GIFFORD, DEARING & ABERNATHY, LLP v. LELIA MARTINEZ

of the malice standard. Something more than these bare, conclusory allegations is required to state a claim for punitive damages.

Second, Cross-Complainants seek civil fines in connection with their statutory privacy claim. (FAXC, P. 47; Prayer, P. 12.) Under Civil Code section 1708.8, subd. (d), "[a] person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000)." (Civ. Code, Sec. 1708.8, subd. (d).)

However, under Civil Code section 1708.8, subd. (m), "[a] proceeding to recover the civil fines specified in subdivision (d) or (e) may be brought in any court of competent jurisdiction by a county counsel or city attorney." (Civ. Code, Sec. 1708.8, subd. (m)(1), italics added.) In other words, Civil Code section 1708.8 does not authorize private litigants to recover civil fines as a remedy for a violation of this statutory framework.

Cross-Complainants do not oppose this portion of the Shermans' motion to strike. Therefore, the Shermans' Motion to Strike is GRANTED with LEAVE TO AMEND with respect to Cross-Complainants' punitive damages request and without leave to amend with respect to Cross-Complainants' request for civil fines.

Plaintiffs/Cross-Defendants Patrick Sherman and Alison Sherman to serve notice of ruling. This tentative ruling ("TR") shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel and posted to court website on 9/9/26 at 11 a.m.

[1] Cross-Complainants inadvertently cite Civil Code section 1708.08 in the FAXC, but the Court construes this citation as a typographical error which was clearly intended to identify Civil Code section 1708.8 as the statutory authority for their seventh cause of action.

[2] "Malice" may be demonstrated by allegations of conduct "intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others." (Id., Sec. 3294, subd. (c)(1).)

"Oppression" may be demonstrated by allegations of "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." (Id., Sec. 3294, subd. (c)(2).)

"Fraud" may be demonstrated by allegations of "intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury." (Id., Sec. 3294, subd. (c)(3).)

9:15 a.m., Thursday, Sept. 9, 2026 GIFFORD, DEARING & ABERNATHY, LLP v. LELIA MARTINEZ [26STCP00807] PETITION TO COMPEL ARBITRATION OF PETITIONER GIFFORD, DEARING & ABERNATHY, LLP

TIMELINE: Action for attorneys' fees for legal services rendered

1/14/2021: Respondent Lelia Martinez ("Respondent") hires Petitioner Gifford, Dearing & Abernathy, LLP ("Petitioner") to represent her as Special Administrator of the Estate of Ramon Martinez, Respondent's deceased husband (the "Estate"), for purposes of handling trust litigation. Respondent agrees to pay Petitioner fees for the firm's legal services pursuant to a Special Administration Fee Agreement.

3/3/2021: After a general probate is opened for the Estate Respondent engages Petitioner to represent her as General Administrator of the Estate. Once again, Respondent agrees to pay Petitioner fees pursuant to a General Administration Fee Agreement.

2/7/2023: Petitioner sends Respondent a letter indicating the total attorneys' fees and costs incurred for the time spent on the administration of the Estate. Respondent does not send the payment. During the following year, Petitioner makes multiple follow-up communications regarding the outstanding administration tasks and payment of fees and costs but does not receive any response.

10/3/2024: Petitioner serves on Respondent a demand for the outstanding attorneys' fees and costs and a Notice of Client's Right to Arbitrate through the Mandatory Fee Arbitration Program through the bar association. Respondent fails to respond.

2/14/2025: Petitioner sends Respondent a letter stating that her 30 days to apply for the arbitration program had expired and proposed private arbitration under the Fee Agreements. Respondent fails to respond.

10/14/2025: Petitioner sends respondent a letter of intent to file a Petition to Compel Arbitration pursuant to the Fee Agreements if Respondent failed to respond by 10/31/2025. Once again, Respondent fails to respond.

12/5/2025: Petitioner files a Motion to be Relieved as Counsel in the probate action. The motion is granted.

2/27/2026: Petitioner files the first Petition to Compel Arbitration.

4/30/2026: The Court denies Petitioner's first Petition due to the failure to demonstrate adequate service of process in compliance with the Code of Civil Procedure.

8/6/2026: Petitioner files the instant Petition to Compel Arbitration, followed by the Notice of Hearing on 8/19/2026. According to Petitioner's Proof of Service, Respondent was served with the Petition and Notice of Hearing on 8/18/2026 by personal service. As of 9/9/2026, no Opposition has been received.

TENTATIVE RULING: PETITION TO COMPEL ARBITRATION OF PETITIONER GIFFORD, DEARING & ABERNATHY, LLP is GRANTED.

PETITION TO COMPEL ARBITRATION

Petitioner moves to compel the parties' fee dispute to arbitration pursuant to the arbitration provisions in the Fee Agreements, executed in connection with Petitioner's representation of Respondent in an estate administration matter.

The Court finds that Petitioner has cured the previously identified service defects. Specifically, Petitioner filed an updated Proof of Personal Service indicating that Respondent has now been personally served with the subsequent Petition and Notice of Hearing by a registered process server more than 10 days in advance of this hearing. (See Code Civ. Proc., Sec. 1290.4, subd. (b)(1).) Based on the filing of a valid Proof of Service, Petitioner is entitled to a presumption of valid personal service. Accordingly, the Court will consider the merits of the Petition, notwithstanding the fact that Respondent fails to appear.

The Court finds that Petitioner has successfully overcome its burden in petitioning to compel arbitration. Under Code of Civil Procedure section 1281.2, "[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists..." subject to certain inapplicable exceptions. (Code Civ. Proc., Sec. 1281.2.)

Attaching a copy of the parties' signed agreement to arbitrate signed is sufficient for Petitioner to meet its initial burden. (Bannister v. Marinidence Opco, LLC ¿ (2021) 64 Cal.App.5th 541, 543-44.) Here, Petitioner submits copies of the Fee Agreements. (Pet., Exhs. 1-2.)

Paragraph 8 of both Fee Agreements states: In any dispute arising out of, or related to, a claimed breach of this agreement, the professional services rendered by us, or your failure to pay fees for professional services and other expenses specified, or any other disagreement of any nature, type or description, regardless of the facts or the legal theories that may be involved, such dispute shall be resolved by binding arbitration by an arbitrator mutually agreed upon by the parties. In the event that the parties cannot agree, each party shall choose an arbitrator, and those two arbitrators shall then select a single neutral arbitrator who will hear the dispute.

Discovery for this binding arbitration shall be limited to that which is allowed under the California statutes governing "limited civil cases." [sic] Including all rights and remedies thereunder. The arbitration shall take place in Los Angeles unless otherwise agreed upon in writing. Except as mentioned in Paragraph 6 above, each party shall bear its own attorney's fees and costs. No legal action, including the arbitration proceedings described in Paragraph 8, may be brought by you for any cause of action against this firm or any agent or employee of this firm, unless you have complied with all the terms and provisions of this agreement. (Pet., Exh. 1, P. 8; Exh. 2, P. 8.)

Petitioner further asserts that on October 3, 2024, Respondent was served by email and US Mail with a Notice of Client's Right to Arbitrate through the Mandatory Fee Arbitration Program with the local bar association. (Pet., P. 15.) Respondent failed to respond to this letter. (Ibid.)

On February 14, 2025, Petitioner notified Respondent via USPS Priority Mail that the 30-days for fee arbitration through a bar association had expired and proposed private arbitration through Alternative Resolution Centers. (Id. P. 16.) Respondent failed to respond to Petitioner's demand. (Ibid.)

On October 14, 2025, Petitioner notified Respondent of its intent to file a Petition to Compel Arbitration, giving Respondent a deadline of October 31, 2025 to voluntarily arbitrate the fee dispute. (Id. P. 19.) Respondent again failed to respond. (Ibid.)

Based on these facts, the Court finds that Petitioner has set forth sufficient evidence of a written agreement to arbitrate and Respondent's refusal to arbitrate the fee dispute, satisfying Petitioner's moving burden under Code of Civil Procedure section 1281.2. As Respondent fails to oppose the instant Petition, she fails to overcome her responsive burden of proving any defense to compelling arbitration. (Banner Entertainment, Inc. v. Superior Ct. (Alchemy Filmworks, Inc.), 62 Cal.App.4th 348, 356-57.) ¿ Therefore, the Petition to Compel Arbitration is GRANTED.

Petitioner Gifford, Dearing & Abernathy, LLP to serve notice of ruling. This tentative ruling ("TR") shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order. TR emailed to counsel and posted to court website on 9/9/26 at 11 a.m. | Home -->)" -->