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Filed 12/14/20 Torru v. Price CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JOSCELYN JONES TORRU,
Plaintiff and Appellant,

v. PAMELA Y. PRICE,
Defendant and Respondent. A158400

(Contra Costa County Super. Ct. No. N19

- 1034)

Plaintiff Joscelyn Jones Torru filed a petition to confirm an attorney

client fee award rendered pursuant to nonbinding arbitration under the
Mandatory Fee Arbitration Act (MFAA) (Bus. & Prof. Co de, § 6200 et seq.). 1
The trial court denied the petition, finding defendant Pamela Y. Price had
timely rejected the award by filing a complaint after sending a letter stating
her intent to reject the award. Jones Torru appeals. We will affirm

.

FACTUAL AND PROCEDURAL BACKGROUND

A. Attorney

- client Relationship

In October 2016, Price and Jones Torru executed an attorney

- client
retainer agreement. The agreement stated that Jones Torru would provide
legal advice and representation to Price in a guardianship case filed in

1 Unless otherwise indicated, all further section references will be to the Business and Professions Code.2

Alameda County. It also provided that any controversy between Price and

Jones Torru “concerning fees or costs, or legal services rendered, that is, as to

whether any s ervices were unnecessary, unauthorized, [or] improperly or
negligently rendered, shall be submitted to binding Arbitration and not by
lawsuit or resort to Court process except as State law provides for judicial
review of arbitration proceedings. Such Arbi tration shall be pursuant to the

Rules of the American Arbitration Association.”

The attorney

- client relationship between Jones Torru and Price
subsequently deteriorated, and the court granted Jones Torru’s motion to be
relieved as counsel in the guardians hip case.

B. Nonbinding Arbitration Under the MFAA
As the attorney

- client relationship deteriorated, a fee dispute arose
between the parties. Price then requested nonbinding arbitration of the
dispute under the MFAA. As explained in more detail below, the M FAA is a
distinct statutory scheme for the arbitration of attorney

- client fee disputes
and allows a client to request nonbinding arbitration under its provisions,
despite a contractual agreement between the parties for binding arbitration.
(§ 6201, subd. (a); Schatz v. Allen Matkins Leck Gamble & Mallory LLP
(2009) 45 Cal.4th 557, 565

– 566 ( Schatz ).) If nonbinding arbitration under
the MFAA is commenced by the client, it is mandatory for the attorney.
(§ 6200, subd. (c).)
The nonbinding arbitration under the MFAA was conducted on

March 19, 2019. On March 28, 2019, the arbitrator issued his findings and
award. The arbitrator described Price’s claims as “numerous,” including
“fraud and deceit in the contract’s formation, inflated and unre asonable
billings, improper post

- termination billings, illegal fees charged, and breach
of fiduciary duty to charge only fair, reasonable, and conscionable fees.” In3

the arbitration, Price had demanded “that all fees charged by [Jones Torru]

be denied and that [Jones Torru] return all funds paid by [Price] and that any
and all outstanding charges be denied.” The arbitrator found that

Jones Torru had charged Price $33,171.70, factoring in discounts already

applied on Jones Torru’s billing. Price had previ ously paid Jones Torru
$6,250, leaving an outstanding balance of $26,921.70. The arbitrator found

that Jones Torru’s billing should be further reduced by $875 but that the
remaining fees were otherwise proper. The arbitrator awarded $26,046.70,

plus inte rest, to Jones Torru.

C. Price’s April 4, 2019 Letter
On April 4, 2019, Price sent a letter to Jones Torru’s attorney with a
“CONFIDENTIAL SETTLEMENT OFFER” heading. The letter indicated

that Price had received and reviewed the arbitrator’s award. It also s tated:
“I am writing to confirm that my intent [ sic ] to reject his decision pursuant to

Business & Professions Code Section 6204. Prior to initiating the required
litigation, however, I wanted to give your client another opportunity to

resolve the matter by making an offer to resolve all claims between the
parties by payment of $5000 to her.” The letter concluded that the offer
would “remain open for a period of fourteen (14) days” and if “not accepted on
or before April 18, 2019, it will be deemed rejec ted.”

D. Price’s Complaint
On April 25, 2019, Price filed a complaint in Contra Costa County. The
complaint alleged six causes of action: (1) breach of the implied covenant of
good faith; (2) breach of fiduciary duty; (3) breach of contract; (4) fraud;
(5) money had and received; and (6) declaratory and injunctive relief. It

alleged that Jones Torru had charged Price $33,171.70: $350 for initial

consultation ; $5,250 for retainer ; $1,000 for costs ; $7,349.13 on the first4

invoice ; $15,554.39 on the second in voice ; and $3,668.18 on the third, final
invoice. It also alleged that Price had paid Jones Torru $6,250. The
complaint alleged that Jones Torru “has demanded that Price pay all three of

her invoices” but “Price has refused to pay an [ sic ] additional amounts to

Defendant JT. Price seeks a judicial determination of the reasonableness of

Defendant JT’s billing and conduct toward Price.” The prayer for relief

included compensatory and special damages, p rejudgment interest, injunctive
relief to enjoin “any action to seek to collect any amounts allegedly owed to

[ Jones Torru] from Price,” and declaratory relief that Jones Torru “is not
entitled to recover or receive any additional funds from Price for atto rneys’
fees or costs under the Retainer Agreement

. . . . ”
On April 30, 2019, Price attempted to file a Rejection of Award and
Request for Trial After Attorney

- client Fee Arbitration using Judicial Council

form ADR

- 104. The deputy clerk issued a correspon dence memo that the

clerk could not “ FILE/ISSUE ” the form because it contained contradictory
information about whether there was a pending court case concerning the

dispute. Price successfully filed another ADR

- 104 form on May 1 , 2019.
On May 7, 2019, Pri ce filed a first amended complaint. The first
amended complaint contained the same six causes of action and prayer for
relief, but newly alleged: “On April 4, 2019, Price notified Defendant JT’s
counsel in writing that she intended to reject the arbitrat or’s Findings and
Award pursuant to Business & Professions Code Section 6204. Price seeks a

trial de novo and judicial determination of the reasonableness of

Defendant JT’s billing and conduct toward Price.”

E. Jones Torru’s Petition to Confirm Arbitration A ward

On June 12, 2019, Jones Torru initiated a new action in Contra Costa
County by a petition to confirm the March 28, 2019 arbitration award. The5

petition requested that the court enter a judgment against Price in the sum

of $26,046.70 with interest. J ones Torru argued that the award was binding
under the MFAA because Price had failed to timely reject the award and
selected the wrong forum for rejection of the award.
On August 29, 2019, the trial court denied the petition. The trial court

found that Pr ice’s April 25, 2019 complaint was sufficient to constitute a
rejection of the arbitration award. The trial court also considered Price’s
April 4, 2019 letter , overruling Jones Torru’s objection that the letter was
inadmissible under Evidence Code section 1152. The trial court explained
that “[a]ll these facts taken together, convince the Court that [Price’s] action
met the requirements of section 6204(c).” It concluded: “Therefore, the Court
finds that Price’s rejection of the arbitration award was timely.”
The trial court also rejected Jones Torru’s argument that the retainer
agreement required Price to initiate binding arbitration if she wanted to
reject the arbitrator’s award. It explained that a party may file a lawsuit
even if there is a potentially applicable arbitration case, although the court
“may still order the parties to arbitration after a lawsuit has been filed.” The
trial court concluded that “Price may believe that t he arbitration clause is
unenforceable or not covered by this dispute and thus, she is not required to
initiate an arbitration proceeding.”
This appeal followed.

DISCUSSION

Jones Torru makes two primary arguments on appeal. 2 She argues

that the trial cou rt abused its discretion in overruling her objection under

2 We need not address Jones Torru’s third argument that failure to timely reject an arbitration award under the MFAA cannot be excused by Code of Civi l Procedure section 473, as Price confirms that she does not make any contrary argument.6

Evidence Code section 1152 and finding the April 4, 2009 letter admissible.
She also argues that the trial court erred in finding that Price had timely
rejected the arbitration award as required b y the MFAA. We address each
argument in turn.

I. ADMISSIBILITY OF APRIL 4, 2009 LETTER

Jones Torru challenges the trial court’s ruling regarding the
admissibility of the April 4, 2019 letter. Price submitted the letter as an

exhibit to her declaration in opposition to Jones Torru’s petition. Jones Torru
objected to the exhibit, arguing that it was “evidence of a settlement offer and
negotiations” and thus inadmissible under Evidence Code section 1152. The

trial court overruled the objecti on, finding the letter admissible “to show that

Price notified Torru of her rejection of the arbitrator’s award on April 4,

2019.”

We review the trial court’s ruling on admissibility of evidence under

Evidence Code section 1152 for abuse of discretion. ( Caira v. Offner (2005)

126 Cal.App.4th 12, 32 ( Caira ).) Evidence Code section 1152, subdivision (a)

provides, in relevant part: “Evidence that a person has, in compromise

. . . , furnished or offered or promised to furnish money or any othe r thing, act, or

service to another who has sustained

. . . loss or damage, as well as any

conduct or statements made in negotiation thereof, is inadmissible to prove

his or her liability for the loss or damage or any part of it.”

While we agree that Price was negotiating a compromise of the fee

dispute in her April 4, 2019 letter, we also agree with the trial court that the

letter does not fall within the purview of Evidence Code section 1152

. The

statements in the letter were not admitted to demonstrate liability of either

Price or Jones Torru but to establish that Jones Torru had received notice

that Price was rejecting the arbitration award.7

Jones Torru’s argument that the facts here should be analogized to the

facts of Caira is not persuasive. In Cair a , the appellate court concluded there

was no abuse of discretion in excluding an email sent during settlement
negotiations where one party “sought admission of the e

- mail to prove a claim

that was specifically discussed in the e

- mail.” ( Caira

, supra , 126 Cal.App.4th

at p. 36.) Unlike Caira

, Price did not offer her April 4, 2019 letter to prove

any of her claims against Jones Torru, but instead to show that Price

provided notice of her intent to reject the award. Accordingly, we conclude

that the trial c ourt did not abuse its discretion in finding the April 4, 2019

letter admissible.

II. TIMELY REJECTION OF ARBITRATION AWARD

Jones Torru also argues that the trial court erred in finding that Price
had timely rejected the arbitration award. Even considering the April 25,
2019 complaint with the April 4, 2019 letter , Jones Torru contends that Price
failed to meet the requirements of the MFAA. In ascertaining whether the
trial court’s finding was in error, we begin with a brief overview of the MFAA

. A. Overview of the MFAA
The MFAA is a statutory scheme that provides for the arbitration of

attorney

- client disputes over legal fees, costs, or both. ( Schatz

, supra , 45

Cal.4th at pp. 564

– 565 .) Enacted in 1978, the MFAA was established “to

protect clients as consumers of legal services in general.” ( Alternative
Systems, Inc. v. Carey (1998) 67 Cal.App.4th 1034, 1044; see Schatz , at pp.

564

– 565 [explaining that the MFAA recognizes “ ‘ the “ disparity in bargaining
power in attorney fee matters which favors t he attorney in dealings with
infrequent consumers of legal services ” ’ ” ].)

The MFAA has its own rules and limitations, distinct from those that
govern private arbitration under the California Arbitration Act. ( Schatz

,8

supra , 45 Cal.4th at p. 565.) Arbit ration under the MFAA is “ ‘based on a

statutory directive and not the parties’ agreement.’ ” ( Ibid. ) Accordingly, a
client may request nonbinding arbitration under the MFAA despite having a
contractual agreement with his or her lawyer for binding arbitr ation.
(§ 6201, subd. (a); Schatz , at pp. 565

– 566.) If a client commences nonbinding
arbitration under the MFAA, it is mandatory for the attorney. (§ 6200,

subd. (c).)

A n award rendered pursuant to an arbitration under the MFAA is not
binding, absent a written agreement by the parties to make it binding.
(§ 6204, subd. (a).) But “[e]ven if the parties to the arbitration have not

agreed in writing to be bound, the arbitr ation 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.” (§ 6203, subd. (b).)
The specific procedure for seeking a trial after arbitration depends on
whether there is a court action concerning the fee dispute that is already
pending. (§ 6204, subd. (b) (section 6204(b).) If there is a pending action, the
party must file “a rejection of arbitration award and request for trial after
arbitration in that action within 30 days after service of notice of the award.”
( Ibid. ) If no action is pending, the party must commence “an action in the
court having jurisdiction over the amount of money in controversy within 30

days after service of notice of the award.” ( Id. , subd. (c) (section 6204(c)

. ) The

trial after arbitration is then “conducted de novo, essentially as if no
arbitration had occurred.” ( Maynard v. Brandon (2005) 36 Cal.4th 364, 373.)

B. Standard of Review
The par ties dispute the appropriate standard of review on this issue:

Jones Torru argues that the de novo standard applies, while Price argues9

that the trial court’s ruling should be reviewed for abuse of discretion. We

find Giorgianni v. Crowley (2011) 197 Cal .App.4th 1462 ( Giorgianni ) on point

here. In Giorgianni , the defendant attorney filed a small claims action after
an arbitration award was rendered to his former client. ( Id. at p. 1469.) The
appellate court explained that it “must decide here whether C rowley’s filing
of the small claims action constituted an effective rejection of the Award
under the MFAA. Since that decision is based upon an interpretation of the
relevant MFAA statutes and an application of that interpretation to the
undisputed facts presented here, these questions of law are subject to
independent review.” ( Id. at pp. 1471

– 1472 ; see Loeb v. Record ( 2008 ) 162
Cal.App.4th 431, 441 [“Issues of statutory interpretation and the application
of that interpretation to a set of undisputed fac ts are questions of law subject
to independent review by this court”].) 3
So too in this appeal, we must decide whether Price satisfied the
provisions of the MFAA that required her to seek and commence a trial after

arbitration. That decision is based on statutory interpretation and
application of that interpretation to undisputed facts: namely, Price’s
April 4, 2019 letter and April 25, 2019 complaint. Accordingly, we review the
trial court’s ruling de novo.

3 We note that the issue in Giorgianni was whether the small claims court satisfied the definition of “the court having jurisdiction over the amount of money in controversy” in section 6204(c). ( Giorgianni

, supra , Cal.App.4th at p. 1473.) As discussed post , the issue presented here is whethe r Price’s April 25, 2019 complaint satisfied the definition of “commencement of an action” in section 6204(c) and sufficiently informed Jones Torru that Price was rejecting the arbitration award. ( Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045 ( Shiver ).)10 C. Analysis
As this is a matter of statutory interpretation subject to our de novo review, we begin with the terms of the relevant MFAA provisions, affording

the words their “ ‘usual and ordinary meaning’ ” and viewing them in their
statutory context “in order to effe ctuate the law’s purpose.” ( Imperial

Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.) Section 6203,

subdivision (b) provides that an arbitration award shall become binding
unless a party seeks a “trial after arbitration pursuant to Section 62 04”
within 30 days. Accordingly, we look to the procedures described in section
6204 to determine whether Price met this requirement to seek a trial after

arbitration.
As described above, subdivisions (b) and (c) of section 6204 set forth the
specific pro cedure for seeking a trial after arbitration, depending on whether

there is a court action already pending. The parties agree that the procedure
applicable here is section 6204(c), as there was no court action pending when
Price filed her April 25, 2019 c omplaint. Section 6204(c) states, in
straightforward terms, that “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 within 30 days after service of noti ce of the
award.” Based on the plain language of the statute, we conclude that Price’s
filing of her April 25, 2019 complaint constituted the commencement of an
action 28 days after the March 28, 2019 arbitration award, and thus satisfied

the requirement of section 6204(c).

Jones Torru makes three arguments to the contrary. First, she argues
that the April 25, 2019 complaint is insufficient because it does not mention
the arbitration or specifically allege that Price was rejecting the award.

Second, she challenges Price’s first attempt and subsequent filing of the11

ADR

- 104 form, arguing that they were untimely and show that Price knew
the April 25, 2019 complaint was insufficient. Third, she argues that Price’s
dispute was filed in the wrong forum, as the retainer agreement required
Price to submit her dispute to binding arbitration instead of filing the
April 25, 2019 complaint in court. As detailed below, we do not find the

arguments persuasive.

1. Sufficiency of April 25, 2019 Complaint

Jones Torru argues that the April 25, 2019 complaint is insufficient
because it does not specifically allege that the arbitration occurred or that
Price was rejecting the award, instead making “general allegations” and

asserting claims that were not made in the arbitration. Jones Torru relies on

Shiver to support her position.
We agree with the trial court that Shiver is distinguishable from the

facts here. In Shiver , a law firm demanded payment of outstanding fees after
its relationship ended with clients Robert and Joyce Littell. ( Shiver

, supra , 217 Cal.App.3d at pp. 1043

– 1044.) The Littells exercised their right to
nonbinding arbitration under the MFAA, and the a rbitrator subsequently
awarded fees to the firm. ( Id. at p. 1044. ) A month later, Mr. Littell filed a

“ ‘ Complaint for damages for Legal Malpractice ’ ” against only one of the
attorneys at the law firm, alleging that the attorney’s negligent performance
of legal services had damaged him in an unspecified sum. ( Ibid. ) Shiver

concluded that Mr. Littell’s malpractice complaint did not satisfy the
requirements of section 6204(c) for three reasons. ( Id. at p. 1045.) First, the

arbitration was between the l aw firm and both Littells, whereas the
malpractice action was instituted by Mr. Littell alone against one of the
attorneys in the firm as an individual. ( Ibid. ) Second, the arbitration was
“not mentioned in the complaint and there is no indication that t he fees12

challenged in the malpractice action are the same fees awarded to respondent
by the arbitrator.” ( Ibid. ) Third, “the filing of the malpractice action would
not necessarily inform respondent that appellants intended to challenge the
award.” ( Ibid

. )
These three reasons do not apply with equal force to the facts here.

First, unlike Shiver , Price’s April 25, 2019 complaint involved the same two
parties as the arbitration: Price and Jones Torru. Second, while the
complaint did not specifically alle ge that the arbitration had occurred, it
explicitly challenged the same fees that were awarded to Jones Torru in
arbitration. It alleged that Jones Torru had charged Price $33,171.70 and

that Price had paid Jones Torru $6,250, thus reflecting the same out standing

balance of $26,921.70.
Third, the April 25, 2019 complaint informed Jones Torru that Price
was intending to challenge the arbitration award. The complaint specifically
requested declaratory relief that Jones Torru “is not entitled to recover or

r eceive any additional funds from Price for attorneys’ fees or costs under the
Retainer Agreement

. . . . ” Such a request was equivalent to the rejection of

the arbitration award. Moreover, the causes of action were consistent with

the other claims Price made in the arbitration, including “fraud and deceit in
the contract’s formation” and “breach of fiduciary duty.”
Finally, while the April 4, 2019 letter alone did not satisfy the
requirements of section 6204(c), we agree with the trial court that it furth er

demonstrates that Jones Torru had notice that Price was rejecting the award.
In the letter, Price stated her intent to reject the award and made a
settlement offer open for 14 days “[p]rior to initiating the required

litigation

. . . . ” Price filed he r complaint 21 days later. On this record, we13

conclude that Price satisfied the requirement of section 6204(c) to initiate a

trial after arbitration. 4

2. Rejection of Award

Jones Torru argues next that Price did not file a timely rejection of the

award because both her first attempt and her subsequent filing of the ADR

104 form were made after the 30

- day deadline and show that Price knew her
April 25, 2019 complaint was insufficient. We disagree.
As a p reliminary matter, the ADR

- 104 form itself indicates it is a
“Form Approved for Optional Use.” Moreover, section 6204(c) does not
require a party to file a specific rejection, using this form or otherwise. In

contrast, section 6204(b) requires the “filin g [of] a rejection of arbitration
award and request for trial after arbitration in that action” to initiate a trial

after arbitration if there is a court action already pending . But section
6204(b) is inapplicable because, as explained above, there was no pending
action when Price filed her April 25, 2019 complaint. The fact that Price
attempted to file (and then later filed) the ADR

- 104 form, even though she

was not required to do so and the 30

- day deadline had passed, does not
negate our conclusion that Price had already satisfied the requirement of
section 6204(c).

3. Forum
Finally, Jones Torru argues that Price did not satisfy section 6204(c)
because she filed her April 25, 2019 complaint in the wrong forum.

Jones Torru does not challenge Price’s electio n to pursue nonbinding
arbitration under the MFAA. Nor does she contend that the April 25, 2019

4 Given this conclusion, we need not address Price’s alternative argument that her first amended complaint relates back to the filing of her original complaint and thus satisfies section 6204(c).14

complaint should have been filed in some other court. Instead, she relies on

Schatz to argue that instead of initiating a court action by her April 25, 2019

c omplaint, Price should have submitted her dispute to binding arbitration as
required by the arbitration provision in the retainer agreement.
We again agree with the trial court that Price was not required to
initiate an arbitration proceeding pursuant to the retainer agreement. As

explained in Sargon Enterprises, Inc. v. Browne George Ross LLP (2017) 15
Cal.App.5th 749, 769, a party to an arbitration agreement may file a lawsuit

in c ourt and then argue that the agreement is not binding, unenforceable, or
inapplicable to the dispute. The opposing party may respond by filing a
petition to compel arbitration of the dispute. ( Id. at p. 767.) Schatz is

consistent with this framework, co ncluding that the right to a trial under
section 6204 “would appear to be subject to a demurrer or summary judgment
motion designed to compel contractual arbitration.” ( Schatz

, supra , 45

Cal.4th at p. 573 .) Here, Jones Torru could have asserted her contractual
right to arbitrate by petitioning to compel arbitration after Price filed her
April 25, 2019 complaint. Regardless of how Jones Torru responded to the
complaint, Price satisfied the requirement of section 6204(c) by filing her
April 25, 2019 complaint “in the court having jurisdiction over the amount of
money in controversy within 30 days after service of notice of the award.”

In sum, we conclude that the trial court did not err in denying

Jones Torru’s petition to confirm the arbitration awa rd. Accordingly, we also
reject Jones Torru’s request for fees and costs incurred on appeal.

DISPOSITION
The judgment is affirmed. Price is entitled to her costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)15 ________________________ _ Jackson, J.

WE CONCUR:

_________________________ Fujisaki, Acting P. J.

_________________________ Petrou, J.

A158400/ Jones Torru v. Price