Gonzales v. Lind

Decision Date24 December 2020
Docket NumberB304090
PartiesTHOMAS GONZALES, Plaintiff and Respondent, v. KIMBERLY OLSON LIND, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. 19LBCV00501)

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.


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 disputeshall 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.

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.Finding the agreement ambiguous as to claims arising from pre-2018 events, the court denied Lind's motion to compel arbitration.

Lind appeals.


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 apromise 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 ...

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