Judge Thomas D. Long, Case Number: 22STCV12740, Date: 2024-10-08 Tentative Ruling

On August 17, 2022, the Court granted motions to compel arbitration and stayed this action pending the arbitration proceedings with Plaintiff Pamela Buzzanco and Defendants Scott D. Fisher; Scott D. Fisher, A Professional Law Corporation; Michael L. Magasinn; and Law Offices of Michael L. Magasinn.

On August 28, 2024, the Magasinn Defendants filed a motion for the Court to appoint a neutral arbitrator.

If an arbitration agreement provides a method for appointing an arbitrator, that method shall be followed. (Code Civ. Proc., § 1281.6.) If it does not provide a method or if the agreed method fails or cannot be followed, a party may petition the Court to appoint an arbitrator. (Ibid.) Upon a petition, the Court shall nominate five people from a list jointly supplied by the parties, and the parties may jointly select the arbitrator within five days. (Ibid.) If the parties fail to select and arbitrator within five days, the Court shall appoint an arbitrator from its nominees. (Ibid.)

The arbitrator agreement does not contain any process to select an arbitrator. Defendants proposed multiple arbitrators to Plaintiff, including some from ADR Services. (Motion at p. 6.) Plaintiff demanded to use JAMS or Judicate West. (Ibid.) Defendants agreed to JAMS, but in October 2022, Plaintiff wanted to abandon JAMS “as we have NOT been receiving the reasonable accommodations and services that are expected from an ADR organization.” (Id. at pp. 6-7.) Defendants then agreed to proceed with Judicate West. (Id. at p. 7.) Plaintiff rejected all five retired judges proposed by Defendants, claiming that they “lack[ed] minimum qualifications—[and] they [were] NOT even qualified to collect garbage in the central park.” (Id. at pp. 7-8.)

Next, the parties began a strike and rank procedure with Judicate West, using Judicate West’s November 28, 2022 strike-and-rank list containing seven retried judges. (Motion at p. 8.) Through this process, the Honorable Chris Conway (Ret.) was selected, but Plaintiff moved to disqualify him based on his non-involvement in an arbitration that Plaintiff’s counsel had handled for another client. (Ibid.) Despite Judicate West confirming that Judge Conway “was not part of the [other arbitration],” Plaintiff objected and requested a new strike-and-rank list. (Ibid.) On January 19, 2023, Judicate West served a new strike-and-rank list, which resulted in the appointment of the Honorable John Leo Wagner (Ret.). (Ibid.) Plaintiff moved to disqualify Judge Wagner based on a single mediation he conducted with Defendants’ counsel. (Ibid.) Plaintiff requested another new strike-and-rank list, demanding no neutrals with a “history” of cases involving the parties’ counsel. (Ibid.) Judicate West lacked arbitrators that met this criteria, so it declined to serve as the ADR organization. (Ibid.)

Plaintiff proposed Signature Resolution, and Defendants agreed. (Motion at p. 9.) On May 16, 2023, Signature Resolution sent the parties a strike-and-rank list containing ten retired judges. (Ibid.) Plaintiff immediately claimed her counsel had a conflict of interest with one of the retired judges because he had an arbitration before her. (Ibid.) Plaintiff asked for that judge to be replaced on the list, but Signature Resolution informed Plaintiff that it was not “uncommon for a strike and rank list to include arbitrators that counsel has arbitrated with in the past. Generally, that is not grounds to replace an arbitrator on the list.” (Ibid.) Through the strike-and-rank process, the Honorable Richard Stone (Ret.) was appointed on June 5, 2023. (Ibid.) Three days later, Signature Resolution emailed Judge Stone’s disclosures to the parties. (Ibid.) Plaintiff did not object to the disclosures, and the parties proceeded with Judge Stone as the arbitrator. (Ibid.)

In April 2024, Defendants’ counsel began working for a different firm, and in May 2024, Plaintiff’s counsel served a notice of association of counsel. (Motion at p. 11.) Signature Resolution provided updated disclosures for Judge Stone after each of these events. (Ibid.) Plaintiff did not object to the April 2024 disclosures, but on May 15, 2024, she moved to disqualify Judge Stone. (Ibid.) According to Plaintiff, “[b]ased on the disclosure received this date, judge [sic] Stone has significant past relations with the opposition counsels and their firms, including relations that were not disclosed previously.” (Ibid.) On June 24, 2024, Judge Stone rejected Plaintiff’s arguments for disqualification, but he still disqualified himself because he had mediated many matters with Defendants’ new firm. (Id. at pp. 11-12.)

Signature Resolution appointed the Honorable Clifford L. Klein (Ret.), the second-highest ranked arbitrator from the parties’ strike-and-rank list. (Motion at p. 12.) Judge Klein’s disclosures included a pending mediation with one Defendant. (Ibid.) Plaintiff moved to disqualify him “[b]ased on disclosure and financial entanglement . . . with opposing parties and their counsels.” (Ibid.)

Signature Resolution then appointed the Honorable Lisa Hart Cole (Ret.), the next arbitrator on the strike-and-rank list. (Motion at p. 12.) Judge Cole’s July 5, 2024 disclosures included six past mediations with Defendants’ counsel’s firms. (Ibid.) Plaintiff moved to disqualify her “[b]ased on disclosure and financial entanglement . . . with opposing parties and their counsels.” (Id. at p. 13.)

Next, Signature Resolution appointed the Honorable Michael Latin (Ret.). (Motion at p. 13.) Judge Latin’s July 10, 2024 disclosures included five past mediations with Defendants’ counsel’s firms. (Ibid.) Plaintiff moved to disqualify him “[b]ased on disclosure and financial entanglement . . . with opposing parties and their counsels.” (Ibid.)

At Defendants’ request, Signature Resolution agreed to stay the arbitration pending this motion. (Motion at pp. 13-14.)

Plaintiff argues that “this court does NOT have jurisdiction and/or authorities to appoint, select, choose, or assign an arbitrator and Claimants and Plaintiffs do NOT consent to the court’s jurisdiction to take any action in this case, as the jurisdiction of the all matters have been transferred to arbitrator.” (Opposition at p. 4.) Plaintiff is wrong. (See Code Civ. Proc., § 1281.6.)

Plaintiff argues that she has an absolute right to her disqualifications under Code of Civil Procedure section 1281.9. (Opposition at pp. 4-5.) The Court’s appointment of an arbitrator does not eliminate any party’s rights regarding the arbitrator’s disclosures.

Plaintiff contends that she was “disqualifying arbitrators that are on Respondents, Defendants and their counsels’ payroll!,” and “Plaintiffs and Claimants WILL NOT ACCEPT ANY AND ALL ARBITRATORS THAT ARE DEFENDANTS, RESPONDENTS AND THEIR COUNSELS’ PAYROLL.” (Opposition at p. 4.) There is no evidence supporting Plaintiff’s counsel’s repeated assertions that the “proposed arbitrators are on Defendants and their Counsels’ payroll, and they have had extensive financial entanglements.” (Naghash Decl. ¶ 6; see id. ¶¶ 7-8; see also Opposition at pp. 2-5.)

In the more than two years since the Court ordered the parties to arbitration, the process to appoint an arbitrator has failed. Accordingly, the Court will appoint an arbitrator.

Defendants provide a list of potential legal malpractice arbitrators from Signature Resolution. (Lepore Decl., Ex. 32.) Plaintiff did not propose any arbitrators.

After reviewing Defendants’ proposed list, the Court nominates Hon. Patricia Garcia (Ret.), Hon. Lesley C. Green (Ret.), Hon. Marc Marmaro (Ret.), Hon. Benny Osorio (Ret.), and Hon. Suzanne H. Segal (Ret.).

The Hearing on Motion for Order for Court to Appoint a Neutral Arbitrator is CONTINUED to October 15, 2024 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.

The parties are ordered to meet and confer about the nominated arbitrators. If they can reach an agreement, the parties are ordered to file a joint stipulation and proposed order, and the Court will take the continued hearing off calendar. If there is no agreement, then the Court will appoint an arbitrator at the continued hearing. (See Code Civ. Proc., § 1281.6.)

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court