G. Eric Kuskey v. Jacqueline Misho

"(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. "(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. "(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. "(c) If, after notice and a reasonable opportunity to respond, the Court determines that subdivision (b) has been violated, the Court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.

In determining what sanctions, if any, should be ordered, the Court shall consider whether a party seeking sanctions has exercised due diligence." (Code Civ. Proc., Sec. 128.7, subd. (b), (c).) For all reasons discussed above, the claims and legal contentions advanced in the moving papers submitted in support of Plaintiff's motion and described above are not warranted by the decisions in Saldana and Great American. For these and all further reasons discussed above, it appears that attorney Scafide, who signed the notice and motion presented to the Court, has violated subdivision (b) of Code of Civil Procedure section 128.7. (Code Civ.

Proc., Sec. 128.7, subd. (b).) In their reply, Plaintiff "acknowledges that Saldana does not support the material the moving papers claim it supports", and "that Great American does not support the claim that the designation and appearance of an unprepared PMK is a functional non-appearance." (Reply at p. 8, ll. 5-6 & 15-17.) Wholly absent from that reply is any information explaining why the motion cites Saldana or Great American as support for the legal contentions or arguments described above and in the motion.

Under the circumstances present here, unless the motion is withdrawn or appropriately corrected within 21 days of service of the Court's order herein, the Court will order Plaintiff's counsel, attorney James F. Scafide, to appear and explain the spurious matters described herein and to show cause why monetary sanctions not to exceed $1,500 should not be imposed against them for violating subdivision (b)(1) and (2) of section 128.7. (Code Civ. Proc., Sec. 128.7, subd. (b).) The hearing on this order to show cause shall be set for December 9, 2026, at 10:00 a.m. in this Department.

On or before November 25, 2026, Plaintiff's counsel shall file and serve a written response to the Court's order herein. To the extent Plaintiff files papers appropriately correcting the motion including the contentions further discussed above, or withdraws the motion, any such papers or notice of any such withdrawal must be filed and served within 21 days of service of the Court's order to show cause. (Code Civ. Proc., Sec. 128.7, subd. (c)(2).) If those papers also appropriately and sufficiently correct the issues discussed above in regard to the quoted material appearing in the motion, the Court will not require Plaintiff to file and serve the supplemental brief or declaration described above.

Opposition to any papers that may be filed by Plaintiff to correct the motion, and any reply, must be filed and served within the time prescribed in Code of Civil Procedure section 1005.

Tentative Ruling: G. Eric Kuskey v. Jacqueline Misho Tentative Ruling: G. Eric Kuskey v. Jacqueline Misho Case Number

Case Type Civil Law & Motion Hearing Date / Time Wed, 08/19/2026 - 10:00 Nature of Proceedings Petition to Vacate Attorney-Client Fee Arbitration Award Tentative Ruling For Petitioner: G. Eric Kuskey: Self represented.

For Respondent: Jacqueline Misho: Paul R. Burns. RULING The date for a joint hearing on the Petition to Vacate and the Petition to Confirm is October 28, 2026, at 10am. The court expects that code compliant service and filing of all papers, including any required written notices, in support of or in response to each of the petitions at issue has been or will be timely made prior to that joint hearing.

Background

Petitioner G. Eric Kuskey (Kuskey) seeks in these proceedings to vacate an attorney-client fee arbitration award (the Award). Kuskey filed his petition (the Petition to Vacate) against respondent Jacqueline Misho (Misho) on January 6, 2026, asserting that an attorney-client fee arbitration (the arbitration) was conducted in Santa Barbara, California, on September 17, 2025, pursuant to Business and Professions Code sections 6200 through 6205. (Petition, P.P. 2, 3(b)(4)(a), 5(a), (b).) Kuskey is the client involved in the subject fee dispute which involves the amount of $27,313.51. (Petition, P.P. 2(b), 3(b)(3)(a).)

As further alleged in the Petition to Vacate: Penny Clemmons (Clemmons), Christopher S. Biely, and Jeff Rishwain (collectively, the Panel) were selected or appointed as arbitrators. (Petition, P. 4.) The Award was made and mailed to Kuskey on September 30, 2025, and requires Kuskey to pay Misho the amount of $27,313.51. (Petition, P.P. 6(a) & (b)(1), 7.) A copy of the Award is submitted with the Petition to Vacate. (Petition, P. 6(c), 8(a), & pdf pp. 4-10.) The Petition to Vacate alleges as grounds to vacate the Award, that the Award was obtained by corruption, fraud, or unfair means; that the misconduct of a neutral arbitrator substantially prejudiced the rights of Kuskey; that the arbitrator exceeded his or her authority; that the Award cannot be fairly corrected; and that the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute. (Petition, P. 10 (c)(1)(a) & (c)-(e).)

In support of the grounds to vacate the Award alleged in the Petition to Vacate, Kuskey submits a declaration stating that he did not receive a copy of Misho's written statement in advance of the arbitration, which Kuskey brought to the attention of Clemmons. (Petition at pdf p. 12, Kuskey Declaration, P. 1.) Kuskey asserts that Clemmons should have halted the arbitration and rescheduled it for another date but instead, Clemmons chose to continue the hearing knowing that Kuskey was not in receipt of the written statement of Misho. (Ibid.)

Clemmons also communicated directly with Misho outside the presence of Kuskey, and asked Misho "what she would prefer to do with the confirmed Rules violation[.]" (Ibid., capitalization unchanged.) Kuskey further states that Clemmons refused to allow them to present emails which, according to Kuskey, evidenced the bases for Kuskey's belief that Misho was not entitled to the fees she was requesting, and which include that Misho did not follow Kuskey's instructions; that Kuskey did not approve of the direction of the case that caused the fees to be incurred; and that Misho repeatedly asked for a lien on Kuskey's house so that she could take the matter into court rather than follow Kuskey's instructions to call opposing counsel and engage in a settlement conversation. (Petition at pdf p. 12, Kuskey Declaration, P. 2.)

Kuskey also states that, during and throughout the hearing, Clemmons repeatedly told Kuskey to "stop talking" or "be quiet". (Petition at pdf p. 12, Kuskey Declaration, P. 3.) Clemmons also stated "we've heard enough from you" (referring to Kuskey); refused to hear Kuskey's full closing statement; and proclaimed "I bet you're glad you're not married to me, Mr. Kuskey". (Petition at pdf pp. 12-13, Kuskey Declaration, P. 3.) Clemmons also demanded to see Kuskey's phone; asked Kuskey if they were recording the proceedings which Kuskey stated they were not; and demanded that Kuskey turn their cell phone over. (Petition at pdf p. 13, Kuskey Declaration, P. 3.)

Clemmons handed Kuskey's phone to another arbitrator who turned it off. (Ibid.) Misho was allowed to keep her phone on and to use it during the proceeding. (Ibid.) Kuskey contends that this conduct embarrassed and demeaned Kuskey, and demonstrates that Clemmons was prejudiced and biased towards Kuskey and would not review the matter on the merits. (Ibid.) Kuskey further asserts that he was prejudiced by the inability of one member of the Panel to appear via Zoom because of repeated lost connections. (Petition at pdf p. 13, Kuskey Declaration, P. 5.)

Though Clemmons placed that member on speaker phone to listen in, there was no way to know if the member was present or could properly hear the proceeding due to a weak cell signal at the hearing location. (Ibid.) Kuskey contends that the

hearing should have been suspended until those technical issues, which purportedly prejudiced Kuskey's presentation, were cured. (Ibid.) On May 1, Misho filed a response to the Petition to Vacate, asserting three affirmative defenses, and separately filed a petition to confirm the Award (the Petition to Confirm). On May 20, Misho filed a supplemental brief in response to the Petition to Vacate. On June 10, Kuskey filed notice of the hearing on the Petition to Vacate calendared for August 19, 2026. On July 28, Kuskey filed a reply in support of the Petition to Vacate. On August 5, Kuskey filed a supplemental declaration in support of the Petition to Vacate.

Analysis

Pursuant to Business and Professions Code section 6200 et seq. (the Mandatory Fee Arbitration Act or Act), "when there is a fee dispute between an attorney and a client, the client may choose to submit the matter to arbitration by a local bar association. If the client elects such arbitration, the attorney must agree to arbitrate. The arbitration will be binding, however, only if the attorney and client so agree in writing after the dispute has arisen." (Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 561.)

The Award shows that Kuskey appeared at the arbitration; that Kuskey "amended his Request for Arbitration from non- binding to binding arbitration"; that Kuskey stated "he checked the wrong box on the form[]"; and that Misho "appeared and agreed to binding arbitration." (Petition at pdf p. 4 ["Introductory Statement"], capitalization and punctuation unchanged.) For these and all further reasons discussed above, the record reflects, without dispute, that Kuskey and Misho agreed in writing that the Award would be binding.

Relevant here, the Act provides that the Award "may be confirmed, corrected, or vacated by petition to the court having jurisdiction over the amount of the arbitration award, but otherwise in the same manner as provided in Chapter 4 (commencing with Section 1285) of Title 9 of Part 3 of the Code of Civil Procedure." (Bus. & Prof. Code, Sec. 6203, subd. (b).) Pursuant to Code of Civil Procedure section 1290, a proceeding to confirm, correct, or vacate an arbitration award "is commenced by filing [the] petition.

Any person named as a respondent in a petition may file a response thereto. The allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed. The allegations of a response are deemed controverted or avoided." (Code Civ. Proc., Sec. 1290.) A petition to confirm, correct, or vacate an arbitration award "shall be heard in a summary way in the manner and upon the notice provided by law for the making and hearing of motions, except that not less than 10 days' notice of the date set for the hearing on the petition shall be given." (Code Civ.

Proc., Sec. 1290.2.) Service of the petition and "a written notice of the time and place of the hearing thereof and any other papers upon which the petition is based" must be made in the manner provided in Code of Civil Procedure section 1290.4. "A response shall be served and filed within 10 days after service of the petition except that if the petition is served in the manner provided in paragraph (2) of subdivision (b) of Section 1290.4, the response shall be served and filed within 30 days after service of the petition.

The time provided in this section for serving and filing a response may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court." (Code Civ. Proc., Sec. 1290.6.) Pursuant to Code of Civil Procedure section 1286, "If a petition or response under [Chapter 4] is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding." (Code Civ.

Proc., Sec. 1286.) " '[O]nce a petition to confirm, correct, or vacate is filed, the superior court has only four choices: It may (1) confirm the award, (2) correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the proceedings.' [Citation.] 'A party to an arbitration may seek to vacate or correct the award or to have it confirmed. [Citation.] Upon a petition seeking any of those results, the court must confirm the award, unless it either vacates or corrects it. [Citation.]' [Citation.]" (Law Offices of David S.

Karton v. Segreto (2009) 176 Cal.App.4th 1, 8, italics in original.) Because, for all reasons discussed above, the Petition to Vacate and the Petition to Confirm raise common questions and issues of law and fact, the court will, in the interests of judicial efficiency, determine those petitions at a joint hearing. Though Kuskey served a notice of the hearing on, and Misho has served and filed a response