Opinion
NOT TO BE PUBLISHED.
APPEAL from an order and a judgment of the Superior Court No. SC097326 of Los Angeles County, Elizabeth A. Grimes, Judge.
Victor Jacobovitz for Defendant and Appellant.
Sands & Associates, Leonard S. Sands and Heleni E. Suydam for Plaintiff and Respondent.
MALLANO, P. J.
A client retained a law firm to represent him in a marital dispute. Displeased with the outcome, the client initiated nonbinding arbitration through the California State Bar under the Mandatory Fee Arbitration Act (MFAA) (Bus. & Prof. Code, §§ 6200–6206; undesignated section references are to that code). The arbitration was conducted under the fee arbitration program of the Beverly Hills Bar Association. Ultimately, a panel of three arbitrators rendered an award in favor of the firm, concluding the client was liable for around $24,000 in attorney fees.
Under the MFAA, a nonbinding arbitration award becomes binding if one of the parties does not file a civil action within 30 days seeking a trial de novo. (§ 6203, subd. (b).) Here, within 30 days after service of the award, the client filed a civil action against the firm, alleging a claim of legal malpractice (Juknavorian v. Sands & Associates (Super. Ct. L.A. County, 2007, No. SC094392)). The complaint did not seek a trial de novo as to the arbitration award. The firm filed a demurrer, contending the malpractice claim was barred by the statute of limitations. (Code Civ. Proc., § 340.6, subd. (a).) The superior court sustained the demurrer and dismissed the case. On appeal, Division Seven of this court affirmed in an unpublished opinion (B207759, Apr. 22, 2009).
The firm then initiated the instant proceeding, filing a petition to confirm the arbitration award. In its supporting memorandum, the firm argued the client had failed to seek a trial de novo of the arbitration award, such that the award had become binding. Further, after the award became binding, the client did not file a timely petition or response to vacate or correct the award under the California Arbitration Act (CAA) (Code Civ. Proc., §§ 1280–1294.2). The trial court granted the petition and confirmed the award. The client appealed.
The firm presents the same argument on appeal that it made in the trial court. We find the argument persuasive and affirm.
I
BACKGROUND
The facts and allegations in this case are taken from the papers and exhibits submitted in the trial court with respect to the petition to confirm the arbitration award.
In Juknavorian v. Sands & Associates, supra, B207759, our colleagues in Division Seven affirmed the superior court’s dismissal of the malpractice action brought by the client, Martin Juknavorian, against the firm, Sands & Associates. The opinion in that case discussed the procedural history pertinent to this appeal: “On June 27, 2007, [Juknavorian] filed his original complaint for damages for malpractice. In it, he alleged that in May 2002, he retained... Sands & Associates... to represent him in a marital dispute with his wife.... The attorneys ‘failed to exercise reasonable care and skill’ in their representation, ‘in that [the firm]... failed to consolidate 2 actions brought by [the wife] against [Juknavorian], failed to present evidence during numerous motions and trial and underestimated the costs and attorney fees to [him]. [¶] Had [the firm] exercised proper care and skill in the foregoing matter, [Juknavorian] would have settled the cases brought by his wife before engaging in protracted litigation. [¶] As a proximate result of such negligence [he] incurred damages in excess of $34,000.00 in costs and attorney fees and suffered emotional distress.’
“At the same time he filed his complaint, [Juknavorian] filed a ‘Rejection of Award and Request for Trial after Attorney-Client Fee Arbitration’ (Rejection of Award). He indicated that the Rejection of Award was being filed with a complaint commencing a new action. The Rejection of Award states that the arbitration was conducted on December 7, 2006 and the arbitration award was dated May 29, 2007. The attached award of the Beverly Hills Bar Association is in favor of [the firm] for $24,250.95 in fees owed. The award states that it is advisory, but it would become binding unless rejected in accordance with the provisions of... section 6204.
Section 6204 provides: “The parties may agree in writing to be bound by the award of arbitrators... 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.... [¶]... [¶]... If no [civil] 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 within 30 days after service of notice of the award.” (§ 6204, subds. (a), (c), italics added.)
“[The firm] filed a demurrer to the complaint. [Juknavorian] did not file opposition. The trial court issued a tentative ruling sustaining the demurrer without leave to amend, stating: ‘The legal malpractice is time barred....’
“On December 7, 2007, [Juknavorian] filed a first amended complaint for damages. In it, he added allegations that [the firm] ‘charged [him] excessive and falsely inflated attorney fees and costs, charging [him] for work not done. This also resulted from unnecessary and protracted litigation when [the firm] failed to exercise proper care and skill.’ [Juknavorian] alleged that ‘[i]n connection with the attorney fees and costs, [he] sought arbitration relief from the Beverly Hills Bar Association, ’ which resulted in an award in favor of [the firm] in the amount of $24,250.95. [Juknavorian] further alleged that his complaint served to appeal the arbitration award pursuant to... section 6204.
“On January 4, 2008, [the firm] filed a demurrer on several grounds, including that [the] action was time-barred....
“[Juknavorian] opposed this demurrer. The trial court sustained the demurrer without leave to amend and dismissed the case. The court explained that ‘[Juknavorian] failed to timely file a complaint for a request for a trial de novo for excessive legal fees after non-binding arbitration and such time has now passed. Further, the existing first amended complaint for malpractice only was not timely filed and is time barred. The statute of limitations on legal malpractice is one year from the date of discovery of the malpractice.’ [¶]... [¶]
“[Juknavorian] first contends that his complaint was timely as to his cause of action for attorney malpractice. It appears that he is arguing that his cause of action for legal malpractice was tolled while the underlying case against him was on appeal and while his fee dispute was arbitrated. The arbitrator’s decision was served by mail on May 27, 2007, and allowing five days for service by mail, [Juknavorian] claims his complaint for malpractice filed on June 27, 2007 was timely. [He] cites no authority in support of his claim that the legal malpractice action was tolled during the appeal [in the marital dispute case] and [during] the fee arbitration [proceedings].
“Code of Civil Procedure section 340.6, subdivision (a), provides that ‘[a]n action against an attorney for a wrongful act or omission... arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury; [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred....’
“In the context of negligently conducted litigation, actual injury occurs no later than the point at which a client suffers an adverse judgment or order....
“In the civil action [brought by Juknavorian’s wife], judgment was entered July 14, 2003, the remittitur was filed on July 1, 2004, and acknowledgement of satisfaction of judgment was filed on September 23, 2004. The alleged actual injury occurred, and [Juknavorian’s] cause of action accrued, no later than July 14, 2003.... [¶]... [¶]
“[Juknavorian] filed this action on June 27, 2007. [His] claim for legal malpractice is time-barred under Code of Civil Procedure section 340.6, subdivision (a).
“[Juknavorian] also contends that his complaint was timely as to the dispute over attorney’s fees. He acknowledges that pursuant to... section 6201, he had 30 days from the arbitration award to file an action. As stated above, the arbitrator’s decision was served by mail on May 27, 2007, and allowing five days for service by mail..., [Juknavorian] claims his complaint filed on June 27, 2007 was timely.
“As the trial court noted, however, [Juknavorian’s] complaint filed on June 27, 2007 was for legal malpractice, not for a dispute over attorney’s fees. [He] did not add the allegations regarding the dispute over attorney’s fees until December 7, 2007, when he filed his first amended complaint, after the 30 days permitted by... section 6201.
“As [the firm] points out, the trial court impliedly found the allegations of the first amended complaint did not relate back to the original complaint.
“[Juknavorian] argues that his complaint must be liberally construed, and he should have been granted permission to amend his complaint.... Even liberally construed, [the] original complaint is not an action over attorney’s fees. There could have been no abuse of discretion in denying leave to amend, in that there is no reasonable possibility the defect in the complaint could have been cured by amendment — the [30-day] limitations period had long since expired at the time of the hearing on the demurrer.” (Juknavorian v. Sands & Associates, supra, B207759, citations omitted, italics in original.)
Juknavorian did not include his original complaint or first amended complaint in the record here.
Division Seven filed its opinion on April 22, 2009. The remittitur issued on June 23, 2009.
Meanwhile, on March 5, 2008, the firm had filed its petition in this case, seeking to confirm the arbitration award. On May 21, 2009, the firm filed a memorandum of points and authorities in support of the petition, arguing the arbitration award was binding and should be confirmed under the CAA because Juknavorian had not filed a timely petition to vacate or correct the award. (See Code Civ. Proc., § 1288.)
Juknavorian opposed the motion, contending the MFAA did not require that he file a complaint within 30 days after service of the arbitration award or, for that matter, at any point in time. It was sufficient, he argued, that he filed a document entitled “Rejection of Award and Request for Trial After Attorney-Client Fee Arbitration.” (See Judicial Council Forms, form ADR-104.) According to Juknavorian, under the MFAA, the arbitration award never became binding and was therefore unenforceable.
The petition to confirm the award was heard on June 4, 2009. On the same day, the trial court entered an order and a judgment granting the petition. Juknavorian appealed.
II
DISCUSSION
We review de novo the trial court’s order and judgment confirming the arbitration award. (See Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, fn. 9; O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1056.)
Juknavorian contends that, in accordance with the MFAA, the arbitration award did not become binding and was therefore not subject to confirmation under the CAA. The firm counters that, under the MFAA, the arbitration award became binding when Juknavorian failed, within 30 days after service of the award, to commence a civil action seeking a trial de novo as to the arbitration award. Further, after the award became binding, it was subject to confirmation, vacatur, or correction under the CAA. The firm contends it filed a timely petition to confirm the award under the CAA; Juknavorian did not file a petition or response to vacate or correct the award, timely or otherwise. Thus, the trial court properly confirmed the award.
“In construing a statute ‘[o]ur task is to discern the Legislature’s intent. The statutory language itself is the most reliable indicator, so we start with the statute’s words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute’s plain meaning governs.’” (Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 571.)
Here, prior to the arbitration, the parties did not stipulate that the award would be binding. The arbitrators acknowledged this, stating: “The award is advisory but will become binding unless the attorney or client rejects it in accordance with the provisions of... [the MFAA].” Section 6203 of the act provides: “Even if the parties to the arbitration have not agreed in writing to be bound, the arbitration award shall become binding upon the passage of 30 days after service of notice of the award, unless a party has, within the 30 days, sought a trial after arbitration pursuant to Section 6204.” (§ 6203, subd. (b).)
Section 6204, in turn, states: “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.... [¶]... [¶]
“... 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 within 30 days after service of notice of the award. After the filing of such an action, the action shall proceed in accordance with the provisions of... the Code of Civil Procedure, concerning civil actions generally.” (§ 6204, subds. (a), (c), italics added.)
To commence “an action, ” a party must file a complaint. (See Code Civ. Proc., §§ 420–425.10.) Indeed, the Judicial Council form, “Rejection of [Arbitration] Award, ” which Juknavorian filed in the earlier legal malpractice action, expressly states, “This Rejection of Award and Request for Trial is being filed with a complaint commencing a new action. (A request for trial must be filed in a pending case or with a complaint commencing a new action.)” (Italics added & omitted.) And after a complaint is filed, the case proceeds as a “civil action[] generally.” (§ 6204, subd. (c).)
In its opinion, Division Seven explained: “[Juknavorian’s] complaint filed on June 27, 2007 was for legal malpractice, not for a dispute over attorney’s fees. [He] did not add the allegations regarding the dispute over attorney’s fees until December 7, 2007, when he filed his first amended complaint, after the 30 days permitted by... section 6201. [¶]... [¶]... [T]he [30-day] limitations period had long since expired at the time of the hearing on the [firm’s] demurrer.” (Juknavorian v. Sands & Associates, supra, B207759, italics added.)
The arbitration award was served on May 27, 2007. Within 30 days thereafter, Juknavorian filed a complaint for legal malpractice only. He did not seek a trial de novo of the attorney fee dispute at issue in the arbitration. Rather, Juknavorian waited until he filed the first amended complaint — on December 7, 2007 — to seek a trial de novo. Consequently, the arbitration award became binding for failure to comply with the 30-day limitations period. (See §§ 6203, subd. (b), 6204, subds. (a), (c).) And Juknavorian does not argue in this case that the first amended complaint related back to the original complaint.
The MFAA states that a binding arbitration award is subject to confirmation, vacatur, or correction under the CAA. (See § 6203, subd. (b).) The CAA provides that a petition or response seeking to vacate or correct an award must be brought within 100 days after the award is served. (Code Civ. Proc., §§ 1288, 1288.2.) Failure to comply with the 100-day period precludes an attack on the award. (See Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 744–746.) In contrast, a petition to confirm an arbitration award may be brought within four years after service of the award. (Code Civ. Proc., § 1288.)
Juknavorian never filed a petition or response to vacate or correct the award. As a result, the trial court had no choice but to grant the firm’s petition to confirm. (See Eternity Investments, Inc. v. Brown, supra, 151 Cal.App.4th at pp. 744–746.) Because Juknavorian did not comply with the 100-day limitations period for challenging the award, we may not consider his argument that the arbitrators miscalculated the amount of attorney fees due the firm, including whether the firm was entitled to recover the arbitration filing fee paid to the Beverly Hills Bar Association. Nor may we address his contention that the firm’s “Engagement Letter” trumped the provisions of the MFAA and prevented the firm from seeking to confirm the arbitration award. (Neither the Engagement Letter nor the petition to confirm the award is in the record.)
Finally, we deny the firm’s motion to dismiss the appeal and to impose sanctions for a frivolous appeal. “[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, italics added; accord, In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 516.) Applying that standard, we cannot say the appeal is frivolous.
For all of the foregoing reasons, we conclude the trial court properly granted the firm’s petition and entered an order and a judgment confirming the arbitration award.
III
DISPOSITION
We concur: ROTHSCHILD, J., CHANEY, J.