Aggeler v. Nordman Cormany Hair & Compton CA2/6

Filed 4/27/15 Aggeler v. Nordman Cormany Hair & Compton CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MAUREEN McGRATH AGGELER et al., 2d Civil No. B253566 (Super. Ct. No. 56-2013-00440610- Plaintiffs and Respondents, CU-PN-VTA) (Ventura County) v.

NORDMAN CORMANY HAIR & COMPTON et al.,

Defendants and Appellants.

Defendants Nordman Cormany Hair & Compton, LLP, and Marc Charney (collectively "NCHC") appeal an order denying their petition to compel arbitration of a legal malpractice lawsuit. That action was filed by Maureen McGrath Aggeler, Trustee of the Maureen McGrath Aggeler Trust; Terence McGrath Aggeler; Sheila Aggeler Barnes; J.D. McGrath Farms, a limited partnership; E.M. Johansing, LLC; Philip H. McGrath, Trustee of the McGrath Family Bypass Intervivos Trust; and Anne Aggeler Will, individually and as Trustee of the John J. Will Family Trust (collectively "Park Owners"). We conclude, among other things, that a 2009 arbitration agreement between the Park Owners and NCHC applied to legal services NCHC provided to defend the Park Owners in a 2009 lawsuit. It did not apply retroactively for legal services

NCHC provided for the Park Owners on a contract transaction four years earlier. We affirm. FACTS The Park Owners own real property interests in the Hollywood Beach Mobilehome Park (HBMP). In 2005, HBMP hired NCHC to draft documents relating to the sale of lots for a mobilehome park condominium conversion. The conversion involved subdividing HBMP into "individual lots" and selling them to the residents of the mobilehome park. The Park Owners said their goal was for the lots to be sold at "the fair market" value at "the time of the actual sale of the lots." They claim they retained NCHC to draft contractual provisions to achieve that result. In 2009, Frank Marler and Sandra Marler filed a class action lawsuit on behalf of the park's residents against the Park Owners for specific performance, breach of contract, elder abuse, fraud and other causes of action (the Marler action). They alleged the Park Owners agreed to sell the individual lots to the residents at prices within a range of $110,00 to $150,000. The Marlers claimed: 1) there was a "Cooperation Agreement" (COA) that bound the Park Owners to this price range, and 2) the Park Owners breached that agreement by raising the prices for those lots. The residents sought specific performance. The Park Owners retained NCHC in 2009 to defend them in the Marler action. The retainer agreement contained an arbitration clause. It provided, "ANY DISPUTE (OTHER THAN A DISPUTE REGARDING THE PAYMENT OF ATTORNEY FEES) BETWEEN THE PARTIES HERETO ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ARISING OUT OF OR RELATING TO PROFESSIONAL SERVICES, SHALL BE RESOLVED BY BINDING ARBITRATION . . . ." The trial court bifurcated the issues in the Marler action. In a 2013 "tentative decision on equitable issues," it found the park residents were entitled to specific performance based on the lower COA lot price range. It said the Park Owners "breached the agreement by failing to offer the residents the opportunity to purchase their