Judge: Elaine Lu, Case: 22STCP03760, Date: 2023-02-02 Tentative Ruling

Case Number: 22STCP03760    Hearing Date: February 2, 2023    Dept: 26

2/2/23:

On October 17, 2022, Petitioner Wasser, Cooperman & Mandles P.C. (“Petitioner”) filed the instant petition to compel binding reference and for court appointment of a referee against Respondent Kent Lawson (“Respondent”)

On October 19,  2022, Petitioner filed notice of a motion on the petition.  On December 1, 2022, the Court granted Petitioners ex parte application to advance the hearing for the instant motion to February 2, 20223.

On January 9, 2023, Petitioner filed proof of personal service reflecting service on December 23, 2022 of the petition, the notice of the instant petition, and the Minute Order advancing the hearing for the instant petition.  No opposition or reply has been filed.

A party seeking to compel arbitration must allege the existence of an agreement to arbitrate the controversy.  (CCP § 1281.2; Brodke v. Alphatec Spine Inc. (2008) 160 Cal.App.4th 1569, 1577.)  The party must also allege that the opposing party refuses to arbitrate the controversy.  (CCP §1281.2; Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640.)  Further, “‘[u]nder the California Rules of Court, rule 3.1330, a party petitioning to compel arbitration must state “the provisions of the written agreement and the paragraph that provides for arbitration.” “The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.”’ [Citation.]”  (Garcia v. Haralambos Beverage Co. (2021) 59 Cal.App.5th 534, 542.)

Where the petition is served but no response is served and filed, the allegations in the petition are deemed admitted.  (CCP § 1290; Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal.App.4th 956, 962.)  

As no response has been served and filed, the allegations of the petition are deemed admitted.  Pursuant to the petition, on December 15, 2020, Respondent entered into a written retainer agreement with Petitioner for Petitioner to represent Respondent in a divorce action.  (Petition ¶ 1.)  The written retainer agreement provides that any fee dispute would be handled by binding arbitration.  (Petition ¶ 2, Exh. A at § 18.)  On September 2, 2022, Petitioner wrote a letter informing Respondent of his right to arbitrate the fee dispute with Petitioner pursuant to Business and Professions Code Sections 6200-6206.  (Petition ¶ 3, Exh. B.)  Respondent did not respondent to the letter or contact the Los Angeles County Bar Association, Beverly Hills Bar Association, or the State Bar of California to initiate arbitration under Business and Professions Code Sections 6200-6206 to handle the parties fee dispute.  (Petition ¶ 4.)

Petitioner has met his initial burden of demonstrating the existence of an agreement to arbitrate the instant dispute.  The burden shifts to the Respondent to show that the agreement is not enforceable.  Respondent has failed to oppose the instant petition and thus has failed to meet his burden in showing unenforceability.

Petitioner also requests that the Court appoint one of the following retired Judges to act as a referee: Hon. Aviva Bobb, Hon. Elizabeth Feffer, Hon. Arnold Gold, Hon. John Ouderkirk.

“A court has the authority to compel compliance with a method for selecting an arbitrator.”  (Maggio v. Windward Capital Management Co. (2000) 80 Cal.App.4th 1210, 1213.)  “If the court concludes the agreement to arbitrate is enforceable and the parties cannot agree on the procedure to appoint an arbitrator, the remedy is to be found in Code of Civil Procedure section 1281.6.”  (Lewis v. Lynch, Pierce, Fenner, & Smith, Inc. (1986) 183 Cal.App.3d 1097, 1107.)  “That section, …, provides a statutory method for resolving breakdowns in the arbitrator selection process, and states in pertinent part that in the absence of an agreed method of appointing an arbitrator, ‘or if the agreed method fails or for any reason cannot be followed ... the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.’”  (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 980.)

Here, the arbitration agreement provides that the parties are to mutually select an arbitrator.  (Petition ¶ 2, Exh. A at § 18.)  As Petitioner has brought the current motion, it appears that the parties are unable to mutually select an arbitrator.  Accordingly, the Court the Hon. Elizabeth Feffer to serve as the referee.

Petitioner Wasser, Cooperman & Mandles P.C.’s Petition to compel binding reference and for court appointment of a referee is GRANTED.  The Honorable Elizabeth Feffer is to serve as the referee.

As the petition has been granted, this ruling concludes this matter, and no issues or claims remain to be adjudicated in this action.

Moving Party is to give notice to all parties and file proof of service of such