Miller, et al., v. Carlin

Property has not filed for relief under any laws governing bankruptcy, and there exists no other restraint to prevent Respondents from filing to foreclose the claim. (Id., P. 10.) Accordingly, the petition is GRANTED.

al., v. Carlin CASE NO.: 25SMCV04029 MOTION: Petition/Motion to Compel Arbitration HEARING DATE: 9/2/2026 LEGAL STANDARD Under California and federal law, public policy favors arbitration as an efficient and less expensive means of resolving private disputes. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)

Accordingly, whether an agreement is governed by the California Arbitration Act ("CAA") or the Federal Arbitration Act ("FAA"), courts resolve doubts about an arbitration agreement's scope in favor of arbitration. (Moncharsh, supra, 3 Cal.4th at 9; Comedy Club, Inc. v. Improv West Assocs. (9th Cir. 2009) 553 F.3d 1277, 1284; see also Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal.4th 951, 971-972 ["California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general"].)

"[U]nder both the FAA and California law, 'arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.' " (Higgins v. Superior Crout (2006) 140 Cal.App.4th 1238, 1247.)

"Code of Civil Procedure section 1281.2 requires a trial court to grant a petition to compel arbitration if the court determines that an agreement to arbitrate the controversy exists." (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 59, quotations omitted.)

Accordingly, "when presented with a petition to compel arbitration, the court's first task is to determine whether the parties have in fact agreed to arbitrate the dispute." (Ibid.)

A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract. (Id. at 71.)

As with any other specific performance claim, "a party seeking to enforce an arbitration agreement must show the agreement's terms are sufficiently definite to enable the court to know what it is to enforce." (Ibid. [internal citations omitted].)

"Only the valid and binding agreement of the parties, including all material terms well-defined and clearly expressed, may be ordered specifically performed." (Ibid.)

An arbitration agreement "must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code, Sec. 1636.)

The language of the contract governs its interpretation if it is clear and explicit. (Civ. Code, Sec. 1368.)

If uncertainty exists, "the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist." (Civ. Code, Sec. 1654.)

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.)

It would then be plaintiff's burden, in opposing the motion, to prove by a preponderance of the evidence any fact necessary to her opposition. (See Ibid.)

"In these summary proceedings, 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.)

ANALYSIS Plaintiffs Carrie Miller and Wake Leroux move to compel arbitration of this dispute and stay all court proceedings pending the completion of arbitration.

Existence of Agreement to Arbitrate Plaintiffs assert that they entered into a written Retainer Agreement with Defendant Gary R. Carlin, containing a valid and enforceable arbitration clause. (Miller Decl., P.P. 3-4.)

Plaintiffs initially failed to provide a copy of the agreement for the Court's review, but did so in the reply.

Section XV of the Retainer Agreement, titled 'RESOLUTION OF DISPUTES,' provides in relevant part: "In the event of any claim or dispute arising from or relating to an alleged breach of this agreement, including but not limited to CLIENT'S failure to pay fees for professional services, CLIENT'S failure to pay costs described in this retainer, claims of attorney malpractice, claims of breach of fiduciary duty, claims of breach of the implied covenant of good faith and fair dealing, claims of fraud or deceit, claims of violations of the Consumer Legal Remedies Act (Cal.

Civ. Code Sec.Sec. 1750 et seq.), claims of the Unfair Competition Law (Cal. Bus. & Prof. Code Sec.Sec. 17200, et seq.), claims of False Advertising (Cal. Civil Code Sec.Sec. 17500, et seq.), regardless of the facts or the legal theories which may be involved, such claim(s) or dispute(s) shall be resolved solely by binding arbitration before the American Arbitration Association.' The agreement further provides that 'CLIENT(S) and ATTORNEYS expressly and impliedly waive their right to a jury or court trial,' and that the arbitrator shall have sole power to determine the existence and validity of the arbitration agreement itself." (Ex A attached to reply.)

Plaintiffs bring claims for professional negligence (legal malpractice), breach of contract, and breach of fiduciary duty arising from Defendant's representation of Plaintiffs in an underlying lawsuit. (Compl., P.P. 8-17.)

Plaintiffs have demanded arbitration, but Defendants refused to arbitrate the claims. (Miller Decl., P.P. 5-7, see Ex. B attached to reply.)

Thus, the cited arbitration clause applies to the instant claims.

Defendant objects on the grounds that Plaintiffs failed to attach a copy of the agreement or demand to their initial declaration.

This issue has been cured.

Substantively, Defendant does not deny that the subject Retainer Agreement contains an arbitration clause which applies to the claims at hand.

Waiver

Defendant raises a waiver defense.

"Whether a party to an arbitration agreement has waived the right to arbitrate is a question of fact, and a trial court's determination on that matter will not be disturbed on appeal if supported by substantial evidence. . . . Since arbitration is a strongly favored means of resolving disputes, courts must 'closely scrutinize any claims of waiver.'" (Sobremonte v. Superior Court (1998) 61 Cal. App. 4th 980, 991, citations omitted.)

"No single test delineates the nature of the conduct that will constitute a waiver of arbitration." (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal. 4th 1187, 1195.)

"In determining waiver, a court can consider (1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party." (Sobremonte, supra, 61 Cal. App. 4th at 992, citation omitted.)

There are facts weighing towards finding a waiver.

Principally, Plaintiffs filed the instant lawsuit despite knowing of the existence of the agreement to arbitrate the instant claims.

The Complaint does not raise the arbitration issue.

Plaintiffs did not file a petition to compel arbitration until nine months after filing suit and approximately eight months after Defendant answered.

On the whole, however, the record weighs against finding a waiver.

Plaintiffs state that they filed the instant suit simply to preserve the statute of limitations. (Miller Decl., P. 8.)

The record does not show that the parties engaged in substantial litigation before Plaintiffs notified Defendant of an intent to arbitrate.

In fact, Plaintiffs demanded arbitration prior to filing this suit. (Miller Decl., P. 5, Ex. B.)

Further, this suit is still in its early stages.

The instant motion to compel arbitration has been the only motion practice in this case.

Defendant does not present any evidence that Plaintiffs' delay in seeking arbitration has resulted in prejudice.

On balance, the Court does not find a waiver.

Risk of Conflicting Rulings

Lastly, Defendant argues that Miller's separate malpractice action against attorney Lisa M. Howard should be considered under section 1281.2(c).

Code of Civil Procedure section 1281.2 provides: The court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that... [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.

In other words, courts may refuse arbitration where a party to the arbitration agreement is involved in litigation with a third party, if the litigation arises out of the same transaction or series of transactions as the arbitration; and there is a possibility of conflicting rulings on common issues of law or fact.

To avoid inconsistent results and the possibility that each defendant will seek to escape liability by blaming the other, the court can refuse to compel arbitration and order all parties joined in a single action. (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 339-340.)

In such cases, the parties to the arbitration agreement are forced to litigate a dispute that they had agreed to arbitrate. (Id. at 347-350.)

The right to arbitration, created by agreement, is not absolute: "it may have to yield if there is an issue of law or fact common to the arbitration and a pending action or proceeding with a third party and there is a possibility of conflicting rulings thereon." (Id. at 348.)

The Court does not find a risk of inconsistent rulings on common issues of fact or law.

The matter, 25SMCV04030, is not related to this action.

Howard represented Plaintiffs after Carlin, not simultaneously.

Thus, the breaches alleged against Howard are factually and theoretically distinct from Carlin's alleged breaches.

Additionally, the agreement expressly invokes the FAA.

Opposing parties cannot avail themselves of the exception to arbitration set forth in CCP section 1281.2(c) when the agreement is governed by the FAA.

The FAA contains no provision analogous to section 1281.2(c), and therefore that subdivision cannot be applied to deny the enforcement of arbitration clauses governed by the FAA. (Gloster v. Sonic Automotive, Inc. ¿(2014) 226 Cal.App.4th 438, 446.)

Conclusion

Plaintiffs meet their burden to demonstrate the existence of an arbitration agreement between the parties that covers the claims.

Defendant fails to demonstrate any defense.

Plaintiffs' motion is therefore GRANTED.

The Court orders the claims to arbitration, as discussed above.

The entire action is STAYED pending the completion of the arbitration. (CCP Sec. 1281.4.)

The Court sets a Status Conference re Arbitration for June 2, 2027, at 8:30 a.m. | Home -->)" -->