2013-00140432-CU-PN
Ovsep Joe Neresyan vs. Wilcoxen Callaham LLP
Nature of Proceeding:
Filed By:
Motion for Relief from March 12, 2014 Order
Alves, Suzanne M.

The motion of Plaintiffs Ovsep Joe Nersesyan and Anaid Nersesyan (“Plaintiffs”) for
relief from the court’s order compelling arbitration is DENIED.

Background Facts/Procedure

This is a legal malpractice action. Defendants Wilcoxen Callaham, LLP, Daniel E.
Wilcoxen and William C. Callaham (“Defendants”) filed their petition to compel
arbitration on June 28, 2013. In their Response, Plaintiffs argued that the relevant
arbitration provisions were void because Defendants had not provided them with a
copy of the contingency-fee agreement at the time the parties entered into the
agreement. (See B&P Code § 6147.) The parties vigorously disputed whether
Defendants’ computers show that Defendants timely provided a copy of the
contingency-fee agreement.

In a tentative ruling issued July 24, 2013, the court rejected Plaintiffs’ arguments,
credited the testimony of Defendants’ declarants, and granted the petition. At oral
argument, however, Plaintiffs’ counsel requested leave to take additional discovery on
the issue of timely delivery of a copy of the contingency-fee agreement. The court
granted the request and took the matter under submission.

The petition to compel arbitration remained under submission for several months while
the hearing was continued for various reasons. Throughout this period, the matter
remained under submission. On January 16, 2014, after having reviewed
supplemental discovery and arguments, the court tentatively affirmed its tentative
ruling granting the petition. At the hearing on January 17, 2014, however, counsel
requested leave to submit deposition transcripts for the court’s consideration. The
court granted the request, kept the matter under submission and continued the hearing
to February 26, 2014. The parties submitted deposition transcripts, which the court
reviewed.

While the court was reviewing the transcripts, another piece of evidence was being
crafted, namely an independent computer expert’s report. The report focused on
whether Defendants’ computers showed any trace of a cover letter that might have
accompanied a mail-served copy of the contingency-fee agreement. The existence of
such a letter would undermine Defendants’ position that they personally delivered a
copy of the contingency-fee agreement to Plaintiffs while Mr. Nersesyan was in the
office. At 8:24 a.m. on February 25, 2014, the expert emailed the parties’ attorneys a
report concluding inter alia that Defendants’ computers contained no documents
resembling an envelope addressed to Plaintiffs. Defendants’ counsel lodged a copy of
the report the day it was issued.

Within a few hours of receiving the experts’ report, Plaintiff’s counsel telephonically
notified the court that he did not want to appear for oral argument. The court nonetheless issued a tentative ruling ordering counsel to appear for argument the
following day. The court noted that any request for oral argument had been
withdrawn.

On March 6, 2014, and based on its review of the transcripts, the court issued a
modified ruling conditionally granting the petition. Based upon a finding that
Defendants had not provided Plaintiffs with a copy of the contingency-fee agreement
while Mr. Nersesyan was in Defendants’ offices, the court ordered the matter to
arbitration subject to Plaintiffs’ right to void the contingency-fee agreement.
On March 10, 2014, counsel for the parties jointly submitted a formal order
memorializing the original tentative ruling, which unconditionally compelled arbitration.
Based on this submission, on March 11, 2014, the court vacated its order of March 6,
2014, signed the proposed formal order and unconditionally ordered the matter to
arbitration.

Plaintiffs now move the court for discretionary relief pursuant to CCP § 473(b). They
argue that their counsel executed the proposed order submitted on March 10, 2014 as
the result of mistake or excusable neglect.

Discussion

The motion is denied because Plaintiffs’ counsel’s decision to sign the March 10 order
was a calculated decision based on the independent expert’s report. The court finds
that, once Plaintiffs’ counsel reviewed the expert’s report and learned that Defendants’
computers contained no trace of an envelope or cover letter addressed to Plaintiffs, he
decided not to pursue a contrary argument any further. As part of this calculation,
Plaintiffs’ counsel decided not to appear notwithstanding the court’s order to appear on
February 26, 2014. He thus abandoned his effort to pursue a modified ruling and
conceded that the original tentative ruling was the court’s final order. Plaintiffs
counsel’s calculated decisions do not warrant discretionary relief under CCP § 473(b).
(See Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal. App. 4th 1, 17
[“There is nothing in section 473 to suggest it was intended to be a catch-all remedy
for every case of poor judgment on the part of counsel…[c]ounsel’s failure to
understand the type of response required or to anticipate which arguments would be
found persuasive does not warrant relief under section 473”] [citations omitted;
brackets and ellipsis added]; Pagarigan v. Aetna U.S. Healthcare of California, Inc.
(2007) 158 Cal.App.4th 38, 45 [where counsel’s actions are deliberate, rather than
inadvertent, discretionary relief is properly denied].)

Plaintiffs’ request for judicial notice is GRANTED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.