Originally from:

Journal of American Arbitration (JAA) - Vol. 3, No. 2

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ARTICLES

Aguilar v. Lerner: California’s Highest Court
Clarifies Issues of Judicial Estoppel and
Waiver, but the Power Struggle Between
Separate Arbitration Acts Stands Unresolved
By Joseph S. McCulloch
 

I. OVERVIEW
Raul V. Aguilar hired Esther R. Lerner to represent him in his
petition for marital dissolution.1 The retainer agreement Lerner produced
included an arbitration clause that compelled arbitration of any dispute
regarding fees or other claims relating to legal matters arising out of the
legal representation.2 Aguilar signed the retainer agreement and initialed
the paragraph containing the arbitration provision without negotiating
any of the terms.3 After a dispute arose between the parties, Aguilar
discharged Lerner.4 Aguilar filed a complaint for damages in the San
Francisco Superior Court, alleging “professional negligence and breach
of fiduciary duty” on Lerner’s part.5 Subsequently, “Lerner petitioned to
compel arbitration pursuant to [the California Arbitration Act (CAA)6
and] added her own claim for unpaid attorney’s fees and costs.”7 The
superior court granted the petition to compel arbitration.8 The arbitrator