Porreco v. Red Top Rv Center

• Decision Date: 30 November 1989
• Docket Number: No. A043553,A043553
• Citation: 264 Cal.Rptr. 609,216 Cal.App.3d 113
• Court: California Court of Appeals Court of Appeals
• Parties: Thomas J. PORRECO and Josephine Porreco, Plaintiffs and Appellants, v. RED TOP RV CENTER, et al., Defendants and Respondents.

Page 609

264 Cal.Rptr. 609

216 Cal.App.3d 113

Thomas J. PORRECO and Josephine Porreco, Plaintiffs and Appellants, v. RED TOP RV CENTER, et al., Defendants and Respondents.

No. A043553.

Court of Appeal, First District, Division 2, California.

Nov. 30, 1989.

As Modified on Denial of Rehearing Dec. 21, 1989.

Terry A. Duree, Fairfield, for plaintiffs and appellants, Thomas J. and Josephine Porreco

Bullen, McKinley, Gay, Keitges and Pach, Sacramento, for defendant and respondent, Red Top RV Center.

M. Jeffrey Micklas, Norris and Norris, P.C., Richmond, for defendant and respondent, Citicorp.

Nancy E. Hudgins, San Francisco, for defendant and respondent, Champion.

KLINE, Presiding Justice.

Appellants Thomas and Josephine Porreco appeal from the dismissal of their superior court action under Code of Civil Procedure sections 583.310 and 583.360 for failure to bring the case to trial within five years after the filing of the complaint. Appellants contend that the parties' stipulation to submit the case to arbitration precluded dismissal.

STATEMENT OF THE CASE AND FACTS

On April 12, 1983, appellants filed a complaint against respondents Red Top RV Center (Red Top) and Citicorp Acceptance Co., Inc. (Citicorp) for rescission, restitution and damages based on a contract to purchase an allegedly defective motor home. The parties engaged in discovery; at-issue and counter at-issue memoranda were filed by appellants and Red Top on April 25 and May 1, 1984, respectively; a trial setting conference was set for July 18, 1984; and Red Top filed an offer to compromise (Code Civ.Proc., § 998) on August 23, 1984.

Subsequently, on December 4, 1984, Red Top filed a cross complaint for indemnity and contribution against Chrysler Corporation (Chrysler), Champion Home Builders Company (Champion), and Concord Safety Center (Concord). Appellants amended their complaint to add these parties as defendants on January 23 and February 20, 1985. ¹ Approximately the next three years (until March 1988) were occupied with the defendants' filing of answers to the amended complaint, additional cross complaints against each other, ² and answers to the cross complaints. ³ Some additional discovery was conducted by Champion during part of 1985.

In June 1987, appellants dismissed Concord (as to plaintiffs' cause of action) and filed another at-issue memorandum; Chrysler and Champion filed counter at-issue memoranda. At a trial setting conference on October 21, 1987, a mandatory settlement conference was set for January 8, 1988, and trial was set for January 25, 1988, a date within five years of the filing of the complaint. On November 23, 1987, the trial court granted a motion for summary adjudication of certain issues in favor of Champion and Champion filed a settlement offer on December 14, 1987. Appellants at some point settled with Chrysler, and this defendant was dismissed on January 6, 1988.

At the settlement conference on January 8, 1988, all parties agreed to submit the matter to binding arbitration. Appellants' counsel drafted a stipulation and order to this effect which provided, among other things, that it would be signed in counterparts. The stipulation, which will later be described in greater detail, was signed by Champion and its attorney on February 17, 1988, by Chrysler's attorney on February 26, 1988, by Red Top and its attorney on February 29, 1988, by Citicorp and its attorney on March 18, 1988, and by appellants and their attorney on April 4, 1988. The fifth anniversary of the filing of appellants' complaint was April 12, 1988.

On April 22, 1988, Citicorp filed a motion to dismiss the action pursuant to Code of Civil Procedure sections 583.310 and 583.360 for failure to bring the case to trial within five years of the filing of the complaint. The other respondents subsequently joined in this motion.

On May 3, 1988, the trial court signed the order on the stipulation to arbitration; the stipulation and order were filed on May 4, 1988. The superior court provided the parties with the names of six arbitrators on May 6, 1988. On May 16, 1988, Champion rejected one of the arbitrators and appellants rejected another.

The motion to dismiss was heard on May 25, 1988 and subsequently granted. Judgment was entered on July 11, 1988 and appellants' notice of appeal was filed on September 1, 1988.

DISCUSSION

I. The Parties Stipulated to Judicial Arbitration

Appellants, for the first time on appeal, urge that the parties' stipulation contemplated submission of the case to binding arbitration under the general arbitration statute, Code of Civil Procedure sections 1280 et seq., ⁴ rather than under the Judicial Arbitration Act, sections 1141.10 et seq. ⁵ The general arbitration statute governs private arbitration conducted pursuant to an agreement between the parties while the Judicial Arbitration Act provides for "court-annexed" arbitration (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403-404, 212 Cal.Rptr. 151, 696 P.2d 645); the provisions of two statutory schemes are "mutually exclusive and independent of each other." (§ 1141.30.) Among other differences, private arbitration is by its essence binding while judicial arbitration offers the opportunity for a de novo trial after arbitration has been completed. (Id., at p. 402, 212 Cal.Rptr. 151, 696 P.2d 645; compare §§ 1285 et seq. with § 1141.20.)

The parties' stipulation must be construed according to the ordinary rules for interpretation of contracts, with the paramount consideration being the parties' objective intention at the time of contracting. (See Miles v. Speidel (1989) 211 Cal.App.3d 879, 883-884, 259 Cal.Rptr. 582.) Contrary to appellants' argument, it is apparent from the face of the document that the stipulation was drafted--by appellants' counsel--with reference to the Judicial Arbitration Act. First, the stipulation is entitled "Stipulation for Judicial Arbitration; Order Thereon;" had the parties intended general arbitration, there would have been no reason for them to make this express reference to a different statutory scheme. Second, the stipulation specifically states that each party waives the right to a de novo trial after filing of the arbitrator's award "which right is given by Section 1141.20 of the Code of Civil Procedure and Rule 1616 of the California Rules of Court." Not only does this provision make specific reference to a statute which is part of the Judicial Arbitration Act and a rule of court implementing that act, but, since there is no right to de novo trial under the general arbitration statute, there would be no reason to expressly waive that right in a stipulation contemplating general arbitration. Third, the stipulation provides that the arbitration is to be conducted pursuant to the Code of Civil Procedure, California Rules of Court [hereinafter Rules of Court] and local rules of the Solano County Superior Court. While the statutes governing both types of arbitration are contained in the Code of Civil Procedure, the only arbitration provisions in the Rules of Court and local rules pertain to judicial arbitration. (Rules of Court, rules 1600-1617; Solano County Local Rules, rule 10.2.)

The fact that the parties stipulated to binding arbitration does not take their agreement outside the scope of the Judicial Arbitration Act. While the right to a de novo trial is the principal distinguishing factor between judicial and general arbitration, it is not the only one. (Blanton v. Womancare, Inc., supra, 38 Cal.3d at pp. 401-402, 212 Cal.Rptr. 151, 696 P.2d 645.) For example, parties to private arbitration bear the cost of the arbitration while judicial arbitration is at public expense (id., at p. 402, fn. 5, 212 Cal.Rptr. 151, 696 P.2d 645); private arbitration allows discovery only in personal injury cases unless the parties' agreement provides otherwise, while parties to judicial arbitration have full discovery rights (ibid.; compare Rule of Court 1612 with § 1283.1); and private arbitration generally dispenses with the rules of evidence while judicial arbitration follows those rules with certain modifications. (Compare § 1282.2, subd. (d) with rule 1613(b).)

The Supreme Court in Blanton considered a stipulation which specifically referred to the Judicial Arbitration Act but provided for binding arbitration to be "something of a hybrid." (38 Cal.3d at p. 402, 212 Cal.Rptr. 151, 696 P.2d 645.) Because of the specific reference to the Judicial Arbitration Act, the court took the view that the parties intended an agreement for judicial arbitration with advance waiver of the right to request a de novo trial. (Ibid.) In that case, the stipulation was held invalid because the attorney had signed it without the client's consent and in fact against her express wishes; the court gave no indication that an agreement to binding judicial arbitration with the client's consent would have been improper. In the present case there is no contention that any party objected to the attorneys' stipulation; indeed, the only party which did not have a client signature on the stipulation, Chrysler, was dismissed from the trial court action and is not a party to this appeal.

While the stipulation here is "something of a hybrid," as in Blanton, it nevertheless reflects a clear intent to submit the case to arbitration under the Judicial Arbitration Act. ⁶

II. The Five-Year Period was Tolled By the Parties' Stipulation

The trial court dismissed this action under the mandatory provisions of sections 583.310 and 583.360. Section 583.310 provides that "[a]n action shall be brought to trial within five years after the action is commenced against the defendant." Section 583.360 provides that an action "shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article" and that "[t]he requirements of this article are mandatory and are not...