Mouradian v. Jehdian CA2/5 ( 2014 )

Filed 9/19/14 Mouradian v. Jehdian CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ANDRANIK MOURADIAN et al., B251932
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. EC060154)
v.
MICHAEL V. JEHDIAN et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County, David
Milton, Judge. Affirmed.
Kaufman Borgeest and Ryan, Jeffrey S. Whittington and Robert J. Hudock for
Defendants and Appellants.
No appearance for Plaintiffs and Respondents.
I. INTRODUCTION
Defendants, Michael V. Jehdian, Law Offices of Michael V. Jehdian and Law
Offices of Michael V. Jehdian, APC, moved to compel arbitration against a former client,
Andranik Mouradian (Mr. Mouradian). Defendants also sought to enforce the written
arbitration agreement against several nonsignatory plaintiffs, Lucy Mouradian, Arous
Mouradian and Albert Shamamian. The trial court granted defendants’ motion to compel
arbitration as to Mr. Mouradian but stayed the matter as to the nonsignatory plaintiffs’
sole claim for attorney malpractice. Defendants appeal from the order staying the
nonsignatory plaintiffs’ attorney malpractice claim until after arbitration. Defendants
argue the nonsignatory plaintiffs should have been ordered to arbitrate their attorney
malpractice claim. We affirm the order.
II. BACKGROUND
A. Complaint
On February 4, 2013, plaintiffs filed a complaint against defendants. The
complaint alleges in May 2012, Mr. Mouradian retained defendants to represent him in a
Chapter 7 bankruptcy matter. Mr. Mouradian signed a fee agreement and paid
defendants a retainer fee of $2,000. Mr. Mouradian contacted defendants to discuss the
bankruptcy proceeding but was transferred to defendants’ office assistant, Karine
Manvelian. Later, Ms. Manvelian visited Mr. Mouradian to have him sign necessary
documents to file the bankruptcy petition. Mr. Mouradian disclosed he had transferred
property to his daughters, Lucy and Arous Mouradian in July 2009. Mr. Mouradian
asked whether this transfer of property would affect the bankruptcy proceedings about to
be commenced. Ms. Manvelian allegedly advised Mr. Mouradian he did not have to
disclose the transfer of property in his bankruptcy filings. Relying on Ms. Manvelian’s
guidance, Mr. Mouradian signed all the documents she provided him that day. Later
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Mr. Mouradian was assured by defendants and Ms. Manvelian that the transfer of
property to his daughters would not pose a problem. On May 6, 2012 defendants filed a
Chapter 7 bankruptcy petition on behalf of Mr. Mouradian. On September 18, 2012, the
bankruptcy trustee filed an action against Arous and Lucy Mouradian seeking to set aside
the property transfer as a fraudulent conveyance. Arous and Lucy Mouradian were
forced to obtain counsel to defend this action. To settle the matter, plaintiffs agreed to
pay the bankruptcy trustee $137,500 to keep the property.
Plaintiffs allege defendants committed legal malpractice. Plaintiffs allege
defendant was negligent and careless in representing Mr. Mouradian by failing to
calculate the proper time to file the bankruptcy action. Defendants’ negligence caused
Arous and Lucy Mouradian to be named in a complaint filed by the bankruptcy trustee
alleging fraudulent conveyance of the property. Plaintiffs were forced to defend the
action resulting in a $137,500 settlement with the bankruptcy trustee. Plaintiffs also
allege causes of action for contract and fiduciary duty breach.
B. Defendants’ Motion To Compel Arbitration
Defendants moved to compel arbitration against all plaintiffs pursuant to the legal
service agreement with Mr. Mouradian. Section 11 of the agreement contains the
following arbitration provision: “The parties agree that if any dispute should arise
between Client and Attorney regarding services performed or Client-Attorney
relationship, including, but not limited to, alleged malpractice or other negligent acts or
omissions, breach of fiduciary duty, fraud, or violation of statute or code or public policy,
or any other form of alleged injury, then such dispute shall be resolved by final, binding
arbitration in Los Angeles County, California before a retired judge, justice or neutral
party affiliated with ADR Services in Los Angeles. If ADR Services in unwilling or
unable for any reason to provide an arbitrator, then JAMS shall be substituted for ADR
Services. Either side may make a written demand for arbitration. If the parties are
unable to agree to an arbitrator within five days of the written demand for arbitration,
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each side will name one arbitrator . . . within five days thereafter, and the two named
persons will select, within five additional days, a third who will act as the sole arbitrator.
If either side fails or refuses to name an arbitrator as set forth above, the arbitrator
identified by the other side shall conduct the arbitration.” Defendants argued the
arbitration provision in the legal services agreement may be enforced against the
nonsignatory plaintiffs under the equitable estoppel doctrine. Defendants contended the
nonsignatory plaintiffs’ claims arose out of the legal services agreement and were
founded in and intertwined with the services provided under the agreement.
In opposition, plaintiffs argued Mr. Mouradian signed the legal services agreement
only with the corporate defendant, Law Offices of Michael V. Jehdian, APC, not with
Mr. Jehdian. Plaintiffs contended defendants’ motion should be denied because
arbitration might result in conflicting or inconsistent rulings. In addition, they argued
equitable estoppel principles did not apply because the nonsignatory plaintiffs did not
benefit from the legal services agreement. Plaintiffs asserted the nonsignatory plaintiffs’
sole claim was for legal malpractice based on negligence, for which a contract is not
required or relied upon. The nonsignatory plaintiffs stated they did not assert any claims
for contract or fiduciary duty breach that rely on the terms of the legal services
agreement.
C. Trial Court’s Ruling
On September 6, 2013, the trial court granted in part defendants’ motion to compel
arbitration. Mr. Mouradian was ordered to arbitrate his claims with defendants. The
nonsignatory plaintiffs’ legal malpractice claim was stayed until after the arbitration had
concluded. The trial court ruled: “Pursuant to [Code of Civil Procedure] section 1281.2[,
subdivision] (c), and the representations of plaintiffs in the opposition, this matter is
stayed as to the sole cause of action asserted by the nonsignatory plaintiffs, Lucy
Mouradian, Arous Mouradian and Albert Shamamian, the first cause of action for
attorney malpractice, until an arbitration has been had according to this order.”
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III. DISCUSSION
On April 3, 2014, we requested the parties brief whether defendants’ failure to
provide a settled statement of the September 6, 2013 hearing warrants affirmance based
on the inadequacy of the record. On June 27, 2014, defendants filed a supplemental brief
in response to the order. Defendants argue this court has been provided with more than
an adequate record because they included all relevant documents in their appellants’
appendix. They assert there was no court reporter at the September 6, 2013 hearing. But
defendants fail to provide this court with an agreed upon or settled statement.
Without a proper record, we cannot determine what happened at the September 6,
2013 hearing. In numerous situations, courts have refused to reach the merits of an
appellant’s claims where no reporter’s transcript of a pertinent proceeding or a suitable
substitute has been provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274
[transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion
hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new
trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine
whether counsel was waived and minor consented to informal adjudication]; Boeken v.
Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1672 [transcript of judge’s ruling on an
instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th
440, 447 [attorney fee award affirmed where trial transcript not provided]; Estate of Fain
(1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49
Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance
Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing];
Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails
to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent Etc.
Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition];
Sui v. Landi (1985) 163 Cal.App.3d 383, 385 [order denying preliminary injunction
dissolution affirmed based on lack of reporter’s transcript]; Rossiter v. Benoit (1979) 88
Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230
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Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221
Cal.App.2d 460, 462 [failure to secure reporter’s transcript or settled statement as to
offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [order confirming
arbitration award].) We affirm the September 6, 2013 order based on defendants’ failure
to provide an adequate record.
IV. DISPOSITION
The order under review is affirmed. Plaintiffs, Lucy Mouradian, Arous Mouradian
and Albert Shamamian, shall recover their costs, if any, incurred on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
KRIEGLER, J.
MINK, J.*
*
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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