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C.A. Thwarts Disbarred Lawyer in Effort Judge Salkin Labeled ‘Gamesmanship’
By a MetNews Staff Writer
A disbarred lawyer whose ex-client gained an arbitration award requiring the remittance of $63,694 that was wrongfully withheld from settlement funds was properly barred by the judge who confirmed the award from filing a cross-complaint for fees that were purportedly owed for work unrelated to the settled case or to have his cross claims decided in a second arbitration proceeding, the Court of Appeal for this district has held.
Acting Presiding Justice Lamar Baker of Div. Five authored the opinion, filed Wednesday and not certified for publication. It affirms a judgment by Los Angeles Superior Court Judge Valerie Salkin in favor of an ex-client of Woodland Hills real estate broker Michael Philip Rubin, whose name was stricken from the roll of attorneys by a June 21, 2021 order of the California Supreme Court and whose conduct in the matter before her was described by the judge as “gamesmanship.”
The former client, Rabin Babazadeh, on Dec. 31, 2018, filed a petition to compel arbitration based on a provision of a retainer agreement under which Rubin represented him in an action for usury. He contended that Rubin pocketed some of his share of funds from a settlement of that action.
Rubin was served with the summons and petition on July 3, 2019; on Sept. 3, 2019, his default was entered; and on Feb. 18, 2022, the court ordered the case into arbitration, which took place before retired Los Angeles Superior Court Judge John Shook of Alternative Resolution Centers. Shook did not address Rubin’s claim for the reasonable value of his services outside the usury action because no cross-complaint had been filed in the ex-client’s suit against Rubin and, he found, the issue was not before him.
The former lawyer, acting in pro per, argued before Salkin that if his claims for compensation on a quantum meruit basis are within the scope of the arbitration provision in his retainer agreement with Babazadeh, an arbitration of those claims should be ordered, and if they are not covered by the provision, he should be permitted to file a cross-complaint.
Salkin’s Ruling
Last March 16, Salkin ruled:
“The Court notes that Respondent, had multiple opportunities throughout the years since the petition was filed in 2018 to request his alleged cross-claims to be considered as part of the arbitration proceeding. Instead, he repeatedly appeared in court while he knowingly remained in default, he vigorously opposed Petitioner’s motion to compel arbitration, he failed to timely assert his cross claims (in a competing petition to compel arbitration or a separate action), he fully participated in the arbitration, and, after the arbitrator’s award was issued and only two hours after the Court indicated in a tentative ruling the Court’s intention to confirm the award, he filed the instant motions. The Court declines to reward such gamesmanship.
“Respondent may remain at liberty to bring his quantum meruit claim against Petitioner as a separate case or in a separate petition, provided such a claim is not time barred. As to the instant case, however, the Court sees no road forward for Respondent’s purported claims, and his motion is denied.”
Appellate Brief
In the July 21, 2023 brief on Babazadeh’s behalf, attorney John G. Burgee of the Woodland Hills firm of Burgee & Abramoff said:
“Appellant’s principal contention is that after the arbitration had been conducted, and he lost, and there were no grounds to vacate the arbitrator’s award so that the trial court was legally compelled to enter judgment, the trial court was required to order a new arbitration for his purported counterclaims. Appellant was essentially attempting to board the arbitration train after it had left the station (and he did not even purchase a ticket)—in fact, the train had already reached its destination. Needless to say, there was no error by the trial court in denying Appellant’s motion to compel arbitration of his purported counterclaims on March 16, 2023.”
Burgee went on to say:
“Appellant is attempting to have his cake and eat it. Appellant spends many pages in his brief insisting that this matter is not an ‘action’, but a special proceeding….Appellant is correct, a Petition to Compel Arbitration is a special proceeding which is not founded upon the filing of a complaint. As there was no complaint filed, a cross-complaint is not an authorized pleading.
“The Code delineates what pleadings may be filed in a special proceeding regarding arbitration. Those pleadings are a petition and a response to petition. CCP § 1290. A cross-complaint is only authorized for ‘a party against whom a cause of action has been asserted in a complaint or cross-complaint.’ CCP § 428.10. It is clear that a cross-complaint is not authorized in this special proceeding.”
Baker’s Opinion
In his opinion upholding the judgment, Baker wrote:
“Rubin contends he must be permitted to prosecute his claims either in a new arbitration or via a cross-complaint in this case. We hold to the contrary. Rubin waived any right to compel arbitration of his cross-claims, and a cross-complaint is not authorized in response to a petition to compel arbitration.”
As to waiver, Baker noted that Salkin did not employ that term, but said that her reasoning “amounts to a straightforward application of waiver principles,” declaring that “the motion to compel arbitration was correctly denied because the issue was waived.” He explained:
“Rubin’s failure to prosecute his cross-claims in the original arbitration was inconsistent with the right to arbitrate.”
Filing of Cross-Complaint
Addressing the motion for leave to file a cross-complaint, Baker said:
“Babazadeh commenced the trial court proceedings with a petition to compel arbitration. Pursuant to Code of Civil Procedure section 1290, a proceeding under the California Arbitration Act ‘is commenced by filing a petition. Any person named as a respondent in a petition may file a response thereto.’ Nothing in Code of Civil Procedure section 1290 suggests the respondent is entitled to file a cross-complaint.”
He continued:
“This is confirmed by Code of Civil Procedure section 428.10, which provides for the filing of a cross-complaint by ‘[a] party against whom a cause of action has been asserted in a complaint or cross-complaint,’ but makes no reference to a petition to compel arbitration….Rubin bases his vague assertion that ‘[t]here is a plethora of cases involving motions to compel arbitration which involve cross-complaints’ on cases that did not commence with a petition to compel arbitration.”
The case is Babazadeh v. Rubin, B328350.
Rubin’s Disbarment
The State Bar Court’s Review Department said on April 16, 2021, in recommending the disbarment of Rubin:
“For the third time, Rubin is before this court because he has failed to meet his professional obligations. He has committed multiple serious violations in different client matters….We conclude that further probation and suspension would be insufficient to prevent him from committing future misconduct that would endanger the public and the profession. Accordingly, the public, the courts, and the legal profession are best protected if Rubin is disbarred.”
The most recent offenses included commingling his personal funds and client trust funds, holding back on remitting funds to a client, and forging or causing another to forge a client’s signature on discovery responses.
In 1993, Rubin incurred a private reproval based on bringing a loaded gun, in his briefcase, into the Los Angeles Superior Court’s Van Nuys courthouse. In 1997, he was placed on a one-year suspension for battery, unreasonable delays in disbursing funds to client funds, charging an unconscionable fee, and other violations of the rules.
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