Filed 12/14/21 Kling v. Horn CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANTHONY N. KLING,

Plaintiff and Appellant,

v.

STEVEN J. HORN,

Defendant and Respondent.

B305967

(Los Angeles County

Super. Ct. No. BC682318)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, David Sotelo, Judge. Affirmed.

Law Office of David Knieriem and David Knieriem; Kling 

Law Firm and Anthony N. Kling for Plaintiff and Appellant.

Valerie F. Horn & Associates and Valerie F. Horn for 

Defendant and Respondent.
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2

INTRODUCTION

Steven J. Horn, an attorney, represented Anthony L. Kling, 

also an attorney, in a lawsuit. A fee dispute arose: Horn wanted 

Kling to pay fees he owed, Kling wanted to recover fees he had 

paid. Horn filed a demand for arbitration with the American 

Arbitration Association (AAA) pursuant to the arbitration 

provision in his retainer agreement. Kling, in turn, filed a 

demand for arbitration with the Los Angeles County Bar 

Association (LACBA) under the Mandatory Fee Arbitration Act

(MFAA), Business and Professions Code section 6200 et seq.

1

 

The AAA stayed its arbitration while Kling and Horn 

participated in the LACBA arbitration. Kling partially prevailed

in the latter, obtaining a nonbinding award that required Horn to 

repay Kling some of the fees Kling had paid him. But Kling, 

apparently believing he could recover more from Horn, rejected 

the award and filed an action in the Los Angeles County Superior 

Court seeking a trial after the LACBA arbitration.

Meanwhile, back in the AAA arbitration, Horn sought and 

obtained an order lifting the stay. Despite receiving notice the 

AAA arbitration was no longer stayed, Kling declined to 

participate. The AAA arbitrator awarded Horn $192,000.

Horn filed a petition to confirm the AAA arbitration award, 

and Kling filed a petition to vacate it. The trial court granted 

Horn’s petition, denied Kling’s, and entered judgment. Kling 

appeals, and we affirm.

1 Undesignated references are to the Business and 

Professions Code.
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FACTUAL AND PROCEDURAL BACKGROUND

A. The Klings Retain Horn

In 2011 Kling and his mother, Mary, retained Horn to 

represent them in a lawsuit they had filed, Kling et al. v. Hassid

et al. (Super. Ct. L.A. County, 2014, No. SC098810).2 Horn’s 

retainer agreement included a provision requiring the Klings to 

submit any dispute “arising from th[e] Agreement,” including 

those concerning “fees, costs or the quality of the work,” to 

“binding arbitration in accordance with the Commercial 

Arbitration Rules of the [AAA].” 

B. Horn and the Klings File Arbitration Demands

In November 2013 Horn withdrew as counsel from the 

Hassid action after a dispute arose over Horn’s handling of the 

case.3 In September 2014 Horn filed with the AAA a demand for 

arbitration against the Klings, seeking $84,000 in unpaid fees, 

costs, and interest. Horn later added to the proceeding 

3123 SMB LLC, Lincoln One Corporation, and Cliffwood, LLC, 

entities Kling identified as “successors in interest” to the Klings. 

In May 2015 the Klings filed a petition for arbitration with 

the LACBA under the MFAA. The Klings alleged that Horn 

committed malpractice when he represented them in the Hassid 

2 Horn represented Kling in his individual capacity and as 

the trustee of his named trust, but represented Mary only as the 

trustee of her named trust. All references to the Klings are to 

Anthony and Mary in those capacities.

3 A year later the trial court dismissed the Hassid action for 

failure to timely bring it to trial. 
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4

action and that they were entitled to the return of $648,000 in 

attorneys’ fees the Klings claimed they had paid him. The AAA 

notified Horn and the Klings it was holding the AAA arbitration

“in abeyance pending the outcome” of the LACBA arbitration.

The Klings and Horn participated in the LACBA 

arbitration. In October 2017 the arbitration panel issued a 

statement of decision and award. The panel concluded Horn’s

alleged misconduct “was not sufficiently serious under the 

circumstances to warrant that [Horn] should not be entitled to 

payment for [his] legal services . . . .” The panel ruled, however, 

that Horn charged the Klings fees that did “not represent time 

reasonably necessary . . . to attain [the Klings’] goals” in the 

litigation and that Horn had padded his time entries. The panel 

ruled that the reasonable value of Horn’s services and costs was 

$380,245 and that the Klings had paid Horn $603,231. The panel

issued an award in favor of the Klings in the amount of $217,986, 

representing the difference, minus $5,000 in arbitration costs. 

C. The Klings Reject the LACBA Award, and Horn 

Proceeds with the AAA Arbitration

The Klings were not satisfied with $217,986. In November 

2017 the Klings, 3123 SMB, and Kling Corporation—another 

entity that participated in the Hassid action—filed a complaint in 

the Los Angeles County Superior Court requesting a trial after

the LACBA arbitration.

4

 In addition to seeking a return of the 

attorneys’ fees they had paid Horn, the Klings and the related 

entities asserted several causes of action alleging Horn 

4 3123 SMB and Kling Corporation were petitioners, along 

with the Klings, in the LACBA arbitration. 
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5

committed legal malpractice in the Hassid action. The trial court 

eventually sustained Horn’s demurrer to those causes of action, 

ruling they were time-barred (a ruling Kling does not challenge 

in this appeal).

5 The Klings’ only cause of action remaining after 

the court’s ruling on Horn’s demurrer was the Klings’ request for 

a trial after the LACBA arbitration.

Meanwhile, Horn filed in the AAA arbitration and sent to 

the Klings’ counsel of record a document titled “Notice of Revival 

of Demand and/or Demand to Compel and/or Proceed with 

Contractual Binding Arbitration and To Lift the Stay.” Horn 

stated that the LACBA arbitration panel had issued a 

nonbinding award and that he was filing the notice in the AAA 

arbitration “in order to proceed with contractual binding 

arbitration which was stayed pending said award . . . .” Kling, 

purportedly acting as counsel for Mary Kling (but not for 

himself), filed a motion to dismiss the AAA arbitration. Kling 

subsequently sent the arbitrator and Horn a letter stating the 

5 This action was neither the first time nor the last time 

Kling sued Horn for legal malpractice. Shortly after Horn filed 

his demand for arbitration with AAA, Kling, through 3123 SMB, 

filed an action for legal malpractice against Horn in the United 

States District Court for the Central District of California. The 

district court ultimately dismissed that action on the ground that 

3123 SMB had obtained diversity through jurisdictional 

manipulation. (See 3123 SMB LLC v. Horn (C.D.Cal. May 7, 

2018, No. CV 14-8115) 2018 WL 5801875, p. 2.) 3123 SMB filed a 

similar malpractice action in the Los Angeles County Superior 

Court. The court in that case dismissed the action as timebarred, 3123 SMB appealed, and Division Three of this court 

affirmed. (See 3123 SMB LLC v. Horn (Nov. 22, 2019, B294372) 

[nonpub. opn.].)
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6

Klings and their related entities were refusing to participate in 

the AAA arbitration because they did not believe the AAA had 

“jurisdiction” to hear the dispute.

D. The AAA Arbitrator Issues an Award in Favor of 

Horn, Which the Trial Court Confirms

The arbitrator in the AAA arbitration set the matter for a 

hearing. Horn participated; the Klings did not. In September 

2018 the arbitrator issued an award in favor of Horn and against 

the Klings and the related entities in the amount of $193,921. 

The award included fees and costs Horn claimed the Klings owed 

him, the attorneys’ fees and expert witness fees Horn incurred in 

the AAA arbitration, and the AAA arbitration costs and fees

Horn paid. 

Horn filed a new action in superior court to confirm the 

award. The Klings responded by filing their own new action to 

vacate the AAA award under Code of Civil Procedure section 

1286.2. The superior court eventually consolidated all three 

related actions: Horn’s petition to confirm the AAA arbitration

award; the Klings’ petition to vacate the AAA arbitration award; 

and the Klings’ earlier action requesting a trial after the LACBA 

arbitration. 

In September 2019 the Klings filed a document titled 

“request to set a jury trial,” contending they were entitled to have 

a jury hear their petition to vacate the arbitration award because 

the petition to vacate was both a “fraud lawsuit” and a “contract 

dispute.” The trial court denied the request, ruling that Code of 

Civil Procedure section 1286.2, which governs petitions to vacate 

an arbitration award, does not give the moving party a right to a 

jury trial. 
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7

The Klings raised numerous grounds for vacating the 

arbitration award. Those relevant to this appeal included that 

the AAA award attached to Horn’s petition to confirm was “not a 

self-validating document”;that Horn did not comply with the 

MFAA because he did not file a new action requesting a trial

after arbitration within 30 days of the LACBA award; that the 

AAA proceeding was “void as a matter of law” because Horn did 

not give the Klings notice of their right to arbitrate under the 

MFAA and never served the Klings with a demand for 

arbitration; and that Horn’s retainer agreement contained an 

illegal block billing provision that rendered the entire agreement 

unenforceable. 

The trial court granted Horn’s petition to confirm the AAA 

arbitration award against the Klings (but not against the other 

entities) and denied Kling’s petition to vacate the award. The 

court ruled that Horn’s petition complied with Code of Civil 

Procedure section 1285.4, which lists the requirements for 

confirming an arbitration award; that Horn complied with the 

MFAA by filing a notice of revival and a demand for arbitration 

with the AAA; that the Klings waived any objections to service by 

making a general appearance in the AAA arbitration; and that 

the arbitrator was not required to determine the retainer 

agreement was illegal. The court entered judgment in favor of 

Horn and against the Klings. Kling timely appealed; Mary Kling 

did not.
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DISCUSSION

A. Horn’s Petition To Confirm the Award Complied with

the California Arbitration Act

Kling first contends Horn “never introduced any evidence 

to suggest the [AAA] award existed” because the copy of the 

award Horn attached to his petition was “hearsay.” This 

argument is meritless.

The California Arbitration Act (CAA) prescribes the

requirements of a petition to confirm an arbitration award. The 

petition must “(a) [s]et forth the substance of or have attached a 

copy of the agreement to arbitrate,” “(b) [s]et forth names of the 

arbitrators,” and “(c) [s]et forth or have attached a copy of the 

award and the written opinion of the arbitrators, if any.” (Code 

Civ. Proc., § 1285.4.) “If a petition . . . is duly served and filed, 

the court shall confirm the award as made,” unless the court 

corrects or vacates the award, or dismisses the petition, pursuant 

to one of the statutory grounds. (Id., § 1286; see id., §§ 1286.2,

1286.6, 1287.2.) “The purpose of [the predecessor to Code of Civil 

Procedure section 1285.4] is to be sure that the trial judge has 

access to the arbitration agreement, the names of the arbitrators 

and the award. . . . [S]ubstantial compliance . . . is all that is 

required.” (Puccinelli v. Nestor (1956) 145 Cal.App.2d 48, 49-50; 

see Horn v. Gurewitz (1968) 261 Cal.App.2d 255, 261.)

There is no question Horn substantially complied with 

Code of Civil Procedure section 1285.4. He attached to his 

operative amended petition a copy of his retainer agreement, 

which contained the arbitration provision, and a copy of the 

arbitration award, which contained the name and signature of 

the arbitrator. Although it is not entirely clear, Kling appears to 
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be arguing that, to avoid a hearsay objection, someone from AAA 

had to authenticate the award by testifying the award Horn

submitted with his petition was in fact the award issued by the 

AAA arbitrator. Code of Civil Procedure section 1285.4, however,

contains no such requirement; it only required Horn to submit “a 

copy of the award.” (Code Civ. Proc., § 1285.4, subd. (c); see 

Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 

745 [“A petition to confirm need only set forth (1) the names of 

the arbitrators, (2) the arbitration agreement (by description or 

attached copy), and (3) the award and written opinion of the 

arbitrators (by description or attached copy).”]; Accito v. Matmor 

Canning Co. (1954) 128 Cal.App.2d 631, 633 [“‘[s]tatutes relating 

to arbitration are ordinarily regarded as remedial in nature, and 

liberally construed’ . . . in accordance with the object of such 

statutes to provide a means of obtaining speedy and final 

disposition of disputes by arbitrators”].) Which Horn did. After 

that, it was up to Kling to convince the court the arbitration 

award Horn submitted was not the actual arbitration award. 

(See Rivera v. Shivers (2020) 54 Cal.App.5th 82, 94 [“‘the burden 

is on the party attacking the [arbitration] award to affirmatively 

establish the existence of error’”].)

B. Kling Was Not Entitled to a Jury Trial on His 

Petition To Vacate the Award

Kling argues he was entitled to a jury trial on his petition 

because his asserted grounds to vacate the award included fraud 

and illegality. Kling relies on the general propositions that 

parties to a common law action at law have a right to a jury trial

and that actions to recover damages for fraud and breach of 

contract are actions at law. “Whether a party was 
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constitutionally entitled to a jury trial is a question of law that 

we review de novo.” (Hollingsworth v. Heavy Transport, Inc.

(2021) 66 Cal.App.5th 1157, 1173.)

Kling fundamentally misunderstands the nature of 

contractual arbitration and petitions to confirm and vacate 

arbitration awards. The CAA does not guarantee (or even 

permit) a party to have a jury determine a petition to vacate an 

arbitration award. Any petition filed under the CAA, including a 

petition to vacate an award under Code of Civil Procedure section 

1285, “shall be heard in a summary way in the manner and upon 

the notice provided by law for the making and hearing of motions

. . . .” (Code Civ. Proc., § 1290.2; see Department of Human 

Resources v. International Union of Operating Engineers (2020)

58 Cal.App.5th 861, 882; Hyundai Securities Co., Ltd. v. Lee 

(2013) 215 Cal.App.4th 682, 691 [the Legislature “provided for 

the specific summary procedures for compelling, confirming, and

vacating arbitration awards”].) “[T]he facts are to be proven by 

affidavit or declaration and documentary evidence, with oral 

testimony taken only in the court’s discretion.” (Rosenthal v. 

Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 

413-414; accord, Toal v. Tardif (2009) 178 Cal.App.4th 1208, 

1223.) These limited “procedures for judicial review of a private 

arbitration award” apply “even absent the specific agreement of 

the parties.” (Vandenberg v. Superior Court (1999) 21 Cal.4th 

815, 831.) The trial court did not err in denying Kling’s request 

for a jury trial on his petition to vacate the AAA arbitration 

award.
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C. The Trial Court Did Not Err in Denying Kling’s 

Petition To Vacate the Award

1. Applicable Law and Standard of Review

“‘[A]rbitral finality is a core component of the parties’ 

agreement to submit to arbitration.’” (Richey v. AutoNation, Inc.

(2015) 60 Cal.4th 909, 916; accord, Bacall v. Shumway (2021) 

61 Cal.App.5th 950, 957.) “Generally, courts cannot review 

arbitration awards for errors of fact or law, even when those 

errors appear on the face of the award or cause substantial 

injustice to the parties.” (Richey, at p. 916; accord, Soni v. 

SimpleLayers, Inc. (2019) 42 Cal.App.5th 1071, 1086-1087.)

“Judicial review of the arbitrator’s award is limited to the 

grounds set forth in Code of Civil Procedure sections 1286.2 (to 

vacate) and 1286.6 (to correct).” (Soni, at p. 1087; see Moncharsh 

v. Heily & Blase (1992) 3 Cal.4th 1, 27-28 (Moncharsh) [“we 

adhere to the . . . line of cases that limit judicial review of private 

arbitration awards to those cases in which there exists a

statutory ground to vacate or correct the award”].) Kling relies 

on Code of Civil Procedure section 1286.2, subdivision (a)(4),

which authorizes the court to vacate an arbitration award if the 

“arbitrators exceeded their powers and the award cannot be 

corrected without affecting the merits of the decision upon the 

controversy submitted.”

“To the extent the trial court made findings of fact in 

confirming the award, we affirm the findings if they are 

supported by substantial evidence. [Citation.] To the extent the 

trial court resolved questions of law on undisputed facts, we 

review the trial court’s rulings de novo. [Citation.] [¶] We apply 

a highly deferential standard of review to the award itself, 
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12

insofar as our inquiry encompasses the arbitrator’s resolution of 

questions of law or fact.” (Cooper v. Lavely & Singer Professional

Corp. (2014) 230 Cal.App.4th 1, 11-12; see Branches 

Neighborhood Corp. v. CalAtlantic Group, Inc. (2018)

26 Cal.App.5th 743, 750.)

2. The Arbitrator Did Not Exceed His Powers on 

the Ground Horn Did Not Comply with the 

MFAA

Section 6204, subdivision (a), provides that where, as here, 

the parties to an MFAA arbitration have not agreed in advance to 

be bound by the award, “either party shall be entitled to a trial 

after arbitration if sought within 30 days . . . .” Section 6204, 

subdivision (b), provides: “If there is an action pending, the trial 

after arbitration shall be initiated by filing a rejection of 

arbitration award and request for trial after arbitration in that 

action . . . .” And section 6204, subdivision (c), provides: “If no 

action is pending, the trial after arbitration shall be initiated by 

the commencement of an action in the court having jurisdiction 

over the amount of money in controversy . . . .” 

Kling contends that the arbitrator exceeded his powers in 

issuing the award because the notice of revival and demand for 

arbitration Horn filed in the AAA arbitration did not comply with 

section 6204. This argument, too, is meritless.

First, Kling did comply with section 6204. A client may not 

avoid a prior agreement to arbitrate disputes with his or her 

attorney by requesting mandatory arbitration under the MFAA 

and then filing a request for a trial after the arbitration. “[O]nce 

the MFAA arbitration process is validly completed or terminated, 

. . . binding arbitration, pursuant to a preexisting agreement, 
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may go forward . . . .” (Schatz v. Allen Matkins Leck Gamble & 

Mallory LLP (2009) 45 Cal.4th 557, 571; accord, Rosenson v. 

Greenberg Glusker Fields Claman & Machtinger LLP (2012) 

203 Cal.App.4th 688, 693; Knight et al., Cal. Practice Guide: 

Alternative Dispute Resolution (The Rutter Group 2020 supp.) 

¶ 5:107.6a [“following nonbinding MFAA arbitration, the attorney 

can require that the dispute be submitted to private arbitration 

in accordance with the retention agreement (thus ‘trumping’ the 

client’s MFAA right to elect a trial de novo in a court of law)”].) 

Where the parties have agreed to binding arbitration, “a demand 

for arbitration within 30 days of service of the MFAA award is a 

proceeding that prevents finality of the MFAA award” under 

section 6204. (Rosenson, at p. 692.) Here, within 30 days of the 

LACBA award, Horn filed in the AAA arbitration a notice of 

revival and demand for arbitration, unequivocally stating he 

intended to proceed with the arbitration. That was sufficient.

(See id. at p. 694 [“law firm properly invoked the right to binding 

arbitration under the retainer agreement by filing a timely 

demand, which prevented the MFAA award from becoming 

final”]; see also § 6201, subd. (c) [where an “action or other 

proceeding” has been stayed pending resolution of an MFAA 

proceeding, “[t]he action or other proceeding may thereafter 

proceed subject to the provisions of Section 6204”].)

6

 

6 Kling contends the notice of revival and demand did not 

comply with the MFAA because Horn had not previously served 

Kling in the AAA proceeding. But Kling is conflating two 

separate issues. Section 6204, subdivisions (b) and (c), require 

only that the party rejecting the arbitration award and 

requesting a trial after arbitration file the rejection and request 

within 30 days, which Horn did. Whether Horn properly served 
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Second, even if Horn’s filing in the AAA arbitration did not

fully comply with section 6204, the MFAA does not provide Kling 

the relief he seeks. The MFAA specifies one (and only one)

consequence for failing to comply with section 6204—the MFAA 

award becomes binding, and a court with jurisdiction may 

confirm it. (See § 6203, subd. (b) [“Even if the parties to the 

arbitration have not agreed in writing to be bound, the 

arbitration award shall become binding upon the passage of 30 

days after service of notice of the award, unless a party has, 

within the 30 days, sought a trial after arbitration pursuant to 

Section 6204.”].) But that is not what Kling was attempting to do 

here. Kling never argued the LACBA award should become 

binding, nor did he seek to confirm the LACBA award rather 

than the AAA award; to the contrary, Kling rejected the LACBA 

arbitration award and requested a trial after the arbitration. 

(Cf. Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1478 [“In 

the context of judicial arbitration [citation], a party electing to 

have a trial de novo by making a timely demand under the 

statute . . . wipes the judicial arbitration slate clean . . . ‘putting 

the case at large as though no arbitration proceedings had 

occurred.’”].) Nothing in the MFAA authorizes a court to deny a 

request for a trial after arbitration or to preclude an arbitrator 

from hearing an arbitration after an untimely or defective 

request under section 6204—at least not where, as here, all 

parties to the proceeding agree the MFAA award is not binding.

Kling with the arbitration demand is a different issue, which we 

will discuss.
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3. The AAA Arbitration Was Not Void 

Kling also contends the AAA arbitrator exceeded his 

powers because the AAA never had jurisdiction to hear the 

matter and the arbitration was “void ab initio.” Kling has two 

theories. First, Kling contends the AAA arbitration was void 

because Horn did not give him notice of his right to fee 

arbitration, as required by the MFAA. Kling is wrong on the law. 

The MFAA does require that, prior to or at the time an attorney 

initiates a contractual arbitration proceeding against a client, the 

attorney “shall include a statement of the client’s right to 

arbitration under” the MFAA and that “[f]ailure to give this 

notice shall be a ground for the dismissal of the . . . proceeding.” 

(§ 6201, subd. (a).) But even if Horn failed to comply, dismissal 

provided under section 6201, subdivision (a), is “discretionary, 

rather than mandatory.” (Philipson & Simon v. Gulsvig (2007) 

154 Cal.App.4th 347, 366; see Law Offices of Dixon R. Howell v. 

Valley (2005) 129 Cal.App.4th 1076, 1088 [a court “may, in its 

discretion, dismiss the action for attorney fees where the attorney 

fails to give the client the requisite section 6201(a) notice”];

Richards, Watson & Gershon v. King (1995) 39 Cal.App.4th 1176, 

1180 [“dismissal for failure to comply with the notice provision of 

section 6201, subdivision (a) is discretionary”].) The arbitrator

did not abuse his discretion (and therefore exceed his powers) by 

not dismissing the arbitration.

Second, Kling asserts “[t]here was nothing in 2017 for Horn 

to revive because no one has ever seen any initiating documents 

from AAA or Horn for any so-called arbitration.” If Kling is 

arguing he was never properly served in the AAA arbitration, his 

argument lacks merit.
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“A demand for arbitration must be served on the other 

party,” and the “failure to serve a demand for arbitration on a 

person precludes a judgment from being made against that 

person in a contractual arbitration proceeding.” (Ikerd v. 

Warren T. Merrill & Sons (1992) 9 Cal.App.4th 1833, 1842-1843.) 

The trial court, however, found Kling waived any defect in service 

by appearing in the AAA arbitration. Substantial evidence 

supported the court’s finding that Kling participated to some 

extent in the AAA arbitration, even though he chose not to attend

the hearing. For example, approximately one month after Horn 

filed his notice of revival and demand for arbitration, the Klings, 

through their attorney, filed a document titled “Case/Discovery 

Report,” in which the Klings discussed their anticipated expert 

testimony, their estimate for the length of the arbitration 

hearing, and scheduling issues. Kling does not address this

portion of the court’s ruling, nor does he argue that or how the 

court erred in ruling he waived any defect in service. (See 

Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 [because “an 

‘“order of the lower court is presumed correct,”’” the appellant 

“has the burden of affirmatively showing error”].)

4. Horn’s Retainer Agreement Was Not Illegal

a. Applicable Law

Kling also contends the trial court erred in not vacating the

AAA arbitration award because Horn, in the arbitration, sought 

to enforce an “illegal” retainer agreement that permitted him to 
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block bill his time entries.7 An arbitrator exceeds his powers, 

“and an arbitral award must be vacated, when a court determines 

that the arbitration has been undertaken to enforce a contract 

that is ‘illegal and against the public policy of the state.’” 

(Sheppard, Mullin, Richter & Hampton, LLP v. J-M 

Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 73 (Sheppard, 

Mullin); see Moncharsh, supra, 3 Cal.4th at p. 32.) Any provision 

for block billing in Horn’s engagement agreement, however, 

hardly made the agreement illegal.

As the Supreme Court has explained, the availability of 

judicial review differs depending on whether the entire contract a 

party seeks to enforce through arbitration is illegal or whether 

only a portion of an otherwise enforceable contract is illegal. “‘If 

a contract includes an arbitration agreement, and grounds exist 

to revoke the entire contract, such grounds . . . also vitiate the 

arbitration agreement. Thus, if an otherwise enforceable 

arbitration agreement is contained in an illegal contract, a party 

may avoid arbitration altogether.’” (Sheppard, Mullin, supra, 

6 Cal.5th at p. 76; see Moncharsh, supra, 3 Cal.4th at p. 29.) If, 

on the other hand, “‘the alleged illegality goes to only a portion of 

the contract (that does not include the arbitration agreement), 

the entire controversy, including the issue of illegality, 

[generally] remains arbitrable.’” (Sheppard, Mullin, at p. 76; see 

Moncharsh, at p. 30.) Although “‘there may be some limited and 

exceptional circumstances justifying judicial review of an 

7 “Block billing occurs when ‘a block of time [is assigned] to 

multiple tasks rather than itemizing the time spent on each 

task.’” (Mountjoy v. Bank of America, N.A. (2016) 

245 Cal.App.4th 266, 279.)
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arbitrator’s decision when a party claims illegality affects only a 

portion of the underlying contract,’ . . . [i]n light of the legislative 

policy in favor of arbitral finality, . . . courts should be reluctant 

to invalidate an award on such a ground ‘[w]ithout an explicit 

legislative expression of public policy.’” (Sheppard, Mullin, at 

p. 77; see Moncharsh, at p. 32.)

b. Analysis

Kling’s entire argument rests on his assertion that block 

billing violates section 6148, subdivision (b), which states that 

“[a]ll bills rendered by an attorney to a client shall clearly state 

the basis thereof” and must state “the amount, rate, basis for 

calculation, or other method of determination of the attorney’s 

fees and costs.” Kling’s argument is, at best, dubious. While 

some commentators have criticized the practice of block billing,

8

Kling has not cited any authority suggesting block billing violates 

section 6148, is illegal, or is contrary to public policy. To the 

contrary, several courts, reviewing awards of attorneys’ fees,

have stated that block billing “is not objectionable ‘per se,’”

although it may justify discounting an attorney’s fee request, 

particularly when the court must decide which of several billed 

fees are recoverable. (See, e.g., Jaramillo v. County of Orange 

(2011) 200 Cal.App.4th 811, 830 [“block billing is not 

8 See, e.g., Tuft et al., Cal. Practice Guide: Professional 

Responsibility (The Rutter Group 2020 supp.) ¶ 5:920 (Section 

6148, subdivision (b) “does not expressly require disclosing the 

date upon which services were rendered or that services be 

specifically described. . . . [¶] However, block billing may not 

adequately explain the services rendered and should be used with 

caution.”).
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objectionable ‘per se,’” but “does increase the risk that the trial 

court, in a reasonable exercise of its discretion, will discount a fee 

request”]; Christian Research Institute v. Alnor (2008) 

165 Cal.App.4th 1315, 1325 [“Block billing, while not

objectionable per se in our view, exacerbated the vagueness of 

counsel’s fee request.”].)

The provision of the retainer agreement Kling 

characterizes as illegal stated: “Attorney [Horn] may group or 

block bill for services rendered on a given day rather than 

itemizing each individual charge for services.” The agreement, 

however, also stated Horn’s hourly rate and required him to 

charge his services to the nearest tenth of an hour. Taken 

together, these provisions would not necessarily preclude Kling 

from understanding the amount, rate, basis, and calculation of

Horn’s fees.

But even if the block billing provision in the retainer 

agreement violated section 6148, the trial court still did not err in 

denying Horn’s petition to vacate the award. Contrary to Kling’s 

assertion, the inclusion in an attorney’s engagement agreement 

of one illegal provision does not necessarily render the entire 

agreement illegal. (See Sheppard, Mullin, supra, 6 Cal.5th at 

p. 79 [“the case law does not establish . . . that an attorneyservices contract may be declared illegal in its entirety simply 

because it contains a provision that conflicts with an attorney’s 

obligations under [an ethical rule]”].) “It is only when ‘the 

illegality taints the entire contract’ that courts may declare ‘the 

entire transaction is illegal and unenforceable.’” (Id. at pp. 79-80; 

see Koenig v. Warner Unified School Dist. (2019) 41 Cal.App.5th 

43, 56 [“‘“If the central purpose of the contract is tainted with 

illegality, then the contract as a whole cannot be enforced, [but if]
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the illegality is collateral to the main purpose of the contract, and 

the illegal provision can be extirpated from the contract by means 

of severance or restriction, then such severance and restriction 

are appropriate.”’”].)

For example, in Birbrower, Montalbano, Condon & Frank 

v. Superior Court (1998) 17 Cal.4th 119 (Birbrower) the Supreme 

Court held a New York law firm’s fee agreement was not 

unenforceable in its entirety, even though it permitted the firm to 

recover fees for legal services performed in California, in violation 

of the prohibition on the unauthorized practice of law. (Id. at 

pp. 12-13.) The Supreme Court explained that “the portion of the 

fee agreement . . . that includes payment for services rendered in 

New York may be enforceable to the extent that the illegal 

compensation can be severed from the rest of the agreement.” 

(Id. at p. 13.) 

In Calvert v. Stoner (1948) 33 Cal.2d 97 (Calvert) the 

Supreme Court held a provision in a contingency fee agreement 

that prohibited the client from entering into a litigation 

settlement without her attorney’s approval, even if illegal, did not 

render the entire agreement illegal, where the attorney never 

sought to enforce the challenged prohibition. (See id. at pp. 99, 

103-105.) And in Shopoff & Cavallo LLP v. Hyon (2008) 

167 Cal.App.4th 1489 (Shopoff) the court held a provision in a 

contingency fee agreement granting the attorney a lien on the 

clients’ recovery did not render the arrangement illegal, even if

the manner in which the attorney acquired the lien violated the 

Rules of Professional Conduct. (See id. at pp. 1498, 1524-1525.) 

The court in Shopoff stated the violations “may prevent [the 

attorneys] from enforcing the liens, but those violations do not 
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taint or preclude recovery” under the rest of the agreement. (Id. 

at p. 1524, fn. omitted.)

Sheppard, Mullin, supra, 6 Cal.5th 59, in contrast, 

illustrates the type of situation where an illegal provision may 

render the entire engagement agreement unenforceable. There, a 

law firm represented a pipe manufacturer in a qui tam action, 

but also represented in other matters one of the public entities 

that was adverse to the pipe manufacturer in the qui tam action. 

(See id. at pp. 68-70.) The Supreme Court held that, because the 

law firm failed to obtain the pipe manufacturer’s informed 

consent in violation of the Rules of Professional Conduct, the 

entire engagement agreement with the pipe manufacturer was 

unenforceable. (See id. at p. 87.) 

This case is closer to Birbrower, Calvert, and Shopoff than 

Sheppard, Mullin. The object of Horn’s fee agreement, to be 

compensated on an hourly basis at an agreed upon rate for work 

performed in the Hassid action, was lawful. (See Shopoff, supra, 

167 Cal.App.4th at p. 1524 [“The object of the contingent fee 

agreements—that is, to compensate [the attorneys] with specified 

percentages of the Recovery proceeds—remains entirely lawful.”]; 

see also Birbrower, supra, 17 Cal.4th at p. 139 [“The object of [the 

parties’] agreement may not have been entirely illegal, assuming 

[the client] was to pay [the law firm] compensation . . . that did 

not amount to the practice of law in California.”].) And unlike 

Sheppard, Mullin, where the law firm’s representation of the 

client violated a rule of professional conduct, there was nothing

impermissible about Horn’s representation of Kling.

In addition, like the agreements in Birbrower, Calvert, and 

Shopoff, the allegedly illegal portion of Horn’s retainer agreement 

was severable from the rest of the agreement. (See Civ. Code, 
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22

§ 1599 [“[w]here a contract has several distinct objects, of which 

one at least is lawful, and one at least is unlawful . . . the contract

is void as to the latter [but] valid as to the rest”]; Koenig v. 

Warner Unified School Dist., supra, 41 Cal.App.5th at p. 56 

[“severance” of illegal portions of a contract “is favored in order 

‘to prevent parties from gaining undeserved benefit or suffering 

undeserved detriment as a result of voiding the entire

agreement’”].) The retainer agreement did not require Horn to 

include block billing in his statements; it merely gave Horn the

option of doing so. A court (or, in this case, the arbitrator) could 

have reviewed the fees, determined which, if any, Horn 

improperly billed, and distinguished those fees from the fees 

Horn properly billed. (See Birbrower, supra, 17 Cal.4th at p. 138 

[“‘“‘[w]hen the transaction is of such a nature that the good part 

of the consideration can be separated from that which is bad, the 

Courts will make the distinction’”’”]; Koenig, at p. 56 [“‘California 

cases take a very liberal view of severability, [even] enforcing 

valid parts of an apparently indivisible contract where the

interests of justice or the policy of the law would be furthered.’”].) 

Indeed, even where a statutory violation may prohibit recovery of 

fees for “substantial illegal services,” the violation does not 

necessarily preclude recovery under the same agreement “for the 

limited [permissible] services . . . .” (Birbrower, at p. 139.)

To the extent Kling contends that, even if the entire 

retainer agreement was not illegal, the trial court should have 

vacated the award because the block billing provision was illegal, 

Kling’s argument also fails. First, Kling forfeited the argument

by not making it in the trial court. (See Moncharsh, supra, 

3 Cal.4th at pp. 30-31 [“[f]ailure to raise the claim” that a portion 

of a contract that contains an arbitration agreement is illegal
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forfeits “the claim for any future judicial review”; “we cannot 

permit a party to sit on his rights, content in the knowledge that 

should he suffer an adverse decision, he could then raise the 

illegality issue in a motion to vacate the arbitrator’s award”].)

Second, even if Kling had not forfeited the argument, this 

case is not one of the “limited and exceptional circumstances”

justifying judicial review of an arbitrator’s decision where a party 

challenges only a portion of a contract as illegal. (Sheppard, 

Mullin, supra, 6 Cal.5th at p. 77; see Moncharsh, supra, 3 Cal.4th 

at p. 32.) Moncharsh is again instructive. In that case an

attorney left his law firm and continued to represent the firm’s 

former clients. A dispute arose over the fees the attorney owed to 

the firm, and an arbitrator issued an award in favor of the firm. 

(Moncharsh, at pp. 6-7.) The attorney sought to vacate the 

arbitration award on the ground the provision in his fee 

agreement requiring him to share fees with the firm violated the 

Rules of Professional Conduct prohibiting unconscionable fees,

certain fee splitting arrangements, and agreements restricting an 

attorney’s right to practice. (Id. at p. 7.) The Supreme Court 

held the award was not reviewable, stating that “nothing in the 

Rules of Professional Conduct at issue in this case . . . suggests

resolution by an arbitrator of what is essentially an ordinary fee 

dispute would be inappropriate or would improperly protect the 

public interest.” (Id. at p. 33.) Similarly, no statute or ethical 

rule governing attorneys suggests it was improper for the

arbitrator to resolve what was a routine fee dispute between an 

attorney and a client over the attorney’s billing practices.
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DISPOSITION

The judgment is affirmed. Horn’s request for sanctions is 

denied. Horn is to recover his costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.