Wager v. Mirzayance

Opinion

ARMSTRONG, J.

Defendant Samuel Mirzayance (defendant) retained plaintiff Donald Wager (plaintiff) to defend his son, Alexandre Mirzayance, against a charge of first degree murder. Plaintiff filed suit against defendant

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and his wife, Amalia Mirzayance, to recover attorney fees, expert witness fees, and costs incurred in Alexandre’s defense. Defendant sought to dismiss the suit since he was not given notice of his right to arbitrate the fee dispute as provided by Business and Professions Code section 6201, subdivision (a)

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(hereafter section 6201(a)). Plaintiff opposed the motion, arguing that defendant was not his client, and thus was not entitled to notice of the right to arbitration. The trial court determined that plaintiff’s lawsuit was “an action against the client” within the meaning of section 6201(a), and thus that plaintiff was required to provide defendant with notice of his right to arbitrate the fee dispute. Accordingly, the trial court dismissed the complaint. Plaintiff challenges that ruling on appeal. We affirm the trial court.

Facts

In January 1996, plaintiff was retained to assist in Alexandre’s defense pursuant to a written retainer agreement signed by plaintiff, Alexandre, and Alexandre’s parents. This written agreement contemplated that plaintiff would undertake a limited role in Alexandre’s defense. The original retainer agreement designated defendant and his wife as “guarantors” of Alexandre’s payment obligations thereunder.

Sometime later, the parties orally amended the written retainer agreement in response to plaintiff’s assumption of an increased role in the defense of the criminal charges. This amended agreement reflected the increased fees and expenses which would necessarily be incurred on behalf of Alexandre. Additionally, according to plaintiff, it changed defendant’s liability from that of a guarantor to the person primarily liable for the fees and costs incurred in Alexandre’s defense.

Defendant abided by the terms of the amended retainer agreement for over a year. In May 1997, shortly before Alexandre’s murder trial was to commence, defendant ceased paying plaintiff’s invoices in breach of his obligations under the amended retainer agreement. Plaintiff filed this lawsuit against defendant and his wife, giving no notice, either to them or to Alexandre, of a client’s right to arbitrate a fee dispute as set forth in section 6201(a). As noted above, the trial court determined that plaintiff was required to give defendant notice of his right to arbitrate, and dismissed the action due to his failure to comply with section 6201(a).