Judge: Mel Red Recana, Case: 20STCV16570, Date: 2024-10-29 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 20STCV16570    Hearing Date: October 29, 2024    Dept: 45

Superior Court of California

County of Los Angeles

Hearing date:              October 29, 2024

Moving Party:             Defendant Levi Lesches, in pro per

Responding Party:      Plaintiff Mehrdad Eshaghian

Motion to Compel Arbitration and Motion to Stay

The Court GRANTS the Motion to Compel Arbitration and Motion to Stay.

The Court DENIES the Cross-Motion to Consolidate in the opposition.

Background

            On June 22, 2022, Plaintiff Mehrdad Eshaghian (“Plaintiff”) entered into a Retainer Agreement containing an arbitration provision (“arbitration provision” or “Arbitration Agreement”) with Defendant Levi Lesches (“Defendant”). On July 2, 2024, Plaintiff filed this action against Defendant, alleging legal malpractice and breach of the Retainer Agreement. The Complaint alleges one cause of action for breach of contract.

            On September 30, 2024, Defendant filed this Motion to Compel Arbitration.

            On October 15, 2025, Plaintiff filed the opposition.

            On October 21, 2024, Defendant filed the reply.

Legal Standard

            Parties may be compelled to arbitrate a dispute upon the court finding that: (1) there was a valid agreement to arbitrate between the parties; and (2) said agreement covers the controversy or controversies in the parties’ dispute.¿ (CCP § 1281.2; see also Omar v. Ralphs Grocery Co. (2004)¿118 Cal.App.4th 955, 961.) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court¿(1998) 62 Cal.App.4th 348, 356-57.)¿

¿           “If a court of competent jurisdiction . . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (CCP § 1281.4.)¿¿

Discussion

Existence of Agreement

            Under both the Federal Arbitration Act and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code of Civ. Proc. § 1281.2.) In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) 

“With respect to the moving party’s burden to provide evidence of the¿existence¿of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court. (See¿Condee v. Longwood Management Corp.¿(2001) 88 Cal.App.4th 215, 218, 105 Cal.Rptr.2d 597 (Condee¿); see also Cal. Rules of Court, rule 3.1330 [“A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 and 1281.4 must state, in addition to other required allegations, 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”].) Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges. [Citation]” (Baker v. Italian Maple Holdings, LLC¿(2017) 13 Cal.App.5th 1152, 1160.) 

Here, Defendant has incorporated the arbitration provision in verbatim in the motion and has provided a copy of the Contract. (Mot., page 3, lines 14-17; Lesches Decl., ¶ 7, Exh. C.) The relevant portion of the arbitration provision in the Arbitration Agreement provides the following:

“Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration at the Los Angeles Regional Office of the American Arbitration Association. . .”

(Ibid.)

            The agreement was executed by both parties on June 22, 2022. (Lesches Decl., ¶ 7, Exh. C.)

            The Court finds Defendant has met his burden to demonstrate the existence of a valid arbitration agreement between the parties.

Enforceability of the Arbitration Agreement

Once the moving party establishes a valid arbitration agreement, the opposing party has the burden to challenge the enforceability of the agreement.

The opposition does not challenge the enforceability of the arbitration agreement. The Court finds the agreement is enforceable.

Waiver of Arbitration

            Plaintiff, in opposition, argues that Defendant waived arbitration when he failed to bring an arbitration claim as to the alleged legal malpractice within 30 days of the parties’ mandatory fee dispute arbitration, citing Business and Professions Code section 6204, subdivision (a). Plaintiff claims the arbitrators ruled that neither party owed money to each other but “they left the legal malpractice issues to be determined by the court.” (Mot. page 3, line 12-13.) Plaintiff claims this action was timely filed within 30 days of the parties’ mandatory fee dispute arbitration and that arbitration was non-binding. (Eshaghian Decl., ¶ 9; Exh. A.) Because Defendant Lesches did not demand an arbitration within 30 days of the arbitration award, Plaintiff argues he waived his right to invoke the original Arbitration Agreement.

The Mandatory Fee Arbitration Act is codified in sections 6200 through 6206 of the Business and Professions Code. Section 6204, subdivision (a) states the following: “The parties may agree in writing to be bound by the award of arbitrators appointed pursuant to this article at any time after the dispute over fees, costs, or both, has arisen. In the absence of such an agreement, either party shall be entitled to a trial after arbitration if sought within 30 days.”

The Court finds that the prior mandatory fee dispute arbitration between Plaintiff and Defendant has no bearing on the arbitrability of Plaintiff’s legal malpractice claims. Firstly, the mandatory fee dispute provision, paragraph 19 of the Retainer Agreement, which invokes the Mandatory Fee Arbitration Act, is separate from the Arbitration Agreement, paragraph 20. (Lesches Decl., ¶ 7, Exh C.) The Court finds that Mandatory Fee Arbitration Act procedures, including those involving waiver, only apply to fee dispute arbitrations, not legal malpractice arbitrations. Plaintiff has provided no authority to support its contention that Defendant waived its right to compel arbitration as to the legal malpractice claims under the Retainer Agreement. Further, Plaintiff has not provided evidence of the mandatory fee dispute arbitration decision supporting its contention that the arbitrators “left the legal malpractice issues to be determined by the court.” Even if this were the case, the Court finds that these issues should be decided according to the Arbitration Agreement, not the Court. The Court finds Defendant has not waived his right to compel arbitration.

The Court thus GRANTS the Motion to Compel Arbitration and Motion to Stay.

Motion for Consolidation

            In the opposition, Plaintiff moves to consolidate this case with the later filed Eshaghian v. Szabo (LASC Case No. 24STCV20949). As a preliminary matter, the Court notes that this motion to consolidate is improperly made in the opposition—such motions must be made separately. The Court will nonetheless address the request to consolidate.

Eshaghian v. Szabo involves a legal malpractice claim by Plaintiff against Larry Sazbo (“Sazbo”), who was Plaintiff’s attorney before Defendant Lesches represented him in the same matter. Plaintiff also participated in a mandatory fee dispute arbitration with Sazbo and filed the case within 30 days. Plaintiff argues that the cases involve a common question of law or fact, warranting their consolidation under CCP § 1048, subdivision (a), because the cases both assert legal malpractice claims against Plaintiff’s attorneys who represented him in the same case.

Code of Civil Procedure section 1048, subdivision (a) states the following: “(a) “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” California Rules of Court rule 3.350(a) states the requirements of a motion to consolidate: “A notice of motion to consolidate must (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be consolidated.” Rule 3.350(a) further states that the motion to consolidate must be served on all attorneys of record and all non-represented parties in all of the cases sought to be consolidated and must attach proof of service. According to LASC Local Rule 3.3(g), cases must not be consolidated unless they are in the same department.

The Court finds that Plaintiff has failed to follow the procedural requirements for a motion to consolidate under California Rules of Court rule 3.350(a). Eshaghian v. Szabo (LASC Case No. 24STCV20949) was filed under Department 73, in violation of LASC Local Rule 3.3(g). Further, the Court finds the motion is unwarranted under Code of Civil Procedure section 1048, subdivision (a) because Plaintiff has failed to show how Eshaghian v. Szabo and the instant case involve common questions of law or fact. Plaintiff has not provided any evidence connecting the two cases other than that Sazbo and Defendant both represented Plaintiff in the same case. According to Plaintiff’s summary, Sazbo represented Plaintiff before Defendant represented Plaintiff. Plaintiff alleges that Sazbo “made grievous errors by forgetting important issues and tasks,” while Defendant “missed important pretrial deadlines and was entirely unprepared for the trial.” (Opp., page 3, lines 7-9.) The matters involve two cases of legal malpractice against two different defendants. Therefore, the Court finds that consolidating the cases would have no tendency to avoid unnecessary costs or delay.

Further, Plaintiff argues that because this case should be consolidated, that the Motion to Compel Arbitration should be denied. Plaintiff argues that Sazbo was not subject to an arbitration agreement, and thus, this case should be accordingly consolidated and heard by the Court, citing Mercury Insurance Group v. Superior Court (1998) 19 Cal.4th 332, 339-340.

Code of Civil Procedure section 1281.2, subdivision (c) states that a court need not compel arbitration if it determines that “[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.” As discussed previously, the Eshaghian v. Szabo and this case have no possibility of conflicting rulings on a common issue of law or fact, and thus, the Motion to Compel may not be denied on this ground.

The Court thus DENIES the Cross-Motion to Consolidate and the request to deny the Motion to Compel Arbitration on the grounds the case must be consolidated.

Conclusion

The Court GRANTS the Motion to Compel Arbitration and Motion to Stay.

The Court DENIES the Cross-Motion to Consolidate in the opposition.

            It is so ordered.

Dated: October 29, 2024

_______________________

MEL RED RECANA

Judge of the Superior Court