Judge: Michael P. Linfield, Case: 20STCV49110, Date: 2023-01-03 Tentative Ruling

Case Number: 20STCV49110    Hearing Date: January 3, 2023    Dept: 34

SUBJECT:         Motion to Compel Arbitration and Stay Proceedings Between Plaintiff Michael Waddington and Defendants Nigro Karlin Segal & Feldstein LLP and Irwin Nachimson

Moving Party:  Defendants Nigro Karlin Segal & Feldstein LLP and Irwin Nachimson

Resp. Party:    Plaintiff Michael Waddington

Defendants’ NKSF’s and Nachimson’s Motion to Compel Arbitration and Stay Proceedings is DENIED.

BACKGROUND:

On December 23, 2020, Plaintiff Michael Waddington, in propria persona, filed his Complaint against Defendants The Berman Law Group, APC, Brett A. Berman, and Seri Kattan-Wright on the following causes of action:

(1)       Professional Negligence — Legal Malpractice;

(2)       Breach of Written Agreement — Hourly Family Law Retainer;

(3)       Declaratory Relief regarding Further Attorney’s Fees;

(4)       Return of Excessive Attorney Fees and Costs Paid; and

(5)       Equitable Indemnity.

On February 9, 2021, Plaintiff filed his First Amended Complaint against Defendants on the following causes of action:

(1)       Professional Negligence — Legal Malpractice;

(2)       Breach of Written Agreement — Hourly Family Law Retainer;

(3)       Declaratory Relief regarding Further Attorney’s Fees;

(4)       Return of Excessive Attorney Fees and Costs Paid;

(5)       Equitable Indemnity;

(6)       Breach of Fiduciary Duty; and

(7)       Breach of the Implied Covenant of Good Faith and Fair Dealing.

On January 24, 2022, Defendants filed: (1) Answer to the First Amended Complaint; and (2) Cross-Complaint.

On July 12, 2022, pursuant to the Parties’ Stipulation, Plaintiff filed his Second Amended Complaint against Defendants The Berman Law Group, PAC, Brett A. Berman, Seri Kattan-Wright, Nigro Karlin Segal & Feldstein LLP (“NKSF”), and Irwin Nachimson on the following causes of action:

(1)       Professional Negligence — Legal Malpractice;

(2)       Breach of Contract;

(3)       Breach of Fiduciary Duty;

(4)       Professional Negligence; and

(5)       Breach of Contract.

On July 21, 2022, Plaintiff amended his Second Amended Complaint to substitute Nigro Karlin Segal Feldstein & Bolno, LLC for Doe 1.

On September 28, 2022, the Court granted Defendants NKSF’s and Nachimson’s Motion to Quash Service of Summons.

On December 8, 2022, Defendants NKSF and Nachimson filed their Motion to Compel Arbitration and Stay Proceedings. Defendants concurrently filed: (1) Declaration of Irwin Nachimson; and (2) Proof of Service.

On December 9, 2022, Defendants NKSF and Nachimson filed a corrected Proof of Service, as the prior Proof of Service was not signed.

On December 19, 2022, Plaintiff filed his Opposition.

On December 23, 2022, Defendant filed its Reply.

ANALYSIS:

I.           Legal Standard

“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.” (Code Civ. Proc., § 1281.)

“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.

(c)        “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, subds. (a)–(c).)      

“The party seeking to compel arbitration bears the burden of proving by a preponderance of the evidence the existence of an arbitration agreement. The party opposing the petition bears the burden of establishing a defense to the agreement's enforcement by a preponderance of the evidence. In determining whether there is a duty to arbitrate, the trial court must, at least to some extent, examine and construe the agreement.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 239, citations omitted.)

“If a court of competent jurisdiction, whether in this State or not, 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.” (Code Civ. Proc., § 1281.4, rest of statute omitted for brevity.)

II.        Discussion

A.      The Arbitration Agreement

There are two alleged arbitration agreements at issue. The first alleged arbitration agreement is between Plaintiff and Defendant The Berman Law Group, APC, which states:

“11. ARBITRATION. The parties hereto agree that any dispute relating to attorneys' fees under this Agreement shall be submitted to arbitration before the Los Angeles County Bar Association pursuant to California Business and Professions Code section 6200 et seq, or should that organization decline to arbitrate the dispute, then the dispute shall be resolved before the State Bar of California. Each side shall bear their own costs and attorneys' fees.

“Any other dispute (other than attorneys' fees) between the parties arising out of or relating to this Agreement for Attorneys professional services rendered to or for Client, shall be resolved by binding arbitration before the American Arbitration Association in Los Angeles, California in accordance with the commercial rules of the American Arbitration Association prevailing at the time of arbitration, and each side shall bear their own costs and attorneys' fees. Notwithstanding the above, the parties agree that the arbitrator's fee shall be divided equally between the parties.”

(Motion, Ex. A, ¶ 11.)

        The second alleged arbitration agreement is between Plaintiff and Defendant NKSF, which states:

“5. Arbitration of Disputes

“The Firm appreciates the opportunity to serve you and anticipates a productive and harmonious relationship. If you should feel for any reason that there is a problem with the services the Firm has performed or with the charges, the Firm encourages you to bring it to the Firm’s attention immediately. If the Firm perceives a problem with this engagement, the Firm will likewise endeavor to discuss it with you. Most problems should be rectified by good faith, communication and discussion.

“However, a dispute might arise between you and the Firm that cannot be resolved in this manner. It is agreed that any and all such disputes, claims or controversies arising out of or relating to this letter, or to our performance of accounting services hereunder, including but not limited to those relating to fees or the quality or appropriateness of services, shall be resolved at the request of any party hereto by final and binding arbitration before either the Judicial Arbitration and Mediation Service (“JAMS”) or, alternatively, ADR Services, Inc. (“ADR”). The arbitration will be conducted at a location determined by the arbitrator in Los Angeles, California, and shall be administered by and in accordance with either the then existing JAMS Streamlined Arbitration Rules and Procedures or, alternatively, ADR’s Arbitration Rules (a copy of such rules will be furnished to you upon request). In administering and conducting the entire proceeding, as well as in rendering the award, the arbitrator shall determine the rights, obligations and defenses of the parties according to the substantive and procedural laws of California, which shall be deemed to include, without limitation, application of any statute of limitations defense relating to ‘actions’ between parties. Neither you nor the Firm, however, will be precluded from obtaining provisional relief, including but not limited to attachment, in any court of competent jurisdiction. YOU UNDERSTAND AND ACKNOWLEDGE THAT BY AGREEING TO ARBITRATION, AMONG OTHER THINGS, YOU ARE GIVING UP (i) THE RIGHT TO A JURY TRIAL, (ii) THE TYPE OF BROAD DISCOVERY CUSTOMARILY ALLOWED TO PARTIES IN CIVIL COURT PROCEEDINGS AND (iii) VIRTUALLY ANY RIGHT TO APPEAL THE AWARD OF THE ARBITRATOR. Judgment on any arbitration award may be entered by any court of competent jurisdiction.”

(Motion, Ex. B, ¶ 5.)

B.      Analysis

Defendants NKSF and Nachimson move the Court to compel arbitration; Plaintiff opposes the Motion.

Defendants admit that they must prove “the existence of a valid arbitration agreement by the preponderance of the evidence.”  (Motion, p. 3:9-10.)  Defendants have not met their burden of proof. 

At no point in this litigation have any of the Parties filed an arbitration agreement signed by Plaintiff.  In their Motion to Compel, Defendants refer to Exhibits A and B of Plaintiff’s Second Amended Complaint; however, neither of these two agreements are signed by Plaintiff.  It is true that Plaintiff appears to admit in his Second Amended Complaint that he entered into contracts with the various Defendants; however that is insufficient to meet the standard for a motion to compel an arbitration agreement, which requires a signed, written agreement. (Second Amended Complaint, ¶¶ 11, 16; Code Civ. Proc., § 1281.)

The burden here is on the moving parties. (Tiri, supra, at 239.) The Court assumes that moving Defendants NKSF and Nachimson would have copies of the signed agreement(s) if any such mutually-signed agreement existed. However, despite submitting hundreds of pages of exhibits, no arbitration agreement has been submitted with Plaintiff’s signature.

Defendants have not met their initial burden to show a written arbitration agreement signed by Plaintiff.  Given that there is insufficient evidence before the Court that any of the Parties have agreed to arbitration in a signed, written agreement, the Court DENIES Defendants’ Motion.

III.     Conclusion

Defendants’ NKSF’s and Nachimson’s Motion to Compel Arbitration and Stay Proceedings is DENIED.