Van Dyke & Assn. v. Oliver CA4/1

Filed 3/29/21 Van Dyke & Assn. v. Oliver CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

VAN DYKE & ASSOCIATES, APLC, D077091

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2018-
00059468-CU-BC-CTL)
MARY SUSAN MACK OLIVER et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of San Diego County,
Eddie C. Sturgeon, Judge. Affirmed.
Van Dyke & Associates, Richard S. Van Dyke and Geoffrey J. Farwell
for Plaintiff and Appellant.
Campbell Law Group, John B. Campbell; Caldarelli Hejmanowski Page
& Leer, Marisa Janine-Page and Caitlin E. Macker for Defendants and
Respondents.

Plaintiff Van Dyke & Associates, APLC (Plaintiff), a law firm, appeals
from an order of the trial court denying its petition to compel arbitration of
the underlying fee dispute with its former clients, defendants Mary Susan
Mack Oliver and Martha Ann Mack Abbott (together, Defendants). On
appeal, Plaintiff presents only one issue for our determination: Whether the
trial court erred in ruling that the arbitration provision delegated to the
court, rather than to the arbitrator, the threshold issue of arbitrability.
In performing its analysis of the issue, the trial court reviewed the
terms of the applicable fee agreement, determined that certain conditions
had not been satisfied, and ruled that “no operative contract was formed.” In
doing so, the court necessarily considered evidence of (non)performance and
(non)satisfaction of conditions of a contract. This was error. When tasked
with determining whether the parties delegated issues of arbitrability to the
court or the arbitrator, the court’s initial responsibility should have been to
determine whether a contract exists (not whether conditions have been
performed or satisfied) and, if so, to interpret the delegation clause (not the
entire arbitration provision) to determine whether the parties “clearly and
unmistakably” agreed that the arbitrator is to determine questions of
arbitrability. Unless this standard is met, the court, not the arbitrator, must
determine threshold issues of arbitrability.
In the trial court, however, neither side argued for an interpretation of
the delegation clause (as opposed to the full arbitration provision) or for the
application of the “clear and unmistakable” standard to such language. Thus,
by raising this argument for the first time on appeal, Plaintiff forfeited
appellate review of the issue. In any event, an application of the correct
standard leads to the same result: The parties entered into a fee agreement;
the agreement contained an arbitration provision; because the arbitration
provision did not “clearly and unmistakably” delegate to the arbitrator the
determination of issues of arbitrability, the court was required to decide such
issues. By reaching and deciding issues related to performance or

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satisfaction of conditions of the contract—which Plaintiff does not challenge
on appeal—the court necessarily decided that it, not the arbitrator, would
decide the threshold issue of arbitrability (and proceeded to provide a
substantive ruling regarding performance). Since the court’s implied ruling
regarding arbitrability is a correct decision of the only issue before us, we
affirm the trial court’s order denying Plaintiff’s petition to compel arbitration.
I. STATEMENT OF THE CASE
In November 2018, Plaintiff filed a Judicial Council form complaint
against Defendants and Bank of America, N.A., to collect attorney fees and
costs. The complaint contains three causes of action: breach of contract
against Defendants; common counts against Defendants; and declaratory
relief against Defendants and Bank of America, N.A.
In the cause of action for breach of contract, Plaintiff alleges that it and
Defendants entered into an “Attorney-Client Representation and Fee
Agreement (Hourly)” dated February 27, 2013 (2013 Fee Agreement).
(Bolding and some capitalization omitted.) In the 2013 Fee Agreement, the
parties described the scope and duties of Plaintiff’s services to “be limited to
Special Litigation Counsel only” in three specified probate court actions.
Plaintiff alleges that, on September 24, 2018, “[Defendants] breached the
[2013] Fee Agreement by failing to remit the balance due for legal services
performed through the date of termination” and seeks damages in the
amount of “the unpaid balance of $236,808.27.”
In the second cause of action, Plaintiff alleges common counts for an
open book account and for work, labor, services, and materials rendered.
Consistent with the breach of contract claim, Plaintiff seeks $236,808.27 for
the work, labor, services, and materials rendered.

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 In its third cause of action, Plaintiff alleges that it has asserted a valid
“Attorney’s Contractual Lien on and against the interests of, and future
distributions payable to, [Defendants] as beneficiaries and heirs under” a
specifically identified trust and a specifically identified estate. Plaintiff
further alleges that it sued Bank of America, N.A., in this declaratory relief
cause of action “as an account debtor-trustee” of the trust which “holds money

or property . . . subject to Plaintiff’s claim of [contractual] lien.”1 The
contract on which the lien is alleged is the 2013 Fee Agreement. Plaintiff
seeks a “judicial declaration . . . [of] Plaintiff’s rights under the [2013 Fee
Agreement.]”
Plaintiff attached as exhibits to its complaint copies of what it alleged
to be the 2013 Fee Agreement and the notice of attorney’s contractual lien
based on the 2013 Fee Agreement.
A. The Underlying Probate Matters
Under a heading entitled “Scope and Duties,” the 2013 Fee Agreement
identifies two “now pending” matters in the probate court (Underlying

Probate Matters).2 (Bolding and some capitalization omitted.) Plaintiff
represented Defendants in the Underlying Probate Matters, in which

Defendants did not prevail at trial.3 After entry of judgment, Plaintiff (on

1 The record on appeal contains no filings by the bank, and the bank is
not a party to the appeal.

2 The “Scope and Duties” of the 2013 Fee Agreement also identifies a
“previously pending” matter in the probate court. (Bolding and some
capitalization omitted.) The parties do not mention this matter in their
appellate briefing.

3 According to each of Defendants, “Mr. Van Dyke had lost all of the
claims that [he] had tried on our behalf.”

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behalf of Defendants and four others who are not parties to the present
litigation) prepared, and in June 2018 filed, a notice of appeal from the
judgment in the Underlying Probate Matters.
In late September 2018, Defendants hired and substituted new counsel
in place of Plaintiff in the Underlying Probate Matters. Correspondingly, in
early October 2018, new counsel replaced Plaintiff as Defendants’ counsel in
the appeal from the judgment in the Underlying Probate Matters.
For purposes of determining whether Defendants had meritorious
arguments for an appeal, replacement counsel spoke with prior trial counsel
(Plaintiff’s Scott Van Dyke), read the reporters transcripts from the trial, and
reviewed 38 boxes of documents from Plaintiff’s office. Following this work
and consultation with Defendants by new counsel, Defendants decided not to
pursue their appeal from the judgment initiated by Plaintiff in the
Underlying Probate Matters.
B. The Present Action
In January and May 2019, respectively, Oliver and Abbott each filed an
answer to the complaint in this action, denying the allegations and asserting
various affirmative defenses.
A few months later, in July 2019, Plaintiff first identified the existence
of a second fee agreement between Plaintiff and Defendants—i.e., one
entitled “Attorney-Client Representation and Fee Agreement (Flat
Fee/Hybrid Contingency)” dated July 7, 2018 (2018 Fee Agreement).
Although neither of Defendants recalled reaching a new fee agreement with
Plaintiff or signing this document and neither had in her possession a signed
copy, each acknowledged that a signature on the document appeared to be
hers.

5
 Toward the end of July 2019, Defendants together moved for leave to
file individual first amended answers and a joint cross-complaint. The
proposed cross-complaint was brought by Defendants and a living trust
administered by Abbott (as cross-complainants) against Plaintiff, Plaintiff’s
“Defined Benefit Pension Plan,” and Van Dyke personally (as cross-
defendants). The proposed cross-complaint alleged causes of action for:
(1) breach of contract (the 2013 Fee Agreement); (2) declaratory relief
(seeking declarations regarding (a) “the rights and responsibilities of the
parties” under their attorney-client relationship (alleging breaches of
fiduciary duties under the California Rules of Professional Conduct), (b) the
reasonable value of the professional services rendered by the cross-
defendants, including whether the cross-defendants owed Defendants a
refund, and (c) the validity of Plaintiff’s contractual lien); (3) breach of the
implied covenant of good faith and fair dealing in the 2013 Fee Agreement;
(4) breach of fiduciary duty (based on the former attorney-client relationship);

(5) rescission or cancellation of the 2018 Fee Agreement;4 and (6) an
accounting of the fees and costs billed by Plaintiff and paid by Defendants.
At the end of July 2019, pursuant to American Arbitration Association
Commercial Arbitration Rules forms, Plaintiff demanded that each of
Defendants arbitrates the following disputes: “Breach of Contract (Attorney-
Client Fee Agreement)” and “Cross-Complaint: Breach of Contract; Legal

4 Defendants, neither of whom had a copy of the 2018 Fee Agreement,
prepared their proposed cross-complaint before Plaintiff had provided them a
copy of the agreement. Thus, the proposed cross-complainants pleaded the
cause of action in the alternative: If the proposed cross-defendants are able
to establish the existence of the 2018 Fee Agreement, then the claim is for
rescission or cancellation; or, if the proposed cross-defendants are unable to
establish its existence, then the claim is one for misrepresentation.

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Malpractice.” Approximately three weeks later, Defendants rejected
Plaintiff’s demands.
Plaintiff filed a petition to compel arbitration in the action in
September 2019—which was approximately six weeks after Plaintiff first
demanded arbitration and approximately nine months after Plaintiff filed the
underlying action on the 2013 Fee Agreement. In the petition, Plaintiff

identified the 2018 Fee Agreement and its arbitration provision5 and alleged
“a controversy” regarding Defendants’ alleged nonpayment of Plaintiff’s

attorney fees and costs.6 In support, Plaintiff also filed a notice of hearing, a
memorandum of points and authorities, and a declaration with exhibits from
Van Dyke.

5 The arbitration provision, found at section 13.A. of the 2018 Fee
Agreement, provides in relevant part: “Any dispute between the parties
[Attorney and Client] regarding the construction, application or performance
of any services under this Agreement, and any claim arising out of or relating
to this Agreement or its breach, including, without limitation, claims for
breach of contract, professional negligence, breach of fiduciary duty,
misrepresentation, fraud and disputes regarding attorney fees and/or costs
charged under this Agreement . . . shall be submitted to binding arbitration
upon the written request of one party after the service of that request on the
other party. The parties shall appoint one person or agree upon a 3-person
panel to hear and determine the dispute. . .” (Arbitration Provision).
(Original brackets.)

6 In the prayer of its petition, Plaintiff seeks to “arbitrate the controversy
as herein alleged.” Paragraph 4 of the petition identifies the “controversy” as
“Defendants[’] refus[al] to pay [Plaintiff]” what is owed under the 2013 Fee
Agreement and 2018 Fee Agreement; and paragraph 5 identifies the
complaint in this action as having “aris[en] from that controversy.”
Curiously, the petition does not mention the claims or disputes in the
proposed cross-complaint.

7
 Defendants filed written opposition to the petition, which consisted of a
memorandum of points and authorities; declarations from Oliver, Abbott, and
two of their attorneys; 11 exhibits; and a request for judicial notice. In part,
Defendants argued that, because the 2018 Fee Agreement was not
enforceable, the Arbitration Provision was not enforceable. More specifically,
according to Defendants, the 2018 Fee Agreement “never took effect,” because
“the conditions precedent that were carefully specified by Mr. Van Dyke” in

the agreement were never satisfied.7
Plaintiff replied with a memorandum of points and authorities and a
second declaration from Van Dyke.
On November 8, 2019, the court entertained oral argument on both
Plaintiff’s petition to compel arbitration and Defendants’ motion for leave to
file amended answers and a cross-complaint. The court denied Plaintiff’s
petition on the basis that, because the Arbitration Provision is contained in a
contract with a condition precedent that did not occur, “no operative contract
was formed.” The court stayed the action for 20 days to allow Plaintiff time
to decide whether to appeal the denial of its petition; if Plaintiff did not

7 Defendants relied on the following two “CONDITIONS,” which are
found on page 1, paragraph 1, of the 2018 Fee Agreement:
• “This Agreement will not take effect, and [Plaintiff] will have no
obligation to provide legal services, until . . . [Defendants] pay[ ] the
initial deposit [of $2,500] . . . . Upon satisfaction of th[is and other]
conditions, this Agreement will be deemed to take effect as of the date
of entry of judgment in the underlying trial court matters.”; and
• “This Agreement shall not take effect . . . unless and until [Defendants]
ha[ve] remitted all fees and costs outstanding in the underlying trial
court matters (pursuant to the [2013 Fee Agreement]).”
Defendants further relied on evidence to the effect that these conditions had
not been satisfied.

8
appeal during that time period, then Defendants’ motion would be deemed
granted.
Plaintiff appealed from the order denying its petition to compel
arbitration within the 20-day stay. Thus, Defendants’ proposed amended
answers and cross-complaint were not filed, and this appeal proceeded.
II. DISCUSSION
On appeal, Plaintiff argues that the trial court erred in determining the
enforceability of the 2018 Fee Agreement, because the Arbitration Provision
delegates to the arbitrator, not to the court, the power to determine the scope
of the arbitrable issues. As we explain, the trial court did not, in the first
instance, interpret the 2018 Fee Agreement to determine whether the
Arbitration Provision covered “the question of arbitrability—which involves
the arbitrator’s authority over the subject matter of the dispute” (Patchett v.
Bergamot Station, Ltd. (2006) 143 Cal.App.4th 1390, 1397). Whereas the
subject matter of the parties’ general dispute may involve attorney fees, the
subject matter of the initial dispute before the court—and, indeed, the only

one addressed by Plaintiff in this appeal8—was whether the court or the
arbitrator would decide the question of arbitrability.
There is no uniform standard for reviewing an order denying a motion
to compel arbitration. (Lopez v. Bartlett Care Center, LLC (2019) 39
Cal.App.5th 311, 317.) “ ‘ “ ‘ “If the court’s order is based on a decision of fact,
then we adopt a substantial evidence standard. [Citation.] Alternatively, if
the court’s denial rests solely on a decision of law, then a de novo standard of

8 Notably, Plaintiff does not challenge the trial court’s interpretation of
the agreement. Thus, we do not reach the issue of whether any conditions of
the 2018 Fee Agreement were performed, satisfied, or excused. (See fn. 15,
post.)

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review is employed.” ’ ” ’ ” (Ibid.) Where, as here, neither the language of the
arbitration agreement nor the extrinsic evidence considered by the court is in
dispute, the applicable standard of review is de novo. (Harshad & Nasir
Corp. v. Global Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 543-544.)
We affirm if the trial court’s order is correct on any legal basis, even if
that basis was not invoked, because there can be no prejudicial error from
erroneous logic or reasoning if the decision itself is correct. (Hoover v.
American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1201.)
As in most appeals, because the trial court’s order on appeal is
“presumed to be correct,” Plaintiff (as the appellant) has the burden of
establishing reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
As we explain, we disagree with the trial court’s analysis, which was
based on the court’s determination that, because certain conditions of the
2018 Fee Agreement were not “satisfied[,] . . . no operative contract was
formed.” As we further explain, Plaintiff nonetheless did not meet its burden
of establishing reversible error. In part that is because, even though the trial
court did not apply the proper standard, Plaintiff forfeited appellate
consideration of the issue of whether the delegation clause clearly and
unmistakably delegated to the arbitrator the determination of issues of
arbitrability. In any event, even if we were to interpret the delegation clause,
the trial court did not err in determining arbitrability, since the parties to the
2018 Fee Agreement did not clearly and unmistakably agree to delegate to
the arbitrator issues of arbitrability.
A. Law
As a preliminary issue—one which the parties do not mention—we
must determine whether the Federal Arbitration Act (FAA; 9 U.S.C. § 1
et seq.) or the California Arbitration Act (CAA; Code Civ. Proc., § 1280

10
et seq.) applies to the issues on appeal. Although we have no difficulty

concluding that the CAA, not the FAA, applies,9 it makes no difference in
this case, since “California law is consistent with federal law on the question
of who decides disputes over arbitrability.” (Dream Theater, Inc. v. Dream
Theater (2004) 124 Cal.App.4th 547, 553 (Dream Theater).)
“California law, like federal law, favors enforcement of valid arbitration
agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal.4th 83, 97; accord, Aanderud v. Superior Court (2017) 13
Cal.App.5th 880, 889 (Aanderud).) As a result of this “ ‘strong public policy
in favor of arbitration[,] . . . any doubts regarding the arbitrability of a
dispute are resolved in favor of arbitration.’ ” (Aanderud, at p. 890; accord,
Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1,
24-25.) Public policy is not a consideration, however, until after a court has
found the parties agreed to arbitrate their dispute. (Metters v. Ralphs
Grocery Co. (2008) 161 Cal.App.4th 696, 701.) That is because “ ‘ “[t]here is

9 “ ‘The FAA applies when the contract [containing the arbitration
provision] “evidences a transaction involving interstate commerce.” ’ ”
(Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44
Cal.App.5th 834, 840.) The party claiming FAA preemption has the burden
to provide evidence that the transaction at issue involved interstate
commerce. (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 179; Woolls v.
Superior Court (2005) 127 Cal.App.4th 197, 211-214.) Here, neither side
presented evidence in the trial court or suggests on appeal that the 2018 Fee
Agreement should be governed by the FAA. In addition, there is nothing in
the language of the agreement—which is limited to a California law firm’s
representation of California clients in a California court—to suggest that the
2018 Fee Agreement evidences a transaction involving interstate commerce.
(See Woolls at p. 212 [the FAA does not apply to an agreement between a
California homeowner and a California contractor to renovate a California
residence].)

11
no public policy favoring arbitration of disputes which the parties have not
agreed to arbitrate.” ’ ” (Ibid.)
In AT&T Technologies v. Communications Workers of America (1986)
475 U.S. 643 (AT&T Technologies), a case under the FAA, our nation’s high
court reaffirmed certain basic principles of arbitration, the first two of which
guide us in this appeal: “ ‘arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which he has not
agreed so to submit’ ” (id. at p. 648); and the threshold question of
arbitrability is for judicial determination “[u]nless the parties clearly and
unmistakably provide otherwise” (id. at p. 649, italics added). California law
is consistent. According to our state supreme court, because “ ‘[a]rbitration is
strictly “a matter of consent” ’ [citation], ‘ “a party cannot be required to
submit to an arbitration any dispute which he has not agreed so to
submit.” ’ ” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252.)
Thus, “unless the parties specify otherwise, . . . they should not be required to
submit to an arbitrator the questions whether they have agreed to submit to
an arbitration at all or arbitrate a given dispute.” (Ibid.)
Federal law “allows parties to agree by contract that an arbitrator,
rather than a court, will resolve threshold arbitrability questions as well as
underlying merits disputes.” (Henry Schein, Inc. v. Archer and White Sales,
Inc. (2019) ___ U.S. ___, ___ [139 S.Ct. 524, 527] (Henry Schein), citing Rent-
A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 68-70 (Rent-A-Center);
see Rent-A-Center, at pp. 68-69 [“parties can agree to arbitrate ‘gateway’
questions of ‘arbitrability,’ such as whether the parties have agreed to
arbitrate or whether their agreement covers a particular controversy”];
First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943-945
(First Options).) If the parties dispute the threshold or gateway question of

12
arbitrability—i.e., “whether their arbitration agreement applies to the
particular dispute”—then “the question of who decides arbitrability is itself a
question of contract.” (Henry Schein, at p. ___ [139 S.Ct. at p. 527].) In this
regard, as we just explained, the court determines the answer to that
question “[u]nless the parties clearly and unmistakably provide otherwise” in
their agreement. (AT&T Technologies, supra, 475 U.S. at p. 649, italics
added; accord, Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79,
83-84 (Howsam).)
Likewise, under state law, “arbitrability of a dispute may itself be
subject to arbitration if the parties have so provided in their contract.”
(McCarroll v. Los Angeles County District Council of Carpenters (1957) 49
Cal.2d 45, 65, distinguished on other (federal) grounds as noted in Charles J.
Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 893.)
Where such an issue is presented, “it is necessary for the court to examine
the contract to ascertain whether the parties ‘have so provided.’ ” (Freeman
v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480.) In short, “the
court cannot avoid the necessity of making a certain threshold determination
of arbitrability, namely, whether the parties have in fact conferred this power
on the arbiter.” (McCarroll, at p. 66.) For purposes of this threshold
determination, the court interprets the arbitration provision to determine
whether it contains “clear and unmistakable evidence of the intent that the
arbitrator will decide whether” the parties intended to delegate to the
arbitrator issues of arbitrability. (Dream Theater, supra, 124 Cal.App.4th at
p. 557, italics added; see Gilbert Street Developers, LLC v. La Quinta Homes,
LLC (2009) 174 Cal.App.4th 1185, 1190-1192.)
Citing many of these same authorities, in Douglass v. Serenivision, Inc.
(2018) 20 Cal.App.5th 376 (Douglass), the court recently summarized: “The

13
default presumption—and it is a ‘strong’ one—is that ‘ “the parties intend
courts, not arbitrators, to decide . . . disputes about ‘arbitrability,’ ” e.g.,
whether there is an enforceable arbitration agreement or whether it applies
to the dispute at hand.’ [Citations.] However, the parties are free to
designate the arbitrator as the one to decide whether a particular dispute is
subject to arbitration [citations], although they must do so ‘clearly and
unmistakably’ if they wish to rebut the default presumption to the
contrary[.]” (Id. at pp. 386-387, italics added, citing Howsam, supra, 537 U.S.
at pp. 83-84; First Options, supra, 514 U.S. at p. 944.)
“The ‘clear and unmistakable’ test reflects a ‘heightened standard of
proof’ that reverses the typical presumption in favor of the arbitration of
disputes.” (Aanderud, supra, 13 Cal.App.5th at p. 892; see Rent-A-Center,
supra, 561 U.S. at p. 69, fn. 1.) In part that is because the determination of
who will decide issues of arbitrability “is not one that the parties would likely
focus upon in contracting, and the default expectancy is that the court would
decide the matter.” (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th
771, 782 (Ajamian), citing First Options, supra, 514 U.S. at pp. 943-945.)
As a result, “a contract’s silence or ambiguity about the arbitrator’s power
[to decide threshold issues of arbitrability] cannot satisfy the clear and
unmistakable evidence standard.” (Ibid.)
Where, as here, the issue is arbitrability, the court looks to the
arbitration provision, not to the contract as a whole; and the only question is
whether, under state law, the parties clearly and unmistakably agreed to
arbitrate issues of arbitrability under the contract. (Prima Paint Corp. v.
Flood & Conklin Mfg. Co. (1967) 388 U.S. 395, 403-404.) By contrast,
challenges to the enforceability of the underlying contract are not considered
at this stage. (Ibid.)

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 An arbitration agreement is subject to the same rules of interpretation
applicable to contracts generally. (Flores v. Nature’s Best Distribution, LLC
(2016) 7 Cal.App.5th 1, 9.) Thus, here, we will interpret the Arbitration
Provision with the objective of enforcing the intentions of the parties under
the applicable law dealing with delegation of arbitrability determinations.
(Ibid.)
B. Analysis
On appeal, Plaintiff argues that the trial court erred in failing to
consider and interpret the delegation clause—a provision that Plaintiff
contends clearly and unmistakably indicates the parties’ intent to have the
arbitrator, not the court, decide issues of arbitrability. On appeal,
Defendants present the same principal argument that they presented to, and
was accepted by, the trial court—namely, that because the evidence
established that certain conditions in the 2018 Fee Agreement had not been
performed (or satisfied or excused), the “agreement was never formed;
therefore, the parties did not have an agreement to arbitrate.”
(Underscoring, bolding, and some capitalization omitted.) Defendants also
present a number of additional arguments in support of their position,
including forfeiture (based on Plaintiff’s failure in the trial court to have
raised the issue of the parties’ clear and unmistakable intent in the
delegation clause) and ambiguity in the language of the delegation clause.
We begin by explaining why the trial court (at Defendants’ suggestion)
approached the issue incorrectly.
The Civil Code defines a “contract” as “an agreement to do or not to do
a certain thing.” (Civ. Code, § 1549.) The essential elements of a contract
are: “Parties capable of contracting”; “[t]heir consent”; “[a] lawful object”; and
“[a] sufficient cause or consideration.” (Id., § 1550.) In the present case,

15
without first considering the elements of a contract (id., § 1550) for purposes
of determining whether a contract existed (id., § 1549), the trial court applied
evidence of nonperformance of specific conditions in the 2018 Fee Agreement
and on that basis concluded that no contract existed. By reaching the issues
of whether a condition was precedent and whether the condition had been
satisfied, the court erred by deciding issues related to the merits of the
parties’ dispute, rather than limiting its initial determination to whether the
parties had a contract in which they agreed to delegate to the arbitrator

issues of arbitrability.10 Whether a contract exists (the 2018 Fee Agreement)
and whether a condition precedent was satisfied (Defendants to pay
outstanding balance due), which would trigger an obligation to perform
(Plaintiff to provide professional services), are two distinct concepts. For this
reason, we reject the trial court’s approach and analysis, which Defendants
encourage us to follow in deciding this appeal. Only after the court makes
the initial determination of whether the parties have a contract in which they
agreed to delegate to the arbitrator issues of arbitrability will the parties
know whether the court or the arbitrator will be tasked with deciding issues
of performance or satisfaction of conditions—i.e., the merits of the dispute.
We now turn to the sole issue on appeal—namely, whether, in the 2018
Fee Agreement, the parties delegated to the arbitrator the determination of

10 Indeed, at this stage—i.e., in determining whether a contract exists
and, if so, whether the parties delegated arbitrability issues to the
arbitrator—the court should not be determining whether a condition is
precedent, concurrent, or subsequent, or whether the condition has been fully
performed, partially performed, not performed, or excused. Those types of
decisions, depending on the scope of the arbitration provision (not the
delegation clause), will be decided in proceedings after the determination of
whether the parties delegated to the arbitrator issues of arbitrability.

16
issues of arbitrability.11 Here, Plaintiff seeks to have a dispute resolved by
arbitration. Plaintiff relies on the Arbitration Provision, which is contained
in the 2018 Fee Agreement—a document signed by Plaintiff and each of
Defendants. On appeal, Plaintiff contends, based on language within
Arbitration Provision, that it and Defendants agreed to delegate to the
arbitrator the responsibility of determining whether the underlying dispute
comes within the scope of the Arbitration Provision.
Given this background and de novo review, the issue on appeal becomes
whether Plaintiff met its burden of establishing that, based on the language
in the Arbitration Provision of the 2018 Fee Agreement, Plaintiff and
Defendants clearly and unmistakably agreed to delegate to the arbitrator
issues of arbitrability. (Aanderud, supra, 13 Cal.App.5th at pp. 891-892.) In
Aanderud, for example, the court concluded that the following language
evidenced the parties’ “clear and unmistakable” intent to delegate to the
arbitrator questions of arbitrability: “[T]he parties ‘agree to arbitrate all
disputes, claims and controversies arising out of or relating to . . . the
interpretation, validity, or enforceability of this Agreement, including the
determination of the scope or applicability of [the arbitration provision].’ ”
(Id. at p. 892; see Malone v. Superior Court (2014) 226 Cal.App.4th 1551,
1560 [court enforced delegation clause that provided “ ‘[t]he arbitrator has
exclusive authority to resolve any dispute relating to the interpretation,
applicability, or enforceability of this binding arbitration agreement’ ”];
Momot v. Mastro (9th Cir. 2011) 652 F.3d 982, 988 [court enforced delegation
to the arbitrator of the authority to determine “the validity or application of

11 Notably, on appeal, Defendants do not argue that the 2018 Fee
Agreement lacks any of the essential elements of a contract.

17
any of the provisions of” the arbitration provision].) In each case, the
respective appellate court concluded that the parties clearly and
unmistakably delegated to the arbitrator issues of arbitrability. (Aanderud,
at p. 892; Malone, at p. 1560; Momot, at p. 988.)
As we explain, however, in this appeal Plaintiff forfeited appellate
review of the “clear and unmistakable” analysis of the delegation clause. As
we further explain, even if we were to reach the merits and apply the proper
standard, the result would be no different: The court would determine issues
of arbitrability, since the delegation language on which Plaintiff relies is, at
best, ambiguous.
In the trial court, Plaintiff did not mention, let alone argue for an
application of, the “clear and unmistakable” standard that must be applied
when interpreting a delegation clause under the long-standing authorities
cited ante (some of which Plaintiff does acknowledge in its appellate

briefing).12 Rather, Plaintiff argued only that a petitioner has the burden of
proving by a preponderance of the evidence the existence of an enforceable
arbitration provision; and any party opposing the petition has the burden of
proving by a preponderance of the evidence any fact necessary to establish
that the arbitration provision is unenforceable. Nowhere in any of the trial
court submissions (by either side) is there the mention of a delegation clause
or the standard to be applied in interpreting one. (See Aanderud, supra, 13

12 These authorities include, but are not limited to: Rent-A-Center, supra,
561 U.S. at page 69, footnote 1; Howsam, supra, 537 U.S. at page 84; First
Options, supra, 514 U.S. at pages 944-945; AT&T Technologies, supra, 475
U.S. at page 649; Douglass, supra, 20 Cal.App.5th at pages 386-387;
Aanderud, supra, 13 Cal.App.5th at page 892; Dream Theater, supra, 124
Cal.App.4th at page 557.

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Cal.App.5th at p. 892 [“The ‘clear and unmistakable’ test [applied to
interpreting delegation clauses] . . . reverses the typical presumption in favor
of the arbitration of disputes”].) For this reason, Plaintiff forfeited appellate
review of the interpretation of the delegation clause. (Cable Connection, Inc.
v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12 [“ ‘A party is not
permitted to change his position and adopt a new and different theory on
appeal. To permit him to do so would not only be unfair to the trial court, but
manifestly unjust to the opposing litigant.’ ”].) In Rent-A-Center, supra, 561
U.S. 63, for example, the Supreme Court ruled that, because the party who
argued that an arbitration agreement was unenforceable “did not contest the
validity of the delegation provision in particular” until the appeal to the
Supreme Court, “[h]e brought this challenge to the delegation provision too
late”; i.e., “he forfeited” it. (Id. at pp. 74-76 & fn. 5, italics added.)
Even if we were to consider the untimely authorities and argument
cited by Plaintiff for the first time on appeal, the result would be no different.
As we explain, if we were to analyze the language of the 2018 Fee Agreement
in the context of the above-cited applicable law, then the court, not the
arbitrator, would decide issues of arbitrability.
We would first focus on the Arbitration Provision, which is found at
section 13.A. of the 2018 Fee Agreement and set forth in detail at footnote 5,
ante. According to Plaintiff, the “delegation clause” is contained in part of the
first sentence and provides as follows:
“ ‘Any dispute between the parties [Attorney and Client]
regarding the construction, application or performance of
any services under this Agreement . . . shall be submitted
to binding arbitration upon the written request of one party
after the service of that request on the other party’ ”
(Delegation Clause). (Original brackets; bolding omitted.)

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More specifically, Plaintiff suggests, based on the following emphases within
the Delegation Clause, the parties intended to delegate to the arbitrator all
issues of arbitrability:
“The clause states unambiguously that ‘[a]ny dispute
between the parties [Attorney and Client] regarding the
construction, application or performance of any services
under this Agreement . . . shall be submitted to binding
arbitration upon the written request of one party after the
service of that request on the other party.’ ” (Original
brackets, italics, and ellipses.)
In its opening brief, without more, Plaintiff argues that “[t]he
[D]elegation [C]lause here is clear and unmistakable.” We disagree. By
emphasizing three words in different parts of the same sentence—which
together are meaningless (“any dispute . . . construction”)—Plaintiff has not
met its burden of clearly or unmistakably establishing the parties’ intent to
do anything. As we explained ante, “a contract’s silence or ambiguity about
the arbitrator’s power [to decide threshold issues of arbitrability] cannot
satisfy the clear and unmistakable evidence standard.” (Ajamian, supra, 203
Cal.App.4th at p. 782; see First Options, supra, 514 U.S. at pp. 943-945).
Throughout the proceedings in both the trial court and again on appeal,
Plaintiff has not differentiated between arbitration provisions and delegation
clauses within arbitration provisions. For example, in its reply brief on
appeal, Plaintiff tells us that language “[n]early identical” to that in the
Delegation Clause here “has been considered ‘the paradigm of a broad
[arbitration] clause.’ ” (Citing and quoting Fleet Tire Service of North Little
Rock v. Oliver Rubber Co. (8th Cir. 1997) 118 F.3d 619, 621 (Fleet Tire);

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bracketed material added by Plaintiff, italics added.)13 In Fleet Tire,
however, the court was neither presented with nor considered a delegation
clause. All that was at issue was the enforceability of an arbitration
provision; and the court ruled not only (as Plaintiff tells us) that the
arbitration provision at issue “is broad” enough to cover the underlying
dispute, but also (which Plaintiff ignores) that the court, not the arbitrator,
interpreted the arbitration provision (and made the decision to delegate the

underlying dispute to the arbitrator).14 (Id. at p. 621.)

13 In Fleet Tire, the Eighth Circuit was presented with the following
arbitration provision: “Any controversy or claim arising out of or relating to
this Agreement or any breach of its terms shall be settled by arbitration in
accordance with the rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof. The expense of such arbitration shall
be divided equally between the parties. The arbitration provided for in this
[provision] shall be the exclusive remedy for any dispute between [the
parties], as a substitute for any and all legal remedies and proceedings that
would otherwise be available to them.” (Fleet Tire, supra, 118 F.3d at p. 620.)

14 Likewise, neither of the other two cases cited (without discussion) by
Plaintiff along with Fleet Tire involved the interpretation of a delegation
clause. In each, the court interpreted an arbitration provision and, after
doing so, enforced the provision and ordered the underlying dispute to
arbitration. (Prudential Lines, Inc. v. Exxon Corp. (2d Cir. 1983) 704 F.2d 59,
63 [“The question of whether a dispute between the parties is covered by the
arbitration agreement is for the courts to decide” (italics added)]; Larkin v.
Williams, Woolley, Cogswell, Nakazawa & Russell (1999) 76 Cal.App.4th 227,
231 [“The question at issue is whether the arbitration agreement is
enforceable” (italics added)].)

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 For the foregoing reasons, in the present appeal, Plaintiff did not meet
its burden of establishing that the trial court erred in determining

arbitrability for purposes of ruling on Plaintiff’s petition.15
III. DISPOSITION
The November 8, 2019 minute order denying Plaintiff’s petition to
compel arbitration is affirmed. Defendants are entitled to their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

15 As we explained in the text, ante, the trial court here failed to analyze
whether the parties had clearly and unmistakably delegated to the arbitrator
the power to decide issues of arbitrability. Instead, the court reached the
ultimate issue (and concluded that “no operative contract was formed” by the
2018 Fee Agreement). In doing so, however, the court impliedly ruled that
the parties agreed that it, not the arbitrator, would decide issues of
arbitrability. Since that is the only ruling challenged by Plaintiff in its
appeal, that is the only ruling we review; we express no opinion on the court’s
rulings that certain conditions of the 2018 Fee Agreement were not
“satisfied” or that “no operative contract was formed.”

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