Absence Of A Record Was A Major Problem For Appellant.
Law Offices of Mark Waecker, APC v. Pius Kim, B268212 (2/5 12/1/16) (Turner, Kriegler, Kumar) (unpublished) illustrates the proposition that an arbitrator’s decision is generally not reviewable for factual or legal errors. Moncharsh v. Heily & Blase, 3 Cal.4th 1 (1992). Therefore, the Court of Appeal does not (and did not here) have to determine whether the arbitrator correctly decided the issues. However, an arbitrator’s decision may be reviewed if the arbitrator exceeds his or her powers or violates a well-settled public policy. Neither was the case here. Therefore the Court of Appeal affirmed the judgment confirming an award of $323,320.58, in favor of an attorney in a fee dispute with clients.
The individual client, Mr. Kim, made a creative argument that he had been individually included as a client along with his companies just so the attorney could recover fees from him individually, without disclosing any conflicts of interest to Mr. Kim. It was not necessary, argued Mr. Kim, to include him, as he was not a party to the cases in which the attorney represented the codefendants.
The Court of Appeal rejected the argument that there was a conflict, because a conflict, if any, was “outside the subject matter of the litigation.” The Court further explained that rule 3-300, prohibiting an attorney from entering into a business transaction with a client, did not apply to retainer letters.
We note that the appeal made no headway because, among other problems, no arbitration testimony was submitted to the trial court. Rather, the Court of Appeal had to work with “the arbitrator’s award which states that Mr. Kim was not credible.”
NOTE: Given the rule established by Moncharsh and other cases, one who challenges the arbitrator’s award faces a steep uphill battle. What’s more, with only a slight record, the outcome is usually foreordained.