Reisman v. Shahverdian

• Decision Date: 30 March 1984
• Citation: 201 Cal.Rptr. 194,153 Cal.App.3d 1074
• Parties: Samuel REISMAN, Plaintiff and Respondent, v. Polin Zarekeivan SHAHVERDIAN, Edward Zarekeivan, Mamoud Zarekeivan, Defendants and Appellants. Civ. 63633.
• Court: California Court of Appeals Court of Appeals

Page 194

201 Cal.Rptr. 194

153 Cal.App.3d 1074

Samuel REISMAN, Plaintiff and Respondent, v. Polin Zarekeivan SHAHVERDIAN, Edward Zarekeivan, Mamoud Zarekeivan, Defendants and Appellants.

Civ. 63633.

Court of Appeal, Second District, Division 7, California.

March 30, 1984.

Hearing Denied May 30, 1984.

R. William Shpall, Los Angeles, for plaintiff and respondent.

Allan F. Grossman, Encino, for defendants and appellants.

SCHAUER, Presiding Justice.

Defendants appeal from a judgment confirming an arbitration award of attorney's fees and also appeal from subsequent orders denying a motion to vacate the judgment and disallowing a Code of Civil Procedure section 170.6 disqualification of the superior court commissioner who rendered the rulings. Inasmuch as defendants had not stipulated to the commissioner's acting as a temporary judge under the California Constitution, a principal issue is whether the defendants were "parties litigant." We resolve this issue against the defendants and affirm the judgment. We find, however, that the commissioner was not empowered to hear the subsequent motion to vacate the judgment made pursuant to Code of Civil Procedure, section 473. We therefore remand the case so that this motion may be heard by a duly-empowered judicial officer.

Factual and Procedural History

Plaintiff is an attorney who provided legal services for defendants. The bulk of the legal services were rendered for defendant Polin Zarekeivan Shahverdian in connection with the dissolution of her eleven-month marriage. The other two defendants, her father and brother, had joined with her in a written fee agreement calling for a "reasonable fee" for plaintiff.

Disappointed with the property division by the court in the dissolution proceeding, defendants refused to pay plaintiff's bill for his services. Thereupon, plaintiff instituted this action to recover attorney's fees.

Defendants then employed another law firm, Halperin and Halperin, and were represented by one of its members, Robert Kusior. By a September 10, 1979, letter agreement with plaintiff's counsel, Kusior accepted service of the summons and complaint and agreed to answer or seek arbitration within thirty days. Pursuant to article XIII, division 3, chapter 4 of the California Business and Professions Code, section 6200 et seq., providing for attorneys' fees arbitration which is optional for clients while mandatory for attorneys, defendants initiated arbitration with the Los Angeles County Bar Association. The defendants' petition for arbitration contains an agreement by defendants "to enter into binding arbitration." The petition form, just before it provides for the election for or against binding arbitration, states: "If you and the attorney both agree to make the arbitration binding, NO appeal or further proceedings will be possible after the arbitration award is made." In addition to the petition for arbitration, defendants also signed a "request for arbitration and stay of proceedings" which, inter alia, contained the following:

"Effect of Arbitration:

"Arbitration pursuant to Article 13 of the Business and Professions Code is called ADVISORY ARBITRATION meaning that:

"If either you or the attorney are not satisfied with the award of the arbitrator(s) you have the right to petition the court for a new hearing within 30 days of the mailing of the notice of award.

"However, you and the attorney may agree to make the arbitration binding, which means that once the arbitrators have rendered an award, no appeal or further proceeding will be possible.

"Choice: (Check one)

"I desire Advisory Arbitration. [ ]

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"I agree to Binding Arbitration. [/]"

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Neither the request for arbitration and stay of proceedings nor any form of order to stay the proceedings was delivered to the court. Thus, the court never issued a stay. Nonetheless, plaintiff also signed a written agreement of submission to binding arbitration and there were no further judicial proceedings on the complaint for attorney's fees which initiated this action. Hence, defendants filed no answer or other pleading in response to plaintiff's complaint.

Defendants, however, did pay their first appearance filing fee in order to appear specially to make a June 1979 motion to quash an alleged service upon them by plaintiff. This motion was successful but only of temporary effect since thereafter counsel for plaintiff and Kusior entered into the letter agreement of September 10, 1979, through which defendants agreed to accept service.

Defendants also paid a filing fee to the Los Angeles County Bar Association for the arbitration. The arbitration hearing before three arbitrators continued for two days with all parties and their counsel fully participating therein, giving testimony and presenting documentary evidence.

On January 12, 1981, the arbitrators rendered their award, including findings of fact and conclusions. The award gave plaintiff the full amount of his claim against defendants.

Plaintiff then filed, on February 19, 1981, a petition to confirm the arbitration award and have it made a judgment of the superior court. The hearing on the petition was noticed for March 9, 1981.

In the meantime, upon receiving the unfavorable arbitration result, Kusior by letters of February 5, 1981, and February 11, 1981, advised defendants that he did "... not presently have any grounds for overturning the award" and that they had only fourteen days after service of notice of the award to "seek to overturn the awards," namely, until February 16, 1981. When defendants received these letters, they advised Kusior that his firm should do nothing further in the action, that another attorney, Stuart D. Myers, would be handling the case and that Kusior should transmit his file to Myers. Under cover of a letter of February 12, 1981, Kusior did send the file to Myers along with a substitution of attorneys signed for the Halperin firm. Myers reviewed the matter and advised defendants that they should rely upon Kusior's opinion "... that there was nothing that could be done about vacating the arbitration award or appealing to a higher court." Kusior received no communication that the substitution of attorneys had been signed by defendants or Myers and on February 20, 1981, filed and served a notice of motion by the Halperin firm "... to withdraw as attorney of record." The hearing on the motion to withdraw was set for March 9, 1981, the same time at which the petition to confirm had been set.

Defendants concede receiving due notice of the March 9 proceedings but they did not appear at the March 9 hearings. They submitted no written response or opposition to either the petition to confirm or the motion to withdraw although they admit receiving adequate notice thereof. Moreover, defendants did not employ a new attorney to appear at the March 9 hearings or to respond in any fashion to the proceedings then pending.

The petition to confirm and motion to withdraw were transferred from Superior Court Department 83 as overflow matters to Commissioner Arnold Levin in Department 66. The Department 66 minute order of March 9, 1981, recites: "IT IS STIPULATED that Commissioner Arnold Levin may hear this matter as Judge Pro Tem."

At the March 9 hearings, the commissioner granted the Halperin firm's motion to withdraw, "effective on giving notice ... [to defendants] ... and on filing proof of service of the same with the Court...." and also granted the petition to confirm and for entry of judgment on the arbitration award. On March 10, 1981, the proof of service upon defendants of notice of the withdrawal was filed with the court by the Halperin firm.

By March 24, 1981, defendants had employed another attorney, Allan F. Grossman, who made and filed a "special appearance to question personal jurisdiction." This application was made ex parte to Commissioner Levin who denied it the same day.

Also on March 24, 1981, Commissioner Levin signed the judgment confirming the arbitration award, and on March 30, 1981, the judgment was entered by the clerk. On March 31, 1981, notice of entry of the judgment was given by both the clerk's office and plaintiff.

On April 1 and again on April 2, 1981, defendants' new counsel, Mr. Grossman, made special appearances to contest the court's personal jurisdiction over defendants, asserting that the Halperin firm was not authorized to accept service for defendants and Kusior had no authority to so agree in the letter of September 10, 1979. Defendants also alleged the falsity of declarations of plaintiff's process server and contended that they had not made a general appearance in the judicial proceedings by participating in the attorney's fees dispute arbitration pursuant to the procedures authorized by the California Business and Professions Code. Defendants' motion to vacate the March 30, 1981 judgment for lack of personal jurisdiction was heard, with oral testimony taken on three days, by Judge Thomas T. Johnson. On April 22, 1981, Judge Johnson denied the motion and notice of the ruling was under date of April 28, 1981.

The next event in the procedural history of this case occurred on June 17, 1981, when defendants filed a notice of motion under Code of Civil Procedure section 473 to vacate the judgment of March 30, 1981. The grounds asserted by defendants in the Code of Civil Procedure section 473 motion involved the misconduct of the Halperin firm and Kusior who, defendants alleged, rendered them faulty legal advice and then withdrew from the case before the March 9 hearing on the petition to confirm.

The section 473 motion was noticed for hearing on July 6, 1981, in Department 83 before Judge Dickran M. Tevrizian, Jr. On July 6, 1981, Judge Tevrizian continued the hearing to August 3, 1981, and transferred it to be heard before Commissioner Levin in Department 66. Judge Tevrizian's minute order of July 6 made reference to the "Matter having...