Case Number: EC061572 Hearing Date: June 13, 2014 Dept: NCD

TENTATIVE RULING
#15
EC 061572
LIPTON & MARGOLIN, APC v. KO

Motion to Compel Arbitration

TENTATIVE:
[No Opposition]
Unopposed motion to compel arbitration brought by plaintiff and cross-defendant Lipton & Margolin, LLC is GRANTED. Plaintiff and cross-defendant Lipton & Margolin, LLC and all other cross-defendants and cross-complainant Andrew Ko are ordered to submit the cross-complaint to arbitration pursuant to their express agreement.
The court notes that it received no timely opposition to the motion to compel, as required by CCP § 1290.6. Accordingly, pursuant to CCP §1290, the allegations of the motion are deemed to be admitted by defendant and cross-complainant.
The court finds that an agreement to arbitrate the controversy as set forth in the cross-complaint exists, that there is no showing that there has been any waiver of the right to compel arbitration, and no showing that the agreement has been revoked or that grounds exist for revocation of the agreement.

The court further orders under CCP § 1281.4 that this action as to the arbitrating parties shall be stayed until an arbitration has been had according to this order, including the fees claims of plaintiff.

FACTUAL BACKGROUND:
This action is brought by plaintiff Lipton & Margolin, APC, attorneys, to recover fees allegedly owed plaintiff by its former client, defendant Andrew Ko.

Ko has filed a cross-complaint against plaintiff and cross-defendants Hugh A. Lipton, and Keith A. Bregman, alleging that defendants breached the retainer agreement and engaged in legal malpractice in connection with the underlying representation of KO in a family law matter.

ANALYSIS:
Procedural
No Opposition
There is no timely opposition to this motion. Under CCP § 1290.6, a response to a petition to compel arbitration “shall be served and filed within 10 days of the service of the petition.” Here, the motion was served on May 15, 2014, by mail. Allowing five days for service by mail, opposition was due on or before May 30, 2014, but was not filed by that date. The motion may be granted on the ground no timely opposition has been served or filed.

Substantive
Here, the parties entered a written arbitration agreement, which provides, in pertinent part:
“It is understood that any dispute as to LEGAL MALPRACTICE, that is, as to whether legal services rendered under this contract were unnecessary or unauthorized or were improperly rendered, will be determined by submission to arbitration as provided by California law, and not be a lawsuit or resort to court process except as California provides judicial review or arbitration proceedings.”
[Ex. C, Article 1].

This agreement is signed by both the attorney and client.

The client has agreed to submit disputes as to Legal Malpractice to arbitration, which appears to encompass all causes of action stated in the cross-complaint. There is no opposition establishing any waiver or revocation of the subject agreement, and the motion is granted and the parties are ordered to arbitrate pursuant to their agreement. The parties to the arbitration are defined as the client and the attorney, to include “the undersigned attorney and his or her professional corporation or partnership, and any employees, agents, successors-in-interest, heirs and assigns of the foregoing individuals or entities.” [Ex. B, Article 2 (a)].
This appears to encompass all cross-defendants so that the cross-complaint in its entirety shall be submitted to arbitration.

Cross complainant has failed to establish any waiver of the right to arbitrate, or any revocation, and the motion should be granted and the parties ordered to arbitrate pursuant to their agreement.

Under CCP § 1281.4, where the court has ordered arbitration of a controversy, the court
“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.”