2012-00128943-CU-PN

Allen Thompson vs. John C Miller

Nature of Proceeding: Motion to Compel Contractual Arbitration

Filed By: Miller Jr, John C.

Defendant attorney’s motion to compel contractual arbitration and to stay the present
litigation pending completion of arbitration proceedings is GRANTED, as follows.

The motion is made on the grounds that there is valid, binding agreement requiring
arbitration of any claim against defendant for “negligence, malpractice or other
professional misconduct” and that plaintiff’s first amended complaint now asserts
claims for “professional malpractice,” breach of fiduciary duty, misrepresentation,
unfair business practices and “fraud & deceit.”

Plaintiff’s untimely opposition advances two primary arguments. First, plaintiff
contends that because defendant attorney previously withdrew from his representation
of plaintiff over the latter’s objection and that this withdrawal prejudiced plaintiff’s
earlier case, “there is no longer an existing contract” with defendant and that its terms
are “negated, null and void.” Second, plaintiff insists defendant cannot under
California law compel a client to arbitrate an attorney fee dispute.

At the outset, the Court finds that arbitration must be compelled where there is a valid,
binding arbitration agreement unless the opposing party proves the agreement is
unenforceable on unconscionability or other grounds. (See, e.g., Armendariz v.
Foundation Health (2000) 24 Cal.4th 83, 96-100, 114; Gatton v. T-Mobile USA (2007)
152 Cal.App.4th 571, 579.) In this case, plaintiff does not dispute that he signed the
retainer agreement containing the arbitration clause sought to be enforced here and
thus, arbitration must be compelled unless plaintiff can show the arbitration clause or
the retainer agreement is unenforceable. As explained below, plaintiff failed to carry
his burden.

First, the mere fact that defendant attorney withdrew from his representation does not
itself render the arbitration clause or the retainer agreement unenforceable or as
suggested by plaintiff, “null and void.” The Court notes that plaintiff cited no legal
authority for this proposition. Regardless, this Court holds that in the absence of timely
rescission of the retainer agreement, it continues to define the parties’ respective rights
and obligations thereunder and this necessarily includes the compulsory arbitration of
claims against defendant for “negligence, malpractice or other professional
misconduct.” In fact, consistent with this holding, the retainer agreement explicitly
advises plaintiff that this attorney may withdraw from representation at any time under
certain circumstances and that this does not otherwise alter the terms of the retainer
agreement, including the arbitration clause. (Retainer Agr., p.3, ¶3.)

Second, the authorities cited by plaintiff as support for his contention that an attorney
cannot under compel a client to arbitrate an “attorney fee dispute” are inapplicable for
one simple reason: The present action simply does not present any claims suggesting
a dispute over attorney fees owed to defendant attorney under the retainer agreement.
Thus, the rules governing “attorney fee disputes” and the arbitration of such disputes
have no relevance to this case.

Because plaintiff failed to demonstrate any valid ground on which to deny defendant’s
request for arbitration pursuant to the retainer agreement’s express terms, the motion
to compel arbitration must be and hereby is granted. Additionally, pursuant to Code of
Civil Procedure §1281.4 and the express terms of the retainer agreement, this action is
hereby stayed pending completion of mandatory arbitration proceedings.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, defendant
to prepare a proposed order.