Judge Gregory Keosian, Case 23STCV00563 2023-04-13 Tentative Ruling

Judge: Gregory Keosian, Case: 23STCV00563, Date: 2023-04-13 Tentative Ruling

Case Number: 23STCV00563 Hearing Date: April 13, 2023 Dept: 61

Defendants Peter K. Levine and Peter K. Levine, a Professional Law Corporation’s Motions to Compel Arbitration is GRANTED.

Defendants to provide notice.

I. MOTION TO COMPEL ARBITRATION

On petition of a party to an arbitration agreement to arbitrate a controversy, a court must order the petitioner and respondent to arbitrate the controversy if it determines the arbitration agreement exists, unless (1) the petitioner has waived its right to arbitrate; (2) grounds exist for the revocation of the agreement; or (3) “[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.)

“[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The role of the trial court is to sit as a trier of fact, weighing any affidavits, declarations, and other documentary evidence, together with oral testimony received at the court's discretion, to reach a determination on the issue of arbitrability.” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Defendants Peter K. Levine and Peter K. Levine, a Professional Law Corporation (Defendants) move to compel arbitration of Plaintiff Michael Berlin’s (Plaintiff) sole claim for legal malpractice based on an arbitration provision contained in the parties’ attorney-client fee agreement, executed on March 14, 2017. (Marcus Decl. Exh. 4.) The applicable provision states:

15. DISPUTES BETWEEN THE PARTIES

In the event of any dispute between Client and Attorney regarding a claim under this Agreement, the entire dispute will be submitted and resolved by binding Arbitration, in Los Angeles, Calif. Client Agrees to accept service of any papers in the arbitration by mail, at his then current address. The prevailing party in such dispute shall recover reasonable legal fees, costs and expert witness fees.

(Marcus Decl. Exh. 4 at p. 6.)

Plaintiff in opposition argues that the arbitration provision applies only to “a claim under this agreement,” i.e. a claim for breach of contract, while his claim for legal malpractice sounds in tort. (Opposition at pp. 2–3.) Plaintiff argues that this language, at minimum, creates an ambiguity that should be interpreted against Defendants, as the drafters of the agreement. (Opposition at pp. 4–6, citing Civ. Code § 1654.)

The court is mindful of dueling canons of construction at play in this motion. Generally, “the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.” (Civ. Code § 1654.) However, “[a] heavy presumption weighs the scales in favor of arbitrability; an order directing arbitration should be granted unless it may be said with positive assurance that the arbitration [provision] is not susceptible of an interpretation that covers the asserted dispute.” (Gravillis v. Coldwell Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 771, internal quotation marks omitted.)

Textual analysis of the agreement indicates that Plaintiff’s legal malpractice claim is arbitrable. Contrary to Plaintiff’s framing of the language, the proper issue is not whether the malpractice cause of action is “a claim under this Agreement,” but whether it is a “dispute between Client and Attorney regarding a claim under this Agreement.” (Marcus Decl. Exh. 4, italics added.)

Elsewhere in the fee agreement, the word “claim” refers to Plaintiff’s claims in the underlying litigation. Section 3 states that the client agrees “to cooperate fully with Attorney in all matters related to the preparation and presentation of Client’s claims.” (Marcus Decl. Exh. 4 at p. 1.) Section 5 describes the potential for an attorney’s lien that “covers any and all claims and causes of action that are the subject of Attorney representation of client.” (Id. at p. 5.) Section 9 states that the attorney will make no settlement “of any of Client’s claims without Client’s prior approval.” (Id. at p. 5.) In contract interpretation, “the same word used in an instrument is generally given the same meaning.” (E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 475.) This consistent usage indicates that the arbitration clause applies to disputes related to Plaintiff’s claims in the underlying action, i.e. disputes related to Defendants’ representation of Plaintiff. Plaintiff’s malpractice action falls within the ambit of the clause, and is therefore arbitrable.

The motion to compel arbitration is GRANTED.