Judge: Monica Bachner, Case: 22STCP03761, Date: 2023-01-30 Tentative Ruling

Case Number: 22STCP03761    Hearing Date: January 30, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Petitioner Wasser, Cooperman & Mandles P.C.’s unopposed petition for an order to compel parties to submit the within dispute to binding reference and for court appointment of a referee is denied without prejudice. 

          Petitioner Wasser, Cooperman & Mandles P.C. (“WCM”) (“Petitioner”) petitions unopposed for an order that the parties submit the within dispute to binding reference and for the appointment of a referee.  (Notice of Motion, pg. 1.) 

          Background

          On October 17, 2022, Petitioner filed a verified petition to compel binding reference and for court appointment of a referee.  The petition states that: (1) on or about November 13, 2019, Petitioner and Respondent Brody Dalle-Homme (“Dalle-Homme”) (“Respondent”) entered into a written contract (the “Contract”), whereby Petitioner agreed to perform various legal services for Respondent in connection with Respondent’s dissolution matter (Petition ¶1); (2) Respondent agreed to pay for such services on an hourly basis as set forth in the Contract (id. at ¶1, Exh. A); (3) Paragraph 19 et seq. of the Contract between the parties provides that if there is any disagreement or dispute between the parties concerning fees, the parties would submit such dispute to binding judicial reference before a retired judge with family law experience (id., Exh. A at ¶19.7); (4) on or about September 2, 2022, an attorney for Petitioner wrote a letter to Respondent informing her of her right to arbitrate the fee dispute with Petitioner pursuant to California Business and Professions Code §§6200-6206 (id. at ¶3, Exh. B); and (5) Respondent has not responded to this letter (id. at ¶4).

          The petition requests that the Court appoint one of the following retired judges (in alphabetical order) to act as a referee—the Honorable Aviva Bobb, Honorable Elizabeth Feffer, Honorable Arnold Gold, or the Honorable John Ouderkirk.  (Id. at ¶5.)  Via the petition, Petitioner prays for the following relief: (1) for an order compelling Respondent to submit the fee dispute to binding reference in Los Angeles County before a retired Superior Court Judge with Family Law experience; and (2) for an order appointing a referee to resolve this dispute. 

Pertinent Provisions of the Contract

          The Contract states, in part, that:

1.    “You have engaged our firm to act as your attorneys.”   (Exh. A at pg.1.)

2.    “You have agreed to pay our firm a retainer of $25,000 on account of your attorneys’ fees and costs. You have agreed to pay such additional sums as may be required.”  (Exh. A at ¶1.)

3.    “Under California Law, you are entitled to nonbinding arbitration of fee disputes . . .[i]f you decline to accept that nonbinding arbitration . . . or nonbinding arbitration is selected and either you or the firm is unhappy with the result, either you or we are then entitled to binding arbitration in accordance with the terms and conditions of binding arbitration set forth in paragraphs 19 and 20, below.”  (Exh. A at ¶18.)

4.    “Agreement to refer disputes to a judicial referee: . . . [i]t is our belief that most problems can be resolved by good faith discussion between the parties.  Nevertheless, it is always possible that some dispute may arise which cannot be resolved by discussion between us.”  (Exh. A at ¶19.)

5.    “We believe that such disputes, if they cannot be resolved by good faith discussions between us, can be resolved more quickly and with less expense to all concerned by submitting the dispute to a judicial referee instead of by court action.”  (Exh. A at ¶19.1.)

6.    “THEREFORE, IN THE EVENT OF A DISPUTE BETWEEN YOU AND US REGARDING ANY MATTER . . . RELATING TO OR ARISING OUT OF OUR ENGAGEMENT BY YOU . . . THE DISPUTE SHALL BE DETERMINED, SETTLED, AND RESOLVED BY A JUDICIAL REFEREE IN LOS ANGELES, CALIFORNIA ACCORDING TO THE PROCEDURES SET FORTH IN CALIFORNIA CODE OF CIVIL PROCEDURE SECTON 638.”  (Exh. A at ¶19.2.)

7.    “YOU UNDERSTAND AND AGREE THAT SUCH JUDICIAL REFERENCE WILL RESULT IN YOUR NOT BEING ABLE TO HAVE YOUR COMPLAINTS . . . DECIDED BY A COURT WITH OR WITHOUT A JURY.”  (Exh. A at ¶19.3.) 

8.    19.8 SELECTION OF THE REFEREE: You or we may demand judicial reference of a dispute by serving written notice to the other. Such notice shall be sent by prepaid first class United States Mail. Within ten days of sending the demand for reference, the party making the demand for reference, referred to in this agreement as the "Demanding Party," shall mail a list of three proposed Qualified Referees to the other party. This list shall be referred to as the "First List." (Exh. A at ¶19.8.)  

Procedural History after the Filing of the Petition

Petitioner filed a proof of service with respect to the petition on December 28, 2022, and January 23, 2023.  Such proof of service indicates that the verified petition was served on Respondent by mail on December 27, 2022, and by substituted service on January 18, 2023.  The verified petition is unopposed.

Petitioner has not submitted evidence that it complied with its own procedures. Petitioner has not demonstrated that it sent a written notice to Respondent by prepaid first class U.S. mail with a list of three proposed Qualified Referees to the other party.  (Exh. A at ¶19.8.)  Petitioner has not cited case law that would support a position that they do not need to adhere to the procedures enumerated in their contract with an unresponsive Respondent.

          The Court denies, without prejudice, Petitioner’s unopposed verified petition to compel binding reference and for court appointment of a referee pursuant to the Contract. 

Dated:  January _______, 2023

Hon. Monica Bachner

Judge of the Superior Court