Burton v. Cruise
| Decision Date | 23 February 2011 |
| Docket Number | No. G041835.,G041835. |
| Citation | 190 Cal.App.4th 939,118 Cal.Rptr.3d 613 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Kirsten BURTON, Plaintiff and Appellant, v. Joseph T. CRUISE et al., Defendants and Respondents. |
Walter R. Zech; Law Offices of William J. Kopeny and William J. Kopeny, Irvine, for Plaintiff and Appellant.
Reback, McAndrews, Kjar, Warford & Stockalper, Terrence J. Schafer, Manhattan Beach; Cole Pedroza, Kenneth R. Pedroza, Joshua C. Traver and Matthew S. Levinson, Pasadena, for Defendants and Respondents.
We affirm the trial court's determination that a patient waived her contractual right to arbitrate a medical malpractice dispute by waiting to pursue arbitration until the virtual eve of trial, long after discovery, including expert discovery, had been completed.
Substantial evidence supports the trial court's factual determination on waiver, based on our Supreme Court's multi-factored test in St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195, 8 Cal.Rptr.3d 517, 82 P.3d 727 ( St.Agnes). The physician suffered prejudice by losing whatever time and cost benefits could have been gained through arbitration, and by focusing his litigation efforts on a jury trial rather than an arbitration panel. Audiences matter, and the factual record supports a finding of prejudice.
Plaintiff Kirsten Burton consulted with defendant Joseph Cruise, a Newport Beach plastic surgeon, regarding a liposuction procedure. In a preprinted agreement, Burton and Cruise agreed to arbitrate "any issue of medical malpractice...." (Capitalization omitted.) The agreement provided that either party could submit an arbitration demand in writing.
In April 2008, Burton sued Cruise for medical malpractice, alleging that he negligently perforated her viscus and small bowel during the liposuction, resulting in contamination of her abdominal wall.1 Despite the arbitration agreement, Burton failed to request an order compelling arbitration or otherwise mention the parties' right to arbitrate.
In early July 2008, Burton filed a case management statement requesting a jury trial, estimated to last 10 days. While Burton checked a box on the case management form regarding mediation, she failed to check a box on the same form regarding binding arbitration.
The trial court held a case management conference later that month. The court verified that all potential parties, including all potential defendants, were named and served. Rather than seeking arbitration, Burton requested a trial date, which the court set for April 2009.
The parties engaged in discovery during the next six months, including propounding and responding to interrogatories and requests for production of documents and depositions. They exchanged their expert lists before the February 2009 deadline.
On February 20, 2009, Burton's counsel faxed a letter to defense counsel demanding arbitration under the arbitration agreement, but suggesting that a single, neutral arbitrator conduct the arbitration rather than a panel, as the agreement specified. Defense counsel declined, arguing Burton had waived arbitration.
Burton's counsel waited until March 11, 2009, to move ex parte for an order shortening time to hear a petition to compel arbitration. The court shortened the time for a hearing to March 17, 2009.
In opposition, Cruise argued that Burton waived her contractual right to arbitration. Defense counsel declared that he designated expert witnesses
The trial court conducted a hearing on March 17, but took the matter under submission because it had not reviewed Cruise's opposition. At the hearing, the court expressed doubt that Burton could demand arbitration after participating in the litigation process through the eve of trial: "I think if you availed yourself of the authority of the court in your action, it seems to me that you can't at the last minute say ... but now we want to arbitrate it." The court denied Burton's arbitration demand by minute order on March 25, 2009, and this appeal followed. (See Code Civ. Proc., § 1294, subd. (a).) 2
California law favors arbitrations as a relatively quick and cost-effective means to resolve disputes. ( Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9, 10 Cal.Rptr.2d 183, 832 P.2d 899.) There is a statutory exception where the "right to compel arbitration has been waived" by the moving party. (§ 1281.2, subd. (a).)
Although the statute speaks in terms of "waiver," the term is used " 'as a shorthand statement for the conclusion that a contractual right to arbitration has been lost.' " ( St. Agnes, supra, 31 Cal.4th at p. 1195, fn. 4, 8 Cal.Rptr.3d 517, 82 P.3d 727.) This does not require a voluntary relinquishment of a known right; to the contrary, a party may be said to have "waived" its right to arbitrate by an untimely demand, even without intending to give up the remedy. In this context, waiver is more like a forfeiture arising from the nonperformance of a required act. ( Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 314, 24 Cal.Rptr.2d 597, 862 P.2d 158; see also Zamora v. Lehman (2010) 186 Cal.App.4th 1, 12, 18, 111 Cal.Rptr.3d 335.)
In St. Agnes, our Supreme Court set forth a multi-factor test to assess waiver claims. While waiver is not a mechanical process, and no one factor ispredominant, the pertinent factors for this appeal are: (1) Did the party seeking arbitration act inconsistently with the right to arbitrate or otherwise substantially invoke thelitigation process? (2) Are the parties "well into preparation" of the lawsuit? (3) Is there an imminent trial date? (4) Has the delay affected, misled, or prejudiced the opposing party? (See St. Agnes, supra, 31 Cal.4th at p. 1196, 8 Cal.Rptr.3d 517, 82 P.3d 727.)
Burton dismisses the St. Agnes multi-factor test as nothing but "words" which are trumped by "the rule that absent actual prejudice, none of these factors is sufficient on which to base or uphold a finding of waiver of the right to arbitrate." We disagree.
St. Agnes cautions us to examine each case in context. "[N]o single test delineates the nature of the conduct that will constitute a waiver of arbitration." ( St. Agnes, supra, 31 Cal.4th at p. 1195, 8 Cal.Rptr.3d 517, 82 P.3d 727.) True, the mere filing of a complaint, without more, does not constitute the forfeiture of a right to contractual arbitration: "In California, whether or not litigation results in prejudice also is critical in waiver determinations." ( Id. at p. 1203, 8 Cal.Rptr.3d 517, 82 P.3d 727.)
But does this mean that litigant may wait until trial is due to commence before demanding arbitration? To the contrary, in Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 58 Cal.Rptr.3d 434, 157 P.3d 1029, the Supreme Court expressly observed that a party's unreasonable delay in demanding or seeking arbitration, in and of itself, may constitute a waiver of a right to arbitrate. ( Id. at pp. 29-30, 58 Cal.Rptr.3d 434, 157 P.3d 1029.)
And in Adolph v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1452, 110 Cal.Rptr.3d 104 ( Adolph), we recognized that a party could not blow hot-and-cold by pursuing a strategy of courtroom litigation only to turn towards the arbitral forum at the last minute, thereby frustrating the goal of arbitration as a speedy and relatively inexpensive means of dispute resolution: "We are loathe to condone conduct by which a [litigant] repeatedly uses the court proceedings for its own purposes ... all the while not breathing a word about the existence of an arbitration agreement, or a desire to pursue arbitration...." ( Id. at p. 1452, 110 Cal.Rptr.3d 104.)
We recognize that waiver is not to be lightly inferred and the party seeking to establish it bears a "heavy burden of proof," with all doubts resolved in favor of arbitration. ( St. Agnes, supra, 31 Cal.4th at p. 1195, 8 Cal.Rptr.3d 517, 82 P.3d 727.) Like the "clearand convincing" standard of proof, these higher burdens guide the trial court's determination, but do not alter the standard of review on appeal. " 'It was the trial courts duty to determine whether' the petitioners met their 'burden of proof; it is our duty to determine whether there is substantial evidence to support the trial courts findings that it did.' " ( In re Noreen G. (2010) 181 Cal.App.4th 1359, 1382, 105 Cal.Rptr.3d 521; see Patrick v. Maryland Casualty Co. (1990) 217 Cal.App.3d 1566, 1576, 267 Cal.Rptr. 24.) ( Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 211, 69 Cal.Rptr.2d 79.)
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Doe v. The Superior Court
...a trial court's determination that a party waived the right to arbitrate is subject to substantial evidence review. (Burton v. Cruise (2010) 190 Cal.App.4th 939, 946.) However, where the parties do not dispute the factual for the trial court's ruling, but instead dispute the proper interpre......