Winograd v. American Broadcasting Co., B104031

Citation80 Cal.Rptr.2d 378,68 Cal.App.4th 624
Decision Date10 December 1998
Docket NumberNo. B104031,B104031
CourtCalifornia Court of Appeals
Parties, 98 Cal. Daily Op. Serv. 9038, 98 Daily Journal D.A.R. 12,593 Cary Stephen WINOGRAD, Plaintiff and Appellant, v. AMERICAN BROADCASTING COMPANY, Defendant and Respondent.

Fogel, Feldman, Ostrov, Ringler & Klevens, Larry R. Feldman, Lester G. Ostrov, Jerome L. Ringer and Thomas H. Peters, Santa Monica, for Plaintiff and Appellant.

Brumer, Rubin & Weston, William S. Weston, Los Angeles, Paul L. Shardlow and Karineh J. Minassian for Defendant and Respondent.


This case concerns the interpretation and application of a stipulation entered into orally before the court. The stipulation constituted an agreement to arbitrate, but it intermingled characteristics of both judicial and contractual arbitration. For that reason it was ambiguous, and a dispute over its meaning resulted. The trial court denied plaintiff's petition to compel arbitration, and plaintiff appeals. (Code of Civ. Proc., § 1294 ["An aggrieved party may appeal from ... [a]n order ... denying a petition to compel arbitration."] )

The primary issue on appeal is what appellate standard applies to review of the trial court's construction of the parties' agreement. The agreement was reflected in a court transcript of an oral conference and interpreted in light of other matters in the court record, the procedural posture of the case, and related factors. The matter was extensively briefed, including additional briefing requested by the court. The authorities show that the determinative question is this: was the trial court's ruling based on reasonable inferences, supported by substantial evidence? It was, and hence we will affirm.


The case underlying the arbitration controversy arose out of a car accident in which plaintiff Cary Winograd's car was rear-ended by a car on an errand for defendant American Broadcasting Company (ABC). The matter was submitted to judicial arbitration twice. In the first judicial arbitration in January of 1993, plaintiff was awarded $121,515.78, but ABC filed a request for a trial de novo. In October of 1993, during a mandatory settlement conference, the case was again ordered to judicial arbitration. This second judicial arbitration, conducted in November of 1993, yielded an award to plaintiff of $45,000. Plaintiff then filed a request for trial de novo. Trial was scheduled for January 6, 1994. Counsel for both sides appeared on that date. After some colloquy before Judge David Rothman, the matter was transferred to Judge Richard Harris for a settlement conference. The conference before Judge Harris did not yield an outright settlement agreement, but did yield the stipulation now in issue.

The transcript of proceedings before Judge Harris shows that he recited these After clarifying some additional matters concerning a related small claims action and some pleading issues, Judge Harris stated: "I believe that states the full stipulation. Is there anything to add for the plaintiff?" To that, plaintiff's counsel responded: "The only thing I might want put in is if for some reason we can't get three of these judges available to sit as a panel before the five-years runs, that we can agree mutually to substitute another judge in their place." Judge Harris then stated: "Oh, absolutely. And I want to tell you that do not let this sit around," and added "And in that connection, I will make myself available to you if you have some difficulties in that regard."

elements of the parties' stipulation on the record: 1) the parties had not reached a settlement; 2) they had instead "agreed to place this matter into a binding arbitration"; 3) "de novo hearing" was waived; 4) appeal was waived; 5) four specific JAMS judges were identified, with the proviso that the first three available were to [68 Cal.App.4th 628] act as a tripartite panel to decide the case; 6) the plaintiff was to receive not less than $25,000 nor more than $225,000; 7) the arbitrators were to be told that the arbitration was binding, but not the high and low limits; and 8) the arbitrators' fees were to be split one-half to plaintiff and one-half to defendant. After reciting these elements of the stipulation, Judge Harris stated: "There are two further things. This matter is about to go five-years and the parties have executed and agree to execute forthwith a stipulation in writing extending the time until January 1, 1995, within which this matter must be brought to trial. And the arbitration will, of course, take place before that."

After some further discussion about arranging for the arbitration to take place before the five-year date (as extended by stipulation), Judge Harris asked: "Anything to add for defendants?" Counsel for ABC responded: "No, I just understand that discovery's cut off, right?" Plaintiff's counsel responded: "Absolutely," and Judge Harris added: "Discovery is cut off absolutely."

Judge Harris then turned to the subject of authority to stipulate. He noted that plaintiff was not present, but recited that he was available by phone at work and that plaintiff's counsel had talked to him by phone and had "full authority to enter into this stipulation and to bind him to it." Plaintiff's counsel responded "yes." Judge Harris then stated that he understood that ABC's counsel had talked with ABC and its insurance adjuster by phone and had "full authority from Kemper Insurance and ABC to enter into this stipulation and to bind them to it." ABC's counsel responded: "Correct, Your Honor." Judge Harris then asked: "All right, anything else from anybody?" and received a negative response. Plaintiff's counsel then asked for the case number "just so that I can put it on the stip." After some proceedings held off the record, the court ordered jury fees refunded, and the proceedings concluded.

The minute order for January 6, 1994 (the date of the stipulation described above) states as follows:

"Counsel stipulate to binding arbitration, waiving jury trial, trial de novo and right of appeal. Further terms are stated in chambers on the record and reflected in the verbatim recording. Jury fees on deposit are ordered refunded.

"Stipulation to extend the five year date to 1/1/95 is signed and filed.

"Binding arbitration control date is set on 11/2/94 at 10:00 A.M. in Department WE A.

"Notice is waived."

On November 2, 1994 (the "binding arbitration control date" set in the minute order), defendant's counsel appeared in Department WE A, but plaintiff's counsel did not. Upon hearing that the matter had not yet been arbitrated, Judge Rothman first stated that the "matter is placed on the court's calendar then for a court's motion to dismiss." Then, after confirming that a binding arbitration agreement was in place, he reconsidered and dismissed the case without prejudice "since it's a binding arbitration." Defense counsel agreed to give notice. The minute order for that date states: "Case dismissed without prejudice. Case in binding arbitration. Order of dismissal signed and filed." The Order of Dismissal Defense counsel's notice of these events was not completely accurate. It stated that "this matter came on regularly for hearing an order to show cause re: dismissal after submission to binding arbitration." However, no OSC re dismissal had been set; the hearing instead was a "binding arbitration control date." The notice sent by defense counsel continued: "Based upon the fact that this matter had not yet been submitted to binding arbitration prior to the date set by the court for an order to show cause re: dismissal once the matter had been ordered into binding arbitration, this matter was dismissed." This again was in part inaccurate. There had been no OSC re dismissal set, and the matter was dismissed "without prejudice" on the grounds that it was in binding arbitration.

states that the case is dismissed "due to case pending in binding arbitration."

Following his receipt of this notice, plaintiff's counsel telephoned one of defendant's counsel. He was upset, stated that he "blew it," and asked if the dismissal could be set aside by stipulation so that he would not have to move for relief pursuant to Code of Civil Procedure section 473. The defense counsel who received the phone call referred plaintiff's counsel to a second defense counsel, but plaintiff's counsel never called that second defense counsel.

Nothing further happened until January 28, 1996 (about thirteen months later and more than a year after the five-year date as extended by stipulation), when a secretary at the offices of plaintiff's counsel telephoned defense counsel. The secretary explained that the counsel who originally had been handling the case for plaintiff had left the firm. She stated that the purpose of her call was to "schedule the arbitration." Defense counsel refused to schedule the arbitration, explaining that the case had earlier been dismissed. On May 3, 1996, plaintiff filed a petition to compel arbitration. The petition was brought pursuant to Code of Civil Procedure section 1281.2, and argued that the stipulation created a contract to arbitrate that "has a life of its own outside the judicial system." 1 Plaintiff thus argued that the arbitration agreement remained enforceable despite the expiration of the five-year period (as extended by stipulation).

Attached to plaintiff's petition to compel arbitration was a copy of the February 23, 1996, letter from defense counsel in which defense counsel refused to acquiesce in plaintiff's counsel's request to set an arbitration date. That letter contended that "[o]n January 6, 1994, the parties did agree to engage in binding arbitration. However, that binding arbitration was to be conducted in lieu of trial under the jurisdiction and supervision of the court, and not as a separate proceeding outside the jurisdiction of ...

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