Avetisyan v. Gordon







Filed 9/30/11 Avetisyan v. Gordon CA4/1




NOT TO BE PUBLISHED IN OFFICIAL REPORTS


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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MARINE AVETISYAN, Plaintiff and Respondent, v. GITTEL GORDON, Defendant and Appellant.

D057916 (Super. Ct. No. 37-2009-00104321- CU-PT-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed.

Defendant Gittel Gordon arbitrated a fee dispute with her former client, plaintiff Marine Avetisyan. Gordon appeals from a judgment (1) granting Avetisyan's petition to confirm arbitration award; (2) denying her petition to vacate arbitration award; and (3) denying her motion for a continuance of the hearings on the petitions. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Attorney Gordon and her client, Avetisyan, arbitrated a dispute over fees and costs Avetisyan paid Gordon for her representation in an immigration matter under the Mandatory Fee Arbitration Act (MFAA), which requires nonbinding arbitration of attorney's fees disputes if the client requests. (See Bus. & Prof. Code, § 6200 et seq.; undesignated statutory references are to this code.) The arbitrator, Jonathan D. Montag, conducted the proceeding via telephone because Gordon was not in San Diego. On April 11, 2009, the arbitrator issued a nonbinding award against Gordon in the amount of $7,600 for fees and costs. The award also directed Gordon to pay the $375 filing fee Avetisyan paid for the arbitration. On April 20, 2009, the arbitrator served the arbitration award by mail to both parties.
On May 11, 2009, Gordon filed a "rejection of award and request for trial after attorney-client fee arbitration" (Form ADR-104). On May 19, 2009, Gordon filed a petition to vacate contractual arbitration award (Form ADR-106).[1] Both of these were within the 30-day deadline under Business and Professions Code section 6204, subdivision (c), which requires a

party dissatisfied with a nonbinding arbitration award issued under the MFAA to file "an action."[2] Thus, the deadline Gordon was required to meet was May 20, 2009.
On October 7, 2009, Gordon appeared at an ex parte hearing to discuss her petition to vacate and rejection form. She also requested an extension of the hearing, which the court granted to October 27. The exact purpose of the hearings is unclear from the record, and the parties disagree as to why Gordon was there. However, at the October 7 hearing, the court explicitly told Gordon she needed to file a complaint concurrently with the rejection form.
On December 22, 2009, Avetisyan filed a petition to confirm arbitration award to which Gordon filed an opposition on January 28, 2010. An ex parte hearing on the petition took place on June 2, 2010, during which the court granted Gordon's request for a continuance to June 23, 2010. Gordon also filed an amended counterclaim and opposition to the petition wherein she sought a determination that she was entitled to fees and costs. On June 22, 2010, Gordon hired an attorney, Cathleen Fitch, to make a "special appearance" on her behalf to seek another continuance of 30 days to obtain counsel, which the court denied.
At the June 23 hearing, the court granted Avetisyan's petition to confirm arbitration award and denied Gordon's petition to vacate with prejudice and rejected Gordon's requests for de novo relief or relief under Civil Code section 473, subdivision (b). The court also awarded Avetisyan costs and fees as the prevailing party. On July 7, 2010, the court entered a judgment in the amount of $19,316.70 against Gordon, confirming Avetisyan's petition to confirm arbitration award and rejecting Gordon's petition to vacate the award and denying Gordon's motion for continuance of the hearings on the petitions. The court held Gordon had failed to establish good cause to vacate the award, finding the arbitration to "have been fairly and constitutionally conducted." Gordon appeals the judgment in its entirety.[3]
DISCUSSION
I
STANDARD OF REVIEW
We review de novo a trial court's judgment concerning petitions to vacate an arbitration award. (SWAB Financial v. E*Trade Securities LLC (2007) 150 Cal.App.4th 1181, 1196.) However, we apply the substantial evidence test to a trial court's ruling "to the extent it rests upon a determination of disputed factual issues." (Ibid.)[4]
A trial court's denial of a request for a continuance of a hearing is reviewed for an abuse of discretion. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 712.)
II
THE TRIAL COURT PROPERLY CONFIRMED THE AWARD
Under section 6203, subdivision (b), a nonbinding arbitration award issued under the MFAA becomes binding 30 days after service of notice of the award unless a party has "sought a trial . . . pursuant to Section 6204." Section 6204, subdivision (c), reads in pertinent part "[i]f no action is pending, the trial after arbitration shall be initiated by the commencement of an action . . . 30 days after service of notice of the award." Here, there was no action pending. Therefore, to avoid the award becoming final and binding, Gordon was required to file an "action" within 30 days to obtain a trial de novo.
Gordon argues her rejection form and petition to vacate satisfy the 30-day deadline to "[seek] a trial" in that they constitute an "action." This contention is incorrect: "So far as civil actions are concerned, . . . an 'action' means the same thing as a 'suit.' " (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 62, p. 134; accord, Black's Law Dict. (6th ed. 1990) p. 28, col. 1 [An action is "a lawsuit brought in court; a formal complaint within the jurisdiction of a court of law"]; Code Civ. Proc., §§ 20-22.) Accordingly, "a civil action is commenced by filing a complaint with the court." (Code Civ. Proc., § 411.10.) Thus, "the term 'action pending' used in the MFAA refers to a lawsuit in which the parties include both the attorney and the client who had their fee dispute arbitrated." (Italics added.) (Loeb v. Record (2008) 162 Cal.App.4th 431, 445.) The action then proceeds in the manner of civil actions generally. (§ 6204, subd. (c); see also McAvoy v. Lerer (1995) 35 Cal.App.4th 1128, 1129 [guidelines for computation of time where last day for performance is a holiday in Code Civ. Proc., § 12, subd. (a) applies to computation of 30-day period in which to file complaint after service of MFAA award].)
While this conclusion is not readily apparent from the language of sections 6203 or 6204, it "must be implied as a matter of law because the court must have personal jurisdiction over both parties to the fee dispute before it can hold a trial on the dispute." (Loeb v. Record, supra, 162 Cal.App.4th at p. 445.) Moreover, it finds support in "section 6201[, which] provides that an attorney must provide the client with a notice of the availability of arbitration under the MFAA before or when the attorney commences an action against the client for the recovery of fees, costs, or both." (Ibid.) Therefore, "it is reasonable to conclude that subsequent references in the MFAA to an 'action pending' are to the type of action described in Business and Professions Code section 6201." (Ibid.)
Furthermore, the relevant Judicial Council of California forms explicitly require a party dissatisfied with a nonbinding MFAA arbitration award to file both a rejection form and a complaint. The rejection of award and request for trial, form ADR-104, 3(b) states that if no court case concerning the subject fee dispute is pending, then the rejection form "must be filed . . . with a complaint commencing a new action." (Italics added.) The rejection form also directs the applicant to read "ADR-105," which provides "Information Regarding Rights After Attorney-Client Fee Arbitration." This form delineates the steps to take for an applicant to obtain a trial de novo. Specifically, it states: "[I]f no lawsuit about the fees has been filed, you must file your own lawsuit in the proper court and request a trial in that court if you do not want the award to become binding." (Italics added.) Further, it explains: "[I]f the amount in dispute is more than $5,000, you must file a complaint in the superior court to begin your lawsuit [and that] you can use form ADR-104 to reject the arbitration award and request a trial at the same time you file your complaint." (Italics added.) (See also McAvoy v. Lerer, supra, 35 Cal.App.4th at p. 1128.)
Here, Gordon does not contend that she filed a complaint within the 30-day deadline; rather, she argues that her filing rejection form and petition to vacate constitutes substantial compliance with the deadline. She further contends that the deadline should have been extended under Code of Civil Procedure section 473, subdivision (b). However, "[that section] cannot remedy a failure to meet the 30-day deadline for seeking a trial following arbitration under the MFAA." (Maynard v. Brandon (2005) 36 Cal.4th 364, 369.) Because Gordon failed to file a complaint within 30 days of the award's issuance, she may not seek a trial de novo. Accordingly, the trial court properly confirmed the award.
III
THE TRIAL COURT PROPERLY DENIED GORDON'S PETITION TO VACATE THE AWARD

Gordon contends the trial court erred in denying her petition to vacate the attorney fee arbitration award because (1) the award was procured by undue means, (2) the arbitrator's misconduct substantially prejudiced her rights, and (3) he exceeded his authority. We reject this contention.
A. The Award Was Not Procured by Undue Means
Code of Civil Procedure section 1282.2, subdivision (a)(1) provides an arbitration award may be vacated if it is procured by "corruption, fraud, or other undue means." "The term 'undue means' is generally held to include conduct amounting to fraud or wrongful behavior that deprives either party of a fair and impartial hearing and results in substantial prejudice." (6 Witkin, Cal. Procedure (5th ed. 2008) § 570, subd. (2)(a); see also Pour Le Bebe v. Guess‌ (2003) 112 Cal.App.4th 810. [discussing at length that "undue means" constitutes deceitful conduct].)
The trial court reviewed the arbitrator's award, Gordon's declarations, and heard arguments from both parties concerning the arbitral proceeding. The court concluded the arbitration "appeared to [have been] conducted fairly and constitutionally according to the rules required for [it]." The court disagreed that the participation of Avetisyan's translator rendered the proceedings so unfair as to constitute undue means.[5]
Having reviewed the record, we find substantial evidence supports the trial court's judgment. Thus, we defer to the trial court's conclusion that the award was not procured by undue means.
B. The Arbitrator's Conduct Did Not Substantially Prejudice Gordon's Rights
An arbitrator's misconduct may provide grounds to vacate an arbitration award if it substantially prejudiced a party's rights. (Code Civ. Proc., § 1286.2, subd. (a)(3).) Because it is purely an issue of fact to be determined by the trial court, our review is deferential. (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 957.)
Gordon argues that the arbitrator committed misconduct in that he had improper "extra-judicial communications" with Avetisyan's translator. Gordon supported this allegation through her declaration. Because the court's rejection of Gordon's testimony is an issue of disputed fact and credibility, we defer to the court's conclusion. (See Betz v. Pankow, supra, 16 Cal.App.4th at p. 923.) We conclude substantial evidence exists to support the trial court's ruling.
C. The Arbitrator Did Not Exceed His Authority
Under Code of Civil Procedure section 1286, subdivision (a)(4), an award may be vacated if an arbitrator exceeds his/her authority in fashioning a remedy, which occurs if the controlling statute or agreement does not permit or contemplate the remedy. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 383.) Therefore, an arbitrator of an MFAA dispute does not exceed his/her authority if his/her nonbinding award only provides a monetary amount for attorney fees and costs. Whether this occurs is a question of law. (Id. at p. 362, fn. 9.)
Here, Gordon and Avetisyan arbitrated their dispute over attorney's fees and costs Gordon incurred in representing Avetisyan as the MFAA mandates. The arbitrator issued a nonbinding monetary award limited exclusively to the issue of Gordon's fees and costs, which the MFAA unmistakably permits. Accordingly, the trial court did not err in denying Gordon's petition on the grounds the arbitrator exceeded his authority.
IV
THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE REQUEST FOR A CONTINUANCE

Gordon contends the trial court abused its discretion by denying Gordon's request to continue the June 23, 2010 hearing date to retain counsel more experienced in civil litigation. We reject this contention.
"Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law." (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.) Thus, "an abuse of discretion results in reversible error only when the denial of a continuance results in the denial of a fair hearing, or otherwise prejudices a party." (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.)
On June 2, 2010, the court granted Gordon a continuance of the hearing on the petitions to June 23, 2010. By June 2010, Gordon had already filed numerous pleadings and documents in the case concerning the petitions. Moreover, the arbitration award was issued over a year before the June hearings. Based on these observations, we conclude Gordon was not denied a fair hearing nor was she prejudiced by the court's denial to extend the hearing for a second time. Thus, the trial court was well within its discretion in denying the continuance.
DISPOSITION
The judgment is affirmed.

NARES, J.
WE CONCUR:


BENKE, Acting P. J.



AARON, J.



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