Schwartz v. Leibel

• Decision Date: 28 March 1967
• Citation: 57 Cal.Rptr. 831,249 Cal.App.2d 761
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the Application of Herbert Schwartz, M.D., for an Order Confirming Award of Arbitrators. Herbert SCHWARTZ, M.D., Respondent, v. Solomon LEIBEL, M.D., Appellant. Civ. 30010.

Page 831

57 Cal.Rptr. 831

249 Cal.App.2d 761

In the Matter of the Application of Herbert Schwartz, M.D., for an Order Confirming Award of Arbitrators Herbert SCHWARTZ, M.D., Respondent, v. Solomon LEIBEL, M.D., Appellant.

Civ. 30010.

Court of Appeal, Second District, Division 3, California.

March 28, 1967.

Charles L. Lippitt, Van Nuys, for appellant.

Ronald L. Scheinman, Los Angeles, and Jacob Paull, Beverly Hills, for respondent.

COBEY, Associate Justice.

This is an appeal from a judgment entered in confirmation of an arbitrator's award of $13,226.03 (aside from costs) against appellant and in favor of respondent.

The sole basis for this appeal is that the arbitrator had no jurisdiction to make the award because respondent, who initiated the arbitration proceedings, had, prior to doing so, waived his contractual rights to such arbitration by first bringing a stillpending suit upon the two contracts involved between the parties for injunctive relief and had thereby made an irrevocable election of remedies.

The appeal is without merit. It is true that on March 16, 1964, respondent did bring an action against appellant, who had been his partner in the practice of medicine, for a permanent injunction restraining him from violating that provision of their written partnership agreement, which he had specifically promised to observe in their subsequent written partnership dissolution agreement, and which forbade him, as the withdrawing partner, from practicing medicine within ten miles of the location of the medical office of the partnership; that after appropriate proceedings therefor a preliminary injunction to that effect against appellant was obtained on April 7, 1964; and that such injunction, after successful contempt proceedings thereunder against appellant, was duly dissolved on July 2, 1964, on appellant's motion for reasons unrelated to the basis of this appeal. ¹

At this point apparently respondent initiated the arbitration proceedings which culminated in the judgment before us. Appellant did not participate in such proceedings except that, in his answer to respondent's demand for arbitration, he denied the jurisdiction of the American Arbitration Association on the ground of the aforementioned and still pending superior court action brought by respondent against appellant.

In such action appellant filed and argued a demurrer to respondent's complaint, on the sole ground that the abovementioned partnership agreement between the parties required resort to arbitration rather than to the courts for settlement of the controversy arising out of or relating to the provisions of such agreement. The trial court overruled this demurrer on the express basis that the issuance of an injunction is not within the power of arbitrators. Appellant then opposed the issuance of the previously mentioned preliminary injunction, on the just-stated ground, among others.

Thus appellant's position, both before and throughout this litigation, has been unchanged. Furthermore, it has superficial support in the case. It has been said and held repeatedly that a right to arbitration is waived by bringing a suit on the basic contract itself without seeking arbitration. (Berman v. Renart Sportswear Corp., 222 Cal.App.2d 385, 389, 35 Cal.Rptr. 218; Local 659, I.A.T.S.E. v. Color Corp. of America, 47 Cal.2d 189, 194--195, 302 P.2d 294; Notes, 117 A.L.R. 301, 315; 161 A.L.R. 1426, 1433.) Moreover, it has been said that, once such a waiver has been made, it cannot be revoked. (See Bertero v. Superior Court, 216 Cal.App.2d 213, 218--219, 30 Cal.Rptr. 719, hear. den.)

Waiver of a contractual right to arbitration is ordinarily a question of fact and a determination of this question, if supported by substantial evidence, is binding on an appellate court. (Sawday v. Vista Irrigation Dist., 64 Cal.2d 833, 836, 52 Cal.Rptr. 1, 415 P.2d 816.) In this case the trial court expressly found that respondent did not waive his right to arbitration and did not make an irrevocable election of remedies by commencing his aforesaid action in the superior court.

From his brief it is apparent that appellant's rejoinder to these findings and this law would probably be the assertion that in reality these findings of fact of the trial court are erroneous conclusions of law and that, As a matter of law, respondent's resort to the courts before seeking arbitration constituted both a waiver of his right to arbitration and an irrevocable election of...