Bono v. David

• Decision Date: 21 February 2007
• Docket Number: No. A112099.,A112099.
• Citation: 147 Cal.App.4th 1055,54 Cal.Rptr.3d 837
• Court: California Court of Appeals Court of Appeals
• Parties: Julia BONO, Plaintiff and Respondent, v. Elicia W. DAVID, Defendant and Appellant.

54 Cal.Rptr.3d 837

147 Cal.App.4th 1055

Julia BONO, Plaintiff and Respondent, v. Elicia W. DAVID, Defendant and Appellant.

No. A112099.

Court of Appeal, First District, Division 2.

February 21, 2007.

Lewis J. Suffer, Miller, Starr & Regalia, Walnut Creek, CA, Attorney for Appellant.

Julia Bono In Propria Persona, Middletown, CA, Attorney for Respondent.

HAERLE, J.

I. INTRODUCTION

Julia Bono and Elicia David were two of several parties to a Memorandum of Understanding (MOU) that contained a clause requiring mediation and arbitration of "[a]ny controversy among the parties involving the construction or application of any provision of this Agreement...." The MOU was executed in 2000 by several tenants in common of Lake County property the group planned to develop. In 2005, respondent Bono brought an action for defamation against appellant David based on the contents of a 2004 e-mail David sent to a third party who was apparently attempting to resolve disputes between those two individuals concerning details of the development. David moved to compel mediation and arbitration of Bono's defamation action pursuant to the arbitration provision of the MOU and Code of Civil Procedure section 1281.2 (§ 1281.2). The trial court denied the motion, ruling that Bono's defamation action was essentially "a stand-alone action" which did not involve contractual interpretation. We agree and hence: affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In March 2000, the two parties to this lawsuit, plus several others, took title as tenants in common to some 920 acres of unimproved real property near Middletown in Lake County. Both parties to this action received a 12.5 percent interest in the property.¹ The other tenants in common were and are: Brian and Laura Behlendorf, husband and wife, who received a 62.5 percent interest as joint tenants, and Chris Dolan and Stephanie Dolan, also husband and wife, who received a 12.5 percent interest as joint tenants.

On March 4, 2000, six days before the deed conveying the property was recorded, the several grantees executed the MOU. The text of the MOU consumed only two pages; appended to it were signature pages which also designated the amount of cash to be contributed by each of the parties to the purchase price of the property and an exhibit showing a map of the property.

The MOU contemplated that a parcel composing the larger part of the 920 acres would be retransferred to the Behlendorfs in consideration of their substantial monetary contribution toward the original purchase, but with a right of first refusal in an entity to be created by the other original owners to repurchase that portion of the property, and with agreements to both allow rights of passage over that portion of the property and to lease portions of it for "the development of community projects." The remaining 280 acres were to be transferred to a limited partnership to be known as "Eleusis L.P." of which David, Bono (then Carter) and Chris Dolan "shall be the limited partners." The MOU contemplated that this entity or a successor to it "shall be the structure for development of a greater community on this parcel of land."

One of the substantive provisions of the MOU was a clause reading, in pertinent part: "Arbitration. Any controversy among the parties involving the construction or application of any provision of this Agreement shall be submitted first to nonbinding mediation of a disinterested third-party chosen by a two thirds majority of the parties hereto.... [I]f the written determination of said mediator is unacceptable to any one of the parties involved, said grievance shall be subject to binding arbitration in San Francisco, California. Any such arbitration shall comply with and be governed under the provisions of the Rules of the American Arbitration Association. All parties agree to be bound by the final findings and determinations of the chosen arbitrator." (Emphasis added.)

By March 2004, a number of disagreements had developed among the tenants in common. Via some process or another (the record is not clear on this), an individual named Richard Van Donk of Middletown had been designated to try to iron out disagreements between Bono and David regarding various aspects of what was known to the owners of the property as the "Eleusis Project."² In the course of these efforts, David sent Van Donk an e-mail which contained various aspersions on Bono's emotional stability.

In any event, Van Donk's settlement efforts regarding various aspects of the project apparently failed, because in the ensuing months three lawsuits were filed amongst the parties to the "greater community" project. More specifically, in April 2004, the several other grantees filed an action against Bono for partition of the property and an accounting in the Lake County Superior Court (hereafter partition action). The following month, May 2004, Bono sued the Behlendorfs for a personal injury she allegedly suffered in May 2002 while hiking on that portion of the property which might later revert to their sole ownership (hereafter personal injury action). And in July 2004, Bono and an entity known as Eleusis Management, L.L.C., filed a declaratory relief action against the other tenants in common seeking a declaration as to "plaintiffs' and defendants' respective rights and duties under the" MOU (hereafter declaratory relief action).

In her answer to the partition action, Bono—appearing in pro per, as she is here—alleged that the MOU constituted an agreement which effectively foreclosed such an action and thereafter moved to compel mediation and, if necessary, arbitration pursuant to the MOU clause quoted above. The plaintiffs in the partition action, i.e., the other tenants in common, accepted this demand; in so doing, they also moved for a stay of the partition action, a continuance of a hearing on Bono's motion, and even nominated a potential mediator.

The trial court declined to grant the continuance requested by the defendants in the partition action and, instead, held the hearing on the scheduled date of August 3, 2004. On September 2, 2004, it issued an order staying the partition action and ordering it submitted for mediation and, failing that, arbitration. In so doing, it framed its order somewhat differently than the language of the MOU; its order read, in pertinent part: "[T]he disputes and disagreements among the parties to this action shall be determined by the following procedure: [¶] Any controversy among the parties shall be submitted first to non-binding mediation ..." and then continued along the same lines as the wording in the MOU. (Emphasis added.) Two month later, in November 2004, the trial court granted the other tenants in common's motion to consolidate the partition action and the declaratory relief action and to compel arbitration of the consolidated action. A formal order to that effect was entered on December 3, 2004. After the court was advised that mediation efforts were unsuccessful, on March 28, 2005, it ordered the consolidated action to arbitration.

Meanwhile, the personal injury action filed by Bono against the Behlendorfs in May 2004 was challenged by a demurrer of the two defendants on December 23, 2004. That demurrer was sustained on February 14, 2005. On February 25, 2005, Bono filed an amended complaint alleging the same injury albeit on a different legal theory. The defendants demurred to that complaint, also, and this demurrer was likewise sustained—again with leave to amend—on April 25, 2005. A demurrer to Bono's second amended personal injury complaint was also sustained on July 25, 2005, albeit this time without leave to amend.

While all this was going on, on February 28, 2005, Bono filed—still pro per—the defamation complaint which is at.the core of this appeal. Attached to it was a copy of the e-mail sent by David to Van Donk in March 2004. The parts of the e-mail that Bono's complaint singled out as defamatory were David's several descriptions of her as "unstable," "not capable of trust or honesty," "absolutely untrustworthy," etc.

Appellant Dawd demurred to the complaint on May 27, 2005. Her demurrer was based on the theory that the e-mail at issue was subject to the "mediation privilege" under Civil Code section 47, subdivision (b), and her statements therein were otherwise inadmissible and/or non-actionable. On August 31, 2005, the trial court overruled the demurrer on the basis that it could not determine "from the face of the Complaint and the attached document" whether the latter was a "pre-litigation communication and/or a mediation communication as to which privilege would apply and the communication would be inadmissible."

On September 2, 2005, David filed a motion to consolidate the defamation action with the partition and declaratory relief actions, to compel arbitration of all three actions, and to stay proceedings in them until the arbitration was completed. Although not the central point of her motion, David's supporting papers cited section 1281.2 and noted that she was entitled to both mediation and arbitration of all three actions because, among other things, "this is all one controversy." A few days later, David also renoticed a hearing on her February 2005 demurrer, noticing the hearing for October 17, 2005. Accompanying her notice of motion was an additional memorandum of points and authorities in the defamation action only, arguing that the demurrer should be sustained because of Bono's failure to exhaust her remedies of mediation and arbitration.

In opposition to David's motion and renewed demurrer, Bono argued that her defamation action did not "involve the `construction or application of any provision' contained in the MOU...."

The trial court heard oral argument on David's motion and demurrer on October 21, 2005. After hearing argument from David's counsel and Bono, it denied the motion to compel arbitration of the defamation claim. The court stated...