Appealability Under The Mandatory Fee Arbitration Act Is Different Than Appealability Under The California Arbitration Act.
The holding of Levinson Arshonsky & Kurtz LLP v Kim (2/1 5/29/19) (Weingart, J.), is that an order denying a petition to compel an MFAA arbitration is not appealable. Therefore, the Court of Appeal lacks jurisdiction to hear it.
The case arose from restaurateur David Kim's fee dispute with his attorneys, Levinson Arshonsky & Kurtz LLP. After LAK provided notice of disputed billing matters to Kim and his attorney, Kim's attorney filed a petition for fee arbitration with the LACBA on behalf of a Kim-related entity. However, the petition was not filed on behalf of Kim personally, and thus the right to seek county bar mandatory fee arbitration ended up being waived. Kim's attorney filed a petition to compel MFAA fee arbitration with the Superior Court, which was denied. Kim filed a timely notice of appeal from the order denying his petition to compel arbitration, and did not seek review of an order granting LAK's motion to vacate the stay.
By analogy to the CAA, Kim argued that a denial of a petition to arbitrate should be appealable. The opinion is interesting because it points out that we have distinct statutory regimes in California, and each needs to be considered separately: (1) judicial arbitration of civil cases with limited amounts in controversy; (2) private contractual arbitration; and (3) mandatory fee arbitration. "[W]hereas a party in a CAA proceeding must move to stay the parallel non-arbitration proceeding, the MFAA adopts the reverse approach -- the parallel nonarbitration matter is automatically stayed, and the party seeking to proceed outside arbitration must move to lift the stay."
COMMENT: Fee expert Gerald G. Knapton has an article in the June 17, 2019 issue of the Daily Journal entitled, "MFAA versus CFA: Jurisdictional traps for the unwary in arbitration". The article discusses Levinson Arshonsky & Kurtz LLP, as well as the previous case we posted about on May 30, Heimlich v. Shivji. Unfortunately, the Daily Journal is behind a paywall.
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