Weber v. Kessler

Opinion

HASTINGS, J.

This appeal involves an interpretation of the 1978 law governing mandatory judicial arbitration (Code Civ. Proc., §§ 1141.10-1141.32; Cal. Rules of Court, rules 1600-1617). The issue presented is whether it was proper in this case for the court, in a trial de novo following an arbitration proceeding, to adopt the arbitrator’s findings as its own findings of fact.

Facts

In March of 1972, appellant Arnold Kessler and respondent Imogene Weber entered into an oral agreement whereby Weber was to decorate an apartment in Marina del Rey. This dispute concerns the amount of the “markup” that Weber would charge on furnishings purchased for the apartment. Weber claims she told Kessler that her markup would be her “standard” rate, which in some cases turned out to be over 200 percent; Kessler claims he agreed to only a 15 percent markup. This resulted in a disagreement over the amount due (although Kessler was apparently satisfied with the quality of the decorating). Weber submitted invoices totaling $29,837.10. Kessler paid $21,246.75, leaving a difference of $8,590.35.

The stalemate continued until October of 1975, when Weber filed suit to recover the difference between the amount paid and the amount

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which she claimed was still due. Approximately one and one-half years later, she sought and was granted leave to file her first amended complaint in order to correct a mathematical error in the balance due. Kessler responded with a cross-complaint for fraud, alleging that Weber misrepresented what her markup would be.

After another two years, the matter was submitted to arbitration. In his memorandum opinion, the arbitrator found that Kessler undoubtedly would not have agreed to pay Weber her “standard” markup if he had known how much it would be. However, despite the fact that he was “an attorney of many years experience,” Kessler, failed to put anything in writing. Since he did not make a timely , objection to Weber’s invoices as they were submitted, he was estopped to deny the charges billed, and accordingly was an account stated as to all sums paid without protest ($21,246.75). The remaining $8,590.35 was determined to be the “fair and reasonable value” of her services, since there was no evidence presented, other than Weber’s testimony, to show the industry standard for such charges and markups. Weber also prevailed on Kessler’s cross-complaint for fraud, since there was nothing in the invoices which misrepresented the cost of the furnishings to her.