BRIUS, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL. VS PATRICIA GLASER, ET AL.

Tentative Rulings

Case Number: *******0244 Hearing Date: April 29, 2022 Dept: 52

Tentative Ruling:

Petitioners Brius, LLC’s, Brius Management Co.’s, and Shlomo Rechnitz’s Petition to Confirm Arbitration Award

Confirming Award

Petitioners seek to confirm an arbitration award against respondent, attorney Patricia Glaser, made in an arbitration of a fee dispute.

Business and Professions Code 6204 provides:

(a) The parties may agree in writing to be bound by the award of arbitrators appointed pursuant to this article at any time after the dispute over fees, costs, or both, has arisen. In the absence of such an agreement, either party shall be entitled to a trial after arbitration if sought within 30 days, pursuant to subdivisions (b) and (c)… .

(b) If there is an action pending, the trial after arbitration shall be initiated by filing a rejection of arbitration award and request for trial after arbitration in that action… .

(c) If no action is pending, the trial after arbitration shall be initiated by the commencement of an action in the court having jurisdiction over the amount of money in controversy… .

The arbitration award was issued jointly against attorney Patricia Glaser and her law firm, Glaser Weil Fink Howard Avchen & Shapiro LLP. (Williams Decl., Ex. 4.) Within 30 days of service of the award, the law firm filed a complaint for damages against petitioners. That action was assigned case No. 21STCV26273. The complaint does not name Patricia Glaser individually as a plaintiff. With the complaint, both the law firm and Patricia Glaser filed a “rejection of award and request for trial after attorney-client fee arbitration.”

Patricia Glaser complied with either subdivision (b) or (c) of Business and Professions Code 6204. Initially, there was no action pending between any of the parties. “An action is deemed to be pending from the time of its commencement until its final determination upon appeal.” (CCP 1049.) The firm and Glaser simultaneously filed the firm’s complaint and the joint rejection. It is not clear that the complaint commenced an action first, such that the action was pending when Glaser and her firm filed the rejection. If there was no action pending, then the rejection itself was “the commencement of an action in the court having jurisdiction over the amount of money in controversy.” (Bus. & Prof. Code, 6204(c).) On the other hand, if the firm filing the complaint meant there was already an action pending, Glaser and her firm timely initiated the trial after arbitration “by filing a rejection of arbitration award and request for trial after arbitration in that action.” (Bus. & Prof. Code, 6204(b).)

Petitioners argue Glaser “cites no law permitting an attorney subject to a fee arbitration award to seek a new trial simply by putting her name on a ‘rejection’ document filed in a case to which she is not a party.” (Reply, p. 4.) Business & Professions Code 6204(b) provides that attorneys may file a “rejection of arbitration award and request for trial after arbitration” when there is an action pending. Petitioners provide no authority that, once an action was pending on the very fee dispute resolved by the nonbinding arbitration award, Patricia Glaser could not join in a rejection because she was not named as a party to the preexisting action. Moreover, she explains why the complaint does not name her as a plaintiff: it is an action for damages to the firm. (Response, p. 3.) The complaint does not allege Patricia Glaser as an individual suffered damages.

Petitioners’ reliance on Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041 is misplaced. There, the client failed to comply with Business and Professions Code 6204 because he filed a malpractice action. The court noted, “the arbitration is not mentioned in the complaint and there is no indication that the fees challenged in the malpractice action are the same fees awarded to respondent by the arbitrator,” and “the filing of the malpractice action would not necessarily inform respondent that appellants intended to challenge the arbitration award.” (Id. at p. 1045.) Here, both the complaint by the law firm and the rejection by the firm and Patricia Glaser explicitly give notice of an action intended to challenge the arbitration award.

Dismissal

In her response, Patricia Glaser asks the court to dismiss the petition. A respondent may do so via her response. (CCP 1285.2.) “If a petition [to confirm an arbitration award] is duly served and filed, the court shall confirm the award as made… unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceedings.” (CCP 1286.)

Rejecting an attorney fee arbitration award under Business and Professions Code 6204 renders it “a nullity.” (Perez v. Grajales (2008) 169 Cal.App.4th 580, 603.) Patricia Glaser and her firm timely filed an action and rejection of the award to initiate a trial de novo after arbitration, as they were entitled to do. The award never became binding. The court therefore cannot confirm the award.

The petition to confirm the arbitration award is dismissed.