Reply_to_opposition_to_the_petition_to_compel_arbitration

Reply

Cal. Super. - 4th Dist.August 29, 2018

© 00 NN Oo U 1 A W N N BB N N N N NN N N N N RB 2 RB 2 [RB [2 [2 2 p p 0 NN oO UU BA W N BP O VOW 0 N N OO U1 BM W N RL O Gregory K. Sabo, Esq., Bar No. 169760 Steven J. Pearse, Esq., Bar No. 272327 Jill L. Johnson, Esq., Bar No. 198981 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A PROFESSIONAL CORPORATION 11900 WEST OLYMPIC BOULEVARD, SUITE 800 LOS ANGELES, CALIFORNIA 90064-0704 (310) 207-7722 + FAX: (310) 207-6550 Attorneys for Defendant, WILLIAM B. HANLEY ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 05/03/2019 at 12:49:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, UNLIMITED JURISDICTION DONALD O'KULA, an individual, Plaintiff, Vv. WILLIAM B. HANLEY, an individual; and Does 1 to 20, inclusive, Defendants. Case No.: 30-2018-01015508-CU-PN-CJC Complaint Filed: August 29, 2018 Assigned for All Purposes to: The Honorable Ronald L. Bauer Department CX103 REPLY OF WILLIAM B. HANLEY TO O’KULA’S OPPOSITION TO THE PETITION TO COMPEL ARBITRATION HEARING DATE: May 13, 2019 TIME: 9:00 A.M. TO ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN: Please Take Notice that: Defendant William B. Hanley (hereinafter referred to as “Mr. Hanley”) by and through his counsel of record Chapman, Glucksman, Dean, Roeb & Barger hereby replies to Plaintiff’s Opposition to the Petition to Compel Arbitration as follows. 4001.002 PETITIONER HANLEY’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION © 00 NN Oo U 1 A W N N BB N N N N NN N N N N RB 2 RB 2 [RB [2 [2 2 p p 0 NN oO UU BA W N BP O VOW 0 N N OO U1 BM W N RL O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff admits that the arbitration provision exists and that he voluntarily entered into. Plaintiff ignores the key facts: 1) the arbitration agreement is a binding contract voluntarily and specifically entered into by two attorneys well versed in arbitration agreements and 2) overwhelming public policy favors finding a valid enforceable arbitration agreement. Plaintiff misguidedly asserts that the arbitration provision does not encapsulate his current claims and unavailingly argues that arbitration of the issue would be a waste of time. As both of the parties acknowledge to entering into the arbitration agreement, if it encompasses the subject matter of this action, it must be compelled to arbitration as a matter of contract law and this petition must be granted. IL. THE ARBITRATION PROVISION IS APPLICABLE AND ENFORCEABLE The California Supreme Court specifically holds that “[t]he Legislature has expressed a ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.” (Aguilar v. Lerner, (2004) 32 Cal.4th 974, 983 [citation omitted]). California Code of Civil Procedure section 1281.2, states that “arbitration will be ordered unless it can be said with positive assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” (Bos Material Handling v. Crown Control Corp. (1982) 137 Cal.App.3d 99, 105; see also Dean Witter Reynolds, Inc. v. Byrd, (1985) 470 U.S. 213, 217). And, “‘[q]Juestions of arbitrability must be addressed with a healthy regard for the . . . policy favoring arbitration,” and thus, ‘any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”” (Cione v. Foresters Equity Services, Inc., (1997) 58 Cal. App.4th 625, 642, quoting Armijo v. Prudential Ins. Co. of America, (10th Cir. 1995) 72 F.3d 793, 797). “[ T]he right to compel arbitration depends upon a contract.” (Id. at, 636). California Civil Code section 1636 states that “[a] contract 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 to be ascertained 4001.002 2 PETITIONER HANLEY'’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION © 00 NN Oo U 1 A W N N BB N N N N NN N N N N RB 2 RB 2 [RB [2 [2 2 p p 0 NN oO UU BA W N BP O VOW 0 N N OO U1 BM W N RL O 2 from the writing alone, if possible.” Accordingly, “[t]he language of a contract is to govern its interpretation if the language is clear and explicitly and does not involve an absurdity.” (California Civil Code § 1638). Here, both parties, each of whom is an attorney and has a heightened understanding of contracts, voluntarily entered into a retention agreement that specifically included an arbitration provision for the underlying Stewart, et al. v. O Kula, et al. Plaintiff, through his Opposition, acknowledges entering into the arbitration agreement and solely refutes its applicability to the subject matter at hand, however misguidedly. (Plaintiff’s Opposition, page 2:5-6). The arbitration provision at issue provides: 14. Arbitration. In the event any dispute arises between us regarding legal fees or costs, or our representation of you and to the extent permitted by law and/or authorized by applicable statute, ordinance or regulation, such dispute(s) shall be submitted to binding arbitration pursuant to the procedures outlined at California Business and Professions Code §§ 6200 et. seq. (Emphasis added.) Here, Plaintiff’s entire Opposition is based solely on the interpretation of the arbitration provision, and that it does not encapsulate legal malpractice claims. No other arguments are asserted. The clear language of the arbitration provision and the court’s ability to server inapplicable terms make it both enforceable and applicable to the Plaintiff’s claims. A. The Arbitration Provision Encompasses Legal Malpractice Claims “In California, the general rule is that arbitration should be upheld unless it can be said with assurance that an arbitration claims is not susceptible to an interpretation covering the asserted dispute.” (Bos Material Handling, Inc. v. Crown Controls Corp., (1982) 137 Cal.App.3d 99, 105). Plaintiff erroneously asserts that the arbitration provision is meant to cover only fee and cost disputes. Such is a misinterpretation of the arbitration provision. ““The ‘ordinary and popular’ meaning of the work ‘or’ is well settled. It has a disjunctive meaning: ‘In its ordinary sense the function of the word ‘or’ is to make an alternative such as ‘either this or that.”” [citation omitted]. The clear language of the contract provision specifically states in pertinent part “[i]n the event any dispute arises between us regarding .... our representation of you and to the extent permitted by law and/or authorized by applicable statute, ordinance or regulation, such dispute shall be submitted to binding arbitration.” (California Correctional Peace Officers 4001.002 3 PETITIONER HANLEY’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION © 00 NN Oo U 1 A W N N BB N N N N NN N N N N RB 2 RB 2 [RB [2 [2 2 p p 0 NN oO UU BA W N BP O VOW 0 N N OO U1 BM W N RL O Ass’nv. Tilton, (2011) 196 Cal.App.4th 91, 96, quoting In re Jesusa V., (2004) 32 Cal.4th 588, 622, quoting Houge v. Ford, (1955) 44 Cal.2d 706, 712). The use of the word “or” in the following term “legal fees or costs, or our representation of you,” make it clear that the arbitration provision encapsulates any dispute regarding legal fees or Mr. Hanley’s representation of the Plaintiff in the underlying action. The use of the word or has a disjunctive application, making the arbitration provision encompass more than fee disputes. Plaintiff admits into entering into the arbitration agreement, and from its face the provision clearly encompass legal malpractice claims. Accordingly, the arbitration provision as agreed upon and encompassing legal malpractice claims must be enforced and this Petition must be granted. (Plaintiff’s Opposition, page 2:5-6). B. Plaintiff Misinterprets the Arbitration Provision Plaintiff next argues that the arbitration provision is unenforceable because it references California Business and Professions Code sections 6200, et seq. In pertinent part, the arbitration provision provides: “and to the extent permitted by law and/or authorized by applicable statute, ordinance or regulation, such dispute(s) shall be submitted to binding arbitration pursuant to the procedures outlined at California Business and Professions Code §§ 6200 et. seq.” (emphasis added). As a matter of contract interpretation, California Business and Professions Code sections 6200, et seq. only applies to the extent that it can legally be applied. The contract language specifically qualifies the use of California Business and Professions Code sections 6200, et seq. to the extent permitted by law and therefore would only be applicable where the law permits it to be enforced. Since Plaintiff misinterprets the contractual reference to California Business and Professions Code sections 6200, Plaintiffs arguments made in sections ITI(b) and IIl(c) are irrelevant and without basis. As the parties agreed to arbitrate all disputes arising from Mr. Hanley’s representation of the Plaintiff, the California Arbitration Act (“CAA”) applies, which is both binding and encompasses legal malpractice claims. (Schatz v. Allen Matkins Leck Gamble & Mallory LLP, (2009) 45 Cal.4th 557). Accordingly, this petition must be granted. C. Inapplicable Language May be Severed From the Arbitration Provision While the contract provision clearly qualifies the use of California Business and Professions Code sections 6200, et seq. where legally permitted, even if the Plaintiff’s reading of the arbitration 4001.002 4 PETITIONER HANLEY’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION © 00 NN Oo U 1 A W N N BB N N N N NN N N N N RB 2 RB 2 [RB [2 [2 2 p p 0 NN oO UU BA W N BP O VOW 0 N N OO U1 BM W N RL O provision is accepted, reference to the statute can be properly severed from the remainder of the provision. (See Abramson v. Juniper Networks, Inc., (2004) 115 Cal.App.4th 638, 652; see also Armendariz v. Foundation Health Psychare Services, Inc., (2000) 24 Cal.4th 83, 110-111). “A court need not void an arbitration agreement in its entirety if the objectionable terms can be severed or restricted.” (Abramson, 115 Cal. App.4th at 652). “The ‘overarching’ question in such cases is whether severance serves the interests of justice.” (Id.) Here, the interests of justice will be served by enforcing the arbitration provision because “[a] contract must receive such an interpretation as will make it lawful, operative, definite, reasonable, and capable of being carried into effect.” (California Civil Code § 1643; see also Entremont v. Whitsell, (1939) 13 Cal.2d 290). Moreover, there is a strong public policy in favor of arbitration. (Bos Material Handling, Inc., 137 Cal.App.3d at 105). As the Plaintiff specifically admits to entering into and agreeing to the arbitration provision, and that arbitration agreement clearly encompasses legal malpractice actions, the arbitration provision must be enforced to the extent that it can. Accordingly, reference to California Business and Professions Code sections 6200, et seq. can be severed from the relevant clause of the arbitration agreement whereby the parties specifically and clearly agreed to arbitrate legal malpractice claims. As such, this petition must be granted. D. Arbitration Is Not A Waste of Time Plaintiff further argues that arbitration would be a waste of time. However, even if the Plaintiff believes that arbitration is a waste of time, he voluntarily agreed to it making his argument meritless. “An assertion is not evidence.” (Paleski v. State Dept. of Health Services, (2006) 144 Cal.App.4th 713,732). “It is undeniable that the argument of counsel does not constitute evidence.” (Beagle v. Vasold, (1966) 65 Cal.2d 166, 176; see also Fuller v. Tucker, (2000) 84 Cal.App.4th 1163, 1173 stating that “absolutely no evidence was submitted to support this factual claim. . . Argument of counsel is not evidence.” (see also Ponte v. County of Calaveras, (2017) 14 Cal.App.5th 551, 556, stating that “the arguments of counsel in a motion are not a substitute for evidence”). Regardless, however, as detailed in the previous sections, Plaintiff misinterprets the reference to California Business and Professions Code section 6200, et seq., which can be severed 4001.002 5 PETITIONER HANLEY’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION © 00 NN Oo U 1 A W N N BB N N N N NN N N N N RB 2 RB 2 [RB [2 [2 2 p p 0 NN oO UU BA W N BP O VOW 0 N N OO U1 BM W N RL O as necessary. As such, any arbitration proceeding over the legal malpractice claims would be binding pursuant to the CAA. As such, this petition must be granted. III. CONCLUSION Plaintiff admits to entering into an arbitration provision. As an attorney, Plaintiff had a heightened understanding of the contractual provisions and must be held to this standard. The arbitration provision clearly encompasses legal malpractice claims and California Business and Professions Code section 6200, et seq., where applicable. As the Plaintiff’s only arguments are based on his misinterpretation of the arbitration provisions, and no other arguments have been raised, this petition must be granted. DATED: May 3, 2019 CHAPMAN GLUCKSMAN DEAN ROEB & BARGER A Professional Corporation GREGO . SABO STEVEN EARSE JILL JOHNSON Attorneys for Defendant, WILLIAM B. HANLEY 4001.002 6 PETITIONER HANLEY’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE I am employed in the County of Los Angeles, State of California, I am over the age of 18 and not a party to the within action; my business address is 11900 W. Olympic Boulevard, Suite 800, Los Angeles, CA 90064. On May 3, 2019, I served the foregoing document(s) described as: REPLY OF WILLIAM B. HANLEY TO O’KULA’S OPPOSITION TO THE PETITION TO COMPEL ARBITRATION on the interested parties in this action, at the addresses listed below, as follows: Timothy D. McGonigle, Esq. Timothy D. McGonigle Prof Corp 1880 Century City Park East Suite 516 Los Angeles, CA 90067 Telephone: (310) 478-7110 Facsimile: (3 10) 888-2 66-9410 [ By Mail. By placing a true copy (copies) thereof enclosed in a sealed envelope(s), addressed as above, and by placing said sealed envelope(s) for collection and mailing on that date following ordinary business practices. I am “readily familiar” with the business’ practice for collection and processing of correspondence for mailing the U.S. Postal Service. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. Overnight Delivery. By placing a true copy(ies) thereof enclosed in a sealed envelope(s) or package(s) as designated by Golden State Overnight, addressed as above, and depositing said envelope(s) or package(s), with delivery fees provided for, in a box regularly maintained by Federal Express at 11900 W. Olympic Blvd., Los Angeles, CA 90064. Ol Electronic Service. I transmitted a true and correct copy of said document to the addressees on the CaseAnywhere service list via Electronic Mail. [ Via Facsimile. By transmitting a true copy(ies) thereof to each of the designated counsel on the service list to their facsimile numbers as listed below. [ Personal Delivery. I caused to be served by messenger for personal delivery that same day the foregoing documents in a sealed envelope to the above persons at the addresses listed above. State. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 3, 2019, at Los Angeles, California. JULIE SOROTSKY 4001.002 7 PETITIONER HANLEY’S REPLY BRIEF TO PETITION TO COMPEL BINDING ARBITRATION