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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

James Marino vs Miles Goldrick

Case No: 1417004
Hearing Date: Mon Jul 08, 2013 9:30

Nature of Proceedings: Motion to Compel Arbitration & Dismissal of Comp.

Santa Barbara County Superior Court Department 5 Judge Colleen K. Sterne Tentative Ruling July 8, 2013 Case: James E. Marino v. Miles T. Goldrick, Case No. 1417004 (Judge Sterne) Motion: Motion of Defendant and Cross-Complainant to Compel Arbitration Tentative Ruling: The motion of defendant and cross-complainant Miles T. Goldrick to compel arbitration is granted. The court orders this action stayed pending completion of the arbitration proceedings. Discussion: This is an action alleging professional negligence by a client against his lawyer in a family law matter. The lawyer has filed a cross-complaint for unpaid legal fees. Both parties are attorneys appearing in propria persona. In December 2012, plaintiff James E. Marino signed a retainer agreement with defendant Miles T. Goldrick by which Marino retained Goldrick to provide legal services in the matter of Marriage of Marino. (Goldrick decl., ¶ 10 & exhibit B.) Communication between the parties subsequently broke down. On January 25, 2013, Marino substituted new counsel in place of Goldrick in Marriage of Marino. (Goldrick decl., ¶ 14.) On February 6, 2013, Goldrick mailed Marino a notice of client’s right to arbitration. (Goldrick decl., ¶ 15 & exhibit A.) On March 29, 2013, Goldrick filed a small claims action against Marino, case number 1416364, which has since been related to this action. (Goldrick decl., ¶ 16.) The small claims action was taken off calendar at the parties’ request on May 9, 2013. On May 8, 2013, Marino filed this action against Goldrick, asserting causes of action for breach of contract, fraud, and professional negligence. On May 31, 2013, Goldrick filed a general denial to the complaint, a cross-complaint for breach of contract, and this motion to compel arbitration. The retainer agreement contains the following provision: “Any controversy, claim or dispute arising in the course and scope of the Attorney/Client relationship or relating to this Fee Agreement shall be determined by binding Arbitration in Santa Barbara, California, before a sole Arbitrator, in accordance with the laws of the State of California. ‘Disputes’ shall include, without limitation, those involving fees, costs, billing, claims of professional negligence, malpractice and breach of ethical or fiduciary duties. The Arbitration shall be administered by the American Arbitration Association in accordance with its Commercial Rules in effect at the time of the Arbitration. Each side shall bear its own costs and attorney’s fees. This Agreement to Arbitrate is not intended to abrogate Client’s right to require a Nonbinding Fee Arbitration pursuant to California Business and Professions Code Section 6200-6206.” (Goldrick decl., exhibit B, § VIII, p. 3.) No opposition or other response has been filed to this motion to compel arbitration. Analysis: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, 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) The right to compel arbitration has been waived by the petitioner; or “(b) Grounds exist for the revocation of the agreement. “(c) 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. ….” (Code Civ. Proc., § 1281.2.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement—either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b))—that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) Goldrick has provided evidence of a written arbitration agreement executed by Marino. (Goldrick decl., exhibit B.) Goldrick has met his burden of proving the existence of an arbitration agreement and the court so finds. Marino has not filed opposition or other response to this motion. Marino therefore has not met his burden of raising a defense to the enforcement of the arbitration agreement. Accordingly, Goldrick’s motion to compel arbitration will be granted. Goldrick further requests that the court dismiss this action. Dismissal is not an available remedy following the grant of a motion to compel arbitration. The court will deem the request to dismiss as a motion to stay this action pending disposition of the arbitration and stay the action. (See Code Civ. Proc., § 1281.4.)