William E. Rice and others
1. Allegations of Rice's complaint
In April 2013 Rice filed a complaint in Los Angeles Superior Court alleging legal malpractice and other claims. (Super. Ct. L.A. County, No. BC506921.) The complaint alleged that as of 2003, Downs and law firms in which he was a partner served as counsel for Rice, Kristoffer Kaufmann, and companies they were affiliated with. Rice, Kaufmann, and their companies did business in the affordable housing market. "Downs, Rice and Kaufmann decided they would form a company together to develop properties with affordable rents and government subsidies." To that end, Downs, acting as counsel for Rice, Kauffmann, and the new company, Highland Property Development, LLC (HPD), prepared an operating agreement and formed HPD. Downs entered into joint ownership of HPD with Rice and Kaufmann while still acting as counsel to them, but "neither Downs, nor any of the law firms in which he was a partner, advised Rice, Kaufmann or HPD with respect to actual or potential conflicts of interest, nor did they comply with California Rules of Professional Conduct, Rule 3-300."
The operating agreement contained the following provisions relevant to this appeal: "Each member hereby consents to the exclusive jurisdiction of the state and federal courts sitting in California in any action on a claim arising out of, under or in connection with this Agreement or the transactions contemplated by this Agreement." "Except as otherwise provided in this Agreement, any controversy between the parties arising out of this Agreement shall be submitted to the American Arbitration Association for arbitration in Los Angeles, California." It further provided, "No Member or Affiliate of a Member, is entitled to remuneration for services rendered to the Company except as otherwise expressly provided for in this Agreement."
In 2007, Douglas B. Day joined HPD as a fourth member. The complaint alleges that Downs, "again acting as counsel for all of the Plaintiffs," prepared an amended operating agreement for HPD and formed Highland Property Construction, Inc. (HPC), to contract for construction work on HPD projects. Downs, Rice, Day, and Kaufmann were the shareholders in HPC. "At no time did Downs, or the law firms of which he was a partner, advise of potential or actual conflicts, or comply with California Rules of Professional Conduct, Rule 3-300." The amended operating agreement contained the same terms regarding arbitration, jurisdiction, and compensation quoted above.
The complaint further alleges that in 2012, based upon legal advice by Downs, Kaufmann was removed as a member and manager of HPD for cause. Kaufmann demanded arbitration, seeking a declaration that his removal was improper and he was still a member of HPD, along with damages and attorney fees. Downs arranged for a single attorney to represent himself, Rice, and Day in the Kaufmann arbitration, without disclosure or waiver of conflicts of interest.
The complaint alleges that, as a result of the Kaufmann arbitration, Rice and Day "learned that Downs had been billing HPD, through his law firm, for his personal time in providing legal services, both with respect to internal HPD affairs, and with respect to the various projects, contracts and other activities of HPD, even though this was prohibited under the terms of the Operating Agreement. Rice, Day and Kaufmann were not aware of this previously" because the law firms sent non-detailed invoices that did not specify the attorneys working on matters or the hours and billing rates of those attorneys. Rice and Day also "learned, for the first time, that Downs had ... also been sharing in overrides and/or bonuses from his law firm, as a billing partner, for HPD work done by other attorneys at the firm. When confronted with this disclosure, Downs became hostile, accused Rice and Day of breaching the Operating Agreement or attempting to rescind or modify it unlawfully by challenging the payments Downs had received for HPD related legal services, and Downs filed an arbitration demand against Rice and Day, making those same accusations."
The complaint alleges Downs, acting as counsel for Rice, Day, Kaufmann, HPD, and HPC, committed legal malpractice by, inter alia, "failing to advise his clients of potential or actual conflicts, and obtain their informed consent before forming HPD and HPC, and drafting the Operating Agreements"; "entering into business transactions with his clients, specifically the formation of HPD and HPC, and the preparation and execution of their Operating Agreements, without advising of the potential conflicts and without complying with California Rules of Professional Conduct, Rule 3-300"; "placing his own interests above those of his clients, in part by drafting and structuring the Operating Agreement for HPD in a manner that, based on Downs' present contentions, was detrimental to his clients and beneficial to Downs"; and "providing poor or incorrect legal advice and counseling with respect to the dispute with Kaufmann, resulting in exposure of HPD, Rice and Day to
The legal malpractice cause of action also alleges five categories of deficiencies in the original and amended operating agreements and alleges that Downs "cost HPD and the plaintiffs hundreds of thousands of dollars of damages and extra expenses by deliberately interfering with pending transactions involving HPD which were being handled by Nixon Peabody [Downs's firm], in order to obtain personal gain at the expense of HPD and the other members.... Downs caused the attorneys at Nixon Peabody to take actions that were detrimental to HPD and Plaintiffs, in an effort to coerce benefits for himself at the expense of his clients."
The complaint further alleged Downs and Nixon Peabody (also a named defendant) owed a fiduciary duty to Rice and the other plaintiffs "by virtue of their relationship as attorney and client," which Downs and Nixon Peabody breached by, inter alia, "failing to disclose and obtain waivers of actual and potential conflicts between Downs and his law firms on the one hand, and the other members ... or ... HPD or HPC on the other hand"; "by engaging in business transactions with clients without complying with the provisions of [California Rules of Professional Conduct,] Rule 3-300"; and causing "the attorneys at Nixon Peabody to take actions that were detrimental to HPD and plaintiffs, in an effort to coerce benefits for himself at the expense of his clients."
The complaint also asserted a breach of contract cause of action against Downs alleging that he breached the operating agreement "by secretly billing and being compensated for his own time" working on HPD matters and receiving "overrides or bonuses ... for the services provided by others in his firm." The complaint further alleged Downs and Nixon Peabody were unjustly enriched by plaintiffs because Downs and Nixon Peabody were "paid attorneys fees that were not owed, and which Downs, individually, and as a partner of Nixon Peabody, had agreed would not be charged."
Finally, the complaint sought rescission and restitution, alleging: "By virtue of Downs's legal malpractice, breach of fiduciary duty, his failure to comply with California Rules of Professional Conduct, Rule 3-300, and his failure to disclose and obtain informed consent with respect to actual and potential conflicts with his clients, Downs has improperly obtained benefits under the terms of the Operating Agreement and the Amended Operating Agreement of HPD. [¶] ... But for the breach of fiduciary duty, legal malpractice and other
2. Downs's complaint
The day after Rice's complaint was filed, Downs filed his own complaint in the Los Angeles Superior Court against Rice, Day, and Kaufmann. (Super. Ct. L.A. County, No. BC507050.) Downs sought declaratory and injunctive relief to void and prevent performance of a settlement agreement between Rice, Day, and Kaufmann.
3. Trial court compels arbitration
Downs moved to compel arbitration as to all causes of action in Rice's complaint, based upon the arbitration provisions in the original and amended operating agreements. Downs informed the court that the Kaufmann and Downs arbitrations had already been consolidated, and he wanted the claims in Rice's complaint to be resolved in the consolidated arbitration.
Rice simultaneously moved to stay the Downs arbitration in favor of litigating Rice's overlapping claims, which also involved Nixon Peabody, which was not a signatory to the agreements containing the arbitration provision. Rice also opposed the motion to compel arbitration. Nixon Peabody filed its own response to the motion to compel arbitration, opposing arbitration of the malpractice and breach of fiduciary duty causes of action but not the remaining causes of action.
The trial court granted the motion to compel arbitration of all of the claims in Rice's complaint and denied Rice's motion to stay the Downs arbitration. With respect to the motion to compel, the trial court concluded that the arbitration clause was "broad enough to encompass tort causes of action" and "because the gravamen of these claims involves the Operating Agreements, these causes of action `arise out of' the Operating Agreement."
4. Arbitration proceedings
Rice refiled his claims against Downs as a cross-claim in arbitration.
Rice apparently encountered significant difficulty, delay, and obstruction by Downs and Nixon Peabody in obtaining documentary discovery. In its postarbitration ruling on motions to confirm and vacate the arbitration award,
Upon Downs's request, the arbitrator ordered Rice's claims dismissed with prejudice.
The arbitrator ultimately awarded Downs declaratory relief on two points: That he did not breach the original or amended operating agreement or any other obligation "by billing his time for legal services performed in connection with representing HPD" and that the settlement agreement between Rice, Day, and Kaufmann was void and Downs did not interfere with it. The arbitrator did not decide Downs's claim for declaratory relief to the effect he did not commit malpractice or breach of fiduciary duty. The arbitration award required Rice, Day, and Downs to repay certain sums to HPD and awarded Downs and Kaufmann attorney fees against Rice and Day.
5. Trial court partially vacates, but otherwise confirms arbitration award
Downs filed a petition in the trial court to confirm the arbitration award. Rice filed a petition to vacate the arbitration award to the extent the arbitrator had converted his dismissal without prejudice into a dismissal with prejudice.
After extensive briefing and a lengthy hearing, the trial court granted both petitions, i.e., it reinstated Rice's dismissal without prejudice, but otherwise confirmed the arbitration award.
6. Judgment and appeals
The trial court entered judgment. Both Rice and Downs appealed, and the appeals were consolidated.
1. Pertinent legal principles
2. The trial court erred by compelling arbitration of certain claims.
Rice contends the trial court erred by compelling arbitration of his legal malpractice, breach of fiduciary duty, and rescission claims because they are tort claims and the narrow arbitration provision in the operating agreements does not encompass them.
Each party's approach is somewhat inadequate to resolve the issue before us. The issue is not resolved simply by determining whether the arbitration clause is narrow or broad, whether the arbitration clause could encompass tort claims, or even whether the claims in issue sound in tort, not contract. The issue is whether the particular claims in issue are controversies "arising out of" the operating agreements. While they clearly fall within the category of "any controversy," we conclude that they did not arise out of the operating agreements and should not have been ordered to arbitration.
a. "Any controversy"
Several courts have held that a phrase such as "any dispute" or "any controversy" potentially encompasses tort claims. (EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1322 [59 Cal.Rptr.3d 340] (EFund); Lewsadder v. Mitchum, Jones & Templeton, Inc. (1973) 36 Cal.App.3d 255, 259 [111 Cal.Rptr. 405] (Lewsadder).) We agree, but that alone is not determinative. The parties did not simply agree to arbitrate "any controversy," effectively meaning every controversy between them. "Any controversy" is necessarily modified by "arising out of this Agreement."
Similarly, the EFund and Lewsadder courts did not end their analysis by concluding that tort claims were potentially embraced within the scope of "any dispute" or "any controversy." In each case, the court examined the nature of the agreement and of the claims and their relationship to one another, determining that the particular claims arose "from or out of" the agreement (see EFund, supra, 150 Cal.App.4th at pp. 1325-1326) or arose "`out of my employment or the termination of my employment'" (Lewsadder, supra, 36 Cal.App.3d at p. 257; see id. at pp. 259-261).
b. "Arising out of" the operating agreements
Four years later, when the parties entered into the amended operating agreement in October 2007, the state of the law remained the same in California courts and the Ninth Circuit. EFund, upon which Downs relies, and Bono, upon which Rice relies, had both been decided, but neither changed the state of the law. Bono involved a very specific and narrow
Given both the state of the law at the time the parties entered into the original and amended operating agreements and the stark contrast between the parties' limited arbitration provision applying only to controversies "arising out of" the agreement and their much broader jurisdictional provision extending to claims "arising out of, under or in connection with" the agreements or "the transactions contemplated by" the agreements, we necessarily conclude the parties intended the arbitration provision to apply to a very limited range of controversies, not ones merely connected with the operating agreements or transactions contemplated by those agreements and certainly not all controversies between them. Had the parties intended a broadly applicable arbitration clause, they could have simply used the same phrasing they used in the jurisdiction clause. The parties, as well as the attorneys drafting the agreements, are presumed to be aware of and to have relied upon the judicial interpretation in California and the Ninth Circuit of the language they used.
Accordingly, we conclude that while the arbitration provision encompasses contractual claims and perhaps even tort claims arising from the agreement, a
c. Rice's malpractice, breach of fiduciary duty, and rescission claims do not arise out of the operating agreements
1. Malpractice cause of action
Rice's complaint alleges that Downs and his law firms represented Rice and Kauffman before the three men decided to create a business together, before Downs formed HPD, and before he prepared the operating agreement. This attorney-client relationship did not arise out of the operating agreement or even the parties' decision to go into business together. Moreover, neither the original nor the amended operating agreement addresses an attorney-client relationship between Downs and anyone else, including Rice or HPD. The legal malpractice cause of action alleges that Downs violated duties created by his attorney-client relationship with Rice by acts and omissions such as failing to advise of his actual and potential conflicts of interest, entering into business transactions with his clients, and providing poor or incorrect legal advice. The cause of action is based upon violations of duties created by the attorney-client relationship, not by the operating agreements. The cause of action does not turn on an interpretation of any clause in the contract and is not based upon performance or failure to perform under the contract. Thus, the malpractice cause of action does not arise out of the agreements. It may relate to the agreements or be connected with them, but the parties' arbitration provision is limited to claims arising out of the agreements. Accordingly, the arbitration provision does not encompass the legal malpractice claim, and the trial court erred by compelling arbitration of it.
Downs argues, with respect to each cause of action, that it arises out of the agreements because, but for the agreements, the claim would not exist. He cites Adam v. DeCharon (1995) 31 Cal.App.4th 708 [37 Cal.Rptr.2d 195] (Adam) for the proposition that this "but for the agreement" standard is used to determine whether a claim arises out of an agreement. In Adam, a home seller failed to disclose known drainage and flooding problems, in violation of Civil Code section 1102 and a provision of the contract for the sale of the home that required the seller to deliver a disclosure statement. The purchasers prevailed on their failure to disclose cause of action, but not their breach of contract cause of action. The issue on appeal was whether the purchasers were entitled to attorney fees under the fees provision in the real property purchase-sale contract, which allowed the prevailing party to recover fees "in `any action ... arising out of this agreement.'" (31 Cal.App.4th at pp. 710-712.) Although the purchasers were not entitled to recover attorney
Adam obviously did not pertain to the wording of an arbitration clause, and the court did not hold that a claim "arises out of" an agreement if, but for the agreement, the claim would not exist, as Downs urges. Moreover, Adam is distinguishable from the present case, even beyond the differing factual context. In Adam, the relationship between the seller and purchasers of the property stemmed solely from the real property purchase-sale contract. The seller's disclosure obligation came into existence only upon formation of that contract, and the contract reflected the statutory disclosure obligation. Here, however, the attorney-client relationship between Rice and Downs and the duties Rice alleges Downs and his firm breached predated the operating agreements, were not created by the operating agreements, and were not even mentioned in the operating agreements.
Although other courts have sometimes used similar "but for" language in explaining their rationale for concluding that a claim was arbitrable (see, e.g., Larkin v. Williams, Woolley, Cogswell, Nakazawa & Russell (1999) 76 Cal.App.4th 227, 230 [90 Cal.Rptr.2d 195] ["very broad" arbitration clause extending to "`[a]ny controversy or claim arising out of or relating to any provision of this [partnership] [a]greement or the breach thereof'"]), no court has adopted such a simplistic, sweeping standard to determine whether a claim arises out of an agreement, and the Ninth Circuit and other federal decisions have expressly rejected it (Tracer, supra, 42 F.3d at p. 1295 ["The fact that the tort claim would not have arisen `but for' the parties' licensing agreement is not determinative"]; Cape Flattery, supra, 647 F.3d at p. 924 ["Tracer further clarified that a tort claim is not arbitrable just because it would not have arisen `but for' the parties' agreement"]; Armada Coal Export, Inc. v. Interbulk, Ltd. (11th Cir. 1984) 726 F.2d 1566, 1568 ["While certainly there is a connection between Armada's claims and the charter party relationship between Armada and Interbulk — i.e., but for the two parties having entered into this business arrangement which was imperfectly performed,
2. Breach of fiduciary duty
The final cause of action in Rice's complaint, seeking rescission and restitution, was expressly based upon "Downs's legal malpractice, breach of
3. Order partially vacating arbitration
Downs contends that the trial court erred by partially vacating the arbitration award to convert the dismissal of Rice's claims from one with prejudice to one without prejudice. Our review of the trial court's order and rationale leads us to conclude the issue is moot in light of our conclusion that Rice was improperly compelled to arbitrate his malpractice claim.
Although Rice dismissed all of his claims, including his arbitrable contractually based claims, the arbitrator converted the dismissal of all claims from one without prejudice to one with prejudice. Rice's motion in the trial court seemingly addressed all of his claims. A close examination of the trial court's rationale in reinstating the dismissal to one without prejudice reveals that the scope of the court's ruling was necessarily confined to Rice's malpractice claim. First, the court frequently referred to the malpractice claim in its order, but did not refer to any of Rice's other claims. Second, the court addressed at length Rice's contention that there was "Fraud in the Arbitration," based solely upon two matters pertinent to the issue of whether Downs represented Rice (and Day) as individuals. The first of these matters was Rice's claim "that Downs falsely testified before this Court and the Arbitrator" that he and his firms represented only HPD and HPC. The second matter was what Rice relied upon to refute Downs's purportedly false testimony, i.e., "23 fully-vetted Opinion Letters stating conclusively that the firms represented Rice and Day" issued by Nixon Peabody and Downs's former firm, Pillsbury. The court stated, "Rice and Day argue that Downs and Nixon coordinated efforts to effectively deprive Rice and Day of documents pertaining to their malpractice claim that Plaintiffs requested even as of August 2013." (Italics added.) The court addressed at length the difficulty Rice had in obtaining
The trial court rejected the fraud and undue means theories and based its decision to restore Rice's dismissal to one without prejudice upon a theory that the court had "inherent power to prevent unfair results." The court explained: "[I]t is unjust to punish Rice and Day for their attorney's choice to dismiss, without prejudice, when he would not have done so had he any idea that the dismissal, without prejudice, would be converted to a dismissal, with prejudice. Balancing the facts, both sides share blame about the Opinion Letters not rising to the surface in time. Rice and Day did not knowingly choose to avoid that information and certainly Downs never highlighted that information, if only to address it head on, in time either. [¶] The court finds that justice requires that the Arbitrator's dismissal, with prejudice, be vacated and the dismissal, without prejudice, be reinstated. If the action is resumed, then the parties should commence arbitration of the malpractice claim." (Italics added.)
Accordingly, we construe the trial court's ruling as limited to the malpractice claim, and Down's contention about the propriety of the court's ruling is mooted by our conclusion that the malpractice claim was not subject to arbitration.
4. Rice's claim regarding possibility of conflicting rulings
Rice also contends that the trial court abused its discretion by failing to deny Downs's motion to compel arbitration pursuant to Code of Civil Procedure section 1281.2, subdivision (c). This contention is based upon the inclusion of Nixon Peabody as a defendant in Rice's breach of fiduciary duty cause of action, given that the firm was not a party to the operating agreements and therefore not subject to arbitration. In light of our disposition, this issue is also moot and we do not address it.
5. Downs's claim the trial court erred by denying his request for additional fees and costs
Finally, Downs argues that the trial court "erred in denying Downs' request for attorneys' fees and costs incurred in petitioning to confirm the Award and opposing Rice and Day's Petition to Partially Vacate, because Downs was the prevailing party in the Arbitration and had a contractual right to reimbursement." He acknowledges the trial court awarded him fees of $13,500 when it granted his petition to confirm the award (except as to the arbitrator's ruling to convert the dismissal without prejudice to one with prejudice), but erred by not awarding "any of the $320,164.68 he incurred to address Rice and Day's unauthorized and untimely Opposition and Reply or to prepare supplemental briefing as directed by the Superior Court."
Although Downs cites the appellate record for the trial court's ruling denying the request for additional fees, he fails to cite any portion of the appellate record substantiating his claim for $320,164.68. This, alone, is sufficient to reject his claim on the basis of forfeiture. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [19 Cal.Rptr.3d 416].)
The judgment is reversed with respect to the court's order compelling arbitration of Rice's legal malpractice, breach of fiduciary duty, and rescission causes of action and is otherwise affirmed. Rice is awarded his costs on appeal and his own cross-appeal.
Chaney, Acting P. J., and Johnson, J., concurred.