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Schlessinger v. Rosenfeld, Meyer & Susman

Court of Appeal of California, Second Appellate District, Division One

December 5, 1995, Decided

Nos. B089703, B092934.

Opinion

 [*1100]  [**652]   MASTERSON, J. 

Gary Schlessinger, an attorney, and Rosenfeld, Meyer & Susman (RM&S), his former law firm, could not agree on the payment due Schlessinger upon his resignation from the partnership. Pursuant to the partnership agreement, the dispute proceeded to arbitration before the American Arbitration Association. The arbitrator disposed of the principal issues by way of two motions  [**653]  for summary adjudication and ultimately rendered an award in favor of RM&S. 1 

 [***2]  Schlessinger petitioned the superior court to vacate the arbitration award on the ground that the arbitrator had refused to hear evidence material to the controversy. In the petition, he asserted that the California Arbitration Act ( Code Civ. Proc., § 1280- 1294.2) precluded the use of summary adjudication motions in an arbitration proceeding. The trial court dismissed the petition. We conclude that the arbitrator could entertain such motions and affirm.

BACKGROUND

Schlessinger was a partner at RM&S from January 1, 1966, through May 12, 1993, at which time he resigned from the partnership. In 1975, Schlessinger and other partners at RM&S had entered into a written partnership agreement (the agreement) governing their practice of law. The agreement provided that partners who left the firm were to be paid for their interest in the firm's anticipated revenues from work in progress and receivables (the "agreed sum") and for their capital account. The amount of the agreed sum was reduced in accordance with a specified formula if the departing partner engaged in competition with the firm.

After Schlessinger left RM&S, he began competing with the firm. RM&S calculated the agreed sum [***3]  by making the specified reductions in Schlessinger's share of anticipated revenues. Schlessinger contended that the reductions constituted unlawful tolls on competition. When the parties could not resolve this dispute, RM&S filed a demand for arbitration with the American Arbitration Association (AAA) pursuant to article 13 of the  [*1101]  agreement. 2 Schlessinger responded with a counter-demand for arbitration. The parties retained counsel for purposes of the arbitration.

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40 Cal. App. 4th 1096 *; 47 Cal. Rptr. 2d 650 **; 1995 Cal. App. LEXIS 1178 ***; 95 Cal. Daily Op. Service 9277; 95 Daily Journal DAR 16112

GARY A. SCHLESSINGER, Plaintiff and Appellant, v. ROSENFELD, MEYER & SUSMAN, Defendant and Respondent.

Prior History:  [***1]  Superior Court of Los Angeles County, No. BS031311, Ronald M. Sohigian, Judge.

Disposition: The order dismissing the petition to vacate the arbitration award is affirmed.

CORE TERMS

arbitrator, tolls, discovery, vacate, deposition, cross-examination, cross-motions, partnership, entertain, italics

Civil Procedure, Judgments, Summary Judgment, Partial Summary Judgment, Business & Corporate Law, General Partnerships, Dissolution & Winding Up, General Overview, Labor & Employment Law, Conditions & Terms, Trade Secrets & Unfair Competition, Noncompetition & Nondisclosure Agreements, Business & Corporate Compliance, Contracts Law, Types of Contracts, Partnership Agreements, Hearings, Pretrial Matters, Alternative Dispute Resolution, Validity of ADR Methods, Governments, Legislation, Interpretation, Arbitration, Judicial Review, Evidentiary Considerations, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Dismissal, Involuntary Dismissals, Failure to State Claims, Pretrial Judgments, Nonsuits, Trials, Judgment as Matter of Law, Contract Conditions & Provisions, Arbitration Clauses, Opposing Materials, Oral Arguments, Collective Bargaining & Labor Relations, Federal Preemption, Primacy of Labor Policy, Entitlement as Matter of Law, Materiality of Facts, Discovery & Disclosure