Legal Question in Consumer Law in California

Contract Dispute

I have a breach if contract dispute with an attorney. Our contract had an arbitration clause stating that any dispute had to be submitted to binding arbitration through the American Arbitration Association and that the Laws of the State of California and the procedural rules of the AAA shall apply. Because the AAA consumer dispute resolution process includes provisions that require the business to accept a small claims court action in lieu of arbitration, I filed a small claims case. The attorney petitioned the court to dismiss the case and compel arbitration and the judge did so. I then filed the claim with the AAA. The AAA Administrator notified the attorney that the arbitration clause in our contract was in conflict the CCCP 1284.3(a) and required the attorney to sign a submissions agreeing to waive the offending provision. The attorney refused, and the AAA had to refuse to arbitrate the matter. The small claims case was originally dismissed without prejudice. Can I take the dispute back to small claims, or do I have to go through Superior Court and file a petition to compel the attorney to sign the submission and go to arbitration?


Asked on 11/13/07, 4:33 pm

3 Answers from Attorneys
Robert F. Cohen Law Office of Robert F. Cohen

Re: Contract Dispute

In addition to what my colleagues say, a fee arbitration is non-binding, unless the parties both consent to its being binding before the arbitration occurs. I think you can argue that the retainer agreement's "binding" arbitration provision is unconscionable and unlawful.

Also, I'm not certain that CCP � 1284.3(a) applies to a dispute with an attorney, inasmuch as one can argue you're not necessarily a "consumer" in the sense that the law requires. You might do more research on that issue. Under the Consumer Legal Remedies Act, a "consumer" is defined as "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family or household purposes."

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Answered on 11/13/07, 8:51 pm
Benjamin Berger Berger-Harrison, A Professional Corporation

Re: Contract Dispute

Your question is unique. I suggest you check with the State Bar of CA.

http://www.calbar.ca.gov

If you don't find the info you need on the website, call them.

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Answered on 11/13/07, 4:41 pm
Roy Hoffman Law Offices of Roy A. Hoffman

Re: Contract Dispute

It depends upon what your dispute is about. If the dispute is about the fees you have paid or are being asked to pay, the attorney should have notified you of your right to arbitration through the local bar association. Whether he failed to notify you of your right to arbitrate or not, you can still go to the county bar association and ask to file a request that your dispute be arbitrated before its mandatory fee arbitration committee.

You can try to refile the small claims complaint since it was dismissed without prejudice, but you are likely going to see the attorney file another petition to compel arbitration, and another refusal to waive the conflict with Code of Civil Procedure section 1284.3.

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Answered on 11/13/07, 4:45 pm


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