Merrick v. Writers Guild of America, West, Inc.

CourtCalifornia Court of Appeals
Writing for the CourtLILLIE; SPENCER, P. J., and KAKITA
Citation130 Cal.App.3d 212,181 Cal.Rptr. 530
Decision Date25 March 1982
PartiesWRITERS GUILD OF AMERICA, WEST, INC., Petitioner and Appellant, v. David MERRICK, Respondent and Cross-Appellant. Civ. 62697.

Page 530

181 Cal.Rptr. 530
130 Cal.App.3d 212
WRITERS GUILD OF AMERICA, WEST, INC., Petitioner and Appellant,
v.
David MERRICK, Respondent and Cross-Appellant.
Civ. 62697.
Court of Appeal, Second District, Division 1, California.
March 25, 1982.
Hearing Denied June 9, 1982.

Page 531

[130 Cal.App.3d 215] Selvin & Weiner and Paul P. Selvin, Los Angeles, for petitioner and appellant.

Lawrence Silver, Beverly Hills, for respondent and cross-appellant.

LILLIE, Associate Justice.

Writers Guild of America, West, Inc. (Guild) appeals from an order denying its petition to compel arbitration 1 in an action brought against it by David Merrick; Merrick cross-appeals, requesting review of an order which sustained without leave to amend the demurrer to one of the causes of action of his complaint.

Merrick's action seeks damages for malicious prosecution, abuse of process and "prima facie tort." The complaint alleges: The Guild, pursuant to the 1977 Theatrical and Television Basic Agreement to which Merrick was a signatory, brought to arbitration a claim of two of its members against Merrick for breach of his agreement to compensate them for writing a screenplay; the arbitrator issued an award denying the claim on its merits; the court subsequently made an order confirming the award pursuant to Merrick's petition; in bringing and maintaining the arbitration proceeding against Merrick, the Guild acted maliciously, without justification and for the purpose of inflicting harm upon Merrick by harassing and embarrassing him, impairing his reputation, interfering with his business relationships and causing him to expend his funds and time unnecessarily. The Guild demurred to the complaint. The demurrer was overruled as to the first and second causes of action (malicious prosecution and abuse of process) and sustained without leave to amend as to the third cause of action (prima facie tort).

After answering the complaint, the Guild filed a petition to compel arbitration. 2 (Code Civ.Proc., § 1280 et seq.) The petition alleged: Pursuant[130 Cal.App.3d 216] to the National Labor Relations Act (29 U.S.C. § 151 et seq.)

Page 532

the Guild is certified as the collective bargaining representative of all writers employed by producers to prepare literary material for motion pictures produced for exhibition on television and in theaters; 3 employers and writers engaged in said television and motion picture industry are engaged in interstate commerce; Merrick is a producer of motion pictures primarily for theatrical exhibition and employs writers who are Guild members; Merrick as a producer and the Guild, as the representative of writers in the motion picture industry, entered into a collective bargaining agreement entitled "Writers Guild of America 1977 Theatrical and Television Basic Agreement" which is presently in force between Merrick and the Guild; articles 10, 11 and 12 of the Basic Agreement govern arbitration of disputes between the parties; such articles preclude a civil action by Merrick and the award of damages to him based upon the Guild's prosecuting in arbitration a claim of its member; the differences between the parties regarding said preclusion constitutes a dispute subject to arbitration under article 10 of the Basic Agreement; the Guild served upon Merrick a notice of claim submitted to arbitration; Merrick refuses to participate in arbitration on the ground that the arbitrator lacks jurisdiction of the claims set forth in the complaint.

The trial court denied the petition to compel arbitration based on its finding that Merrick's claims of malicious prosecution and abuse of process arise out of tort, not contract, and therefore do not come within the scope of the arbitration provisions contained in article 10 of the Basic Agreement.

THE GUILD'S APPEAL

Code of Civil Procedure section 1281.2 provides: "On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement[130 Cal.App.3d 217] to arbitrate the controversy exists ...." In making that determination the court must examine and, to a limited extent, construe the underlying agreement. (Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal.3d 473, 480, 121 Cal.Rptr. 477, 535 P.2d 341.) The interpretation of written instruments is solely a judicial function unless it turns upon the credibility of extrinsic evidence; accordingly, an appellate court is not bound by a trial court's construction of a contract based solely upon the terms of the instrument without the aid of evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866, 44 Cal.Rptr. 767, 402 P.2d 839.) This rule of appellate review applies to arbitration provisions of contracts. (Conejo Valley Unified School Dist. v. William Blurock & Partners, Inc. (1980) 111 Cal.App.3d 983, 987-988, 169 Cal.Rptr. 102.) The trial court's "finding" that the dispute herein is outside the scope of the Basic Agreement's arbitration provisions is not based upon extrinsic evidence and is in reality a conclusion of law. Thus "[w]e are free to make our own independent interpretation of the terms of the contract and its application to the instant dispute." (Berman v. Dean Witter & Co., Inc. (1975) 44 Cal.App.3d 999, 1003, 119 Cal.Rptr. 130.) We turn to the provisions of the Basic...

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37 practice notes
  • Gravillis v. Coldwell Banker Residential, No. B182588.
    • United States
    • California Court of Appeals
    • September 29, 2006
    ...based solely upon the terms of the instrument without the aid of evidence." (Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 217, 181 Cal.Rptr. 530; accord, Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1670, 53 Cal. Rptr.2d 515.) Where, as here, the la......
  • Stirlen v. Supercuts, Inc., No. A070573
    • United States
    • California Court of Appeals
    • January 9, 1997
    ...based solely upon the terms of the instrument without the aid of evidence." (Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 217, 181 Cal.Rptr. 530.) 1 Thus, in cases such as this, in Page 142 which extrinsic evidence was not presented, "[d]eterminations of arbitr......
  • MOLECULAR ANALYTICAL Sys. v. CIPHERGEN BIOSys. INC., No. H032845.
    • United States
    • California Court of Appeals
    • July 9, 2010
    ...Cal.Rptr.2d 515; Vianna, supra, 27 Cal.App.4th at p. 1189, 33 Cal.Rptr.2d 188; Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 217, 181 Cal.Rptr. 530.) [21] 186 Cal.App.4th 708 The de novo review standard likewise applies to the question of Bio–Rad's rights to com......
  • Insurance Co. of North America v. ABB Power Generation, No. 95 Civ. 0406(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 21, 1996
    ...agreements is essentially the same as federal and New York law on this point. See Writers Guild of America, West, Inc. v. Merrick, 130 Cal.App.3d 212, 218-19, 181 Cal. Rptr. 530, 533-34...
  • Request a trial to view additional results
37 cases
  • Gravillis v. Coldwell Banker Residential, No. B182588.
    • United States
    • California Court of Appeals
    • September 29, 2006
    ...based solely upon the terms of the instrument without the aid of evidence." (Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 217, 181 Cal.Rptr. 530; accord, Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1670, 53 Cal. Rptr.2d 515.) Where, as here, the la......
  • Stirlen v. Supercuts, Inc., No. A070573
    • United States
    • California Court of Appeals
    • January 9, 1997
    ...based solely upon the terms of the instrument without the aid of evidence." (Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 217, 181 Cal.Rptr. 530.) 1 Thus, in cases such as this, in Page 142 which extrinsic evidence was not presented, "[d]eterminations of arbitr......
  • MOLECULAR ANALYTICAL Sys. v. CIPHERGEN BIOSys. INC., No. H032845.
    • United States
    • California Court of Appeals
    • July 9, 2010
    ...Cal.Rptr.2d 515; Vianna, supra, 27 Cal.App.4th at p. 1189, 33 Cal.Rptr.2d 188; Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 217, 181 Cal.Rptr. 530.) [21] 186 Cal.App.4th 708 The de novo review standard likewise applies to the question of Bio–Rad's rights to com......
  • Insurance Co. of North America v. ABB Power Generation, No. 95 Civ. 0406(LAK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 21, 1996
    ...agreements is essentially the same as federal and New York law on this point. See Writers Guild of America, West, Inc. v. Merrick, 130 Cal.App.3d 212, 218-19, 181 Cal. Rptr. 530, 533-34...
  • Request a trial to view additional results

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