Opinion
B305183
02-17-2021
LUZ FRAUSTO, Plaintiff and Respondent, v. LAWYERS FOR EMPLOYEE AND CONSUMER RIGHTS, APC, et al., Defendants and Appellants.
Law Office of Jon Borderud and Jon Borderud for Defendants and Appellants. Makarem & Associates, Ronald W. Makarem and Jared V. Walder; Law Offices of Tanya Gomerman, Tanya Gomerman, Maria Bourn and Ashley Pellouchoud for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. EC069161) APPEAL from an order of the Superior Court of Los Angeles County, John J. Kralik, Judge. Affirmed. Law Office of Jon Borderud and Jon Borderud for Defendants and Appellants. Makarem & Associates, Ronald W. Makarem and Jared V. Walder; Law Offices of Tanya Gomerman, Tanya Gomerman, Maria Bourn and Ashley Pellouchoud for Plaintiff and Respondent.
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Defendants and appellants Lawyers for Employees and Consumer Rights, APC (Lawyers) and Robert Byrnes (Byrnes) (collectively Lawyers) appeal an order in a legal malpractice action that requires them either to pay plaintiff and respondent Luz Frausto's (Frausto) costs and administrative fees of arbitration in excess of $1,000, or to waive arbitration of the matter.
As discussed below, we perceive no error in the trial court's ruling and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings.
By way of background, pursuant to a written contingency fee retainer agreement, the Lawyers firm (formerly known as Lawyers for Workplace Fairness) and Byrnes represented Frausto in an underlying action against her former employer.
On August 17, 2018, Frausto filed the instant action against Lawyers alleging causes of action for legal malpractice, breach of contract, and breach of fiduciary duty, arising out of their legal representation of her in the underlying action.
2. Motion to compel arbitration.
On October 30, 2018, Lawyers filed a motion to compel arbitration pursuant to the arbitration provision set forth in the retainer agreement at paragraph 8, which states:
"Binding Arbitration Agreement. If at any point before, during or after Our representation related to this Agreement there is a dispute between You and Attorneys, the parties (Client and Attorneys) agree to submit the dispute to single party binding arbitration, which will be subject to the Federal Arbitration Act, 9 U.S.C. §§ 1 et. seq. Any proceedings shall be between the parties only and not representative or class claims and administered in Los Angeles, California by the American Arbitration Association [(hereafter AAA)]. Any decision by the arbitrator shall be subject to appeal to a second arbitrator who shall proceed, to the extent practicable, pursuant to the laws governing civil appeals in California. CLIENT IS ADVISED THAT BY AGREEING TO BINDING ARBITRATION, CLIENT IS GIVING UP HIS OR HER RIGHT TO A JURY TRIAL AND OTHER PROCEDURAL ASPECTS OF A JURY TRIAL. CLIENT ACKNOWLEDGES THAT HE OR SHE HAS HAD AN OPPORTUNITY TO CONSULT WITH AN INDEPENDENT LAWYER OF CLIENT'S CHOOSING, WHETHER OR NOT CLIENT HAS DONE SO, REGARDING THIS ARBITRATION PROVISION (AND THE AGREEMENT AS A WHOLE) PRIOR TO AGREEING."
3. Frausto's opposition to the motion to compel arbitration, in which she asserted her inability to afford the expense of arbitration.
Frausto opposed the motion to compel arbitration, contending, inter alia, that the arbitration provision was procedurally unconscionable because it was contained in an adhesion contract that failed to disclose the disadvantages of arbitration, and was also substantively unconscionable because it imposed prohibitive costs on her. "[I]t requires the client—presumptively an unemployed low wage earner without the means to hire an hourly attorney—to pay upwards of $10,000 in arbitration costs just to have her case heard, and thereafter thousands of dollars per day for each day of arbitration."
Frausto's supporting declaration stated: "I am informed and believe that the arbitration fees and costs to prosecute my case would exceed $10,000. I cannot afford to pay that much money."
4. Trial court's order granting the motion to compel arbitration.
On April 15, 2019, after hearing the matter, the trial court entered an order granting the motion to compel arbitration. The trial court found "there is no evidence that the arbitration agreement was an adhesion contract," and "[a]t most, there is a very low indication of procedural conscionability." The trial court also found "low, if any, indications of substantive unconscionability," noting that Frausto had failed to cite any case law supporting her position that "requiring her, an unemployed low wage earner, to pay arbitration costs is substantively unconscionable."
5. Frausto's petition for writ of mandate.
On June 21, 2019, Frausto filed a petition for writ of mandate seeking to set aside the order compelling arbitration. Frausto contended, inter alia, the retainer agreement's arbitration provision was substantively unconscionable "because it impose[d] prohibitive up-front costs on [her]." Frausto argued that case law had extended the prohibition on up-front costs in employment cases (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 107-113 (Armendariz)) to consumer cases generally. (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 90 (Gutierrez) ["it is substantively unconscionable to require a consumer to give up the right to utilize the judicial system, while imposing arbitral forum fees that are prohibitively high"].)
6. Order requesting preliminary response.
After reading and considering Frausto's petition for writ of mandate, this court directed Lawyers to file a preliminary response. The order requested that Lawyers address, inter alia, whether the arbitration clause was substantively unconscionable, and "[u]nder the applicable arbitration rules, who is responsible for paying the arbitration filing fee and how much is that fee?"
7. Issuance of alternative writ of mandate.
Following the filing of a preliminary response by Lawyers and a reply by Frausto, on December 13, 2019, this court issued an alternative writ of mandate, stating:
"Based on the record before this court, it appears petitioner may be entitled to relief, though not to the extent sought in the petition. Specifically, in connection with petitioner's unconscionability claim, there appears to be a question regarding petitioner's ability to pay the costs and fees required for her to participate in the arbitration ordered by the respondent trial court. To address this potential problem, [Lawyers] have suggested that petitioner be given an opportunity in the trial court to establish her inability to pay for her share of the arbitration costs and fees in accordance with procedures such as those described in Gutierrez[, supra,] 114 Cal.App.4th 77, 87, and Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 96 [(Roldan)].
"This approach seems appropriate. Specifically, this court believes the trial court should (1) conduct a hearing to determine if petitioner is financially able to pay her share of the costs and fees of arbitration, and (2) if the court determines petitioner is unable to pay those costs and fees (and petitioner is unable to obtain a waiver or reduction in her financial obligation from the [AAA]), to provide [Lawyers] with an opportunity to agree to pay the costs and fees that petitioner is unable to pay or to waive their right to arbitration."
8. Trial court's response to the alternative writ.
On December 17, 2019, in response to the alternative writ, the trial court vacated its April 15, 2019 order granting the motion to compel arbitration and entered a new order stating it would conduct a hearing (1) to determine whether Frausto was financially able to pay her share of the costs and fees of arbitration, and (2) if the court determined she was unable to pay those expenses and also unable to obtain a fee waiver or reduction from the AAA, to provide Lawyers with an opportunity to agree to pay those expenses or to waive their right to arbitration.
9. Dismissal of writ petition.
In view of the trial court's response to the alternative writ, on December 31, 2019, this court issued an order dismissing Frausto's petition for writ of mandate as moot.
10. Subsequent proceedings in the trial court.
a. Declarations by Frausto and her counsel.
On January 17, 2020, Frausto filed a brief declaration stating: she is 35 years old with a high school education; in 2019 her annual income was $62,000; she pays $1,085 per month in rent; and she lacks sufficient savings or available credit to pay thousands of dollars in arbitration costs.
Frausto's attorney, Jared V. Walder (Walder), concurrently filed a declaration that provided in substance: Frausto's lawsuit sought damages in excess of $500,000. For claims between $500,000 and $1 million, the AAA's administrative fees would amount to either $12,325 (standard fee schedule) or $14,300 (flexible fee schedule), payable by Frausto, as the party bringing the claim. The AAA's administrative fee hardship waiver form indicated that individuals whose gross monthly income exceeded 300 percent of the federal poverty level would not likely be approved for a fee waiver, and according to the Department of Health and Human Services, 300 percent of the 2019 federal poverty level was $37,470, well below Frausto's income.
Walder further stated: The median daily rate of 12 candidate arbitrators proposed by JAMS for a 2018 legal malpractice arbitration was $6,750. Frausto's legal malpractice action could not be tried in less than six days because it would take at least three days just to relitigate the underlying employment case. In addition, there would be pre-hearing and post-hearing matters for which the arbitrator likely would bill. Based on the median daily rate, the arbitrator's fees would amount to at least $47,250, of which Frausto's share would be $23,625. Thus, even if Frausto were eligible for an administrative fee waiver by the AAA, she was incapable of paying her share of the arbitrator's fees.
b. Lawyers's response.
In response, Lawyers argued that Frausto's declaration lacked sufficient information to enable the court to make an informed decision on the issue of Frausto's ability to afford her share of the costs of arbitration or any portion thereof. Lawyers also contended the average hourly rates that Frausto cited for JAMS arbitrators were much higher than the average hourly rates for AAA arbitrators.
Lawyers suggested that Frausto "be given one more opportunity to provide enough factual detail about her financial condition including, but not limited to, the results of an application for an administrative fee waiver from the AAA, her expenses and current savings, whether she has any dependents, whether she is married or has a partner, and whether her household has any other source of income, with enough detail to give the Court a clearer picture of what [Frausto] can reasonably afford or not afford."
c. The January 31, 2020 hearing.
On January 31, 2020, the matter came on for hearing. The trial court agreed with Lawyers that Frausto "has submitted insufficient proof of her finances." The trial court also agreed with Lawyers that Frausto be given another opportunity to make a proper showing, and it ordered her to file and serve a detailed financial document "which includes all monthly income and expenses." The matter then was continued to February 14, 2020.
d. Frausto's supplemental declaration.
On February 7, 2020, Frausto filed a supplemental declaration that stated:
Her net monthly income in 2019 was $3,671. She is single and has no source of income apart from her wages. She has less than $100 in her checking account and no other financial accounts. Her monthly car payment is $486, with a remaining balance of $20,074. Her monthly rent is $985. Her other expenses, such as food, utilities, medical, and insurance, are approximately $1,300 per month. She does not own any real property or financial instruments.
e. The February 14, 2020 hearing.
On February 14, 2020, the matter came back on for hearing. The court noted that counsel for Lawyers failed to appear at the hearing, and that counsel for Frausto had e-filed a supplemental declaration as ordered. The court directed Lawyers to file a reply to Frausto's supplemental declaration no later than February 21, 2020, at which time the matter would be taken under submission. Notice of the court's ruling was served on Lawyers's counsel that same day.
It does not appear that Lawyers filed a response to Frausto's supplemental declaration, despite the court having directed Lawyers to do so.
f. Trial court's ruling.
On February 24, 2020, having taken the matter under submission, the trial court ruled as follows: "The Court has reviewed Ms. Frausto's supplemental submission regarding her financial condition. The Court determines that she is not able to pay the costs and administrative fees of arbitration in excess of $1,000. Defendants have 20 days from service of this order to file with this Court their election to pay Ms. Frausto's expenses in excess of $1,000, or to waive arbitration and proceed with this matter."
On March 25, 2020, Lawyers filed notice of appeal from the February 24, 2020 order.
Although the name of Lawyers's codefendant, Byrnes, did not appear in the notice of appeal, under the rule of liberal construction, we construe the notice of appeal to include Byrnes as an appealing party. (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 885-890.)
The February 24, 2020 order, insofar as it precludes Lawyers from enforcing the agreement to arbitrate unless they consent to pay Frausto's expenses in excess of $1,000, is the functional equivalent of an order denying a motion to compel arbitration, and therefore is appealable under Code of Civil Procedure section 1294, subdivision (a).
CONTENTIONS
Lawyers contend: (1) a party seeking to avoid paying its equal share of arbitration costs should raise the issue at the outset, and meet its burden of proof with sufficient admissible and reliable evidence after limited discovery; (2) the facts in Gutierrez and Roldan are distinguishable from the facts in the instant case; and (3) the trial court did not use reliable procedures in determining what amount of Frausto's equal share of the arbitration costs she could reasonably afford.
DISCUSSION
1. Overview of pertinent case law.
a. Gutierrez.
Gutierrez held that an arbitration clause in a consumer contract may be substantively unconscionable if the costs of arbitration exceed the consumer's ability to pay, and there is no effective procedure for a fee waiver. (Gutierrez, supra, 114 Cal.App.4th at pp. 89-92; see Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2020) ¶ 9:408.2 [effect of party's inability to pay arbitration costs].) In Gutierrez, the plaintiff entered into an automobile lease agreement with the defendant automobile dealer, and subsequently sued the dealer over alleged fraud in the transaction. (Id. at pp. 83-84.) Gutierrez found that pursuant to the AAA rules then in effect, the plaintiff would have had to incur $8,000 in administrative fees to initiate the arbitration, and it was undisputed that amount exceeded the plaintiff's ability to pay. (Id. at pp. 90-91.)
In holding this aspect of the arbitration agreement unconscionable, Gutierrez stated: "We conclude that where a consumer enters into an adhesive contract that mandates arbitration, it is unconscionable to condition that process on the consumer posting fees he or she cannot pay. It is self-evident that such a provision is unduly harsh and one-sided, defeats the expectations of the nondrafting party, and shocks the conscience. While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. [Citation.] To state it simply: it is substantively unconscionable to require a consumer to give up the right to utilize the judicial system, while imposing arbitral forum fees that are prohibitively high. Whatever preference for arbitration might exist, it is not served by an adhesive agreement that effectively blocks every forum for the redress of disputes, including arbitration itself." (Gutierrez, supra, 114 Cal.App.4th at pp. 89-90, fns. omitted.) Gutierrez remanded the matter to the trial court to determine whether the unconscionable costs provision should be severed. (Id. at p. 93.)
Our Supreme Court has repeatedly cited with approval Gutierrez's view that unaffordable arbitration costs may render an arbitration agreement substantively unconscionable. (See Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1144-1145 (Sonic-Calabasas); Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 919-920 (Sanchez).)
b. Roldan.
In Roldan, the plaintiffs, a group of elderly low-income individuals, sued the attorneys who had represented them in litigation concerning toxic mold contamination in the apartment building where the plaintiffs lived. (Roldan, supra, 219 Cal.App.4th at pp. 89-90.) Their allegations against their former attorneys included claims of financial elder abuse, conversion, and breach of fiduciary duty. (Id. at p. 92.) One of the defendant law firms successfully moved to compel arbitration based on an arbitration provision contained in the retainer agreement the plaintiffs had signed. (Id. at pp. 89, 92.) The trial court stayed the nonarbitrable claims pending completion of the arbitration. (Id. at p. 92.)
About two years after being ordered to arbitration, the plaintiffs filed a motion in the superior court, seeking an order decreeing they were not required to pay any portion of the "up front" costs of the arbitration. (Roldan, supra, 219 Cal.App.4th at pp. 92-93.) The plaintiffs claimed relief was warranted because their circumstances had changed, as they were now indigent and could no longer afford the costs of arbitration. (Id. at p. 93.) They contended that requiring them to pay arbitration fees in advance would effectively preclude them from pursuing their claims in the arbitral forum. (Ibid.) The trial court denied the motion, concluding the plaintiffs' in forma pauperis status was irrelevant. (Ibid.)
The reviewing court reversed. (Roldan, supra, 219 Cal.App.4th at p. 96.) It "assume[d] for purposes of th[e] appeal that the [trial court's] earlier orders compelling arbitration were correct." (Id. at p. 95.) The issue on appeal was "whether plaintiffs, each of whom was subsequently granted permission to proceed in forma pauperis in the trial court, could likewise be excused from the obligation to pay fees associated with arbitration. [Roldan] conclude[d] they could." (Ibid.)
Roldan was guided by "California's long-standing public policy of ensuring that all litigants have access to the justice system for resolution of their grievances, without regard to their financial means." (Roldan, supra, 219 Cal.App.4th at p. 94.) Roldan explained: "If, as plaintiffs contend, they lack the means to share the cost of the arbitration, to rule otherwise might effectively deprive them of access to any forum for resolution of their claims against [defendant] Callahan. We will not do that. Of course, as the trial court recognized, we cannot order the arbitration forum to waive its fees, as a court would do in the case of an indigent litigant. Nor do we have authority to order Callahan to pay plaintiffs' share of those fees. What we can do, however, is give Callahan a choice: if the trial court determines that any of these plaintiffs is unable to share in the cost of the arbitration, Callahan can elect to either pay that plaintiff's share of the arbitration cost and remain in arbitration or waive its right to arbitrate that plaintiff's claim." (Id. at p. 96, italics omitted.)
Roldan was cited with approval in Jameson v. Desta (2018) 5 Cal.5th 594, 622 (Jameson), which invalidated a superior court's policy that did not make official court reporters available at most civil trials, even for litigants with limited financial resources who qualified for a fee waiver. Citing Roldan as well as Solorzano v. Superior Court (1993) 18 Cal.App.4th 603 [trial court erred in ordering indigent plaintiffs to share equally the $300 per hour charge of a private discovery referee], Jameson stated those decisions "reveal a fundamental aspect of the California in forma pauperis doctrine that is directly relevant to the issue presented here. As these decisions demonstrate, under California law when a litigant in a judicial proceeding has qualified for in forma pauperis status, a court may not consign the indigent litigant to a costly private alternative procedure that the litigant cannot afford and that effectively negates the purpose and benefit of in forma pauperis status." (Jameson, at p. 622.) --------
2. Based on the governing law and the evidentiary showing by Frausto, the trial court properly gave Lawyers the choice either to pay Frausto's arbitration expenses in excess of $1,000 or to waive arbitration.
a. The record supports the trial court's determination with respect to Frausto's limited ability to afford the expense of arbitration.
The amount, if any, that a plaintiff can afford to pay toward the cost of arbitration is a matter within the purview of the trial court. (Roldan, supra, 219 Cal.App.4th at p. 96 ["the trial court must estimate the anticipated cost of the arbitration proceeding previously ordered, and then determine whether any of these plaintiffs are financially able to pay their pro rata share of that cost"].) Therefore, the essential issue at this juncture is whether, on the record presented, the trial court properly determined that Frausto "is not able to pay the costs and administrative fees of arbitration in excess of $1,000."
Whether a trial court's ruling is based on oral testimony or written declarations, when conflicting inferences can reasonably be drawn from the facts, an appellate court must defer to the trial court's factual determinations. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Ibid.)
On the issue of the cost of prosecuting this matter in arbitration, the declaration of Frausto's attorney stated the AAA's administrative fee would be either $12,325 or $14,300, payable by Frausto, as the party bringing the claim, and Frausto's income level made her ineligible for a fee waiver by the AAA. Counsel further stated that the arbitrator's fees would amount to at least $47,250, of which Frausto's share would be $23,625.
For Frausto, these expenses would be prohibitive and would block her access to the arbitral forum. With respect to Frausto's financial condition, her supplemental declaration indicated, inter alia, she has less than $100 in her checking account and no assets other than a vehicle on which she owes over $20,000, resulting in an apparent negative net worth. Given Frausto's net monthly income of $3,671—leaving aside the issue of paying for routine living expenses—the expense of prosecuting the arbitration, estimated to exceed $35,000, would consume nearly an entire year's worth of her take-home pay.
It is not this court's role to reweigh the evidence but merely to assess whether the record supports the determination reached by the trial court. Given this evidence of Frausto's financial condition and her ineligibility for a fee waiver from the AAA, the trial court acted within its discretion in concluding that Frausto could not afford more than $1,000 in arbitration expenses. Therefore, in accordance with Roldan, the trial court properly gave Lawyers an election either to pay Frausto's expenses in excess of $1,000, or to waive arbitration. (Roldan, supra, 219 Cal.App.4th at p. 96.)
b. Lawyers's legal arguments concerning the inapplicability of Gutierrez and Roldan are unpersuasive.
Lawyers contend Gutierrez is distinguishable because it was premised on the existence of state statutory claims (Gutierrez, supra, 114 Cal.App.4th at pp. 94-95), and here, Frausto does not allege any such claims. We do not read Gutierrez as being limited in its application to actions asserting statutory claims, particularly in view of the Supreme Court's understanding of Gutierrez, as stated in Sonic-Calabasas, supra, 57 Cal.4th at pages 1144-1145 and Sanchez, supra, 61 Cal.4th at pages 919-920. (See fn. 3, ante.) In Sanchez, the Supreme Court noted that in Sonic-Calabasas it had "endorse[d] Gutierrez's view that unaffordable arbitration costs that 'effectively block[] every forum for the redress of disputes' may render an arbitration agreement unconscionable." (Sanchez, supra, 61 Cal.4th at p. 920.)
Additionally, we note the similarity of Roldan to the instant case. Roldan was an action by low-income plaintiffs against their former attorneys, and the Roldan court's decision that a defendant be required to elect between paying the plaintiffs' expenses or waiving arbitration was based on the plaintiffs' asserted inability to share in the cost of arbitration, not on the nature of the plaintiffs' claims.
Lawyers also contend that Roldan is distinguishable because it was based in large part on the fact that the plaintiffs were indigent (Roldan, supra, 219 Cal.App.4th at p. 93), and here, Frausto admittedly has a gross annual income of $62,000. Indigency, however, was not a factor in Gutierrez. There, the plaintiff simply lacked the means to pay the $8,000 fee to initiate arbitration (Gutierrez, supra, 114 Cal.App.4th at p. 91), and thus it was "unconscionable to condition [the arbitration] process on the consumer posting fees he or she cannot pay." (Id. at p. 89.)
We also note that while Lawyers now argue that Gutierrez and Roldan are inapposite, in their preliminary opposition to Frausto's petition for writ of mandate they argued that those cases were on point. The preliminary opposition by Lawyers stated: "Gutierrez and Roldan . . . provide a practical and commonsense solution for individuals who cannot afford to pay their share of the costs of the arbitration they have agreed to, while preserving the parties' agreement to arbitrate their disputes—a result favored under both California and federal law."
This court adopted the position that Lawyers advanced in their preliminary opposition. The alternative writ of mandate that we issued stated: "[I]n connection with petitioner's unconscionability claim, there appears to be a question regarding petitioner's ability to pay the costs and fees required for her to participate in the arbitration ordered by the respondent trial court. To address this potential problem, [Lawyers] have suggested that petitioner be given an opportunity in the trial court to establish her inability to pay for her share of the arbitration costs and fees in accordance with procedures such as those described in Gutierrez . . . and Roldan . . . . [¶] [We conclude t]his procedure seems appropriate." (Italics added.)
Thus, Lawyers successfully argued in the writ matter that the trial court should be directed to proceed in accordance with Gutierrez and Roldan. Therefore, even if Gutierrez and Roldan are inapposite—a conclusion we do not reach—Lawyers are precluded from asserting error in that regard.
Likewise, given Lawyers's previous position that Gutierrez and Roldan "provide a practical and commonsense solution," we reject Lawyers's present contention that neither Gutierrez nor Roldan provides sufficient guidance concerning the procedures that should be used to ensure a reliable and fair affordability determination.
c. Lawyers's other arguments are meritless.
Lawyers contend that a party seeking to avoid paying its equal share of arbitration costs should raise the issue at the outset. The argument fails because Frausto did raise the issue at the outset. In opposition to the motion to compel arbitration, Frausto asserted the arbitration provision was substantively unconscionable because it imposed prohibitive costs on her, and her supporting declaration specifically stated: "I am informed and believe that the arbitration fees and costs to prosecute my case would exceed $10,000. I cannot afford to pay that much money."
Lawyers also argue that they were entitled to discovery into Frausto's ability to pay her share of the arbitration costs. However, there is no indication that Lawyers sought discovery into Frausto's finances. Therefore, Lawyers cannot assert as error the trial court's failure to make a ruling that Lawyers did not request.
Lawyers also contend that the trial court should be required to use procedures that ensure a fair and reliable determination of the issue. This argument is meritless because it is not tethered to what actually occurred in the court below.
As indicated, on February 7, 2020, pursuant to Lawyers's suggestion, and at the trial court's direction, Frausto filed a supplemental declaration that detailed her net monthly income, expenses, assets, and liabilities. Lawyers did not controvert this evidentiary showing by Frausto. As noted, Lawyers did not seek discovery into Frausto's financial condition, failed to appear at the February 14, 2020 hearing on the matter, and failed to file a reply to Frausto's supplemental declaration, despite the trial court's order that they do so. Given Lawyers's inaction below, their contention that the trial court should be required to use procedures that ensure a fair and reliable determination of the issue is not well taken.
Lawyers also contend that Frausto should have been ordered to submit supporting documentation to corroborate the financial information contained in her supplemental declaration. This is an argument that Lawyers could have raised below—had they filed a response to Frausto's supplemental declaration. Due to Lawyers's silence, Frausto's supplemental declaration was unopposed, and the trial court was entitled to fully credit its contents.
Lawyers also argue the trial court erred in failing to make express findings concerning the anticipated cost of the arbitration proceeding and Frausto's inability to pay more than $1,000 in arbitration expenses. In support, Lawyers rely on Roldan, which directed the trial court on remand to make such findings. (Roldan, supra, 219 Cal.App.4th at p. 96.) However, we do not read Roldan as standing for the proposition that the trial court has a sua sponte duty to make findings on these issues. If Lawyers wanted express findings, they should have asked for them. Lawyers have not shown that they requested such findings below. Accordingly, we conclude the trial court did not err in failing to make findings that Lawyers did not request.
3. Frausto's argument that Lawyers have already waived the right to arbitrate is meritless.
Frausto concludes her respondent's brief by asserting that the February 24, 2020 order that required Lawyers to file within 20 days an "election to pay [her] expenses in excess of $1,000, or to waive arbitration" was not stayed pending appeal, and thus Lawyers have already waived their right to arbitration, and this court should so rule. We observe Frausto's argument would nullify Lawyers's right to appellate review of the February 24, 2020 order by making the order final even before the time for filing notice of appeal had expired
Frausto's argument in this regard is meritless. The trial court's order directing Lawyers to file an election within 20 days constituted a mandatory injunction and thus was stayed pending appeal. "All mandatory injunctions are automatically stayed by appeal. Otherwise, the result upon a final adjudication could be a 'barren victory' (i.e., a reversal on appeal might be 'futile' if the action were already performed). [Citations.]" (Eisenberg et al., Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group 2020) ¶ 7:75, italics omitted.)
Thus, the trial court's February 24, 2020 order was stayed pending appeal, and we construe the order as requiring Lawyers to file their election within 20 days of the issuance of the remittitur.
DISPOSITION
The February 24, 2020 order appealed from is affirmed. Frausto's request that Lawyers be sanctioned for filing a frivolous appeal is denied. Frausto shall recover her appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.