Judge: Margaret L. Oldendorf, Case: 22AHCV01163, Date: 2023-03-21 Tentative Ruling
Case Number: 22AHCV01163 Hearing Date: March 21, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
|
Plaintiff, vs. VINCENT
W. DAVIS, ESQ., LAW OFFICES OF VINCENT W. DAVIS AND ASSOCIATES, and DOES 1
through 50, et al.,
Defendants. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
[TENTATIVE]
ORDER DENYING DEFENDANTS’ MOTION TO COMPEL ARBITRATION Date: March
21, 22 Time: 8:30 a.m. Dept.: P |
I. INTRODUCTION
This is a legal malpractice action. Plaintiff Robert
Barrozo (Barrozo) retained Defendant Vincent W. Davis and the Law Offices of Vincent
W. Davis (collectively, Davis) to represent him in a criminal matter.
Subsequently, he retained Davis to represent him in a civil action for wrongful
arrest. Finally, when that action was lost at summary judgment he retained
Davis to represent him in an appeal.
In this action, Barrozo sues Davis for negligence in connection
with the civil action. Davis has responded by seeking an order compelling
Barrozo to arbitrate. However, the evidence offered in support of the motion
consists of retainer agreements concerning the criminal matter and the appeal.
While those agreements do contain arbitration agreements, Davis is not being
sued for his work on the criminal matter or the appeal. Thus, those agreements
do not support the requested relief. The motion is therefore denied.
II. APPLICABLE
LEGAL STANDARD
This
motion is made pursuant to 9 U.S.C. §§ 4 and 5. Notice of motion at 1:25.
Section
4 provides: “If any suit or proceeding be brought in any of the courts of the
United States upon any issue referable to arbitration under an agreement in
writing for such arbitration, the court in which such suit is pending, upon
being satisfied that the issue involved in such suit or proceeding is referable
to arbitration under such an agreement, shall on application of one of the
parties stay the trial of the action until such arbitration has been had in
accordance with the terms of the agreement, providing the applicant for the
stay is not in default in proceeding with such arbitration.”
Section
5 provides: “A party aggrieved by the alleged failure, neglect, or refusal of
another to arbitrate under a written agreement for arbitration may petition any
United States district court which, save for such agreement, would have
jurisdiction under title 28, in a civil action or in admiralty of the subject
matter of a suit arising out of the controversy between the parties, for an
order directing that such arbitration proceed in the manner provided for in
such agreement. Five days’ notice in writing of such application shall be
served upon the party in default. Service thereof shall be made in the manner
provided by the Federal Rules of Civil Procedure. The court shall hear the parties,
and upon being satisfied that the making of the agreement for arbitration or
the failure to comply therewith is not in issue, the court shall make an order
directing the parties to proceed to arbitration in accordance with the terms of
the agreement. The hearing and proceedings, under such agreement, shall be
within the district in which the petition for an order directing such
arbitration is filed. . . .”
Although Davis relies on the Federal Arbitration Act, no
evidence is offered demonstrating that the FAA applies to this controversy. The
two retainer agreements offered into evidence both indicate that California law
applies. Davis offers no evidence to demonstrate that the agreements concern
interstate commerce; or that the FAA applies for some other reason.
On page 4, lines 20-23 of Davis’s memorandum of points
and authorities, he quotes Code Civ. Proc. §1281. That section, which is parallel
to 9 U.S.C. §2, provides, “A written agreement to submit to arbitration an
existing controversy or a controversy thereafter arising is valid, enforceable
and irrevocable, save upon such grounds as exist for the revocation of any
contract.”
Very broadly construed, this motion may be viewed as
seeking relief pursuant to Code Civ. Proc. §1281.2. That section provides that
upon petition of a party to an arbitration agreement alleging the existence of
a written agreement to arbitrate, the court shall order the petitioner and
respondent to arbitrate the controversy if it determines that an agreement
exists, unless it determines that the right to arbitrate has been waived or
grounds exist for rescission of the agreement.
III. ANALYSIS
When a petition to compel
arbitration is “filed and accompanied by prima facie evidence of a written
agreement to arbitrate the controversy, the court itself determines whether the
agreement exists and, if any defense to its enforcement is raised, whether it
is enforceable.” Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413
(Rosenthal). “[T]he facts are to be
proven by affidavit or declaration and documentary evidence, with oral
testimony taken only in the court’s discretion.” Id. at 413-414.
The evidence here includes two
retainer agreements. Declaration of Vincent W. Davis, ¶¶ 4 and 5 and Exhibits A
and B thereto. Exhibit A indicates that at ¶1 that the nature of the services
provided will be to defend client Barrozo in his criminal trial. Exhibit B
indicates at ¶1 that the nature of the services provided will be to provide
legal services to Barrozo with respect to his Civil Rights Appeal.
In the present action, Davis is
being sued for neither of these. Rather, he is being sued for alleged
negligence regarding to a civil action for false arrest. Complaint, page 3,
line 12 through page 4, line 12.
Davis has not met their burden to
establish the existence of a written agreement to arbitrate the present
controversy. Consequently, the motion is denied.
IV. ORDER
Defendants’ motion to compel arbitration is denied for
failure to establish the existence of a written agreement to arbitrate the
controversy at issue.
Plaintiff is ordered to give notice.
Dated:
____________ ___________________________________
MARGARET L. OLDENDORF
JUDGE OF THE SUPERIOR COURT