Judge Stephen I. Goorvitch, Case Number: 23STCV06849, Date: 2023-10-09 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 23STCV06849, Date: 2023-10-09 Tentative Ruling

Case Number: 23STCV06849 Hearing Date: October 30, 2023 Dept: 39

Kavien Amiri v. Bryan Thomas Castorina, et al.

Case No. 23STCV06849

Motion to Compel Arbitration

Plaintiff Kavien Amiri (“Plaintiff”), a self-represented party, filed this action against his former attorney, Bryan Thomas Castorina, Esq., and his firm, the Law Offices of Bryan Castorina, P.C. (collectively, “Defendant”). Plaintiff asserts causes of action for conversion, professional negligence, assault, battery, unfair business practices, breach of contract, breach of the implied covenant of good faith and fair dealing, declaratory relief, and unjust enrichment. Defendants filed a cross-complaint for breach of contract, for allegedly failing to pay legal fees. Now, Defendants move to compel arbitration in this case.

The moving party on a petition to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842, internal quotations and citations omitted.)

Defendants rely on a retainer agreement, pursuant to which Plaintiff retained Defendants to represent him with defense of any unlawful detainer action and prosecution of any lawsuit against the landlord for violations of various rental laws. The retainer agreement has an arbitration provision which states that any dispute over fees shall be arbitrated per Business and Professions Code section 6200 et seq. The retainer agreement states that any other dispute “arising under this Agreement or in connection with the Attorney’s services hereunder, including any claim for malpractice, shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association . . . .”

At the prior hearing, Defendants’ counsel represented that the parties agreed the defamation case would be covered by the retainer agreement governing the other cases. The Court continued the hearing and authorized him to file supplemental pleadings. Defendants rely on an email from Mr. Castorina to Plaintiff. However, this email does not evidence an agreement that the defamation case would be governed by the retainer agreement and related arbitration clause.

Defendants also rely on a declaration of Mr. Castorina, which states: Mr. Castorina’s declaration states: “We agreed that because the Defamation case was a condition of my representation of Mr. Amiri on the LARSO Action and UD Actions, that it was covered by the retainer agreement.” This is not sufficient. The retainer agreement defines “Services Covered by Agreement” as the housing-related lawsuits. The Court cannot consider an oral agreement to modify the terms of this writing for two reasons. First, “[t]he parol evidence rule protects the integrity of written contracts by making their terms the exclusive evidence of the parties' agreement.” (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass'n (2013) 55 Cal.4th 1169, 1171-1172.) Second, the retainer agreement expressly states that no oral modifications are permitted. The retainer agreement states: “If additional services are necessary in . . . affirmatively asserting claims on behalf of Client, and Client requests Attorney to perform such services, additional fee arrangements must be made between Attorney and Client.” The retainer agreement also states: “This agreement may only be modified or changed by subsequent written agreement signed by both Attorney and Client.” Therefore, an oral agreement to include the defamation case within the scope of the “Services Covered by Agreement” and the related arbitration clause is not effective.

Based upon the foregoing, the Court compels arbitration of all causes of action in the complaint except as follows:

1. Second Cause of Action (Professional Negligence) re: the defamation case

2. Third Cause of Action (Assault)

3. Fourth Cause of Action (Battery)

4. Eighth Cause of Action (Declaratory Relief)

The Court orders the parties to arbitrate the cross-complaint in a separate arbitration under Business and Professions Code section 6200 et seq. unless the parties stipulate to join this arbitration with the mandatory arbitration by the American Arbitration Association, except as the claim relates to the defamation case.

CONCLUSION AND ORDER

Based upon the foregoing, the Court orders as follows:

1. The Court grants in part and denies in part Defendants’ motion to compel arbitration.

2. The Court order the parties to participate in an arbitration through the American Arbitration Association with respect to all of Plaintiff’s claims except the second cause of action as it relates to the defamation case, as well as the third, fourth, and eighth causes of action.

3. The Court orders the parties to participate in an arbitration governed by Business and Professions Code section 6200 et seq. with respect to Defendants’ cross-claims except as it relates to the defamation case.

4. The Court stays the remainder of this case. However, the Court authorizes the parties to file stipulations relating to the arbitrations (e.g., to consolidate the two arbitrations, etc.)

5. The Court advances and vacates all dates. The Court shall hold an Order to Show Cause why the stay should not be lifted on June 27, 2024, at 8:30 a.m. The Court orders Defendants’ counsel to file a status report concerning the arbitrations on or before June 10, 2024. The Court orders the parties to appear, either remotely or in-person.

6. Defendants’ counsel shall provide notice and file proof of such with the Court.