Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Meyer, Olson, Lowy & Meyers LLP  

 

RESPONDING PARTY: Plaintiff Amy Nepi 

 

 

BACKGROUND 

 

  This case arises from a fees dispute between an attorney and its client.  Plaintiff Meyer, Olson, Lowy & Meyers (“MOLM”) entered into a written contract with Plaintiff Amy Nepi whereby MOLM agreed to perform legal services in connection with Plaintiff’s dissolution of marriage.   

Paragraph 12 of the parties’ contract contained an arbitration clause which states “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 jury.”  (Ex. A to Petition.)   

In addition to Paragraph 12, MOLM also sent a separate two-page letter calling out the arbitration provision.  The letter stated that Paragraph 12 “provide[s] that any dispute between you and our office arising out of our attorney-client relationship will be resolved by arbitration, not by a judge or jury.  If these clauses were not in our retainer agreement, both of us would have the right to a trial by jury in the event of any litigation between us.  By signing the retainer agreement, you specifically intend to waive that right.”   (Ex. A to Petition.) 

Nepi signed the agreement and the letter.  Above her signature in the agreement in bold and all caps, she agreed she had read and reviewed the agreement:  “I HAVE CAREFULLY REVIEWED AND UNDERSTAND ALL OF THE FOREGOING TERMS AND PROVISIONS AND I HEREBY AGREE TO RETAIN YOUR FIRM IN ACCORDANCE WITH THE TERMS-SET FORTH IN YOUR LETTER DATED AUGUST 23, 2017.”  Likewise, above her signature in the letter, she agreed “I HAVE READ THIS LETTER AND UNDERSTAND IT.” 

This hearing is on MOLM’s petition to compel arbitration.  MOLM seeks to compel Plaintiff to arbitrate and also asks the Court to appoint the arbitrator.  The petition is unopposed.        

LEGAL STANDARD 

Under California¿law,¿public policy favors arbitration as an efficient and less expensive means of resolving private disputes.  (Moncharsh¿v.¿Heily¿&¿Blase¿(1992) 3 Cal.4th 1, 8-9;¿AT&T Mobility LLC v. Concepcion,¿563 U.S. at 339.)¿ To further that policy, Code Civ. Proc. §1281.2 requires a trial court to enforce a written arbitration agreement unless it finds (1) no written agreement to arbitrate exists, (2) the right to compel arbitration has been waived, (3) grounds exist for rescission of the agreement or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues.    

When seeking to compel arbitration, the initial burden lies with the moving party to demonstrate the existence of a valid arbitration agreement by a preponderance of evidence.¿ (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 841-42; Gamboa v. Northeast Community Clinic (2021), 72 Cal.App.5th 158, 164-65.)¿ It is sufficient for the moving party to produce a copy of the arbitration agreement or set forth the agreement’s provisions.¿ (Gamboa, 72 Cal.App.5th at 165.)¿ The burden then shifts to the opposing party to prove by a preponderance of evidence any defense to enforcement of the contract or the arbitration clause.¿ (Ruiz, 232 Cal.App.4th at 842; Gamboa, 72 Cal.App.5th at 165.)  The trial court then weighs all the evidence submitted and uses its discretion to make a final determination.¿ (Id.)¿  

If the court orders arbitration, then the court shall stay the action until arbitration is completed.¿ (See Code Civ. Proc., § 1281.4.)  

DISCUSSION 

Existence of Agreement 

In ruling on a motion to compel arbitration, the Court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law  help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541; Victoria v. Superior Court (1985) 40 Cal. 3d 734, 835.)   

Although “[t]he law favors contracts for arbitration of disputes between parties” (Player v. Geo. M. Brewster & Son, Inc. (1971) 18 Cal.App.3d 526, 534), “there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate[.]” (Weeks v. Crow (1980) 113 Cal. App. 3d 350, 353..)¿ “[A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” (AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 648 (citations and internal quotations omitted); see also Sparks v. Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, 1518¿ (“Because arbitration is a contractual matter, a party that has not agreed to arbitrate a controversy cannot be compelled to do so.”).)¿¿¿¿¿¿¿  

Here, MOLM has met its burden of proving the existence of an arbitration agreement by a preponderance of the evidence.  Its agreement with Nepi contains an arbitration clause that clearly covers the fees dispute at issue.  The arbitration provision requires the arbitration of “all disputes whether they are about financial matters (fees and costs) or about the quality of our services (malpractice).”     

Selection of Arbitrator  

Code of Civil Procedure section 1281.6 states in part: “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.”   

Here, the arbitration agreement does not provide a method for appointing an arbitrator, and the parties have not agreed on a method for appointing an arbitrator.  In the absence of an agreed method, it falls on the Court to appoint the arbitrator.   

Code Civ. Proc. 1281.6 provides that “[w]hen 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 Court therefore orders the parties to jointly submit a list of eight potential arbitrators, four for each party within 10 days of this Order.  In the event a joint list cannot be submitted because Nepi refuses to comply with this Order, the Court will select an arbitrator from the list of nominees provided by MOLM.       

Stay of Proceedings 

Code Civ. Proc. §1281.4 provides that if the court has ordered the arbitration of a controversy, it “shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.”  Pursuant to Section 1281.4, therefore, the Court stays this action pending conclusion of the arbitration proceedings.    

CONCLUSION 

For the foregoing reasons, the Court GRANTS MOLM’s petition to compel arbitration and stays the proceedings pending completion of the arbitration.  The parties are to jointly submit a list of eight potential arbitrator nominees within 10 days of this Order.  In the event a joint list cannot be submitted due to one party’s refusal to participate in the process, the Court will select arbitrators from the list supplied by the complying party.        

DATED: May 2, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court