Lazarus v. Titmus

• Decision Date: 16 June 1998
• Docket Number: No. B103661,B103661
• Citation: 75 Cal.Rptr.2d 676,64 Cal.App.4th 1242
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 4642, 98 Daily Journal D.A.R. 6571 Sanford LAZARUS, Plaintiff and Appellant, v. Ted TITMUS et al., Defendants and Respondents.

Page 676

75 Cal.Rptr.2d 676

64 Cal.App.4th 1242, 98 Cal. Daily Op. Serv. 4642,

98 Daily Journal D.A.R. 6571

Sanford LAZARUS, Plaintiff and Appellant, v. Ted TITMUS et al., Defendants and Respondents.

No. B103661.

Court of Appeal, Second District, Division 4, California.

June 16, 1998.

[64 Cal.App.4th 1244] Leslie S. McAfee, Burbank, for Plaintiff and Appellant.

Cairns, Doyle, Lans, Nicholas & Soni, John C. Doyle and Cynthia L. Hoelzel, Pasadena, for Defendants and Respondents.

CHARLES S. VOGEL, Presiding Justice.

In September of 1993, after an altercation in a parking lot, appellant Sanford Lazarus was hit by a car driven by respondent Ted Titmus. The car was owned by respondent Carol Forsythe. Appellant brought suit for personal injury against Titmus and Forsythe in November of 1993. A stipulation to binding arbitration was signed by the parties' attorneys in 1995, but respondents refused to go forward. Appellant's petition to compel arbitration was denied in 1996 on the ground the stipulation was void. The case was set for trial. Appellant did not appear. Instead, he requested a two-week continuance based on a new job offer and need to attend an orientation and training seminar. The request was denied, and the case was ultimately dismissed due to the inability of appellant's counsel to go forward in his absence. The issues on appeal are whether the stipulation to binding arbitration was indeed void, as the trial court ruled, and whether the trial court abused its discretion in denying the motion to continue.

RELEVANT PROCEDURAL BACKGROUND

On May 22, 1995, as the matter approached its first trial date and after nonbinding judicial arbitration had resulted in a defense award and request for trial de novo, the attorneys for the parties signed a "Stipulation Re Binding Arbitration." The stipulation provided in part: "... Plaintiff Sanford Lazarus together with Defendants Ted Titmus and Carol Forsythe, and their respective attorneys do hereby agree and stipulate to binding arbitration as follows: [p] 1. Each party hereto gives up their right to trial by jury, and any appeal, and agrees to have this dispute resolved by way of binding arbitration. [p] ... [p] 9. Each person executing this stipulation on behalf of anyone, represents and warrants that they have been fully empowered to execute this agreement." Terence Knabb of Thomas Moore & Associates signed on behalf of respondents, and also By order dated May 24, 1995, the court ordered the case dismissed without prejudice "[p]ursuant to Stipulation Re Binding Arbitration filed herein this date...." The court "retain[ed] jurisdiction to enforce the award."

signed William J. Houser's name on behalf of appellant. ¹

In January of 1996, Houser was removed from the case by appellant. New counsel, Leslie S. McAfee, substituted in as attorney of record in April of 1996.

On April 24, 1996, appellant, through his attorney McAfee, filed a motion to compel arbitration pursuant to section 1281.2 of the Code of Civil Procedure. McAfee and former counsel Houser stated in declarations that the sole reason given by defendants for refusal to arbitrate was the failure of the stipulation to impose a limit on the amount that could be awarded to appellant by the arbitrator.

Respondents opposed the petition to compel on the ground that because the stipulation was signed by counsel rather than the parties, it was void. The court continued the hearing to allow respondents to file declarations stating that they had not consented to stipulate to arbitration in place of trial. Up to that point, the only declaration in opposition was from respondents' attorney who stated that Knabb had died, and he could find nothing in the record to indicate the clients had approved the stipulation. In his subsequently filed declaration, Titmus stated: "On or about July 10, 1995, Mr. Terence Knabb, my former counsel of record, notified me via facsimile that the matter was going to arbitration again and that my presence was required." Titmus's declaration went on to state: "At no time did Mr. Knabb inform me that the new arbitration would be binding, nor was binding arbitration ever requested or discussed," "I never agreed or consented to a binding arbitration," "Mr. Terence Knabb signed the stipulation to go to binding arbitration without my knowledge, permission or consent," and "At no time did I consent to a waiver of my right to a trial by jury." Forsythe's declaration reiterated the latter statements, although she apparently had not received the July 1995 communication. At the hearing on June 5, 1996, the court denied the petition to compel, vacated the dismissal, and set the case for trial on July 29, 1996.

Appellant appealed from the order denying the petition to compel arbitration and submitted concurrently a petition for writ of supersedeas to stay the trial. By order dated July 18, 1996, this court instructed appellant to lodge with the court on or before July 23, 1996, the following: "1. All papers submitted by defendants in opposition to the motion to compel arbitration; [p] 2. The reporter's transcript for the June 5, 1996, hearing on the motion to compel arbitration." On July 24, 1996, appellant lodged documents "pursuant to order filed July 18, 1996," but there was no reporter's transcript, only a declaration from appellant's counsel summarizing the proceedings at the two hearings. On that same date, appellant's counsel filed a declaration which stated that he had been in a deposition on July 23 which ran longer than expected and so was unable to file the documents sooner. On July 26, 1996, this court issued an order which stated: "The petition for writ of mandate [sic ] filed July 12, 1996, has been read and considered and is denied for failure to provide an adequate record for writ review. (California Rules of Court, rule 56(c).)"

On the day set for trial, appellant filed a motion to continue. According to appellant's declaration, he was offered a job on Thursday, July 25, 1996, which necessitated immediately attending a two-week training course in New Jersey. Appellant attempted to contact his attorney, McAfee, on Thursday to inform him of the conflict, but McAfee was not in his office and his voice mail was full. Appellant did not reach his attorney until Saturday. McAfee confirmed in his declaration that he had been unreachable on Thursday because he was in an administrative hearing until 7 p.m. On Friday, July 26, 1996, he attended the final status conference unaware of his client's wish for a continuance. When appellant finally reached him on Saturday, McAfee told him he would attempt to obtain a continuance and prepared a motion, faxing a copy to respondents' counsel over The court denied the motion for continuance, stating on the record: "[I]t appears to the court that notwithstanding knowledge of the trial date set for today's date, the plaintiff has seen fit to absent himself from the jurisdiction with full knowledge of the trial date. And I don't find that good cause to continue a trial." The court ordered appellant's counsel to proceed, although he stated he was unable to go forward in the absence of appellant. The court inquired whether respondents would waive a jury, which their counsel obtained consent to do. The court then deemed the jury waived as to appellant over his counsel's objection because he was unable to immediately post fees. The court went through the formality of asking appellant's counsel to make an opening statement and call his first witness, which he declined to do. At that point, in accordance with the court's suggestion, respondents moved for judgment pursuant to section 631.8 of the Code of Civil Procedure. ² The court granted the motion and entered judgment for respondents.

the weekend. Appellant sought a two-week delay in the start of trial.

DISCUSSION

I

The first issue is whether the May 1995 stipulation to arbitrate the matter and waive jury trial was enforceable. We believe the controlling case is Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 212 Cal.Rptr. 151, 696 P.2d 645. There, the plaintiff was surprised to learn that her attorney had signed a stipulation committing her to binding arbitration before an arbitrator of defendant's choosing and waiving any right to damages in excess of $15,000. The stipulation had been approved by the court which issued an order to arbitrate. The order declared: "The arbitration and award shall be binding." (38 Cal.3d at p. 400, 212 Cal.Rptr. 151, 696 P.2d 645.) When plaintiff first learned of the stipulation, she discharged her attorney, hired new counsel, and moved to invalidate it. At the hearing on plaintiff's motion, the trial court affirmed the validity of the agreement, apparently in the belief that it concerned a procedural matter within the scope of an attorney's unilateral discretion. The issue on appeal was whether plaintiff was "bound by her attorney's signature, purportedly on her behalf." (Id. at p. 402, 212 Cal.Rptr. 151, 696 P.2d 645, fn. omitted.)

The Supreme Court analyzed the issue utilizing principles of agency, and concluded that there was no actual authority in view of the uncontradicted evidence indicating that plaintiff expressly told the attorney she would not agree to binding arbitration. The court then examined whether the attorney had apparent authority: "An attorney retained to represent a client in litigation is clothed with certain authority by reason of that relationship. 'The attorney is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action.... "In retaining counsel for the prosecution or defense of a suit, the right to do many acts in respect to the cause is embraced as ancillary, or incidental to the general authority conferred, and among these is included the authority to enter into stipulations and agreements in all matters of procedure during the progress of the trial. Stipulations thus...