Judge Christopher K. Lui, Case Number: 22STCV07887, Date: 2023-08-15 Tentative Ruling

Judge: Christopher K. Lui, Case: 22STCV07887, Date: 2023-08-15 Tentative Ruling

Case Number: 22STCV07887 Hearing Date: August 15, 2023 Dept: 76

Plaintiff law firm alleges that Defendants Lederer & Nojima, David Lederer and John Nojima breached a fee-splitting agreement whereby Plaintiff agreed to assume lead trial counsel responsibilities in exchange for a 50-50 split. Plaintiff also alleges that Defendant Nemecek & Cole, PC breached its fiduciary duty to Plaintiff because by representing the Lederer & Nojima Defendants in the fee dispute with Plaintiff, even though Plaintiff has been a client of Nemecek & Cole, PC in the past.

Defendant Nemecek & Cole moves to compel arbitration of the eighth and ninth causes of action.

TENTATIVE RULING

Defendant Nemecek & Cole’s motion to compel arbitration of the eighth and ninth causes of action is GRANTED. The litigation shall proceed as to the first through seventh causes of action against the Lederer & Nojima Defendants, as they are conceptually severable from the eighth and ninth causes of action.

ANALYSIS

Motion To Compel Arbitration

Discussion

Defendant Nemecek & Cole moves to compel arbitration of the eighth and ninth causes of action.

The eighth cause of action for breach of fiduciary duty and ninth cause of action for declaratory relief are only asserted against Defendant Nemecek & Cole.

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4^th 1094.) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Defendant bases this motion upon two written engagement agreements between Plaintiff Carpenter, Zuckerman & Rowley, LLP (“CZR”) and Defendant Nemecek & Cole, PC (“N & C”). The first written agreement is dated September 23, 2014 concerning the Michael Foxen matter, and the second written agreement is dated April 27, 2015 concerning the Christine Foxen matter. (Nemecek Decl., Exhs. 2 and 3.) Both of the agreements contain the following language:

By signing this Agreement, we agree that, in the event of any dispute or claim arising out of or relating to this Agreement, our

relationship, our charges, or our services (including but not limited

to disputes or claims regarding our charges, professional malpractice, errors or omissions, breach of contract, breach of fiduciary duty, fraud, or violation of any statute), SUCH DISPUTE OR CLAIM SHALL BE RESOLVED BY. SUBMISSION TO FINAL AND BINDING ARBITRATION BEFORE A SINGLE, NEUTRAL ARBITRATOR IN LOS ANGELES COUNTY, UNDER THE AUSPICES AND RULES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES ("JAMS"). BY AGREEING TO ARBITRATE, YOU WAIVE ANY RIGHT YOU MAY HAVE TO A COURT OR JURY TRIAL. Venue with regard to any ancillary proceedings arising out of such dispute or claim shall also be in Los Angeles County. The prevailing party in the arbitration and any

ancillary proceeding shall recover costs and reasonable attorneys'

fees.

(Nemecek Decl., ¶¶ 3, 4; Exhs. 2 and 3, ¶ 8 [bold emphasis omitted, underlining added].)

The eighth and ninth causes of action are based upon Defendant N & C’s current representation of the Lederer & Nojima Defendants, given N & C’s prior representation of Plaintiff CZR in a nearly identical dispute over fees. Plaintiff alleges that such representation breaches N & C’s fiduciary duty owed to CZR as a former client.

As such, the claims asserted by Plaintiff in the Complaint against moving defendant N & C come within the scope of the above arbitration clause.

As such, Defendant is entitled to enforce the arbitration agreement against Plaintiff. The burden shifts to Plaintiff to demonstrate why the agreement should not be enforced against it.

In failing to file a timely opposition, Plaintiff has not met this burden.

Accordingly, the motion to compel arbitration of the eighth and ninth causes of action is GRANTED. The litigation shall proceed as to the first through seventh causes of action against the Lederer & Nojima Defendants, as they are conceptually severable from the eighth and ninth causes of action.