Department 58

Hearing Date: March 20, 2023

Case Name: Meyer, Olson, Lowy & Meyers, LLP v. Eileen Simone

Case No.: 22STCP04023

Matter: Motion to Compel Arbitration

Moving Party: Petitioner Meyer, Olson, Lowy & Meyers, LLP

Responding Party: None

Tentative Ruling: The Petition to Compel Arbitration is granted.

Background

Petitioner Meyer, Olson, Lowy & Meyers, LLP filed a petition to compel arbitration on November 9, 2022. The petition arises from a contract for legal services in connection with Respondent’s dissolution of marriage.

Discussion

California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) Under Code of Civil Procedure section 1281, a “written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; or

(b) Grounds exist for the revocation of the agreement.

(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. . . .”

(Code Civ. Proc. §1281.2.)

The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. (Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co. (1998) 68 Cal.App.4th 83, 88.) When presented with a petition to compel arbitration, the trial court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute. (Ibid.)

“[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see §1281.2(a), (b))—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.’ (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) Facts relevant to enforcement of the arbitration agreement must be determined ‘in the manner . . . provided by law for the . . . hearing of motions.’ (Rosenthal, supra, at 413, quoting §1290.2.) This ‘ordinarily mean[s] the facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.’ (Rosenthal, supra, at 413–414; . . .).” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761-62.)

Here, Petitioner has provided the retainer agreement signed by both parties which states at paragraph 12: “All disputes between us regarding any aspect of our attorney-client relationship will be resolved by binding arbitration pursuant to Sections 1280 et seq., of the Code of Civil Procedure and not by litigation in Court. This provision applies to all disputes whether they are about financial matters (fees and costs) or about the quality of our services (malpractice). By this provision, we are both giving up our right to have any such dispute decided by a judge or a Jury. We also enclose a separate letter regarding this arbitration clause.” (Petition, Exh. A, ¶12.) The letter attached to the retainer agreement reiterates the ramifications of Paragraph 12. Both parties signed the letter. (Petition, Exh. A.)

Petitioner also attaches a Notice of Clients’ Right to Fee Arbitration for the unpaid balance of $18,650.03. (Petition, Exh. B.)

The Court finds a binding arbitration agreement exists between the parties. Further, as this is a dispute regarding the fees due to Petitioner from Respondent in relation to her dissolution of marriage, the dispute is within the scope of the agreement.

Respondent has not responded to the right to arbitrate letter or submitted the dispute to arbitration. Respondent has not opposed the petition and was properly served.

Accordingly, the petition is granted.

As to Petitioner’s request for the Court to appoint an arbitrator, Code of Civil Procedure section 1281.6 provides:

If the arbitration agreement provides a method of appointing an arbitrator, that method shall be followed. If the arbitration agreement does not provide a method for appointing an arbitrator, the parties to the agreement who seek arbitration and against whom arbitration is sought may agree on a method of appointing an arbitrator and that method shall be followed. In the absence of an agreed method, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.

When a petition is made to the court to appoint a neutral arbitrator, the court shall nominate five persons from lists of persons supplied jointly by the parties to the arbitration or obtained from a governmental agency concerned with arbitration or private disinterested association concerned with arbitration. The parties to the agreement who seek arbitration and against whom arbitration is sought may within five days of receipt of notice of the nominees from the court jointly select the arbitrator whether or not the arbitrator is among the nominees. If the parties fail to select an arbitrator within the five-day period, the court shall appoint the arbitrator from the nominees.

The agreement does not provide a method for selecting an arbitrator. As such, within 20 days of this ruling, the parties are ordered to meet and confer to select an arbitrator. Upon selection, the parties shall jointly submit a declaration identifying the chosen arbitrator and a proposed order of appointment. If the parties fail to agree on an arbitrator, the Petitioner may move for appointment of an arbitrator under section 1281.6. No fewer than seven days before the hearing on that motion, each party shall file and serve a list of the names of five proposed arbitrators together with a resumé or summary of qualifications of no more than two pages each.