Filed 11/18/15 Blumberg Law Corp. v. Diner CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

BLUMBERG LAW CORPORATION
,
Plaintiff and Respondent
,

v.

AL AN DINER ,
Defendant and Appellant

. B 2 5 9 958
(Los Angeles County Super. Ct. No. NC058424 )

APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael P. Vincencia
, Judge. Affirmed

. Alan Diner, in pro per., for Defendant and Appellant.
Ave Buchwald and John P. Blumberg for Plaintiff and Respondent

.

________________________________2 INTRODUCTION Appellant Alan Diner retained respondent Blumberg Law Corpor ation to represent him after he wa s termin ated by his former employer. After the employment matter was settled following mediation, the parties had a dispute over the attorney fees and costs. Respondent filed a complaint seeking its fees and costs, and appellant filed a cross

- complaint alleging that respondent had breached the retainer agreement by failing to agree to arbitrate the fee dispute. Following a bench trial, the trial court found in favor of respondent and against appellant on both the complaint and the cros s

- complaint. Appellant app eals , contending the
trial court committed numerous errors. F ind ing no r eversible error , we affirm.

FACTUAL BACKGROUND AND P ROCEDURAL HISTORY
On December 11, 2012 , respondent filed a veri fied complaint for breach of

co n t ract a n d declaratory relief agai n st appellant. The complaint sought a declaration that respondent was entitled to approximately $50,000 in attorney fees and costs pursuant to the contingen cy fee provision in the retainer agreement , and damages in that amount

. In response , ap p el lant fi led a petition to compel arbitration of the action
, arguing that the retainer agreement contained an arbitration clause. Respondent opposed the petition, contend ing there was no enforceable arbitration agreement,

as appellant had not agreed to arbitration when he failed to initial the arbitration
clause. 1 On April 24, 2013, the trial court denied appellant’s petition to compel
arbitration.

1 The second p a ragraph of the arbitration clause provides : “‘ By initialing below, c lient confirms that he/she has read and understands this provision, and voluntarily agrees to bindi ng arbitration. In doing so, cli e nt voluntarily g i v es up3

On July 18, 2013, appellant filed a verified cross

- complaint for violation of
the Consumer L egal Remedies Act (CLRA ) , Civil Code section 1750 et seq., and
for breach of contract. The cross

- complaint alleged that respondent had violated
the CLRA and breached the retainer agreement when it refused to arbitrate the fee dispute. Respondent answer ed the cross

- complaint, a rguing (1) that appellant was precluded from filing the cross

- complaint, as the court had previously denied appellant’s motion to compel arbitration, and (2) that appellant had never agreed to
arbitration. On July 14, 2014, appellant filed motions in lim ine to exclude (1) evidence
of
, or reference to
, the settlement in the underlying mediation, including the

amount of the settlement
, and (2) parol evidence regarding the retainer agreement, including evidence about the meaning of “ ‘ the amount initially off ered by [Employer] as severance. ’ ” Respondent opposed the motions in limine , and o n August 8, 2014, the trial court denied appellant’s motions. The parties filed their trial briefs in August 2014

. In his bri ef, appellant acknowledged that he h a d waived his right to a jury trial as a result of his “inadvertent untimely payment” of jury fees. A ppellant requested that the trial
court exercise its dis c retion to grant him relief from his waiver, arguing that he mistakenly relied on a version of Code of Civi l P rocedure section 631 that had
been amended in 2012

. 2

important constitu t ional rights to trial by judge or jury, as well as rights to appeal

. Client is advised of the right to have indep endent counsel review this arb i t ration provision, and this entire agreem e nt, prior to initialing this provision or signing this Agreement. ___ (Client’s Initials) ’ ”

2 All further s t atut o r y citations are to the Code o f Civil Procedure, unless otherwise stated.4

As to respondent’s complaint, a ppellant argued that the retainer agreement was voidable pursuant to Business and Professions Code section 6147 due to respond e n t’s purported f

a ilure to provide a sign ed copy of the agreement . To the extent the agreement was not voidable, appellant acknowledged that the agreement’s contingency fee provision provide d that the fee shall be “ ‘ one

- third of
th e gross recovery minus the amou n t initially offered by [Employer] as

severance. ’ ” He asserted that the contingency fee provision was unambiguous , and thus, parol evidence should not be considered in interpreting it

. He further contended that the mediation confidentiality provisions in the E vidence Code precluded the c ourt from considering the underlying mediation, including the
settlement amount , to interpret the fee provision

. Finally, to the extent the contingency fee provision was not ambiguous, appellant argued that any ambiguity should be construed against respon dent, who had drafted the retainer agreement.
A ppellant ’s trial brief also provided his interpretation of the contingency fee provision . According to appellant , his former employer had made two offers of

severanc e, one for “ ‘ two years of salary ’ ”

-- $26 8,000

-- and a lat er offer for

“ ‘ $28,359.73. ’ ” Based on the chronological date of the offers, appellant contend ed
the amount of “severance” ini t i ally offered was “ ‘ two years of salary. ’ ” Appellant further argued that the phrase “ ‘ one

- third of the gross r ecovery minus the amount initially offered by [Employer] as severance ’ ” mean t that the fee should be
calcu l a t ed by taking one

- third of the g r o ss recovery and subtracting from that
amount the “ ‘ two years of salary ’ ” in severance

. Finally, as to his cr oss

- complaint, appellant reiterated that the retainer agreement had an arbitration clause that applied to fee disputes. He asserted he was entitled to damages due to respondent’s refusal to arbitrate.5

In its trial brief , respondent argued the trial c ourt sh oul d n o t exercise its
discret ion to grant appellant rel i e f from h i s waiver of a jury trial due to the unexplained and lengthy delay in seeking relief. As to appellant’s cross

- complaint, respondent contended it fail ed to assert viable causes of action, as appellant had not agreed to arbitrate
, and he was precluded from filing the cross

- complaint due to his failure to appeal the court’s order denying his motion to compel arbitration.
As to its own complaint, r espondent contended the contingency fee provisi on was ambiguous, as the amount of severance could be ascertained only
from extrins ic evidence. Respondent assert ed that extrinsic evidence

-- principally

e

- mail correspondence bet ween the parties

-- would show (1) that appellant initially informed respon dent that the “ severance ” amount was approximately $28,360; (2 ) that the offer of “ ‘ two years in salary ’ ” was not a severance offer, was withdrawn by the employer, and was not disclosed by appellant until a month after
the retainer agreement had been signe d; and (3 ) that appellant understood “‘gross recovery would be defined as the amount in excess of $28,360.’” Respondent contended that a redacted copy of the settlement agreement

-- showing the $175,000 settlement amount

-- was admissible notwithstanding mediation confidentiality because the agreement expressly provided that it was admissible. On August 18, 2014, the first day of trial, appellant request ed a jury trial. 3

He reiterated the argument made in his trial brief that his failure to make timely payment of the jury fees was attributable to an amendment to section 631 in late
2012. The court declined to exercise its discretion to allow a jury trial , noting
, inter alia, that section 631 had been amended prior to the filing of the complaint,

3 As the court proceedings were not recorded, the foll owing facts are drawn from the stipulated settled statement in lieu of a reporter’s transcript ( Cal

. Rules of Court, rule 8

. 137 ) and the court’s written statement of decision

.6

and th at appellant had failed to explain the lengthy delay in depositing the jury
fees

. The case was tried to the court

. Both appellant and attorney John Blumberg
testified. The court found appellant “ intelligent ” and “ sophisticated, ” but found his testimony “not credible” on key issues in dispute. As to respondent’s claims, the trial court determined that respondent was entitled to attorney fees and costs for the legal services it had provided appellant. T he court rejected appellant’s argument that respond ent had violated Business and Professions Code section 6147, determining that the provision , via e

- mail, of a copy of the retainer agreement
, signed by appellant and Blumberg
, constituted compliance with the statute

. The court ruled that it could conside r parol evidence in determining the amount of attorney fees. Based on parol evidence an d its evaluation of witness credibility , the court found that the parties intended the “ ‘ amount initially offered by [Employer] as severanc e ’ ” to be $28,359.73. It spe cifically found that the offer of two years of salary was not disclosed to respondent until after the retainer agreement was signed, that the offer had been withdrawn, and that it was dependent on a change in control of the employer’s business , which no ev idence
indicate d had occurred. The court also found that “it was the i n t ent of the parties

t hat the attorney’s fee be calcu l ated by sub tracting $28,359 from the gross recovery and then multiplying that number by the applicable conting e n c y p e rcentage which
is one

- third.” As the amount recovered was $175,000, respondent was entitled to $48,880.08. Finally, the court ruled that respondent was entitled to prejudgment
interest on the a ttorney fee s starting from August 22, 2012, as that was the date appellant sent an e

- mail to Blumberg disputing the fees respondent was seeking

. The court also found that respondent was entitled to reasonable costs in the amount of $1,466.40.7

As to appellant’s cross

- complaint, the trial court ruled that the cross

c omplaint sta ted no viable cause of action, as appellant , in failing to initial the arbitration clause, never agreed to arbitrate any fee dispute . The court further
found the cross

- complaint barred by the court’s previous denial of appellant’s
motion t o compel arb itra tion. The court granted respondent’s motion for judgment
on the cross

- complaint pursuant to section 631.8. Judgm ent in favor of respondent

on both its complaint and appellant’s cross

- complaint was entered September 2,
2014. On September 15, 2014, appel lant filed a notice of intent to move for a new
trial. In support of the motion for a new trial, appellant contended the trial court
had abused its discretion in not granting relief from his inadvertent jury waiver
, arguing for the first time that he had relied on a former local court rule . Appellant also argued that the court erred in admitting the redacted copy of the settlement agreement , as the admission of th e settlement amount violated mediation confidentiality

. He specifically argued that without the “inadmissible” settlement agreement, “there [was] insufficient evidence to support the decision and damages are excessive.” Finally, appellant argued that no evidence supported the starting date for prejudgment interest. Respondent opposed the motio n fo r a new trial. It argued that appellant had
forfeit ed his argument that the court abused its discretion in denying appellant’s

reques t for a jury trial, because his request had been based on an entirely different ground, viz., an amendment to section 631. Respondent further argued that the
settlement amount was admissible , as the parties to the settlement had agreed that the terms of the agreement were admissible and could be disclosed under seal to a court of law. Finally, respondent argued that Blu mberg’s trial testimony supported the starting date for prejudgment interest.8

On October 2, 201 4, the trial court denied appellant’s motion fo r a new trial. Appellant timely notice d an appeal from the judgment following trial

.

DISCUSSION
A. Appellan t has not W aived his R ight to A

ppeal. Respondent previously filed a motion to dismiss the instant appeal, which this court summarily denied. R espondent now renews the motion. (See , e.g., Ellis
v. Ellis (2015) 235 Cal.App.4th 837, 841, fn. 5 [summary deni al of motion to dismiss does not preclude later consideration by full panel].) Respondent contend s appellant waived his right to appeal by voluntarily agreeing to pay the money judgment as part of a compromise. (See , e.g., Ryan v. California Interscholas tic
Federation (2001) 94 Cal.App.4th 1033, 1041 [ voluntary compliance with or satisfaction of a judgment, as part of compromise or coupled with an agreement not to appeal, constitutes implied waiver of right to appeal ]. ) W e find no waiver. Respondent’s o ffer of compromise was not conditioned on appellant’s waiver of his right to appeal. Moreover, prior to full performance, appellant expressly reserved his right to appeal the judgment. Accordingly, the motion to dismiss the appeal is denied.
B. The T

rial C ourt did n o t A buse its D iscretion in D enying A ppellant’s
M otion for R elief from his W aiver of J ury T rial. Under section 631, parties to a civil action have a right to a jury trial. Appellant waived his right to a jury trial by failing to timely dep osit the jury fees. (See § 631, subd. (f) [enumerating grounds for waiver] .) Under section 631, subdivision (g), however, a court “ may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury. ” A ppellant contends the trial court abused its discretion in denying his motion for relief from9

his waiver of a jury trial , as he inadverten tly relied on a former local rule of the Los Angeles Superior Court , and his deposit of jury fees would have been time ly
under the former rule. We discern no abuse of discretion

.
A t t he time of trial, appellant argued he should be relieved from his waiver of a jury trial because an amendment to section 631 in late 2012 resulted in his untimely payment of jury fees. The court rejected the argument, noting that the current version of section 631 was in effect prior to the filing of the complaint and that appellant had not explained the delay

. That ruling was well within the court’s discretion. Appellant’s argument that h e relied upon a superseded local rule was not made until after trial had concluded. Accordingly, the argument was forfeited.
A ppellant has not shown that the trial court erred in denying his motion for relief
from his waiver of a jury trial.
C. The R e tainer A greement wa s not V oidable. The trial court concluded that respondent was entitled to $48,880.08 in fees and $1,466.40 in costs. Appellant contends respondent was entitled to no fees or costs, as the retainer agreement was voidable and appellant wa s exercising his right
to void the contract.
Business and Professions Code section 6147 , subdivision (a) provides that “[a] n attorney who contracts to represent a client on a contingency fee basis shall,
at the time the contract is entered into, provide a duplicate copy of the contract, signed by both the attorney and the client

. . . . T he contract shall be in writing and shall include, but is not limited to, all of the following: [¶] (1) A statement of the continge ncy fee rate

. . . . [¶]

. . . [¶] (3) A statement as to what extent, if any,
the client could be required to pay any compensation to the attorney for related

matters that arise out of their relationship not covered by their contingency fee

contract

. . . . ” “ Failure to comply with any pr ovision of this section renders the10

agreement voidable at the option of the plaintiff, and the attorney shall thereupon
be entitled to collect a reasonable fee. ” (Bus. & Prof. Code, § 6147, subd. (b).)
A ppellant c ontends the retainer agreement wa s voida ble under Business and Professions Code section 6147, as (1) the agreement did not set forth the specific numbers needed to compute the contingency fee, such as the gross recovery amount; (2) the details of the gross recovery amount and other figures were set forth in e

- mails not signed by both parties; and (3) the agreement lacked a “related matters” provision

-- which was necessary as the retainer agreement purportedly involved only age

- related discrimination claim s and appellant recovered on an employmen t severance agreement. We disagree. Business and Professions Code section 6147 requires only the contingency fee rate be specified, and the retainer agreement here specified that rate. Interpreting the statute to require that all factors needed to comp ute the final contingency fee be specified is contrary to the plain language of the statute

. Moreover, appellant’s interpretation would lead to the absurd result that contingen cy fee agreements would always be voidable , as the exact amount of the
fee is c ontingent on factors not known until final resolution of the matter . For example, here, the amount of the contingency fee was a percentage of the gross
recovery , an amount that cou ld not be determined until appellant’s former

e mployer agreed to settle the matter for a specific sum

. Similarly, Business and Professions Code section 6147 does not require that the e

- mails detailing the gross recovery amount and severance amount be signed by both parties, as those amounts are not contingency fee rates

. Final ly, no “related matters” provision was required, as any legal work related to the employ ment severance agreement wa s covered by the conti ngency fee contract. (Bus. & P rof. Code, § 6147, subd . (b).) The retainer agreement11

provide d that respondent was reta ined to represent appellant on any claim “arising
out of [ his ] employment termination

. ” A claim based on an employ ment severance agreement falls wi thin that contractual language. In short, the retainer agreement

wa s not voidable under Business and Profes sions Code section 6147.
D. The T

rial C ourt P roperly C onsidered P arol E vidence in I

nterpreting
the R etainer A greement. Appellant next contends the trial court erred in admitting parol evidence to interpret the retainer agreement’s contingency fee provision

. “ The decision whether to admit parol evidence involves a two

- step process. First, the court provisionally receives (without actually admitting) all credible evidence concerning the parties’ intentions to determine ‘ambiguity,’ i.e., whether the languag e is ‘reasonably susceptible’ to the interpretation urged by a party. If in light of the extrinsic evidence the court decides the language is ‘reasonably susceptible’ to the interpretation urged, the extrinsic evidence is then admitted to
aid in the secon d step

-- interpreting the contract. ” ( Winet v. Price (1992)
4 Cal.App. 4th 1159 , 1165. ) Here, the contingency fee provision was reasonabl y susceptible to respondent’s interpretation that attorney fees w ere to be one

- third the amount of gross recovery in excess of $28,360 . Thus, the court properly considered parol evidence in interpreting the contractual provision. Citing Alderman v. Hamilton (1988) 205 Cal.App.3d 1033 ( Alderman ) and
Lane v. Wilkins (1964) 229 Cal.App.2d 315 ( Lane ), appellant contends t hat any ambiguity in the retainer agreement should have been construed against respondent. Appellant asserts that u nder this rule of contract interpretation
, respondent would not have been entitled to any fees. We find no error in the trial

court ’s inter

pretation of the contingen cy fee provision.12

In Alderman
, the appellate court restated the rule set forth in Civil Code section 1654 that “[i]n cases of uncertainty not removed by the preceding rules [of contract interpretation] , the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. ” ( Alderman
, supra , 205 Cal.App.3d at p. 1037 [stating that attorney fee agreements are stri ctly construed against attor n e y who drafted the agreement].) On e such ru le of contract interpretation is found in Civil Code section 1647, which provides that “[a]

contract may be explained by ref erence to the circumstances under which it was made, and the matter to which it relates.” Thus, where extrinsic evidence would

reso lve any uncertainty in contractual language, the contingency fee provision should not be interpreted against respondent. On the other hand, as explained in
Lane , where “little, if any, extrinsic evidence [was] adduced at the trial relating to alleged ambi guity in the portions of the agreement,” the trial court should apply the general rule that if there is any ambiguity as to the intent of the parties, the construction most favorable to the client should be adopted. ( Lane , supra , 229 Cal.App.2d at p. 323. ) Here, the trial court properly considered parol evidence, and that evidence established the parties’ intent with respect to the attorney fee calculation. (See, e.g., Houge v. Ford (1955) 44 Cal.2d 706, 711

- 712 [rejecting argument that because defendant attorney prepared contingent fee contract, any possible doubt as to its meaning should be resolved against defendant; finding that admissible extrinsic evidence resolved any doubt as to meaning] .) Finally, appellant contends that it would be unfair to a llow respondent to submit parol evidence in support of its contract interpretation when respondent had
asserted work product privilege with respect to certain evidence requested by appellant. A review of appellant’s discovery request shows that the eviden ce was13

not relevant to the issue of interpreting the contingent fee provision. Appellant

re quested any and all notes and/or minutes that respondent took during meetings or conversation s with appellant referring to the potential engagement of the law firm. Respondent produced two of fi ve identified documents, and asserted that the three remaining documents were not relevant to the contingency fee provision. Appellant has not demonstrated otherwise. More over , appellant has not shown how he was prejudiced, as he was free to testify about the contents of the meetings or telephone conversations. In short, appellant has n ot shown the trial court erred in considering parol evidence to interpret the contingen cy fee provision.
E

. M ediation C

onfidentiality did not P reclude the T rial C ourt from
C onsidering the R edacted S ettlement A greement in D etermining the A ttorney F ee s

. Appellant contends the trial court erred in admitting a redacted copy of the settlement agreement between appellant and his former employer th at showed the
settlement amount. He contends the settlement agreement was subject to mediation confidentiality under Evidence Code section 1119, subdivision (b). That statutory provision provides that “[n] o wri ting

. . . that is prepared for the purpose of, in the course of, or pursuant to, a mediation

. . . , is admissib le or subject to discovery, and disclosure of the writing shall not be compelled, in any

. . . civil
action
, . . . in which, pursuant to law, testimony can be compelled to be given. ”
M e diation confidentiality is subject to statutory exceptions set forth in the Evidence Code. Specifically, Evidence Code section 1122, subdivision (a) provides that “[a] communicati on or a writing

. . . that is made or prepared for the purpose of, or in the course of, or pursuant to, a media tion

. . . , is not made inadmissible, or protected from disclosure, by provisions of this chapter if either of the following conditions is satisfied: [¶] (1) All persons who conduct or otherwise participate in the medi ation expressly agree in writin g

. . . , to disclosure of the14

communication, document, or writing. ” In addition, Evidence Code section 1123 provides that “[a] written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this cha pter if the agreement is signed by the settling parties and any of the following conditions are satisfied: [¶] (a) The agreement provides that it is admissible or subject to discl osure , or words to that effect. [¶] (b) The agreement provides that it is enforceable or binding or words to that effect. [¶] (c) All parties to the agreement expressly agree in writing

. . . t o its disclosure

. . . . ” Here, the settlement agreement provid es that “It is the intent of the Parties, pursuant to Evidence Code sections 1122(a)(1) and 1123, that all of the terms of this Settlement Agreement shall be admissible and may be disclosed under seal to a court of law and shall be enforceable and binding upon them in a court of law.” Thus, by its own terms, the settlement agreement wa s admissible in the instant litigation

. T he trial court did n o t err in admitti n g the redacte d copy of the

set tlement agreement. 4

F

. The C

ourt did not E rr in A warding P reju dgment I nterest

. Appellant contends the trial court abused its discretion in awarding prejudgment interest a s respondent’s claim was not liquidated

. Civil Code section 3287, subdivision (a) provides that a person who is entitled to recover damages “certai n, or capable of being made certain by calculation” is also entitled to recover prejudgment interest. Here, the amount of fees was capable of being made certain by calculation. Although appellant disputed the formula used to calculate the fees,
the trial court properly considered extrinsic eviden ce to determine the formula the

4 T he fact that the settlement agreem e nt was redacted does not suggest respond ent conceded that mediation confidentiality applied. Rather, the agreement was redacted to remove any irrelevant provisions.15

parties had agreed to use. Once the correct formula was determined, the fee
amount could be calcu l ated to a legal certainty. Appellant’s reliance on Marine Terminals Co r p

. v

. Pac e c o , Inc . (1983)
145 Cal.App.3d 991 is misplaced. Th at case states the general principle that prejudgment “ [ i ] nterest is not allowable as a matter of right where the amount of damages is unliquidated and depends upon the jury’s resolution of conflicting

e vidence.” ( Id . at p. 99 5, italics omitted .) However, the amount of damages here

wa s liquidated, i.e., certain or capable of being made certain by calculation. Appellant further contends that respondent was not entitled to prejudgment
interest under rul e 4

- 100(B)(4) of the Rules of Professional Conduct because it delayed four months in filing the instant complaint. A ppellant did not raise this argument below and th us it is forfeited. ( See Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 983 [“ As a general rule, a new theory may not be presented for the first time on appeal unless it raises only a question of law and can be decided based on undisputed facts. ”] .) To the extent the argument is cognizable, appella nt has not demo n s trated that a delay of four months before filing the instant complaint was unreasonable.
Fi n a lly, appellant contends there was no substantial evidence to support the starting date (August 22, 2012) to calculate prejudgment interest. Civil Code section 3287, subdivision (a) p rovides that prejudgment interest accrues on the day that damages are certain or capable of being made certain. (See, e.g., Polster, Inc. v. Swing (1985) 164 Cal.App. 3d 427, 434 [“ Prejudgment interest runs from the date when damages are certain or are cap able of being calculated to a certainty. ”].) Respondent co ntends, and appellant does not dispute , that Blumberg testified that on August 22, 2012, appellant sent the e

- mail disputing the fees as calculated by respondent

. That fee calculation was the same calculation the trial court16

determined was intended by the parties. Thus, there was substantial evidence in the record to support the starting date to calculate prejudgment interest . ( In re
Frederick G . (1979) 96 Cal.App. 3d 353, 366 [“ The testimony of a single witness is sufficient to uphold a judgment .”].) In sum, appellant has not demonstrated the
trial court abused its discretion in awarding prejudgment interest.
G. The C

ourt did not E rr in E

ntering J udgment for R espondent on
A p p ellant’s C ross

- comp laint

. S ection 631.8 provides that, “ After a party has complet ed his presentation of
evidence in a trial by the court, the other p arty

. . . may move for a judgment. The

court as trier of the facts shall weig h the evidence and may render a judgment in
fav or of the moving party

. . . . S uch motion may also be made and granted as to

any cross

- complaint. ” Appellant contends the trial court erred in granting respondent’s motion for judgment on his cross

- complaint pursuant to section 631.8, as the arbitration clause in the retainer agreement was enforceable. We disagree. We have independently reviewed the arbitration clause in the retainer agreement, and conclude that it was not effective without appellant’s initials. As noted, the arbitration clause provide s that “[b] y initialing below,
Client

. . . voluntarily agrees to binding arbitration. ” The court found, and appellant does not challenge , that he failed to initi al the arb i t ration clause. Thus,
the cross

- co mplaint stated no viable cause o f action. Acco rdingly, the trial court did not err in granting judgment in favor of respondent and against appellant on the

cross

- complaint.17 DISPOSITION The judgment is affirmed

. Respondent is entitled to its costs on appeal

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

COLLINS , J.