Judge: H. Jay Ford, III, Case: 23SMCP00620, Date: 2024-06-04 Tentative Ruling

Case Number: 23SMCP00620    Hearing Date: June 4, 2024    Dept: O

Case Name:  Law Offices of Levin & Margolin v. O’Halloran

SUBJECT:                 MOTION TO COMPEL ARBITRATION

MOVING PARTY:   Petitioner Law Offices of Levin & Margolin

RESP. PARTY:         No responsive party as of 5-29-24

TENTATIVE RULING

            Petitioner Law Offices of Levin & Margolin’s Motion to Compel Arbitration is GRANTED

The Court orders the parties to stipulate to an arbitrator within five days from the hearing from the following list: Hon. Thomas Trent Lewis, Hon. John Ouderkirk, and Hon. Roy Paul.  If no arbitrator is mutually selected within five days from the hearing the Court will select the arbitrator. (See Code Civ. Proc., § 1281.6.)

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that 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 rescission of the agreement.

            (Code Civ. Proc., § 1281.2.)

            “In the absence of an agreed method [to appoint an arbitrator] . . . the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” (Code Civ. Proc., § 1281.6.) 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. (Ibid., emphasis added.)

            Petitioner Law Offices of Levin & Margolin’s (“L&M”) moves to compel arbitration based on the arbitration agreement within the written retainer (“Arbitration Agreement”) agreed upon by L&M and Respondent Ashley O’Halloran (“O’Halloran”) on 6-26-20. The Arbitration Agreement states:

It is understood that any dispute with respect to whether legal services rendered pursuant to this Retainer Agreement were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to binding arbitration as provided by California law, and not by a lawsuit or resort to Court process, except as California law may provide for judicial review of arbitration proceedings. Both parties to this Retainer Agreement are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of binding arbitration.

(11-29-23 Petition to Compel Arbitration (“Petition”) ¶¶ 2–3; Ex. A, p. 4.)

            L&M provided O’Halloran with a “Notice of Right to Arbitrate” on 5-18-23. (Petition, Ex. B.) Substitute Service was effected on 3-28-24. (See 5-13-24 Proof of Substitute Service; see also Code Civ. Pro. § 415.20.) The Arbitration Agreement does not contain a method to appoint an arbitrator, thus the Court will nominate an arbitrator from a list of five persons jointly provided the parties. (See CCP § 1281.6.) L&M provides three retired judge nominees as potential arbitrators including Hon. Thomas Trent Lewis, Hon. John Ouderkirk, and Hon. Roy Paul. (Petition, ¶ 6.) O’Halloran has not provided any potential arbitrators. The Court orders both parties to stipulate to an arbitrator from the list provided within five days of the hearing. (See CCP § 1281.6.)  If no arbitrator is mutually selected within the five days, the Court will select the arbitrator from the list provided. (Ibid.)

            The Court finds that there has been no waiver to arbitrate by the Petitioner, and Respondent provides no grounds for recission of the agreement. Thus, the Motion to Compel arbitration is GRANTED pursuant to CCP § 1281.2.