Supreme Court of California Justia
Docket No. S099667
Aguilar v. Lerner

Filed 4/22/04

IN THE SUPREME COURT OF CALIFORNIA

RAUL V. AGUILAR,
Plaintiff and Appellant,
S099667
v.
Ct.App. 1/5 A091884
ESTHER R. LERNER,
San
Francisco
Defendant and Respondent.
Super. Ct. No. 985351

When plaintiff Raul V. Aguilar hired defendant Esther R. Lerner to represent
him in a marital dissolution matter, he signed a written retainer agreement that
included an agreement to arbitrate any dispute “concerning fees . . . or any other claim
relating to [plaintiff’s] legal matter which arises out of [plaintiff’s] legal
representation.” Such an agreement normally would be enforceable under the
California Arbitration Act (CAA). (Code Civ. Proc., § 1280 et seq.) A dispute arose,
and plaintiff now contends this arbitration agreement is invalid, specifically as to
defendant’s claim for attorney fees and costs, and possibly in its entirety, because the
agreement contravenes his rights pursuant to the mandatory fee arbitration act set forth
in Business and Professions Code section 6200 et seq. (hereafter the MFAA). (All
statutory references are to this code unless otherwise stated.) Were the arbitration
agreement found to be invalid in its entirety, he claims, he would be entitled to avoid
arbitration altogether and litigate in a jury trial both his malpractice claims and
defendant’s cross-claim for attorney fees and costs. The Court of Appeal found
1


plaintiff was judicially estopped from raising these arguments; alternatively, defendant
claims plaintiff waived them by filing a lawsuit against her for professional
malpractice.
We conclude plaintiff is not judicially estopped from attempting to rely on the
MFAA to invalidate his arbitration agreement, but that in filing a malpractice suit
against defendant he waived all rights he might have asserted under the statutory
scheme. In light of plaintiff’s waiver, we have no occasion to address how we might
reconcile a client’s rights under the MFAA with a client’s preexisting agreement with
counsel to arbitrate under the CAA. Accordingly, we affirm the decision of the Court
of Appeal.
FACTS
Plaintiff Aguilar, himself an attorney, hired defendant Lerner, a family law
specialist, to represent him in his marital dissolution. According to plaintiff’s
declaration, he explained to Lerner that he desired the matter to be resolved quickly, as
he had endured what he believed was unnecessary expense and frustration with his
previous attorney. Lerner agreed to represent him and produced a written retainer
agreement for his signature. Aguilar declares he signed the agreement and initialed
certain paragraphs, including the arbitration provision, without reading them. He
declares that he “had no idea the retainer agreement contemplated the arbitration of
legal malpractice claims and waiver of [his] right to a jury trial. No one explained to
me that it did.” He claims he did not negotiate any of the terms in the retainer
agreement. The agreement is dated November 30, 1994.
Lerner declares that after she agreed to represent Aguilar, she gave him her
retainer agreement “and asked him to carefully review it before signing [it].” She
states it was her “custom and practice to encourage a potential client to carefully
review the retainer agreement and ask any questions that they might have before
signing. Further, I encourage them to take the retainer agreement with them before
2
signing in order that they can take the time on their own to carefully review the terms
of the agreement.” She declares Aguilar did not sign the agreement in her presence
but took it with him. He thereafter returned a signed and initialed copy to Lerner by
both facsimile and first class mail.
The arbitration agreement is set forth as paragraph 7 in the retainer agreement.
It provides: “In the event that there is any disagreement between the CLIENT and
ATTORNEY concerning fees, this Agreement or any other claim relating to
CLIENT’S legal matter which arises out of CLIENT’S legal representation, CLIENT
hereby agrees to submit such dispute to binding arbitration under the rules of the San
Francisco Bar Association and the Code of Civil Procedure of the State of California.
The prevailing party shall be entitled to reasonable attorney’s fees and costs incurred
in enforcing any arbitration award or engaging in any court proceedings.”
A dispute later arose, and Aguilar discharged Lerner. On March 17, 1997, he
filed a complaint for damages in San Francisco Superior Court, alleging Lerner had
committed professional negligence and a breach of her fiduciary duty to him. In
response, Lerner petitioned to compel arbitration of these claims pursuant to Code of
Civil Procedure section 1281;1 she also added her own claim for unpaid attorney fees
and costs. The superior court granted the petition to compel, stating that the results of
the arbitration would be binding, and that “[p]laintiff’s claim for legal malpractice falls
within the scope of [the] arbitration provision [he signed].”
Lerner prevailed in arbitration, the arbitrator granting her judgment against
Aguilar on his complaint for damages. On Lerner’s claim for unpaid legal fees and

1
Code of Civil Procedure section 1281 provides: “A written agreement to
submit to arbitration an existing controversy or a controversy thereafter arising is
valid, enforceable and irrevocable, save upon such grounds as exist for the revocation
of any contract.”
3


costs, the arbitrator awarded her $32,709.64. On Lerner’s motion for reasonable
attorney fees and costs associated with the arbitration hearing, the arbitrator ruled she
was entitled to $7,138 in attorney fees pursuant to Code of Civil Procedure section
1033.5, subdivision (a)(10)(A), and $23,514.75 in costs pursuant to Code of Civil
Procedure section 1032, subdivision (b).2
The superior court denied Aguilar’s motion to vacate the arbitration award and
granted Lerner’s motion to confirm the award. Aguilar appealed; the Court of Appeal
affirmed; we granted review.
DISCUSSION
Aguilar contends the parties’ agreement to arbitrate was invalid and
unenforceable because it was contrary to the MFAA (§ 6200 et seq.), which makes
arbitrating attorney fee disputes wholly voluntary for a client and gives a client who
chooses to arbitrate the option of rejecting the arbitrator’s decision and proceeding to
trial. Moreover, he contends that although he filed a lawsuit against defendant for
professional malpractice, he is entitled to rely on the procedural protections with
respect to fee disputes the MFAA provides to consumers of legal services. (See
§ 6201, subd. (d).) Because plaintiff seeks to invalidate an arbitrator’s award, we must
determine, before addressing the merits of his claim, whether his case comes within an
exception to the general rule of arbitral finality and limited appellate review.

2
Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) permits a
prevailing party to recover attorney fees as costs when authorized to do so by contract.
Section 1032, subdivision (b) of the same code provides: “Except as otherwise
expressly provided by statute, a prevailing party is entitled as a matter of right to
recover costs in any action or proceeding.”
4


A. Judicial Review
When parties choose to forgo the traditional court system and arbitrate their
claims, it is assumed they wish to have a final and conclusive resolution of their
dispute. The Legislature has recognized this underlying assumption of finality and
has, by statute, limited the grounds for judicial review of an arbitrator’s award. (Code
Civ. Proc, § 1286.2.) Consistent with this legislative intent, we recognized the general
rule that “an arbitrator’s decision cannot be reviewed for errors of fact or law.”
(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11 (Moncharsh).) We explained that
because the Legislature has provided certain statutory grounds to overturn or modify
an arbitrator’s decision, courts should not subject such decisions to standard judicial
review. (Id. at pp. 26, 27-28.) In addition, however, to the statutory grounds for
vacating an arbitrator’s award, we explained in Moncharsh “that there may be some
limited and exceptional circumstances justifying judicial review of an arbitrator’s
decision . . . . Such cases would include those in which granting finality to an
arbitrator’s decision would be inconsistent with the protection of a party’s statutory
rights.” (Id. at p. 32, italics added.) It is this exception on which plaintiff relies in
seeking judicial relief from the arbitrator’s award.
We applied the statutory rights exception to the rule of arbitral finality in Board
of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269 (Round Valley).
In that case, a school district notified a probationary teacher it would not renew his
teaching contract for the next year. He sought arbitration as authorized pursuant to the
applicable collective bargaining agreement, claiming the district had failed to provide
him with notice of nonreelection as required in the agreement. The teacher prevailed
in arbitration, and the district thereafter petitioned to vacate the arbitration award,
claiming the notice required by the collective bargaining agreement was contrary to
the requirements set forth in Education Code section 44929.21 and certain provisions
of the Government Code.
5
On the question of judicial review of the arbitrator’s decision, we explained:
“Although we adhere to our holding in Moncharsh that arbitrator finality is the rule
rather than the exception, we agree that—if District is correct concerning the scope of
its statutory rights under the Education and Government Codes—this case presents the
exceptional circumstance that allows for judicial review of the arbitrator’s decision.
Should District’s interpretation of the law prevail, we would be faced with an ‘explicit
legislative expression of public policy’ that issues involving the reelection of
probationary teachers not be subject to arbitration. [Citation.] This expression of
public policy would thus conflict with the expressed legislative intent to limit private
arbitration awards to statutory grounds for judicial review. Thus, rigidly insisting on
arbitral finality here would be ‘inconsistent with the protection of a party’s [i.e.,
District’s] statutory rights.’ ” (Round Valley, supra, 13 Cal.4th at p. 277.)
Like the school district in Round Valley, plaintiff relies on statutory rights he
claims will be infringed by limiting judicial review of the arbitrator’s decision in this
case. He contends the arbitrator exceeded his powers in resolving the parties’ dispute
because the agreement to arbitrate contravened both plaintiff’s statutory rights as set
forth in the MFAA and the public policy underlying the statute. We agree that
enforcement of an arbitration agreement that violates a plaintiff’s rights under the
MFAA would exceed the arbitrator’s powers. Consequently, judicial review of the
arbitrator’s decision here is appropriate. We thus turn to the merits of plaintiff’s
claims.
B. The MFAA
The parties in this case arbitrated their dispute pursuant to the CAA, set forth in
part 3, title 9 of the Code of Civil Procedure, commencing with section 1280. The
CAA “represents a comprehensive statutory scheme regulating private arbitration in
this state. (§ 1280 et seq.) Through this detailed statutory scheme, the Legislature has
6
expressed a ‘strong public policy in favor of arbitration as a speedy and relatively
inexpensive means of dispute resolution.’ ” (Moncharsh, supra, 3 Cal.4th at p. 9.)
“The statutes set forth procedures for the enforcement of agreements to arbitrate
([Code Civ. Proc.,] §§ 1281.2-1281.95), establish rules for the conduct of arbitration
proceedings except as the parties otherwise agree (id., §§ 1282-1284.2), describe the
circumstances in which arbitrators’ awards may be judicially vacated, corrected,
confirmed, and enforced (id., §§ 1285-1288.8), and specify where, when, and how
court proceedings relating to arbitration matters shall occur (id., §§ 1290-1294.2).”
(Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 830.) Defendant invoked this
statutory scheme in response to plaintiff’s malpractice lawsuit.
By contrast, the MFAA constitutes a separate and distinct arbitration scheme.
The MFAA was first proposed by the Board of Governors of the State Bar of
California in 1976 when, finding that disputes concerning legal fees were the most
serious problem between members of the bar and the public, the board sought to create
a mechanism for arbitrating disputes over legal fees and costs. Recognizing the
“disparity in bargaining power in attorney fee matters which favors the attorney in
dealings with infrequent consumers of legal services” (Hargarten & Ardisson, Fine
Tuning California’s Mandatory Attorney Fee Arbitration Statute (1982) 16 U.S.F.
L.Rev. 411, 415 (Hargarten & Ardisson)), that many clients could not afford hiring
additional counsel to litigate fee disputes in the civil courts (ibid.), and that previous
schemes that called for voluntary arbitration were ineffective (id. at pp. 413-414), the
Legislature enacted the MFAA. The original legislation provided in pertinent part:
“The Board of Governors [of the State Bar of California] shall, by rule, establish,
maintain, and administer a system and procedure for the arbitration of disputes
concerning fees charged for professional services by members of the State Bar or by
members of the Bar of other jurisdictions.” (Stats. 1978, ch. 719, § 1, p. 2249.) This
7
mandate has been expanded to include mediation, but is otherwise unchanged today.
(§ 6200, subd. (a).)
In contrast to the CAA, which is governed by the Code of Civil Procedure, the
MFAA has its own rules and limitations, as set forth in the Business and Professions
Code. As one appellate court has described it, the MFAA “is a closed system and the
binding arbitration agreed to . . . is the arbitration conducted by [a] local bar
association under the MFAA, not some other private alternative dispute resolution
provided by another forum.” (Alternative Systems, Inc. v. Carey (1998) 67
Cal.App.4th 1034, 1042-1043.) The primary limitation of the MFAA is that it applies
only to disputes concerning “[legal] fees, costs, or both” (§ 6200, subd. (a)) and is
specifically inapplicable to “[c]laims for affirmative relief against the attorney for
damages or otherwise based upon alleged malpractice or professional misconduct”
(id., subd. (b)(2)). By contrast, virtually any civil dispute, including claims of legal
malpractice, can be the subject of arbitration under the CAA. (See Code Civ. Proc.,
§ 1281 [“A written agreement to submit to arbitration an existing controversy or a
controversy thereafter arising is valid, enforceable and irrevocable, save upon such
grounds as exist for the revocation of any contract”]; see, e.g., Powers v. Dickson,
Carlson & Campillo (1997) 54 Cal.App.4th 1102.) Although the parties here
arbitrated their dispute pursuant to the CAA, the MFAA is potentially relevant because
defendant, in her petition to compel arbitration, included a claim for unpaid legal fees
and costs.
The nature of the obligation to arbitrate under the MFAA differs from that
under standard arbitration in two important ways. First, the obligation to arbitrate
under the MFAA is based on a statutory directive and not the parties’ agreement.
Thus, a client may invoke the MFAA and proceed to arbitration despite the absence of
any prior agreement to do so. By contrast, standard arbitration requires that both
parties to a dispute agree to arbitrate. (Benasra v. Marciano (2001) 92 Cal.App.4th
8
987, 990 [“a party cannot be compelled to arbitrate a dispute that he has not agreed to
resolve by arbitration”].)
Second, section 6200, subdivision (c) provides: “[A]rbitration under this article
shall be voluntary for a client and shall be mandatory for an attorney if commenced by
a client.” In other words, whereas a client cannot be forced under the MFAA to
arbitrate a dispute concerning legal fees, at the client’s election an unwilling attorney
can be forced to do so.
The finality of an arbitration award under the MFAA also generally differs from
an award rendered pursuant to standard arbitration under the CAA. Although parties
choosing to resolve their dispute in standard arbitration pursuant to the CAA “typically
expect” that the arbitrator’s decision will be final (Advanced Micro Devices, Inc. v.
Intel Corp. (1994) 9 Cal.4th 362, 373; Moncharsh, supra, 3 Cal.4th at p. 10), an award
rendered pursuant to an arbitration under the MFAA is nonbinding, and either party
may seek a trial de novo (§ 6204, subd. (a)). The MFAA, however, also provides that
the parties may agree in writing that the arbitrator’s award will be binding. (Ibid.)
Finally, the MFAA specifies the conditions under which the client can waive its
protections. “A client’s right to request or maintain arbitration under the provisions of
this article is waived by the client commencing an action or filing any pleading
seeking either of the following: [¶] (1) Judicial resolution of a fee dispute to which
this article applies. [¶] (2) Affirmative relief against the attorney for damages or
otherwise based upon alleged malpractice or professional misconduct.” (§ 6201, subd.
(d).) The MFAA thus “provides the client with an alternative method of resolving a
fee dispute with his attorney, not one in addition to traditional litigation.” (Juodakis v.
Wolfrum (1986) 177 Cal.App.3d 587, 593.)
As indicated, the parties in this case arbitrated their dispute pursuant to the
CAA, not the MFAA. When plaintiff filed his complaint in superior court against
defendant for professional negligence and breach of fiduciary duty, defendant
9
understandably petitioned to compel arbitration pursuant to the parties’ agreement.
Had the parties simply arbitrated the malpractice-related claims, no question regarding
application of the MFAA would have arisen. But because defendant in her petition to
compel arbitration added a claim for unpaid legal fees and costs, plaintiff asserts the
MFAA applies. Although plaintiff has never sought to arbitrate the fee dispute in an
MFAA arbitration, he seeks to invoke the act’s client protections in order to invalidate
the parties’ agreement.
This case thus poses the question whether the parties’ agreement to arbitrate is
enforceable or is superseded by the MFAA.3 The question is significant in light of the
proliferation of arbitration clauses in attorney retainer agreements during the last two
decades. This proliferation is understandable, for we have presided over a recent
period of rapid expansion of arbitration as a dispute resolution mechanism. At the
time the MFAA was enacted in 1978, arbitration under the CAA was still in its
infancy. Though the CAA was enacted in 1961, it was not until the early 1980’s that
the use of arbitration as an alternative method to resolve legal disputes became
prevalent and both this court and the United States Supreme Court began determining
the outer limits of the procedure. For example, we held in 1983 that when a party to
an arbitration agreement in a contract contended the contract was induced by fraud,
that claim was itself arbitrable. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh,
Inc. v. 100 Oak Street (1983) 35 Cal.3d 312.) In 1992, we held an arbitrator’s decision
was generally unreviewable for legal error, thereby enhancing the finality of an arbitral

3
Compare the arbitration clause in this case to the agreement at issue in Powers
v. Dickson, Carlson & Campillo, supra, 54 Cal.App.4th at pages 1106-1107, which
specified that fee disputes would be arbitrated pursuant to the MFAA and all other
disputes will be arbitrated pursuant to the “Commercial Rules of the American
Arbitration Association.”
10


decision. (Moncharsh, supra, 3 Cal.4th 1.) Meanwhile, in 1984, the high court began
giving strong endorsements of arbitration under the Federal Arbitration Act.
(Southland Corp. v. Keating (1984) 465 U.S. 1; see Broughton v. Cigna Healthplans
(1999) 21 Cal.4th 1066, 1074-1075 [discussing the FAA].) The many cases involving
arbitration that have reached this court in the last 15 years testify to its increasing use
as a dispute resolution method.
Preliminary to deciding the merits of plaintiff’s claim, however, we must decide
two questions: (1) Is plaintiff judicially estopped from relying on the statute’s
protections, as the appellate court held? (2) If not, did he waive the statute’s
protections by filing his suit for malpractice, as defendant contends?
C. Estoppel
The Court of Appeal below found that, “[b]y never availing himself of his
statutory right to arbitration under the [MFAA] scheme, and by filing a malpractice
action, [plaintiff] expressly rejected the protections afforded by the [MFAA] scheme.
In light of this conduct, he cannot now say the arbitrator’s decision conflicted with the
protection of statutory rights he never sought.” Further: “[Plaintiff’s] position on
appeal that the arbitrator’s award denied him the protection of his [MFAA] rights is
incompatible with his position below that arbitration under the [MFAA] system was
both inappropriate and, for him, unwanted. Given these contrasting positions, he is
now estopped from urging that the arbitration award exceeded the arbitrator’s powers
because it conflicted [with] the protection of the [MFAA].” (Italics added.)
The appellate court thus invoked the doctrine of judicial estoppel. “ ‘Judicial
estoppel precludes a party from gaining an advantage by taking one position, and then
seeking a second advantage by taking an incompatible position. [Citations.] The
doctrine’s dual goals are to maintain the integrity of the judicial system and to protect
parties from opponents’ unfair strategies. [Citation.] Application of the doctrine is
11
discretionary.’ ” (Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719, 735,
fn. omitted.) The doctrine applies when: “(1) the same party has taken two positions;
(2) the positions were taken in judicial or quasi-judicial administrative proceedings;
(3) the party was successful in asserting the first position (i.e., the tribunal adopted the
position or accepted it as true); (4) the two positions are totally inconsistent; and
(5) the first position was not taken as a result of ignorance, fraud, or mistake.”
(Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183; Scripps Clinic v.
Superior Court (2003) 108 Cal.App.4th 917, 943.)
That the appellate court concluded plaintiff should be judicially estopped from
relying on the protections of the MFAA is understandable given that he has
consistently disclaimed his right under the statute to arbitrate defendant’s claim for
unpaid legal fees and costs. Admittedly, permitting plaintiff to escape application of
the arbitration agreement he signed by claiming it violated his rights as a client under
the MFAA seems incongruous, when he never sought to take advantage of the
MFAA’s other provisions by arbitrating the fee issue under its terms. Nevertheless,
we cannot agree the doctrine of judicial estoppel applies in this case. For plaintiff to
rely on the MFAA in resisting his contractual agreement to arbitrate was not
inconsistent, because one of the statute’s key provisions makes arbitration voluntary
for the client. (§ 6200, subd. (c).) Thus, from plaintiff’s point of view, an order
compelling him to arbitrate the issue of unpaid legal fees violated his rights under the
statute. Because plaintiff’s dual positions—one rejecting arbitration pursuant to the
MFAA, the other relying on MFAA-based client protections—were not “totally
inconsistent” (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 183), we
conclude the doctrine of judicial estoppel does not preclude him from relying on the
MFAA in resisting arbitration.
12
D. Waiver
Defendant Lerner contends plaintiff Aguilar waived his statutory rights under
the MFAA because he sued her for legal malpractice. At the time the parties entered
into their agreement to arbitrate, section 6201, subdivision (d) provided: “A client’s
right to request or maintain arbitration under the provisions of this article is waived by
. . . (2) seeking affirmative relief against the attorney for damages or otherwise based
upon alleged malpractice or professional misconduct.” (Stats. 1993, ch. 1262, § 2,
p. 7333, italics added.)4 That plaintiff filed a lawsuit against Lerner in San Francisco
Superior Court alleging professional malpractice is undisputed. Consequently,
pursuant to the plain language of the statute, he waived his rights under the MFAA.
(See Juodakis v. Wolfrum, supra, 177 Cal.App.3d 587 [client’s filing of negligence
action against attorney during pendency of MFAA arbitration waived right to compel
arbitration of fee dispute].)
Plaintiff’s counterarguments are unavailing. He first argues a consumer of legal
services does not waive his or her rights under the MFAA by entering into a fee
agreement before a fee dispute arises. This argument apparently references the 1996
amendment to section 6204, subdivision (a). At the time plaintiff agreed to arbitrate
disputes with defendant the section stated: “The parties may agree in writing to be
bound by the award of the arbitrators.” (Stats. 1992, ch. 1265, § 6, p. 6021.) As
amended, the statute now reads: “The parties may agree in writing to be bound by the
award of the arbitrators at any time after the dispute over fees, costs, or both, has

4
This provision exists in substantially the same form today, although it has been
slightly reworded. The present version of section 6201, subdivision (d) provides: “A
client’s right to request or maintain arbitration under the provisions of this article is
waived by the client commencing an action or filing any pleading seeking either of the
following: [¶] . . . [¶] (2) Affirmative relief against the attorney for damages or
otherwise based upon alleged malpractice or professional misconduct.” (Stats. 1996,
ch. 1104, § 13.)
13
arisen.” (§ 6204, subd. (a), as amended by Stats. 1996, ch. 1104, § 16, italics
indicating amendment.) Because plaintiff and defendant entered into their agreement
before their dispute arose, plaintiff claims the agreement did not “waive” the
protections of the MFAA.
Plaintiff misconceives the issue. Our conclusion he waived his rights under the
MFAA rests not on the arbitration agreement he executed when he retained Lerner,
but, rather, on the malpractice lawsuit he filed against her. Thus, whether he entered
his arbitration agreement pre- or post-dispute is irrelevant, as is which version of the
statute applies to the agreement.
Plaintiff next contends that although he “may have” waived his right to an
MFAA arbitration by filing a malpractice lawsuit against defendant, “he did not and
could not waive his statutory right to not be forced into a binding arbitration of an
attorney fee dispute under the terms of an arbitration clause calling for binding
arbitration.” Plaintiff’s unstated premise is that, although he waived his right to
arbitration pursuant to the MFAA, he nevertheless retained some residual rights under
the act in the form of the procedural protections the statutory scheme provides to
clients. Specifically, plaintiff invokes the MFAA provisions that arbitration is
voluntary for the client (§ 6200, subd. (c)) and that the results of an MFAA arbitration
are nonbinding (§ 6204, subd. (a)).
That a client may legally rely on the MFAA’s protections once he has waived
application of that statutory scheme is not obvious. Plaintiff cites to no provision in
the MFAA itself so providing, nor to any other legal authority holding or even
suggesting the protections set forth in the statute are self-executing irrespective of a
client’s waiver of his right to MFAA arbitration under section 6201, subdivision (d).
Nor has our own research discovered any authority acknowledging the continued
viability of the MFAA’s client protections after such a client waiver. Indeed, a close
reading of the statute suggests the opposite. Section 6201, subdivision (a), which
14
concerns an attorney’s obligation to provide notice to a client that he or she may
proceed pursuant to the MFAA, provides: “The rules adopted by the board of
governors shall provide that an attorney shall forward a written notice to the client
prior to or at the time of service of summons or claim in an action against the client, or
prior to or at the commencement of any other proceeding against the client under a
contract between attorney and client which provides for an alternative to arbitration
under this article, for recovery of fees, costs, or both.” (Stats. 1996, ch. 1104, § 13,
italics added.)5
The clear implication of this notice provision is that the Legislature understood
a lawyer and client may choose to resolve their fee dispute by proceeding under the
CAA when the client chooses not to proceed under the MFAA;6 no other meaning can
reasonably be gleaned from the reference to “any other proceeding against the client
under a contract between attorney and client which provides for an alternative to
arbitration under this article.” If a client who receives such notice declines to proceed
pursuant to the MFAA and chooses instead to go forward with a CAA arbitration
(which typically is binding), to conclude the client nonetheless retains his MFAA right
unilaterally to reject the arbitrator’s decision would be nonsensical.

5
As it existed at the time the parties entered into their 1994 agreement to
arbitrate, this section provided: “(a) The rules adopted by the board of governors shall
provide that an attorney shall forward a written notice to the client prior to or at the
time of service of summons or claim in an action against the client for recovery of
fees, costs, or both, covered by the provisions of this article. The written notice shall
be in such form as the board of governors may prescribe, but shall include a statement
of the client’s right to arbitration under this article. Failure to give this notice shall be
a ground for the dismissal of the action.” (Stats. 1993, ch. 1262, § 2, p. 7332, italics
added.)
6
Because plaintiff waived his MFAA rights, we have no occasion to address
whether or to what extent an arbitration agreement is enforceable if a client properly
invokes the right to arbitrate under the MFAA but subsequently exercises his statutory
right to reject the arbitrator’s decision and have a trial de novo. (§ 6204, subd. (a).)
15


We presume that in the typical MFAA case, the client receives the mandated
statutory notice pursuant to section 6201, subdivision (a) and thereafter expressly
chooses either to proceed under the MFAA or not. If the client chooses to arbitrate
“under this article” (i.e., pursuant to the MFAA), the client has the right to do so
whether or not the parties had also executed an arbitration agreement. If the client
fails to invoke his or her rights under the MFAA, such rights are waived entirely and,
as here, the preexisting arbitration agreement is enforceable against the client, with no
residual MFAA protections standing as an obstacle.7
In sum, we conclude that once a client files a malpractice lawsuit against his or
her former attorney, the client waives any rights under the MFAA. Because plaintiff
Aguilar thus waived his MFAA rights, the trial court properly found his preexisting
arbitration agreement with Lerner was enforceable against him.8
CONCLUSION

7
Plaintiff alleged below that defendant failed to give him notice under section
6201, subdivision (a), but we assume his waiver of his rights under the MFAA
includes a waiver of his right to statutory notice.
8
We stress the limited nature of our holding today. Because neither party has
raised it, we decline to address any issue concerning the Federal Arbitration Act
(9 U.S.C. § 1). In addition, because plaintiff and defendant entered into their
arbitration agreement in 1994, we have no occasion to address any issues concerning
the 1996 amendments to the MFAA. (Stats. 1996, ch. 1104, §§ 12-18.)
16


The judgment of the Court of Appeal is affirmed.
WERDEGAR, J.

WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.

17





CONCURRING OPINION BY CHIN, J.

I agree with the majority that plaintiff Raul V. Aguilar waived his rights under
the mandatory fee arbitration act (MFAA). (Bus. & Prof. Code, § 6200 et seq.)1
Accordingly, I have signed that opinion. I also believe, however, that Aguilar’s
agreement to arbitrate this dispute is enforceable for a far more fundamental reason:
An agreement for binding arbitration between an attorney and a client is enforceable
under the California Arbitration Act (Code Civ. Proc., § 1280 et seq.; hereafter the
CAA) whether or not the client requests and receives nonbinding arbitration under the
MFAA. As the majority notes, this case “poses the question whether the parties’
agreement to arbitrate is enforceable or is superseded by the MFAA.” (Maj. opn.,
ante, at p. 10.) The answer, apparent from the statutes, is straightforward. The MFAA
complements, not supersedes, the parties’ agreement to arbitrate. The CAA and the
MFAA coexist; neither preempts or supersedes the other.
Code of Civil Procedure section 1281, part of the CAA, provides: “A written
agreement to submit to arbitration an existing controversy or a controversy thereafter
arising is valid, enforceable and irrevocable, save upon such grounds as exist for the
revocation of any contract.” This provision and the rest of the CAA represent a
“ ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive

1
Unless otherwise indicated, all further statutory citations are to the Business and
Professions Code.
1


means of dispute resolution.’ [Citations.] Consequently, courts will ‘ “indulge every
intendment to give effect to such proceedings.” ’ ” (Moncharsh v. Heily & Blase
(1992) 3 Cal.4th 1, 9.)
Nothing in the MFAA makes the arbitration agreement of this case
unenforceable. The MFAA and the CAA create two very different types of arbitration.
As the majority explains, arbitration under the MFAA is nonbinding, but arbitration
under the CAA is binding. (Maj. opn., ante, at p. 9.)2 Both may be given effect.
Clients may, if they wish, request and obtain nonbinding arbitration under the MFAA.
That arbitration may, and often will, resolve the dispute. But if the client does not
request nonbinding arbitration, or if it is held but does not resolve the dispute, then the
MFAA has played its role, and the matter would continue without it. Either party may
then pursue judicial action unless the parties had agreed to binding arbitration. In that
event, the CAA would apply, and the dispute would go to binding arbitration. This
conclusion is consistent with the statutory language of both the MFAA and the CAA
and the strong public policy in favor of binding arbitration as a means of resolving
disputes.
Section 6201, subdivision (a), requires an attorney to inform the client of the
client’s right to arbitration under the MFAA “prior to or at the time of service of
summons or claim in an action against the client, or prior to or at the commencement
of any other proceeding against the client under a contract between attorney and
client which provides for an alternative to arbitration under this article . . . .” (Italics
added.) The italicized language acknowledges that the parties may agree to some
proceeding to resolve the controversy other than a judicial action, such as binding
arbitration under the CAA. The same section goes on to provide that if an attorney

2
For simplicity, I will sometimes just refer to arbitration under the MFAA as
nonbinding arbitration and arbitration under the CAA as binding arbitration.
2


“commences an action in any court or any other proceeding . . ., the client may stay
the action or other proceeding” by requesting arbitration under the MFAA, which
must be done “prior to the filing of an answer in the action or equivalent response in
the other proceeding . . . .” (§ 6201, subd. (b), italics added.) If the client does
request nonbinding arbitration, “the action or other proceeding shall be automatically
stayed until the award of the arbitrators is issued or the arbitration is otherwise
terminated.” (§ 6201, subd. (c), italics added.) This means that if the client requests
nonbinding arbitration under the MFAA, the judicial action or other proceeding is
stayed, but only until the nonbinding arbitration is finished. The other proceeding is
merely stayed pending the nonbinding arbitration, not dismissed permanently.
In some respects, the MFAA statutory language is not entirely clear. Section
6201, subdivision (c), also states that a court may vacate the stay if it finds the matter
not appropriate for nonbinding arbitration under the MFAA, and that “[t]he action or
other proceeding may thereafter proceed subject to the provisions of Section 6204.”
Section 6204, in turn, provides that the parties to the nonbinding arbitration may agree
to be bound by the arbitrators’ award, but, as it reads today, only after the controversy
has arisen. It also states that if there is no such agreement, “either party shall be
entitled to a trial after arbitration if sought within 30 days . . . .” (§ 6204, subd. (a),
italics added.) The statute goes on to provide how “the trial after arbitration shall be
initiated” both when an action is already pending and when no action is pending.
(§ 6204, subds. (b) & (c).) In the latter situation, “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 . . . .” (§ 6204, subd. (c), italics added.)
Aguilar argues, and the court in Alternative Systems, Inc. v. Carey (1998) 67
Cal.App.4th 1034, 1042, footnote 5 (Alternative Systems), concluded, that the
references in section 6204 to a “trial” and “an action in . . . court” mean that after
nonbinding arbitration, the dispute can only be resolved in court, and may not be
3
resolved by binding arbitration even if the parties had agreed to such binding
arbitration. I disagree. Although this reading of section 6204 is plausible if the
section is viewed in isolation, the section does not exist in isolation but is part of the
MFAA, which includes section 6201. It is “a cardinal rule of statutory construction,
that ‘every statute should be construed with reference to the whole system of law of
which it is a part so that all may be harmonized and have effect.’ ” (Landrum v.
Superior Court (1981) 30 Cal.3d 1, 14.) The references to a trial and court action in
section 6204 do not negate section 6201. In context, and in order to give effect to
section 6201, section 6204 must be construed as merely providing the procedure to
follow if the nonbinding arbitration is followed by a judicial action, not as prohibiting
the parties from agreeing to some other proceeding. The latter interpretation would
make meaningless section 6201’s acknowledgment that the parties may agree to some
form of dispute resolution other than judicial action and its repeated references to
some proceeding other than a court action.
Alternative Systems, supra, 67 Cal.App.4th 1034, held that if the client requests
and obtains nonbinding arbitration under the MFAA, an agreement to binding
arbitration cannot be given effect, and the dispute must proceed to a trial de novo. It
concluded that the MFAA “preempted” the binding arbitration agreement. (Id. at p.
1044.) The majority cites Alternative Systems but expresses no opinion on whether it
was correct. (Maj. opn., ante, at pp. 8, 15, fn. 6.) For the
4
reasons I have stated, I believe it was not correct. By its very terms, the MFAA
complements the CAA rather than preempts it.
Alternative Systems, supra, 67 Cal.App.4th 1034, cannot survive today’s ruling.
We are holding today that a client who does not request nonbinding arbitration has
waived the MFAA’s protections, and the binding arbitration agreement is enforceable.
If Alternative Systems were to remain valid, that would mean that a client who agreed
to binding arbitration could evade that agreement simply by requesting nonbinding
arbitration. The lesson future clients who had agreed to binding arbitration would
learn from this case is that if they want to evade their agreement, they must demand
nonbinding arbitration whether or not they otherwise want it. Future clients who wish
to sue in court despite an arbitration agreement will be forced to go to nonbinding
arbitration before they could do so. This situation would be unfortunate for two
reasons. First, it would permit a client to evade an arbitration agreement by a simple
procedural device, contrary to the letter and intent of the CAA. Second, it would
require, as a prerequisite to evading the arbitration agreement, that the client pursue
nonbinding arbitration. This would result in many sham nonbinding arbitrations that
neither party wanted or intended to accept.
We cannot reasonably conclude that the Legislature created a system whereby
clients who agree to binding arbitration may evade that agreement, but only if they go
through the charade of demanding and obtaining a nonbinding arbitration that they
may not want. Such a construction of the MFAA would not be “ ‘ “indulg[ing] every
intendment to give effect” ’ ” to a binding arbitration agreement. (Moncharsh v. Heily
& Blase, supra, 3 Cal.4th at p. 9.) I believe the
5
majority has effectively overruled Alternative Systems, supra, 67 Cal.App.4th 1034,
and I would do so expressly.
CHIN,
J.
WE CONCUR:

BAXTER, J.
BROWN, J.
6





CONCURRING OPINION BY MORENO, J.
I concur in the judgment. I agree with Justice Chin that the issue here is less
one of waiver than of the relationship between the mandatory fee arbitration act,
Business and Professions Code section 6200 et seq. (MFAA), and the California
Arbitration Act (CAA). (Code Civ. Proc., § 1280 et seq.) I further agree with Justice
Chin that there is no incompatibility between the two arbitration acts, at least not in
this case. But as the majority correctly points out, plaintiff and defendant entered into
the arbitration agreement in 1994, and we have no occasion to consider the meaning of
the 1996 amendments to the MFAA. (Maj. opn., ante, at p. 16, fn. 8, citing Stats.
1996, ch. 1104, §§ 12-18.) One of those amendments changed Business and
Professions Code section 6204, subdivision (a), to provide that an MFAA arbitration
can only be made legally binding “after the dispute over fees, costs, or both, has
arisen.” (Stats. 1996, ch. 1104, § 16.) At least one court has held that this amendment,
among other things, evinces a legislative intent to preclude binding predispute
agreements to arbitrate legal fees under the CAA. (Alternative Systems, Inc. v. Carey
(1998) 67 Cal.App.4th 1034, 1042-1044.)
Unlike Justice Chin, I express no opinion about whether Alternative Systems
was correctly decided vis-à-vis post-1996 arbitration agreements, which are not at
issue in this case. I agree with the majority that a client may waive the right to
challenge a CAA arbitration if he or she declines to undergo an MFAA arbitration but
instead elects, after being properly notified of his or her MFAA rights, to participate in
a CAA arbitration. (Maj. opn., ante, at p. 15.) But I do not understand the majority
1



opinion to be deciding whether post-1996 predispute CAA agreements to arbitrate
legal fees may be enforced, consistent with the MFAA, without the client’s consent. I
also express no opinion about whether a state statute that precludes binding predispute
arbitration agreements of legal fees would be preempted by the Federal Arbitration
Act. (See maj. opn., ante, at p. 16, fn. 8.)
MORENO, J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Aguilar v. Lerner
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 90 Cal.App.4th 177
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S099667
Date Filed: April 22, 2004
__________________________________________________________________________________

Court:

Superior
County: San Francisco
Judge: Ronald Evans Quidachay

__________________________________________________________________________________

Attorneys for Appellant:

Aguilar & Sebastinelli and Allen J. Kent for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Howard R. Melamed for Defendant and Respondent.

Conkle & Olesten, William C. Conkle and Eric S. Engel for as Amici Curiae on behalf of Defendant and
Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

No appearance for Plaintiff and Appellant at oral argument

Howard R. Melamed
319 Lennon Lane
Walnut Creek, CA 94598
(925) 932-0417


Opinion Information
Date:Docket Number:
Thu, 04/22/2004S099667

Parties
1Aguilar, Raul V. (Plaintiff and Appellant)
Represented by Dominic Gerardo Flamiano
Aguilar & Sebastinelli
1700 California Street, Suite 400
San Francisco, CA

2Aguilar, Raul V. (Plaintiff and Appellant)
Represented by Raul Valadez Aguilar
Aguilar & Sebastinelli
1700 California Street, Suite 400
San Francisco, CA

3Aguilar, Raul V. (Plaintiff and Appellant)
Represented by Allen J. Kent
Aguilar & Sebastinelli
1700 California Street, Suite 400
San Francisco, CA

4Lerner, Esther R. (Defendant and Respondent)
Represented by Howard R. Melamed
Attorney At Law
319 Lennon Lane
Walnut Creek, CA

5Conkle & Olesten, Plc (Amicus curiae)
Represented by Eric Steven Engel
Conkle & Olesten
3130 Wilshire Blvd., Suite 500
Santa Monica, CA

6Kent, Allen J. (Non-Title Respondent)
Represented by Philip Scott Ryan
Attorney at Law
944 Union Street
San Francisco, CA


Disposition
Apr 22 2004Opinion: Affirmed

Dockets
Aug 3 2001Petition for review filed
  Appelant Raul V. Aguilar
Aug 6 2001Record requested
 
Aug 7 2001Received Court of Appeal record
  1-file jacket, briefs & 1-accordion folder
Aug 21 2001Answer to petition for review filed
  by counsel for respondent Esther R. Lerner.
Sep 21 2001Time extended to grant or deny review
  to and including November 1, 2001.
Oct 17 2001Petition for Review Granted (civil case)
  Votes: George CJ, Kennard, Baxter, Werdegar, Chin, Brown JJ.
Oct 17 2001Letter and form sent to counsel re:
  certification of interest. Completed form to be returned within 15 days.
Oct 25 2001Certification of interested entities or persons filed
  by respondent.
Nov 16 2001Opening brief on the merits filed
  by counsel for appellant Raul V. Aguilar.
Nov 26 2001Certification of interested entities or persons filed
  by appellant
Dec 17 2001Answer brief on the merits filed
  by counsel for respondent(Lerner)
Jun 19 2002Application filed to:
  submit late ac brief [presentation of ac applctn & brief w/i 14 days of order >>Conkle & Olesten, Attys
Jun 20 2002Note:
  Conkle & Olesten must submit the amicus brief before the court will grant permission for late filing. Pat Q. to notify counsel.
Jul 8 2002Received application to file amicus curiae brief; with brief
  Conkle & Olesten, PLC [favors respondent Esther Lerner] app & brief are under separate covers.
Jul 15 2002Permission to file amicus curiae brief granted
  Conkle & Olesten, PLC
Jul 15 2002Amicus Curiae Brief filed by:
  Conkle & Olesten, PLC in support of respondent.
Oct 1 2003Issues ordered limited
  The issues before this court are to be limited to: (1) Whether California's Mandatory Fee Arbitration (MFA) statutes preempt a binding attorney fee arbitration clause in an attorney-client fee agreement entered into before a dispute arose between the attorney and client. (2) Whether a client may waive his right to a trial de novo after arbitration by prospectively agreeing to binding arbitration of an attorney-client fee dispute before the fee dispute arises. (3) Whether a client is estopped from asserting a right under the MFA not to be bound by a predispute arbitration agreement because he filed a malpractice action against the attorney and consistently maintained that he did not want arbitration. The parties are to limit their oral argument to those issues.
Jan 14 2004Case ordered on calendar
  Tuesday, February 10, 2004 @ 2pm (Sacramento)
Jan 30 2004Filed:
  Appellant's list of additional authorities.
Feb 10 2004Cause argued and submitted
 
Feb 11 2004Filed letter from:
  appellant Raul V. Aguilar regarding non-appearance of Allen J. Kent at oral argument. Mr. Aguilar informing the court that attorney Allen J. Kent is no longer handling his case. Domonic Flamiano of Aguilar & Sebastinelli is now the attorney of record .
Feb 13 2004Received letter from:
  counsel for Allen J. Kent dated 2-12-2004 re his non-appearance at oral argument.
Feb 13 2004Received letter from:
  appellant Raul V. Aguilar dated 2/13/04.
Feb 17 2004Filed letter from:
  counsel for Allen J. Kent dated 2/16/04. Letter and Declaration of Allen J. Kent.
Feb 18 2004Order to show cause issued (contempt matter)
  In accordance with the authority vested in this court under Code of Civil Procedure section 1209, Attorney Allen J. Kent, c/o his attorney, Philip Scott Ryan, 944 Union Street, San Francisco, California, and Raul V. Aguilar, 1700 California Street, Suite 400, San Francisco, California are ordered to show cause before this court at 9:00 a.m. on March 9, 2004, at its courtroom at 350 McAllister Street, San Francisco, California, why each should not be held in contempt of court for the willful neglect of the duty to appear for oral argument in the above-entitled case on February 10, 2004, at the time and place specified in the notice of argument sent on January 14, 2004, by the Supreme Court Clerk pursuant to California Rules of Court, rule 29.2(c), and as confirmed by the oral argument time form received from Attorney Kent on January 29, 2004. Each attorney is ordered to file a written return with the court on or before Friday, February 27, 2004. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Feb 27 2004Filed:
  Declaration of Howard R. Melamed (counsel for respondent).
Feb 27 2004Written return filed
  by appellant (Raul V. Aguilar). Document entitled: Response to order to show cause
Feb 27 2004Written return filed
  by counsel for Allen J. Kent.
Mar 5 2004Received:
  Document entitled: Agreed Statement of Facts Responding to Supreme Court Order to Show Cause - submitted by counsel for Allen J. Kent.
Mar 9 2004Received:
  (in open court) copy of empl;oyee instruction manual for the law firm of Aguilar & Sebastinelli.
Mar 9 2004Cause argued (not yet submitted)
  OSC re contempt
Mar 17 2004Order filed
  After consideration of the returns to the order to show cause, the declarations and other written submissions by both attorneys and counsel, and the oral presentation before this court on March 9, 2004, the court declines to discharge the order to show cause re contempt, and will retain jurisdiction over the contempt matter for future action. In light of the direct conflict in the factual statements (under penalty of perjury and otherwise) made by the attorneys to this court, and in view of substantial questions that remain whether either or both attorneys violated their professional duties to their client and their obligations to this court with regard to the failure of counsel to appear for appellant at the oral argument before this court in the case of Aguilar v. Lerner (S099667) on February 10, 2004, the court refers this matter to the State Bar Court for further investigation, an evidentiary hearing or hearings, and a report to this court. The Clerk of the Court is directed to forward to the State Bar Court a copy of the returns and all letters and declarations submitted to this court regarding the failure of counsel to appear at oral argument, as well as a tape recording of the March 9, 2004 proceedings related to the order to show cause. In addition, as directed at the close of the oral presentation on March 9, both attorneys are ordered to preserve all materials and documentation, in hard copy or in electronic format, relating to this matter. The State Bar Court, in conjunction with the Office of Trial Counsel, is directed conduct an investigation and hold such evidentiary hearings as appropriate in order to prepare a report to the court on the following questions: (1) Did either Kent or Aguilar lie in any statement made to this court in writing or orally (under penalty of perjury or otherwise)? (2) Would Kent have breached any professional or ethical obligation to his client (present or former) by notifying this court, prior to February 10, that he would not be appearing for appellant at the February 10 oral argument? (3) Did Kent breach any professional or ethical obligation to this court by failing t notify the court that he would not be appearing at the February 10 oral argument? (4) Did Aguilar know, prior to receiving a telephone call from the Clerk of the Suprem Court on February 10, 2004, that the case of Aguilar v. Lerner was scheduled to be argued before the California Supreme Court on February 10, 2004? (5) Did Aguilar know, or should he have known, prior to February 10, 2004, that Kent would not be appearing for the appellant in Aguilar v. Lerner at the oral argument before the Supreme Court scheduled for February 10, 2004? If so, did Aguilar breach any professional or ethical obligation to this court by failing to appear or to assign another attorney to appear at oral argument? The State Bar shall prepare and submit a report to the court on these questions on or before April 30, 2004. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Apr 22 2004Opinion filed: Judgment affirmed in full
  Opinion by Werdegar, J. -----joined by George, C.J.,Kennard, Baxter & Chin, JJ. Concurring Opinion Chin, J. -----joined by Baxter, J. & Brown, J. Concurring Opinion Moreno, J.
Apr 30 2004Filed:
  Report of the State Bar Court on Questions Referred by the Court.
Apr 30 2004Received:
  Record from the State Bar Court. 0ne box (Four accordian folders).
May 3 2004Supplemental briefing ordered
  On February 18, 2004, we ordered Attorney Kent and Attorney Aguilar to show cause on March 9, 2004, why each should not be held in contempt of court for the willful neglect of the duty to appear for oral argument before this court in Aguilar v. Lerner on February 10, 2004. On March 17, 2004, after considering the returns to the order to show cause, the declarations and other written submissions by both attorneys and counsel, and the oral presentation before this court on March 9, 2004, we declined to discharge the order to show cause re contempt, retained jurisdiction over the contempt matter, and referred this matter to the State Bar Court for further investigation, an evidentiary hearing or hearings, and a report to this court on specified questions. The State Bar Court submitted its report to this court on April 30, 2004. The Court requests attorney Kent and attorney Aguilar to file simultaneous letter briefs, on or before Monday, May 24, 2004, responding to the findings of the State Bar Court and addressing the question why this court should not hold each attorney in contempt of court for willful neglect of the duty to appear for oral argument before this court or for lying to this court as reflected in the findings of the State Bar Court.
May 24 2004Letter brief filed
  By counsel for {Raul V. Aguilar}.
May 24 2004Letter brief filed
  By counsel for {Allen J. Kent}.
Jun 9 2004Received:
  letter from Attorney P. Ryan for Respondent (Allen Kent).
Jun 10 2004Remittitur issued (civil case)
 
Jun 11 2004Received:
  Letter from counsel for Raul Aguilar dated June 11, 2004, to notify the court that counsel hasl completed the services Mr. Aguilar retained him to provide. Any future notifications should be sent directly to Mr. Raul Aguilar.
Jun 21 2004Received:
  receipt for remittitur from CA 1/5.
Sep 23 2004Order filed
  The contempt matter is retitled as follows: In re RAUL V. AGUILAR and ALLEN J. KENT on Contempt, RAUL V. AGUILAR, Plaintiff and Appellant v. ESTHER R. LERNER etc. Defendant and Respondent.
Sep 23 2004Opinion filed: Attorney contempt proceeding
  Attorney Allen J. Kent is found in contempt of court and is ordered to pay a fine of $250. Attorney Raul V. Aguilar is found in contempt of court and is ordered to pay a fine of $1,000. Majority Opinion by The Court. C&D Opinion by Kennard, J. joined by Werdegar, Brown, JJ.
Oct 7 2004Rehearing petition filed
  by counsel for Allen J. Kent.
Oct 13 2004Time extended to consider modification or rehearing
  to and including December 22, 2004.
Oct 22 2004Received:
  a personal money order in the amount of $1,000. for payment of fine imposed for contempt matter - from Raul V. Aguilar.
Nov 10 2004Rehearing denied
  Kennard, J., Werdegar, J., and Brown, J., are of the opinion the petition should be granted.
Nov 10 2004Remittitur issued (civil case)
  re Attorney contempt proceeding
Nov 19 2004Received:
  Receipt for remittitur - from CA1/5
Jan 7 2005Letter sent to:
  Mr. Allen Kent directing him to pay contempt fine of $250 by January 28, 2005.
Jan 18 2005Received:
  a check in the amount of $250. for payment of fine imposed for contempt matter - from Allen J. Kent.
Jan 26 2005Received:
  Copy of settlement judgment from State Bar Court re Raul V. Aguilar filed 1/21/05. (State Bar case #04-0-14623)

Briefs
Nov 16 2001Opening brief on the merits filed
 
Dec 17 2001Answer brief on the merits filed
 
Jul 15 2002Amicus Curiae Brief filed by:
 
Feb 27 2004Written return filed
 
Feb 27 2004Written return filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website