Judge Lisa K. Sepe-Wiesenfeld, Case Number: 21SMCV01390, Date: 2023-08-22 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 21SMCV01390, Date: 2023-08-22 Tentative Ruling

Case Number: 21SMCV01390 Hearing Date: August 22, 2023 Dept: N

This Motion: Plaintiff Fox Rothschild LLP’s motion for appointment of neutral arbitrator.

BACKGROUND

Plaintiff brings this breach of contract and common counts action due to Defendant’s failure to pay legal fees in the amount of $183,431.16.

TENTATIVE ORDER

Plaintiff Fox Rothschild LLP’s Motion for Appointment of Neutral Arbitrator Pursuant to California Code of Civil Procedure section 1281.6 is GRANTED.

Within five (5) days of entry of this order, Plaintiff and Defendant shall jointly submit a list of individuals qualified to arbitrate this dispute, as outlined in their agreement, specifically individuals that are either (1) “a retired California Judge haying not less than one year of actual experience as a family law trial judge” or (2) a “California attorney certified as a specialist in family law matters.” If the parties cannot agree on a joint submission, they shall submit individual submissions.

The Court will then nominate five individuals from the list(s) provided, and the parties may jointly agree upon and select one of the nominated arbitrators within five (5) days of receipt of the Court’s list by notifying the Court of the chosen arbitrator. If the parties fail to jointly select one of the Court-nominated arbitrators within this five-day period, the Court shall appoint an arbitrator from its list of nominated arbitrators.

The matter remains STAYED pending the outcome of arbitration.

Plaintiff Fox Rothschild LLP to give notice.

DISCUSSION

On October 11, 2022, this Court granted Plaintiff Fox Rothschild LLP (“Plaintiff”)’s motion to compel Defendant Alan Sawaya (“Defendant”) to submit to arbitration. Plaintiff now moves the Court for an order appointing a neutral arbitrator pursuant to Code of Civil Procedure section 1281.6 on the ground that the parties have been unable to formally agree upon an arbitrator, as Defendant has objected to all of Plaintiff’s proposed Los Angeles-based arbitrators and instead has proposed San Diego-based arbitrators who are more expensive than those proposed by Plaintiff. Defendant has not filed an opposition to Plaintiff’s motion.

Code of Civil Procedure section 1281.6 states as follows:

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.

The Court previously stayed this matter pending the outcome of arbitration. However, the Court retains “‘vestigial’ jurisdiction” to “appoint arbitrators if the method selected by the parties fails.” (Titan/Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482, 487.) The Court finds it proper to appoint a neutral arbitrator here, as the parties have failed to agree upon an arbitrator after communicating and attempting to choose an arbitrator without court intervention.

Code of Civil Procedure section 1281.6 describes the process for appointing a neutral arbitrator as follows:

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.

Accordingly, the Court hereby orders as follows:

Plaintiff Fox Rothschild LLP’s Motion for Appointment of Neutral Arbitrator Pursuant to California Code of Civil Procedure section 1281.6 is GRANTED.

Within five (5) days of entry of this order, Plaintiff and Defendant shall jointly submit a list of eight (8) individuals qualified to arbitrate this dispute, as outlined in their agreement, specifically individuals that are either (1) “a retired California Judge haying not less than one year of actual experience as a family law trial judge” or (2) a “California attorney certified as a specialist in family law matters.” If the parties cannot agree on a joint submission, they shall submit individual submissions of four (4) individuals each.

The matter remains STAYED pending the outcome of arbitration.

Plaintiff to give notice.