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Dianna Mitzner v. Frank O. Fox

July 19, 2011

DIANNA MITZNER, PLAINTIFF AND RESPONDENT,
v.
FRANK O. FOX, DEFENDANT AND APPELLANT.



(Super. Ct. No. C050950)

The opinion of the court was delivered by: Nicholson, J.

Mitzner v. Fox

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The trial court granted defendant Frank O. Fox's motion to file a cross-complaint, but it did so on condition Fox pay plaintiff Dianna Mitzner some $80,000 to compensate her for attorney fees she incurred in preparing for an arbitration hearing aborted in part due to Fox's actions. Fox appeals from the trial court's order, claiming the trial court acted outside its discretion in imposing the condition. In opposition, Mitzner argues the order is not an appealable order and, even if it is, the trial court did not abuse its discretion. We conclude the order is appealable as an order directing payment of a monetary sanction, and we conclude the trial court abused its discretion by imposing the sanction in this instance. We strike the sanction from the court's order.

FACTS

Mitzner retained Fox, an attorney, in May 2000 to represent her in a divorce action. She signed a retainer agreement formalizing the relationship. The agreement was drafted by Fox.

In the agreement, Mitzner waived her statutory right to have fee disputes resolved by trial or by the procedure provided by the Mandatory Fee Arbitration Act (Bus. & Prof. Code, § 6200 et seq.) (MFAA). That procedure calls for the dispute to be resolved by non-binding arbitration unless the parties, after the dispute has arisen, agree to binding arbitration. In the absence of such an agreement, either party is entitled to a trial after arbitration. (Bus. & Prof. Code, § 6204.)

Instead of agreeing to the MFAA procedure, Mitzner and Fox agreed in the retainer agreement that all disputes regarding attorney fees would be resolved by arbitration. The agreement gave Mitzner the option to select non-binding arbitration or binding arbitration. If she selected non-binding arbitration, and either party was unhappy with the result of that arbitration, the dispute would then be decided by binding arbitration.

The retainer agreement also authorized Fox to demand security for the payment of his attorney fees. The security would consist of a note secured by a deed of trust against Mitzner's real or personal property.

In October 2000, Mitzner signed a note promising to pay Fox $65,464.19 plus interest, "plus any and all additional attorney's fees and costs" Fox incurred in the divorce action on Mitzner's behalf. The amount was due and payable by October 1, 2001.

The note was secured by a deed of trust recorded against real property Mitzner owned in Markleeville, Alpine County. The deed named Fox as the beneficiary, and it granted to him the power of sale to secure payment of the note.

Mitzner claims that prior to executing the note, she had paid Fox $85,000. She claims that after executing the note, she paid Fox an additional $76,000.

In April 2005, Fox recorded a notice of default and election to sell under the October 2000 deed of trust. The notice sought to recover the balance of principal and interest owed under the note that became due on October 1, 2001, along with any other legal fees that had been incurred. The notice stated Mitzner owed Fox $248,360.09 as of April 4, 2005.

In response, Mitzner filed this action. She sought declaratory and injunctive relief and a judgment quieting title to her property. She also sought a preliminary injunction enjoining Fox from ...


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