PICKENS v. WEAVER

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Court of Appeal, First District, Division 3, California.

Lucy PICKENS, Plaintiff and Appellant, v. Dennis S. WEAVER, Defendant and Respondent.

A019488.

Decided: October 22, 1985

Lucy Pickens, in pro. per. Leslie A. Williams, San Mateo, for plaintiff and appellant. Dennis S. Weaver, in pro. per. McDonnell & Weaver, San Francisco, for defendant and respondent.

Lucy Pickens, in propria persona, appeals 1 from a judgment confirming an arbitration award in favor of respondent Dennis S. Weaver.   The award followed mandatory arbitration of an attorney-client fee dispute between Attorney Weaver and appellant Pickens, his former client.   For the reasons stated below, we hold that Ms. Pickens is entitled to a trial de novo, and we remand the case to superior court.

Background

In February 1979, Ms. Pickens retained Mr. Weaver to represent her in real estate litigation, which concluded in March 1980.   A written fee agreement required Ms. Pickens to pay $50 per hour for services rendered.   During the litigation, Mr. Weaver billed Ms. Pickens each month for services performed the previous month, listing the number of hours expended each month.   The invoices indicated that Mr. Weaver spent approximately 400 hours in representing Ms. Pickens and incurred $1,134.70 in costs.

During 1979, 1980, and part of 1981, Ms. Pickens paid Mr. Weaver a total of $11,267.29.   After she failed to make her July 1981 payment, Mr. Weaver began charging interest on the balance at a rate of .8 percent per month.   On December 30, 1981, Ms. Pickens, acting pro se, requested advisory arbitration before the San Francisco Bar Association (Bar Association) because she believed that the fee, totaling more than $20,000, was excessive.2  The arbitration was heard on April 12, 1982.   The arbitrators awarded Mr. Weaver $9,978.25, the full amount which he claimed was still owing.   Notice of the award was mailed to Ms. Pickens on April 26, 1982.

Thereafter, Ms. Pickens applied for a trial de novo from the Bar Association, apparently in the belief that the Bar Association had jurisdiction to conduct the trial.   In a letter dated May 24, 1982, a representative of the Committee on Arbitration of Fee Disputes of the Bar Association wrote to Ms. Pickens that the Bar Association was not a court of competent jurisdiction and that “the proper court is probably Superior Court.”   The letter also informed Ms. Pickens that “[t]he Rules state you have 30 days to file for a trial de novo from the time the award is served on you, so I suggest you do this as soon as possible.”  (Emphasis added.)

On May 28, 1982, 32 days after the notice of the award was mailed to her, Ms. Pickens filed in superior court a request for a trial de novo.3  Her request was denied at a hearing on June 24, 1982, “[u]pon proof made to the satisfaction of the Court․”  From the reporter's transcript of the hearing it is unclear whether the request was denied because the court found her request untimely or whether it determined that the municipal court had jurisdiction because it considered the amount in dispute to be the unpaid balance of $9,978.25 awarded Mr. Weaver.   The award to respondent was confirmed by the superior court on August 31, 1982, and judgment was entered on September 3, 1982.   This appeal followed.

Discussion

Business and Professions Code sections 6200–6206 4 govern mandatory arbitration of attorney-client fee disputes.   These sections provide guidelines and minimum standards for the operation of mandatory fee arbitration programs, and local bar associations are free to promulgate their own rules of procedure, subject to review by the Board of Governors.  (§ 6200, subd. (d).)  The purpose of this legislation is to provide an effective, expeditious, simple, low-cost forum in which an attorney and a client may resolve fee disputes.  (See Hargarten, Fine Tuning California's Mandatory Attorney Fee Arbitration Statute (1982) 16 U.S.F.L.Rev. 411.)   It thus alleviates the disparity in bargaining power in attorney fee matters which favors the attorney by providing an inexpensive remedy to a client which does not necessitate the hiring of a second attorney.  (Manatt, Phelps, Rothenberg & Tunney v. Lawrence (1984) 151 Cal.App.3d 1165, 1174, 199 Cal.Rptr. 246.)

 These policy considerations mandate that attorney-client fee dispute arbitration procedures be set forth completely and clearly so that a lay person may fully understand his or her rights and obligations.   The information given Ms. Pickens by the San Francisco Bar Association was confusing to a lay person and did not meet the requirements mandated by section 6200 et seq., and, therefore, Ms. Pickens was deprived of her right to a trial de novo as set forth in section 6204, subdivision (a).

Ms. Pickens requested advisory arbitration on the form provided by the Bar Association.   Information contained in the form indicated that by requesting advisory arbitration, a party dissatisfied with the result could ask the court for a new hearing within 30 days of the date that the recommended settlement was mailed.5  (See § 6204, subd. (a).)  The Bar Association received Ms. Pickens' request for a trial de novo within 30 days of the award.   It was not unreasonable for Ms. Pickens to send her request to the Bar Association, given that all prior communications had been directed to that office and the Bar Association had supervised the arbitration hearing.   Although the Bar Association form which Ms. Pickens had completed some five months previously advised her that if she was dissatisfied with the award she could seek a new hearing from the court within 30 days of mailing of the award, the form failed to provide any guidance necessary to a lay person concerning the proper court for filing a petition to obtain a trial de novo.   Additionally, nothing in the award informed Ms. Pickens of the time limitations for requesting a trial de novo or the proper court in which such a request should be filed.

The Bar Association's letter of May 24, 1982, also added to Ms. Pickens' confusion.   Not only was it uncertain as to the proper court in which to file a request for a trial de novo;  the letter told Ms. Pickens that she had “30 days to file for a trial de novo from the time the award is served on you, ․” Ms. Pickens not unreasonably interpreted “served on you” to mean “received by you.” 6  Appellant did file her request for a trial de novo within 30 days of receipt of the notice.7

 In order to implement fully the legislative intent underlying the attorney-client fee dispute arbitration and to minimize future ambiguities concerning the right to request a trial de novo, we conclude that the client must be correctly informed that he or she has the right to request a trial de novo in a court with jurisdiction over the amount in controversy and that the request must be made within appropriate time limitations.   This can be accomplished either by a notice in the award itself or in a covering letter sent with the award.

 We further hold that the amount in controversy is within the jurisdictional limits of the superior court because the entire fee, not just the balance awarded Mr. Weaver, is at issue.

The judgment is reversed and the superior court is directed to grant a trial de novo.

FOOTNOTES

1.   In her opening brief, appellant raises arguments more appropriately addressed to the trial court after remand.   Because we are reversing the judgment, we do not reach these issues.

2.   Ms. Pickens has represented herself throughout these proceedings except at the arbitration hearing and at oral argument on appeal.

3.   Ms. Pickens filed a similar request in municipal court.

4.   All further statutory references are to the Business and Professions Code unless otherwise indicated.

5.   The form for the client's request for arbitration reads, in pertinent part:  “13. a. Effect of Arbitration [¶] Arbitration according to Article 13 of the Business and Professions Code (also see Rule V of the enclosed Rules of Procedure of The Bar Association of San Francisco for Arbitration) is called ADVISORY ARBITRATION, meaning that:  [¶] If either you or the attorney are not satisfied with the arbitrator(s)' award, you have the right to ask the court for a new hearing within 30 days of the date the arbitrator(s)' recommended settlement is mailed to you.  [¶] However, you and the attorney may agree to make the arbitration BINDING which means that once the arbitrators make an award, no appeal or further proceeding will be possible.”

6.   The following conversation took place between Ms. Pickens and the court:  “MS. PICKENS:  It was mailed on the 26th or the 27th of April.“THE COURT:  All right.   And the code says you have 30 days after that to request a trial de novo.“MS. PICKENS:  Your Honor, there seems to be a conflict in instructions.   You just read the letter I gave you.   It says 30 days after it's filed.   I just gave it to you to read.“THE COURT:  No.   It says 30 days to file from the time the award is served on you.“MS. PICKENS:  Yes, sir.   And I filed timely.“THE COURT:  You didn't if you filed it on May 28th.   That is not within 30 days.   From the time it's served on you—it's served on you when it's mailed.“MS. PICKENS:  On May what date, sir?“THE COURT:  You told me the 26th or 27th.“MS. PICKENS:  No—“THE COURT:  April 26th or 27th.“MS. PICKENS:  April 29th.   I have it right there.“THE COURT:  No.   You didn't say that, Miss Pickens.   You said April 26th or 27th.   Don't stand there and tell me that.   We can have the record read back.“MS. PICKENS:  Your Honor, I have an ear infection, but I thought you said when it was mailed.   I don't think you asked me when it was served on me.”

7.   We view the instant appeal as an application for statutory relief from mistake pursuant to Code of Civil Procedure section 473.   That section permits the court to relieve a party from a judgment taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.   Application for such relief must be made within a reasonable time, in no case exceeding six months.Here, appellant requested a trial de novo within 30 days of receipt of the notice and has filed a timely appeal.   Her mistake in sending the request for a trial de novo to the Bar Association was reasonable and warrants relief.   As the Supreme Court has stated, “An examination of the cases applying section 473 of the Code of Civil Procedure discloses that not every mistake of law is excusable [citations] but that an honest mistake is excusable, the determining factor being the reasonableness of the misconception [citations].”  (Viles v. State of California (1967) 66 Cal.2d 24, 29, 56 Cal.Rptr. 666, 423 P.2d 818.)

BARRY-DEAL, Associate Justice.

SCOTT, Acting P.J., and ANDERSON, J.,* concur.