Gonzales v. Lind CA2/1 ( 2020 )

Filed 12/24/20 Gonzales v. Lind CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 ONE
THOMAS GONZALES, B304090
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 19LBCV00501)
v.
KIMBERLY OLSON LIND,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark C. Kim. Affirmed.
Baker, Keener & Nahra, Phillip A. Baker for Defendant
and Appellant.
Law Offices of Drew F. Teti, Drew F. Teti for Plaintiff and
Respondent.
___________________________________
In this case, an attorney represented her client from 2012
to 2018. In 2018, the parties entered into a retention contract
that contained a clause by which the parties agreed to seek
arbitration of “any dispute” that “arises” regarding “any claim”
for negligence or malpractice. In 2019, the client sued the
attorney for negligence, fraud, breach of fiduciary duty,
conversion, and financial elder abuse. The trial court denied the
attorney’s motion to compel arbitration on the ground that the
arbitration agreement was ambiguous as to whether it applied to
disputes arising from pre-agreement events. We agree. Although
the words “any” and “arises” are facially unambiguous, in context
here, the client had no reason to believe the retention contract
applied to transactions from years past. Accordingly, we affirm.
BACKGROUND
In 2012, Thomas Gonzales retained attorneys Kimberly
Lind and Duane Westrup to represent him in an employment
related lawsuit. The parties entered into a 2012 written attorney
retention agreement and a later oral retention agreement,
neither of which contained an arbitration clause. Gonzales lost
his lawsuit at trial but prevailed in part on appeal.
In 2018, on the eve of retrial by new counsel (with Lind
participating), Lind (but not Westrup) required that Gonzales
enter into another attorney retention agreement. It provided, in
pertinent part, the following:
“14. If any dispute arises between you and our firm with
respect to or arising from the compensation due to us for
our legal services rendered, or costs advanced, herein, or
with respect to any alleged attorney negligence and/or
malpractice, you and our firm all agree that the dispute
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shall be submitted to arbitration. As to any claim of
alleged attorney negligence and/or malpractice, the results
of the arbitration shall be binding upon both you and our
firm.
“NOTE: BY AGREEING TO BINDING ARBITRATION
WITH RESPECT TO ANY ALLEGED CLAIMS OF
ATTORNEY NEGLIGENCE AND/OR MALPRACTICE
YOU ARE WAIVING YOUR RIGHT TO SETTLEMENT
OF THOSE DISPUTES BY THE JUDICIAL
PROCESS.”
In 2018, Gonzales’s other retained counsel advised him that
Lind and Westrup had allegedly committed mis- and malfeasance
in handling his first lawsuit.
In 2019, Gonzales sued Lind and Westrup for negligence,
fraud, breach of fiduciary duty, conversion, and financial elder
abuse. Lind moved to compel arbitration.
Gonzales opposed the motion, arguing the arbitration
agreement (1) was procedurally and substantively
unconscionable, (2) failed to cover the relevant time period, (3)
could not be applied retroactively, (4) was limited to fee disputes,
(5) was non-binding, and (6) created a risk of conflicting outcomes
with respect to ongoing litigation against Westrup.
The trial court found that the arbitration agreement
contained “no clear language” that applied to “both past claims
and future claims,” but suggested (from the language “[i]f any
suit arises”) a prospective scope only. The court found that
plaintiff’s claims arose out of the 2013 trial and subsequent
appeal, both of which preceded the 2018 arbitration agreement.
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Finding the agreement ambiguous as to claims arising from pre-
2018 events, the court denied Lind’s motion to compel
arbitration.
Lind appeals.
DISCUSSION
Lind argues the arbitration agreement unambiguously
applies to post-contract claims concerning pre-contract events.
We disagree.
“Private arbitration (also called contractual or nonjudicial
arbitration) ‘is a procedure for resolving disputes which arises
from contract; it only comes into play when the parties to the
dispute have agreed to submit to it.’ ” (Toal v. Tardif (2009) 178
Cal.App.4th 1208, 1218.) “By agreeing to arbitration, parties
anticipate a relatively speedy, inexpensive and final resolution,
one that may be based on ‘broad principles of justice,’ rather than
strictly the rule of law. [Citation.] Consequently, ‘as a general
rule courts will indulge every reasonable intendment to give
effect to arbitration proceedings.’ ” (Ibid.) But “a party cannot be
required to submit to arbitration any dispute which he has not
agreed so to submit.” (Atkinson v. Sinclair Refining Co. (1962)
370 U.S. 238, 241.) The “question of whether the parties agreed
to arbitrate is to be decided by the court, not the arbitrator.” (AT
& T Technologies, Inc. v. Communications Workers of America
(1986) 475 U.S. 643, 649.) “California law . . . favors enforcement
of valid arbitration agreements.” (Armendariz v. Foundation
Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.)
“The fundamental goal of contractual interpretation is to
give effect to the mutual intention of the parties. (Civ. Code, §
1636.) If contractual language is clear and explicit, it governs.
(Civ. Code, § 1638.) On the other hand, ‘[i]f the terms of a
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promise are in any respect ambiguous or uncertain, it must be
interpreted in the sense in which the promisor believed, at the
time of making it, that the promisee understood it.’ ” (Bank of the
West v. Superior Court (1992) 2 Cal.4th 1254, 1264-1265.) A
court faced with an argument that contract language is
ambiguous must interpret the language in context. (Id. at p.
1265.) “This is because ‘language in a contract must be construed
in the context of that instrument as a whole, and in the
circumstances of that case, and cannot be found to be ambiguous
in the abstract.’ ” (Ibid.)
When the evidence presented to the trial court was
undisputed, we review the court’s determination of the validity of
an agreement de novo. (Parada v. Superior Court (2009) 176
Cal.App.4th 1554, 1567.)
Here, the parties agreed to arbitrate “any” dispute that
“arises” with respect to “any” negligence or malpractice claim. It
is obviously possible to interpret the terms “any” and “arises,” in
the abstract, as referring inclusively to all disputes incepted after
the agreement, including those based on past events. A typical
dictionary, for example, defines “any” as “of whatever kind” or
“without restrictions.” (Webster’s Collegiate Dict. (10th ed. 1993)
p. 53, col. 1.) And several courts have construed “any” as
meaning without restriction or temporal limitation. (Desert
Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th
866, 877 [the words “any dispute” are broad, with “no temporal
limitation”]; Estate of Willis (1950) 34 Cal.2d 782, 790; Emmolo v.
Southern Pacific Co. (1949) 91 Cal.App.2d 87, 92.)
Leaving abstract philology behind, however, the arbitration
agreement here is easily susceptible of another interpretation,
one in which “any dispute” refers only to disputes arising from
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future events. The parties had been transacting for years,
through one trial and appeal, to the eve of a second trial, under a
retention agreement that apparently satisfied Lind at the time.
Gonzales had no reason to think that Lind intended to supplant
the agreement retroactively. On the contrary, with the second
trial soon to begin, and with Lind giving no indication that she
was thinking retrospectively, Gonzales had every reason to
believe that past events had settled into history, and to be
exclusively forward looking. At the very least, Gonzales could
expect that if Lind intended to displace their prior arrangement
retroactively, she would say so. In this context, an agreement
about disputes that may “arise,” which gives no indication of
retrospectivity or retroactivity, can reasonably be interpreted as
applying only to disputes arising from future events.
Because the agreement is ambiguous in this respect, it
cannot be said that Gonzales agreed to arbitrate disputes arising
from pre-agreement events.
DISPOSITION
The order is affirmed. Respondent is to receive costs on
appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
*
BENDIX, Acting P. J. FEDERMAN, J.
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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