Ramsbacher Prokey Leonard LLP v. Barry Vanderkelen

Ramsbacher Prokey Leonard LLP v. Barry Vanderkelen, 25CV-0391

Hearing: Amended Petition to Compel Arbitration Demurrer to Amended Petition to Compel Arbitration

Date: August 19, 2026

On January 30, 2025, Ramsbacher Prokey Leonard LLP (Petitioner) filed a Creditor’s Claim in the Estate of: Janice Tannehill (24PR-0379). 1 The claim seeks legal fees incurred from February 2023 through December 2024.2 Respondent failed to take any action on the claim. (Prob. Code, § 9250(a).) “If within 30 days after a claim is filed the personal representative or the court or judge has refused or neglected to act on the claim the refusal or neglect may, at the option of the creditor, be deemed the equivalent to giving a notice of rejection on the 30th day.” (Prob. Code, § 9256.) 3

On June 12, 2025, Petitioner filed a petition to compel arbitration against Barry Vanderkelen as Executor of the Estate of Janice Pankey Tannehill (Respondent). Petitioner filed an amended petition to compel arbitration on September 3, 2025.

On November 7, 2025, Respondent filed a demurrer to the amended petition to compel arbitration. A demurrer is not a proper response to a petition to compel arbitration filed pursuant to Code of Civil Procedure section 1281.2. (See Code Civ. Proc., § 430.30 [demurrer may be filed to complaint, cross-complaint, answer].) The Court therefore treats the demurrer as a response filed pursuant to Code of Civil Procedure section 1290 and addresses those arguments concurrently with the amended petition to compel arbitration. Petitioner consents to that approach. (Opp., p. 3, ll. 6- 13.)

For the reasons set forth below, the Court denies the amended petition to compel arbitration.

I. Standard

Under California law, “[a] written agreement to submit to arbitration an existing controversy or a controversy thereafter is valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.)

1 The Court takes judicial notice of any court documents referenced in this ruling. (Evid. Code, § 452(d).) The Court also grants Respondent’s requests for judicial notice filed in support of his demurrer. (Evid. Code, § 452(d).) 2 Janice Tannehill passed away on October 18, 2024. Letters were issued to Respondent on March 11, 2025. Petitioner’s Creditor’s Claim was timely under Probate Code section 9100. 3 Prior to receiving Testamentary Letters, Respondent had no authority to act on Petitioner’s Creditor’s Claim. Petitioner, however, did not file the present proceeding until 30 days after Respondent had been issued letters, served with the Creditor’s Claim, and failed to take any action on the claim. 1

If the court determines that an agreement to arbitrate exists, it must order the parties to arbitration unless it finds that “(a) the right to compel arbitration has been waived by the moving party, (b) grounds exist for revocation of the agreement, or (c) a party to the arbitration agreement is also a party to a pending court action with a third party arising out of the same transaction.” (Sargon Enterprises, Inc. v. Browne George Ross LLP (2017) 15 Cal.App.5th 749, 762, citing Code Civ. Proc., § 1281.2.)

“The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

II.

Discussion

On March 18, 2025, Petitioner sent Respondent a Notice of Client’s Right to Fee Arbitration in accordance with the rules of the California State Bar mandatory fee arbitration program. (Bus. & Prof. Code, § 6200 et seq.) Petitioner reports, and Respondent does not dispute, that Respondent waived the right to request mandatory arbitration by not filing an arbitration petition within the required time. (Bus. & Prof. Code, § 6201(a) [waiver of right to arbitrate if request not made within 30 days after client’s receipt of notice]; Cal. State Bar Rules, rule 3.502 [same].) In light of Respondent’s waiver of the statutory fee arbitration program, Petitioner seeks to enforce a contractual arbitration agreement.

In support, Petitioner submits the following two arbitration clauses contained in fee agreements between itself and Janice Tannehill.

Arbitration. Any dispute between us concerning our fees or charges shall, if you so elect, be submitted to arbitration under rules of the California State Bar, and shall be binding if: (a) each of us so agrees after any such dispute arises; or (b) such arbitration becomes binding under such rules. Any dispute between us concerning our fees or charges not so submitted to binding arbitration under the rules of the California State Bar, or that remains unresolved after non-binding arbitration under such rules, and any other dispute between or among either of you and our firm, its attorneys, or agents, including but not limited to claims of malpractice, errors, or omissions, or any other claim of any kind regardless of the facts or the legal theories, shall be finally settled by mandatory binding arbitration in San Jose, California, conducted in accordance with California Code of Civil Procedure §§ 1282 et seq., including, but not limited to, § 1283.05, with each party to bear its own costs and attorneys’ fees and disbursements.

Such arbitration shall be conducted before a single arbitrator, except in matters involving a dispute greater than five hundred thousand dollars ($500,000), which shall be conducted before a three arbitrator panel with each side selecting one arbitrator and the two arbitrators selected by the parties choosing the third arbitrator. Judgment on a binding arbitration award may be entered in any court of competent jurisdiction. We mutually acknowledge that, by this agreement to arbitrate, each of us irrevocably waives our rights to court or jury trial.

You have the right to consult separate legal

counsel at any time as to any matter, including whether to enter into this engagement letter and consent to the foregoing agreement to arbitrate.

(Amd. Pet., Ex. A, p. 3 [01/17/12 Letter re Wealth and Planning and Potential Contingency Planning from Petitioner and signed by Tannehill on 01/23/12].)

Arbitration. Any dispute between us concerning our fees or charges shall, if you so elect, be submitted to arbitration under rules of the California State Bar and shall be binding if: (a) each of us so agrees after any such dispute arises; or (b) such arbitration becomes binding under such rules. Any dispute between us concerning our fees or charges not so submitted to binding arbitration under the rules of the California State Bar, or that remains unresolved after non-binding arbitration under such rules, and any other dispute between you and our firm, its attorneys, or agents, including but not limited to claims of malpractice, errors, or omissions, or any other claim of any kind, regardless of the facts or the legal theories, shall be finally settled by mandatory binding arbitration in San Jose, California, conducted in accordance with California Code of Civil Procedure §§ 1282 et seq., including, but not limited to, § 1283.05, with the prevailing party in such mandatory binding arbitration proceeding being entitled to reasonable attorneys’ fees and costs.

Such arbitration shall be conducted before a single arbitrator. Judgment on the binding arbitration award may be entered in any court of competent jurisdiction. You acknowledge that, by signing this agreement to arbitrate you waive your right to a court or jury trial. You have the right to, and are encouraged to, consult separate legal counsel about whether to enter into this engagement letter, which contains this agreement to arbitrate.

(Amd. Pet., Ex. B, p. 3 [05/11/23 Letter re Litigation Counsel and Related Services from Petitioner and signed by Tannehill on 05/11/23].)

A. Petitioner Has Not Waived the Right to Compel Arbitration and Respondent Shares an Identity of Interest with Janice Tannehill for Purposes of Enforcing the Arbitration Agreements Against Him

Respondent argues the amended petition to compel arbitration should be denied because (1) Petitioner’s underlying creditor’s claim is time-barred under Probate Code section 9353 and (2) Respondent is not a party to the arbitration agreements and therefore cannot be compelled to arbitrate any dispute.

As to the first argument, Petitioner points out that the question of whether its Creditor’s Claim is time-barred is not before the Court. Petitioner argues the only determination before the Court is whether the parties agreed to arbitrate any disputes. (Code Civ. Proc., § 1281.2(d) [court cannot refuse to order arbitration on ground petitioner’s underlying claim lacks merit]; see also Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25-26 (Wagner) [court cannot deny petition to compel arbitration based on its adjudication of an affirmative defense].)

In the reply, Respondent argues Probate Code section 9353 presents a question of waiver. Under Code of Civil Procedure section 1281.2(a), courts must order the parties to arbitration if an agreement to arbitrate exists, unless “[t]he right to compel arbitration has been waived by the petitioner.” A party may waive the right to arbitrate a dispute by failing to demand arbitration within a reasonable time, within the time set forth in the parties’ contract, or within the time set forth in a specific statute (e.g., Ins.

Code, § 11580.2) (Wagner, supra, 41 Cal.4th at pp. 29-30.) Here, Respondent is not arguing Petitioner waived the right to compel arbitration, but instead that Petitioner missed the statute of limitations for pursuing its Creditor’s Claim. (Reply, p. 5, ll. 5-7 [did not commence action on the claim], p. 6, l. 1 [treat claim as rejected].) Again, that goes to the merits of the underlying claim.

The request to deny arbitration under Probate Code section 9353 is denied.

As to the second argument, Petitioner argues there is a sufficient identity of interest between Janice Tannehill and Respondent to enforce the arbitration agreement. (DMS Services, LLC v. Superior Court (2012) 205 Cal.App.4th 1346, 1353 [discussing commonality of exceptions to nonsignatory rule].) Respondent does not address the argument in his reply. The request to deny arbitration on this ground is denied.

B. There Are Overlapping Issues with a Pending Court Action with a Third Party

In April 2023, Kendra Sabi (Tannehill’s daughter) filed a petition pursuant to Probate Code section 17200. (Case No. 23PR-0079.) Sabi later filed an amendment in July 2023 naming Dennis Leonard (an attorney with Petitioner) as a named defendant in the first (invalidation of documents due to lack of capacity); second (undue influence); and third (financial elder abuse) causes of action. In response, Leonard filed an anti-SLAPP motion arguing the claims against him arose out of protected activity, i.e., his representation of Tannehill in connection with the trust litigation.4

The Court disagreed, finding the claims against Leonard were based on his preparation of the challenged March 2023 estate planning documents and his facilitation of Tannehill’s execution of the same despite questions regarding her capacity. (Ruling 03/25/24, p. 6, ll. 5-11.) The Court denied Leonard’s anti-SLAPP motion and he appealed. On September 16, 2025, the Court of Appeal affirmed the March 25, 2024 ruling. Sabi’s petition is still pending and raises questions regarding the work performed by Leonard for which Petitioner seeks payment via this arbitration proceeding.

On February 27, 2025, Sabi filed another petition seeking an order confirming the Sixth Amendment and Complete Restatement to the Revocable Trust executed on October 1, 2024 was void due to Tannehill’s incapacity. On March 3, 2025, Lora Eade (Tannehill’s daughter) also filed a petition to invalidate the Sixth Amendment based on Tannehill’s alleged incapacity. The Sixth Amendment was prepared by Petitioner. (Pet., Ex. C.) Petitioner and Leonard represented Tannehill during her lifetime in these proceedings.

4 “Leonard continuously represented Janice for over twelve years for her estate, tax and wealth planning. He was her primary attorney during that time until her recent passing.” (Petition to Remove GAL filed on 10/5/25 by Leonard and Petitioner, p. 5, ll. 24-25.) 4

On May 28, 2025, Sabi submitted a Petition for Approval of Settlement Agreement and Mutual Release. The agreement was reached by Sabi, Eade, their two brothers (James Brice Pankey and Chadburn Edgar Pankey), John Tannehill, and the appointed guardian ad litem for Sabi and Eade’s minor children. On October 2, 2025, Petitioner and Leonard, on their own behalf, filed a petition seeking to remove the guardian ad litem based on the terms of the settlement and seeking an order requiring a new mediation between the parties. Petitioner filed an amended petition for removal of the guardian ad litem on November 3, 2025.

Sabi’s original petition, Sabi and Eade’s petitions seeking to invalidate the Sixth Amendment, the petition for approval of the settlement agreement, and Petitioner and Leonard’s petition to remove the guardian ad litem were all set for hearing on May 5, 2026.

On May 10, 2024, Sabi submitted a second petition seeking acceptance of Tannehill’s prior resignations and appointing a third party fiduciary. The petition was filed as a new case In re: Janice P. Tannehill 2012 Irrevocable Trust dated 11/19/2012 (Case No. 24PR-0320). Petitioner filed an opposition to the petition on behalf of Tannehill, the day before she died. The next hearing in this matter was also set for May 5, 2026. Petitioner has filed a Request for Special Notice in both trust matters and the estate proceeding.

Vanderkelen is serving as successor trustee of the trust as well as executor of Tannehill’s estate.

Under Code of Civil Procedure section 1281.2(c), the court may deny a request to compel arbitration when “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.”

While Respondent (i.e., Tannehill’s estate) is not a party to the trust actions, Petitioner and Leonard are parties in Case No. 23PR-0079. In particular, the claims against Leonard arise out of his actions as Tannehill’s attorney and thus, as an employee/partner of Petitioner. Petitioner’s Creditor’s Claim seeks compensation for services rendered by Leonard which are at issue in Case No. 23PR- 0079.

Sending this creditor claim dispute to arbitration prior to resolution of the trust action presents the possibility of conflicting rulings (e.g., whether the actions for which fees are sought were proper; whether Tannehill had capacity to engage Petitioner in May 2023 and direct Leonard’s activities).

The Court therefore denies the amended petition to compel arbitration.

ORDER

The amended petition to compel arbitration is denied.

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