Motion-Secondary: Honchariw vs FJM Private Mortgage Fund, LLC

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                                KASEY DIBA, ESQ. (SBN 171081)
 1 MATTHEW SICHI, ESQ. (SBN 306165)
   FINNEGAN & DIBA, A LAW CORPORATION
 2 3660 Wilshire Boulevard, Suite 800
   Los Angeles, California 90010
 3 Telephone: (213) 480-0292
   Facsimile: (213) 480-0805
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   Attorneys for Respondents FJM Private Mortgage, LLC, FJM Capital, Inc. dba First Bridge Lending,
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   FJM Management, LLC dba First Bridge Lending
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                       SUPERIOR COURT OF THE STATE OF CALIFORNIA
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                                  FOR THE COUNTY OF SONOMA
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   In the Matter of the Arbitration between Nicholas Case No.: SCV-267331
10 and Sharon Honchariw,
                                                     [PROPOSED] ORDER ON MOTION TO
11                Petitioners                        VACATE JUDGMENT OR ALTERNATIVE
                                                     MOTION FOR NEW TRIAL
12        vs.

13 FJM Private Mortgage Fund, LLC, FJM Capital,
   Inc., dba First Bridge Lending, FJM
14 Management, LLC dba First Bridge Lending; and
   DOES 1 through 5, inclusive,
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                   Respondents.
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19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20         Respondents’ Motion to Vacate Judgment and For Entry of New Judgment or, in the

21 Alternative, Motion for New Trial came on regularly for hearing in the above-referenced matter on
22 April 12, 2023. There were no appearances. There being no opposition to the Court’s tentative ruling
23 and no request for oral argument, after Respondent’s Counsel having withdrawn their request earlier
24 today, the Court ADOPTS its previously published tentative ruling as follows:
25         Respondent’s motion to vacate judgment is DENIED.

26 Analysis:
27         Petitioners in this matter filed a petition to vacate the arbitration award granted in favor of

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                     [PROPOSED] ORDER ON MOTION TO VACATE JUDGMENT
                                           1
 1 Respondent in the underlying arbitration proceedings. The petition was based on several arguments,
 2 including an argument that the arbitration award was erroneous because the late payment charges
 3 imposed by Responded violated Petitioners’ rights under Civil Code § 1671. The lower Court denied
 4 the petition on the basis that Petitioners had not met their burden of proving that the arbitrator
 5 exceeded her authority or that vacating the award was otherwise appropriate.
 6          Petitioners appealed this order of the Court and the Court of Appeal ultimately reversed it. The

 7 decision of the Court of Appeal only addresses the argument made pursuant to Civil Code § 1617 and
 8 no other argument raised in the petition. The Court stated, “We shall reverse as the trial court
 9 erroneously failed to vacate an award that constitutes an unlawful penalty in contravention of the
10 public policy set forth in section 1617.”
11          Once the remittitur issued, Petitioners filed a proposed judgment on the petition to vacate the

12 arbitration award that is in their favor. Respondent timely objected to the first two proposed judgments
13 submitted, but their objection to the final submission was submitted after the Court approved and
14 signed it. The Court issued the judgment on February 1, 2023.
15          Respondent now seeks to vacate the judgment granting the petition to vacate the arbitration

16 award on the argument that the petition should have been set for rehearing upon remittitur, rather than
17 granting the petition outright. Respondent submits that the matter should have been set for rehearing
18 because Petitioners raised several arguments in the petition and the Court of Appeal only reversed the
19 Court’s order on the issue of the Civil Code Violation. Accordingly, Respondent argues that this Court
20 should issue a statement of decision on the additional arguments made by Petitioners. Respondent
21 misconstrues the effect of the Court of Appeal decision and the remittitur. The initial decision of this
22 Court confirmed the arbitration award and overruled all objections to the award. The Court of Appeal
23 reversed this Court’s decision on only one of the objections, Violation of Civil Code § 1617. The
24 Court’s decision as to all other objections stands and the matter has been remanded to the arbitrator for
25 consideration based upon the decision of the Court of Appeal. No further hearing in this Court is
26 necessary.
27          Respondent recognizes that the outcome of holding a rehearing would be the same—

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                     [PROPOSED] ORDER ON MOTION TO VACATE JUDGMENT
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 1 that Petitioner’s petition would be granted on the basis of the statutory right violation. However,
 2 Respondent argues that a statement of decision on the merits of the additional arguments made in the
 3 petition will narrow the issues subject to new arbitration. This Court’s decision as to these additional
 4 issues has not been reversed by the Court of Appeal.
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     DATED: May ___, 2023                                 __________________________
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 8                                                        Judge of the Superior Court

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                     [PROPOSED] ORDER ON MOTION TO VACATE JUDGMENT
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                                             PROOF OF SERVICE
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                          STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
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           I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
 3 not a party to the within action; my business address is: 3660 Wilshire Boulevard, Suite 800, Los
   Angeles, California 90010.
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           On the date herein below specified, I served the foregoing document described as set forth below
 5 on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes, at Los
   Angeles, California, addressed as follows:
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   Date of Service:                 MAY 1, 2023
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 8 Document(s) Served:             [PROPOSED] ORDER ON MOTION TO VACATE JUDGMENT

 9 Person(s) Served:               NICHOLAS HONCHARIW
                                   429 DUBOIS LANE
10                                 P.O. BOX 1452
11                                 GENOA, NV 89411
                                   NH@NHPART.COM
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13         (BY U.S. Mail) I enclosed the documents in a sealed envelope or package addressed to the
   address above and deposited the sealed envelope with the United States Postal Service, with the postage
14 fully prepaid or placed the envelope for collection and certified mailing with return receipt, in a sealed
   envelope with postage fully prepaid.
15         (BY OVERNIGHT DELIVERY) I enclosed the documents in an envelope or package provided
   by an overnight deliver carrier and addressed to the persons at the addresses above. I placed the envelope
16 or package for collection and overnight delivery at an office or a regularly utilized drop box of the
   overnight delivery carrier.
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            (BY FAX) I faxed the documents to the persons at the fax numbers listed above. No error was
18 reported by the fax machine that I used.
19        (BY MESSENGER SERVICE) I served the documents by placing them in an envelope or
   package addressed to the addresses above and provided them to a professional messenger service for
20 personal service on this date.
21          (BY PERSONAL SERVICE) I personally delivered by hand to the offices of the addressee(s).
22 XX      (BY EMAIL TRANSMISSION) I emailed a copy of the foregoing document(s) this date via
   email to the email addresses shown above.
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   XX     (STATE) I declare under penalty of perjury under the laws of the State of California that the
25 above is true and correct.
26          EXECUTED at Los Angeles, California, on May 1, 2023

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                                                          Declarant, Rosalyn Truong

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                                             PROOF OF SERVICE