Roknian vs. Palmier Hennessey & Lifer LLP

Existence of Arbitration Agreement

The court determines the existence of an agreement to arbitrate in a summary process. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164.) The trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. (Ibid.)

Courts use a “three-step burden-shifting process” to determine whether an agreement to arbitrate exists:

“First, the party petitioning to compel arbitration must state the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference. Signatures on the

arbitration agreement need not be authenticated at this initial stage.

“If the petitioner meets their initial burden, the burden of production shifts to the party opposing the petition to compel arbitration, who must offer admissible evidence creating a factual dispute as to the agreement's existence. When the dispute centers on the authenticity of signatures, the opponent need not prove that his or her purported signature is not authentic, but must submit sufficient evidence to create a factual dispute and shift the burden back to the arbitration proponent, who retains the ultimate burden of proving, by a preponderance of the evidence, the authenticity of the signature.”

(West v. Solar Mosaic LLC (2024) 105 Cal.App.5th 985, 992 [cleaned up; emphasis in original].)

Here, Defendants seek to compel arbitration pursuant to an arbitration provision contained in a Fee Agreement. Defendants emailed the Fee Agreement to both Plaintiffs on 4/18/25. (Leifer Decl., ¶ 5; Mollis Decl., ¶ 6, Ex. 3.) Hamid Roknian signed the Fee Agreement at a meeting with Defendants on 4/21/25. (Leifer Decl., ¶¶ 5-6; see also H. Roknian Decl., ¶ 16.) Rozita Roknian returned the signed Fee Agreement on 4/23/25. (Leifer Decl., ¶ 7, see also R. Roknian Decl., ¶ 13, 15.) Both plaintiffs initialed directly under the arbitration provision. (Leifer Decl., Ex. A, ¶ 12, p. 4.)

The arbitration provision provides:

Any dispute arising out of or relating to this Agreement or in connection with the provision of legal services to Clients by the Firm including without limitation, any claim for breach of contract, professional negligence/malpractice, breach of fiduciary duty, misrepresentation, fraud, disputes regarding attorneys' fees and/or costs charged under this Agreement shall be resolved by binding arbitration in the County of Orange, State of California before, and in accordance with the rules of, the Judicial Arbitration and Mediation Service ("JAMS").

The Firm and Clients shall bear their respective costs, expenses, attorneys' fees and an equal share (50% Firm and 50% Clients) of the arbitrator's and administrative fees in connection with such binding arbitration. By signing this Agreement, Clients understand and acknowledge that this arbitration provision results in a waiver of Clients' right to a court or jury trial for any and all such claims. In addition, Clients understand and acknowledge that Clients are waiving any right to appeal and may be giving up certain rights to discovery regarding such Claims.

Clients acknowledge that before signing this Agreement and agreeing to binding arbitration, Clients are entitled, and has been given a reasonable opportunity, to seek the advice of independent counsel. The venue for any post-arbitration award to

confirm, correct or vacate the arbitration award shall be in the Orange County Superior Court, Central Justice Center.

(Leifer Decl., ¶ 7, Ex. A, ¶ 12 [emphasis added].)

In addition to attaching the Fee Agreement to the motion, Defendants also set out the above terms verbatim in the motion. Thus, Defendants have met their initial burden.

Plaintiffs do not dispute initialing and signing the arbitration provision and Fee Agreement. (Hamid Roknian Decl., ¶¶17-18, 28; Rozita Roknian Decl., ¶¶ 13, 15.) Instead, they dispute that they knowingly and mutually assented to the arbitration provision. Plaintiffs contend that Defendants represented that the arbitration language was required by the State Bar and had Defendants explained the true nature and consequences of the arbitration provision, Plaintiffs would not have agreed to arbitrate disputes with their attorneys. According to Plaintiffs, because Defendants are attorneys, they had a fiduciary obligation to ensure Plaintiffs understood the consequences of signing the arbitration provision.

These arguments lack merit. First, prior to signing the Fee Agreement, there is no fiduciary relationship: “The confidential relationship between attorney and client does not arise until the contract between them is made and that in agreeing upon its terms the parties deal at arm's length.” (Lee v. Gump (1936) 14 Cal.App.2d 729, 733, citing Cooley v. Miller & Lux (1906) 156 Cal. 510, 524.)

Second, when Plaintiffs initialed the arbitration provision, they acknowledged they were “entitled, and ha[d] been given a reasonable opportunity, to seek the advice of independent counsel.” (Leifer Decl., ¶ 7, Ex. A, ¶ 12.) While Hamid Roknian asserts that neither he nor his wife received or reviewed the Fee Agreement before 4/21/25 (H. Roknian, ¶¶ 10-11), Rozita Roknian does not deny receiving the Fee Agreement on 4/18/25 or reviewing it prior to signing it (see, generally, R. Roknian Decl.).

Even if Hamid Roknian first received the Fee Agreement at the 4/21/25 meeting, he was free to decline signing the agreement and seek advice of independent counsel. The impending deposition was not until 5/6/25. Notably, Plaintiffs were still represented by their prior counsel until 4/24/25. (See Leifer Decl. ¶ 9, Exs. B and C [Substitutions of Attorney signed by Plaintiffs on 4/24/25]; see also H. Roknian Decl., ¶ 23.)

Second, the arbitration provision is written in plain language and clearly states the consequences of agreeing to arbitrate. Nowhere in their declarations do Plaintiffs state they did not read the Fee Agreement before signing it. In any event, failure to read or understand the arbitration clause is generally no defense. (See Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710.)

Third, merely stating the State Bar required the arbitration language neither misrepresented nor hid the nature or consequences of the

arbitration provision. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415 [mutual assent is lacking where there is fraud in the inception or execution of the agreement, i.e. “the promisor is deceived as to the nature of his act, and actually does not know what he is signing, or does not intend to enter into a contract at all”].).

“Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 460.) “In the world of paper contracting, the outward manifestation of assent to the same thing by both parties is often readily established by the offeree's receipt of the physical contract.” (Id. at p. 61 [emphasis in original].) Here, Plaintiffs’ outward manifestation of mutual assent consisted of initialing the arbitration provision and signing the Fee Agreement.

Accordingly, Defendants have established the existence of an arbitration agreement.

Delegation

Plaintiffs argue the arbitration agreement is both procedurally and substantively unconscionable. However, arguments regarding the validity and scope of the arbitration agreement must be decided by the arbitrator, not this Court.

The “validity of an arbitration clause itself is a matter for the arbitrator where the agreement so provides.” (Monex Deposit Co. v. Gilliam (C.D. Cal. 2009) 616 F.Supp.2d 1023, 1026; Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 551, 557 [“The issue of who should decide arbitrability turns on what their parties agreed in their contract” and “We conclude...that where the Contract provides for arbitration in conformance with rules that specify the arbitrator will decide the scope of his or her own jurisdiction, the parties’ intent is clear and unmistakable, even without a recital in the contract that the arbitrator will decide any dispute over arbitrability”].)

Here, the arbitration provision provides that disputes “shall be resolved by binding arbitration . . . before and in accordance with the rules of the Judicial Arbitration and Mediation Service (“JAMS”).” (Leifer Decl., ¶ 7, Ex. A, ¶ 12.) In turn, Rule 11 of the JAMS Rules of Commercial Arbitration provides: “Jurisdictional and arbitrability disputes, including disputes over the formation, existence, validity, interpretation or scope of the agreement under which Arbitration is sought, and who are proper Parties to the Arbitration, shall be submitted to and ruled on by the Arbitrator. The Arbitrator has the authority to determine jurisdiction and arbitrability issues as a preliminary matter.” (Leifer Decl. Ex. D [JAMS Rule 11, subd. (b)].) Thus, the parties clearly and unmistakably delegated such issues to the arbitrator.

Importantly, Plaintiffs have already consented to JAMS’ jurisdiction. On 1/27/26, PHL filed a Demand for Arbitration with JAMS regarding a fee dispute. (Leifer Decl., ¶ 11.) On 6/15/26, Plaintiffs filed a Counterclaim with JAMS against Defendants alleging the same professional negligence and fraud claims that they allege in this action. (Mollis Decl., ¶ 2, Ex. 1.)

The motion is GRANTED. This action is stayed pending the outcome of arbitration.