petitioner to satisfy the debt owed. (Petition, P. 5.)
Pursuant to the Settlement Agreement, Respondent agreed to, among other things, the entry of a Consent Award in the event Respondent breached the Settlement Agreement. (Ibid.)
Respondent breached the Settlement Agreement by failing to make required installment payments when due. (Ibid.)
An arbitration involving the amount of $378,545.09 was held in Santa Barbara County through "Zoom" on September 9, 2025. (Petition, P.P. 3(b)(3)(a); (4)(a); 7(a), (b).)
Retired Judge Frank J. Ochoa was selected and appointed as the arbitrator. (Petition, P. 6.)
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An arbitration award (the Award) was made on September 19, 2025, which requires Respondent to pay the amount of $378,545.09. (Petition, P. 8(a), (d).)
The Award, a copy of which is included with the petition, was served on Petitioner on September 22, 2025. (Petition, P.P. 8(c), 9(a) & attachment 8(c).)
The petition requests an order confirming the Award, entry of judgment according to the Award, and an order awarding Petitioner interest from September 19, 2025, at the rate of 10 percent per year. (Petition, P. 10(a), (d)(2).)
On March 5, 2026, Petitioner filed notice (the Notice) of the hearing on the petition, which is set for June 26, 2026, at 10 a.m. in this Department.
A copy of the petition is attached to the Notice. (See Mar. 5, 2026, Notice, exhibit A.)
Respondent has not filed a response to the petition with the court.
Analysis: "Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award." (Code Civ. Proc., Sec. 1285.)
"If a petition or response under [Chapter 4 of the Code of Civil Procedure] 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." (Code Civ. Proc., Sec. 1286.)
"Pursuant to these statutory provisions, '[t]he procedure by which the prevailing party [in an arbitration] obtains an enforceable judgment is a petition to confirm the award.' [Citation.]" (Loeb v. Record (2008) 162 Cal.App.4th 431, 450.)
A proceeding to confirm, correct, or vacate an arbitration award "is commenced by filing [the] petition. Any person named as a respondent in a petition may file a response thereto." (Code Civ. Proc., Sec. 1290.)
"A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner." (Code Civ. Proc., Sec. 1288.)
"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 [Code of Civil Procedure] [s]ection 1290.4, the response shall be served and filed within 30 days after service of the petition." (Code Civ. Proc., Sec. 1290.6.)
"Proper service of process of [the petition] is the means by which a court obtains personal jurisdiction over a party." (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206, original italics [discussing statutory requirements].)
Accordingly, before the court may confirm an arbitration award, the petition must be "duly served and filed...." (Code Civ. Proc., Sec. 1286; see also Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 951 ["[t]he word 'duly' means '[i]n a proper manner; in accordance with legal requirements[]"] (citation omitted).)
Though Code of Civil Procedure section 1290.4 provides that "[a] copy of the petition and a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based shall be served in the manner provided in the arbitration agreement for the service of such petition and notice[]" (Code Civ. Proc., Sec. 1290.4, subd. (a).), the terms of the "Mutual Arbitration Agreement" appearing in paragraph 21 of the Agreement and set forth in the petition does not set forth the manner of service of the petition or Notice. (See Petition, attachment 8(b) at pp. 7-9, P. 21(a)-(f).)
As further noted above, Respondent has not appeared in this proceeding.
Relevant here, "[i]f the arbitration agreement does not provide the manner in which such service shall be made 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: "(1) Service within this State shall be made in the manner provided by law for the service of summons in an action.
"(2) Service outside this State shall be made by mailing the copy of the petition and notice and other papers by registered or certified mail. Personal service is the equivalent of such service by mail. Proof of service by mail shall be made by affidavit showing such mailing together with the return receipt of the United States Post Office bearing the signature of the person on whom service was made. Notwithstanding any other provision of this title, if service is made in the manner provided in this paragraph, the petition may not be heard until at least 30 days after the date of such service." (Code Civ. Proc., Sec. 1290.4, subd. (b)(1), (2).)
Court records reflect that on February 19, 2026, Petitioner filed a proof of service of the petition on Respondent by mail (the Mail Service), and separately filed a proof of electronic service of the petition on Respondent (the Electronic Service).
The Mail Service shows that Respondent is located in Claremont, California. (Mail Service, P. 5(a), (b).)
Therefore, and for all reasons discussed above, the petition must be served on Respondent in the same manner as a summons in a civil action. (Code Civ. Proc., Sec. 1290.4, subd. (b)(1).)
Subject to exception, Code of Civil Procedure section 413.10 requires a summons to be served on a person within this state "as provided in [Chapter 4]." (Code Civ. Proc., Sec. 413.10, subd. (a).)
Section 415.10 permits service of a summons "by personal delivery of a copy of the summons and of the complaint to the person to be served." (Code Civ. Proc., Sec. 415.10.)
In lieu of personal delivery, a summons may be served on an individual within the state in the manner prescribed in Code of Civil Procedure sections 415.20, 415.30, and 415.50, provided that the party effecting such service complies with statutory requirements. (See, e.g., Code Civ. Proc., Sec. 415.20, subd. (a) [leaving a copy of summons "[i]n lieu of personal delivery"]; Sec. 415.30, subd. (a) [service by mail]; Code Civ. Proc., Sec. 415.50 [service by publication].)
The Mail Service states that a copy of the petition was served on Respondent at 10201 East Belmont Abbey Lane, Claremont, California, by "enclos[ing] the [petition] in a sealed envelope or package addressed to" Respondent at that address, and by "plac[ing] the envelope for collection and mailing, following ... ordinary business practices." (Mail Service, P.P. 5(a), (b) & 6(b)(2).)
"A summons may be served by mail as provided in this section. A copy of the summons and of the complaint shall be mailed (by first-class mail or airmail, postage prepaid) to the person to be served, together with two copies of the notice and acknowledgment provided for in subdivision (b) and a return envelope, postage prepaid, addressed to the sender." (Code Civ. Proc., Sec. 415.30, subd. (a).)
The "notice specified in subdivision (a)" must be "in substantially the ... form[]" described in subdivision (b) of Code of Civil Procedure section 415.30. (Code Civ. Proc., Sec. 415.30, subd. (b).)
Assuming without deciding that the Mail Service is sufficient to show that a copy of the petition was mailed to Respondent by first-class mail, postage prepaid (and the court presently makes no findings in this regard), wholly absent from the present record is any information or evidence showing that two copies of the notice and acknowledgment or the return envelope described in Code of Civil Procedure section 415.30 and above were included with the petition, pursuant to code requirements.
It can also be inferred from the available information and evidence that Respondent is not represented by counsel in these proceedings.
Though electronic service is generally authorized under Code of Civil Procedure section 1010.6, subdivision (a), to the extent Respondent is an unrepresented party, Respondent must expressly consent to receive electronic service, which may be given by either "[s]erving a notice on all parties and filing the notice with the court..." or " [m]anifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent." (Code Civ. Proc., Sec. 1010.6, subd. (c)(1)-(3).)
The court has no record of the service or filing by Respondent of any notice in which Respondent expressly consents to receive electronic service in this case.
For these and all further reasons discussed above, the Electronic Service is also insufficient to show valid service of the petition on Respondent.
The same reasoning and analysis apply in regard to the Notice, which available information and evidence shows was served on Respondent in the same manner described above. (See Mar. 5, 2026, Proofs of Service [by mail and electronic means].)
For all reasons discussed above, the present record fails to show why Respondent has been duly served with the petition, or why the court's personal jurisdiction over Respondent has been established.
The court cannot issue a binding ruling against Respondent concerning the merits of the petition until service of the petition on Respondent is made in a manner provided by law. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229; Code Civ. Proc., Sec.Sec. 410.10; 410.50.)
Under these circumstances, the court will order the petition off-calendar, subject to its refiling upon proper and effective service on Respondent pursuant to code requirements.
To the extent the petition is refiled, the court expects that petitioner will file an appropriate and compliant proof of service. (See, e.g., Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441 [general discussion].)
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