Metropolitan News-Enterprise


Wednesday, August 9, 2006


Page 3


Court Criticizes Law Firm’s Mischaracterization of the Law


By a MetNews Staff Writer


The Fourth District Court of Appeal criticized an Irvine firm yesterday in an unpublished opinion for arguing a legal position contrary to what the same court had ruled in a published opinion in a prior case involving the same firm.

Justice William W. Bedsworth, writing for Div. Three, said:

“In this case, we deal with tactics which were heavy-handed at best, and at worst could be viewed as a deliberate attempt to deprive a pro per plaintiff of the opportunity to air his grievance in any forum. Reluctant as we are to cast aspersions, we must reverse the judgment, and cannot spare trial counsel what the record seems to indicate is well-earned criticism.”

The court reversed summary judgment to defendant St. John Knits Inc.— represented at trial and on appeal by the Irvine firm Payne & Fears in a wrongful termination case brought by Behzad Zamani— and remanded the case to the trial court.

When Zamani began working for St. John in 1997 as a head mechanic, he signed a written employment offer which provided that all disputes would be resolved by binding arbitration to the “fullest extent allowed by law.”

After St. John terminated Zamani’s employment in 2002, he filed suit in Orange Superior Court. St. John raised the arbitration provision as an affirmative defense, but did not file a motion to compel arbitration. 

Instead, it “engaged in a campaign to convince Zamani to ‘stipulate’ to arbitration,” Bedsworth said.

During a court hearing in which Zamani appeared in pro per, and stated that he wanted to go to trial, defense counsel asked for “a representation on the record by the plaintiff . . . that he is stating that under no circumstances will he agree to arbitration – that he’s waiving his rights to arbitration.”

The court then said to Zamani “Sir?” And Zamani replied “I’m refusing the arbitration? . . . Yes.” The court then set the matter for trial.

St. John filed a motion for summary judgment which the court granted, stating that “it is undisputable by admissible evidence that . . . all of Zamani’s causes of action are subject to final and binding arbitration and Zamani expressly and impliedly waived his right to arbitration.”

The court entered judgment pursuant to the order.

Bedsworth noted that:

  “Three years ago, in Kalai v. Gray (2003) 109 Cal.App.4th 768, we tried to make it clear that a plaintiff will not be deprived of his right to proceed with his claim in arbitration merely because he first attempted to litigate it in court. As we explained, our Supreme Court had previously stated that a waiver of the right to proceed in arbitration “occurs when the merits of the dispute have been litigated by the parties.”

The justice continued:

“Unfortunately, our message was apparently not clear to defendant St. John Knits, Inc. (St. John), despite the fact it is represented by the same law firm that represented the prevailing party in Kalai. Or perhaps it was clear, and that is why counsel omitted any mention of Kalai before the trial court in this case.

Noting that St. John used the same authorities the court found unpersuasive in Kalai, Bedsworth said:

  “Of course, counsel is always free to disagree with our published opinions (even to disparage them, privately) to distinguish them or perhaps to argue they are inconsistent with other, more persuasive authority. What counsel cannot do is mischaracterize the state of the law.”

Bedsworth concluded:

“To characterize counsel’s efforts as disturbing would be mild, and St. John’s current efforts to distinguish Kalai in this appeal are no improvement.”

Payne and Fears attorney Jane M. Flynn, who worked on the appeal, told the MetNews that she hadn’t read yesterday’s opinion, but thought Kalai was distinguishable because the plaintiff in that case did nothing more than file suit.

Irvine attorney Sima Fard, who represented Zamani on appeal, was not available for comment.

The case is Zamani v. St. John Knits Inc., G035818.


Copyright 2006, Metropolitan News Company