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Dawodu v. Davis

Court of Appeals of California, Second District, Division Seven.
Nov 13, 2003
No. B165688 (Cal. Ct. App. Nov. 13, 2003)

Opinion

B165688.

11-13-2003

TOYIN DAWODU, Plaintiff and Appellant, v. VINCENT W. DAVIS, Defendant and Respondent.

Toyin Dawodu, in propria persona, Plaintiff and Appellant. Law Offices of Vincent W. Davis, Vincent W. Davis, in propria persona, Defendant and Respondent.


Toyin Dawodu (Dawodu) appeals dismissal of his professional malpractice action against Vincent W. Davis (Davis). The trial court granted Daviss petition to compel arbitration and to stay the action, and after Dawodu failed to bring the matter to arbitration, the trial court dismissed the action. On appeal, Dawodu contends, among other issues, that the action was improperly dismissed and he should not be compelled to arbitrate. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 26, 2001, Dawodu commenced an action against Davis for professional negligence based upon Daviss handling of Dawodus marital dissolution proceedings. The parties had a written retainer agreement for these services, in which they also initially agreed that they would enter into a number of unspecified real estate transactions together. Dawodu alleged that he paid Davis a $10,000 retainer, but that Davis failed to handle his family law matters and instead billed Dawodu for time spent learning about real estate investments on Dawodus behalf.

On March 8, 2002, Davis filed a petition to compel arbitration based upon a "Legal Services Contract" (LSC) between the parties dated June 2, 2000. The LSC contained a clause requiring the parties to arbitrate "all disputes" between them.

The LSC provided at paragraph 12.2 that "[a]ny dispute (other than one concerning legal fees only), including, but not limited [to as] set forth in section 6200-6206 of the California Business and Professions Code as administered by the Los Angeles County Bar Association and ... disputes as to the quality of our services, breach of fiduciary duties, or any other aspect of our attorney-client relationship, will be determined by submission to binding arbitration as provided by California law, and not by a lawsuit or resort to process except as California law provides for judicial review of arbitration proceedings. You may also have the right under California law to mandatory nonbinding arbitration to take place before binding arbitration. If you are entitled to, and ask for, nonbinding arbitration and you or we are unhappy with the result, it will be followed by binding arbitration. All parties to this Agreement, by entering into it, are giving up their rights to have any dispute decided in a court of law before a judge or jury and instead, are accepting the use of arbitration."

Davis also moved to stay the proceedings.

On March 12, 2002, Dawodu, in propria persona, filed an opposition to Daviss petition. Dawodu argued that he was not told to seek independent counsel to review the validity of the LSC, and that arbitration should be denied because he asserted claims for fraud.

In reply, Davis relied on express language in the contract addressing the right to seek independent counsel.

"I, Toyin Dawodu [signature], have read and understood the foregoing terms and agree to them, as of the date Attorney first provided services. Further, I have had the opportunity to negotiate this Agreement and have chosen to accept its terms. I guarantee to the Law Office of Vincent Davis the payment of all sums due them by me in accordance with the above attorney client fee law agreement. If any part of the Agreement is not clear to me, I understand and acknowledge that I am free to ask Attorney to explain it further before the Agreement is signed, and I will not sign the Agreement until I fully understand this Agreement. I further understand and acknowledge that I have the right to consult another attorney about any aspect of this Agreement." Furthermore, the last paragraph of the LSC stated: "Warning. [¶] This is a legal, binding, contract between you and attorney. Before signing please read it carefully and be sure you understand all of the contents. If there is anything you do not understand, ask about it. Do not hesitate to have this agreement reviewed by another attorney of your choice. We encourage it."

On March 28, 2002, the petition to compel arbitration and stay were granted. On October 8, 2002, a status conference was held; plaintiff failed to appear. The matter was set for a November 18, 2002 hearing on an order to show cause re dismissal.

On November 6, 2002, Dawodu filed a motion to compel payment of arbitration fees. Davis opposed the motion on the grounds that Dawodu, having initiated the case, was responsible for payment.

At the hearing, the trial court took the matter under submission, and later issued a signed minute order dated November 27, 2002, in which it dismissed the case pursuant to Code of Civil Procedure section 581, subdivision (m), and denied Dawodus motion to compel payment of arbitration fees.

We took judicial notice of a copy of the minute order, which contains a line for Judge Brugueras signature and a stamped signature above the line.

Dawodu thereafter filed a motion to dismiss the complaint based upon the courts minute order dismissing the action, believing a new order was required to obtain an appealable judgment. On February 13, 2003, the court issued its formal order of dismissal, relying on Code of Civil Procedure section 581, subdivision (m). On March 4, 2003, Dawodu appealed from "the whole and every Order dismissing the above-entitled action."

DISCUSSION

Dawodu argues that (1) the trial court acted in excess of its jurisdiction under Code of Civil Procedure section 581, subdivision (m) in dismissing the action, because two years had not expired since the commencement of the action; (2) the court could not compel arbitration because the plaintiff alleged fraud; (3) he should not be forced to pay for the arbitration; (4) Business and Professions Code sections 6203 and 6204 prohibit binding arbitration; (5) the trial court abused its discretion in permitting Davis to file untimely and/or inflammatory documents; and (6) this Court must refer Davis to the State Bar for discipline. Davis contends Dawodus appeal is untimely because his notice of appeal was filed more than 60 days after the November 27, 2002 minute order dismissing the action.

I. Dawodus Appeal is Timely.

Davis argues that Dawodus appeal from the motion to dismiss and payment of arbitration fees is untimely because it was filed March 4, 2003, more than 60 days after the clerk mailed the order on the trial courts ruling of November 27, 2002. Davis also argues Dawodus appeal from the March 28, 2002 order granting the petition to compel arbitration is untimely, contending such order was an appealable order. We disagree.

California Rules of Court, rule 2(a) provides, in relevant part, that "a notice of appeal must be filed on or before the earliest of: [¶] (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled `Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled `Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment." "Compliance with the time for filing a notice of appeal is mandatory and jurisdictional." (Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1579, fn. 11; see also In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219.)

An order of dismissal is an appealable judgment if it is signed, in writing, and filed in the action. (Code of Civ. Proc., § 581d; Chauncey v. Niems (1986) 182 Cal.App.3d 967, 971.) The date of entry of an appealable order is the date is entered in the minutes. (Cal. Rules of Court, rule 2(a).) Under Rule 2(a) the 180-day limit applies unless the document served is titled "notice of entry" or is file-stamped. Thus, a minute order served on all parties does not trigger the 60-day period if it does not comply with rule 2(a)(1) or (2); instead, the 180-day limit applies. (Cuenllas v. VRL International, Ltd. (2001) 92 Cal.App.4th 1050, 1054.)

The November 27, 2002 minute order constituted the judgment in this action. This minute order, although signed, in writing, and filed that date and served on all parties, did not contain the key language "notice of entry" and is not file-stamped. Thus, pursuant to Cuenllas, this appeal is governed by the 180-day time limit and Dawodus appeal is timely. Furthermore, because an order compelling arbitration is not an appealable order, but is reviewable on appeal from the subsequent judgment in the action, Dawodus appeal from the March 28, 2002 order compelling arbitration is properly before this court. (Code Civ. Proc., § 1294.2; Gordon v. G.R.O.U.P., Inc. (1996) 49 Cal.App.4th 998, 1004.)

II. The Trial Court Properly Dismissed the Action Under Its Inherent Powers.

Dawodu argues that because Davis moved to compel arbitration, the court erroneously dismissed the case for Dawodus failure to prosecute the arbitration. Furthermore, he asserts that the trial court could not rely on the discretionary dismissal statute to dismiss the action because it was less than two years old. (See, Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1430-1431.)

Code of Civil Procedure section 581 provides for the dismissal of actions upon the occurrence of numerous events, and subdivision (m) provides that "[t]he provisions of this section shall not be deemed to be an exclusive enumeration of the courts power to dismiss an action or dismiss a complaint as to a defendant." While section 581 generally governs voluntary dismissals and is not applicable here, the trial court has authority to dismiss based on its inherent power to control its processes. (See Code of Civil Procedure section 583.150; Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915.) Two factors are evaluated in exercising this discretionary power: (1) the plaintiff has failed to prosecute diligently, or (2) the complaint has been shown to be "fictitious" or "sham" such that the plaintiff has no valid cause of action. (Pearlson v. Does 1 to 646 (1999) 76 Cal.App.4th 1005, 1010.)

Code of Civil Procedure section 583.150 provides: "This chapter does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court."

Here, Dawodu has failed to prosecute the arbitration diligently as ordered by the court. Dawodu was required by the agreement to prosecute his claim in the agreed upon forum. His failure to do so justified dismissal of the action.

III. Dawodus Claims Are Subject to Arbitration.

Dawodu contends that because he had business dealings with Davis, the agreement may not be enforced. He contends, in the alternative, that his fraud claims are not subject to arbitration, because that procedure would deprives him of his constitutional right to a jury trial. (See, e.g., Firemans Fund Ins. Companies v. Younesi (1996) 48 Cal.App.4th 451, 458-459; Mayhew v. Benninghoff (1997) 53 Cal.App.4th 1365, 1369-1371.) We disagree.

We review the construction of unambiguous contractual terms de novo. (Vianna v. Doctors Management Co. (1994) 27 Cal.App.4th 1186, 1189.) Doubts as to the scope of an agreement to arbitrate are to be resolved in favor of arbitration. (Ibid.) The LSC is a "broad form" arbitration agreement because it applies to "any dispute" and would therefore apply to tort (fraud and professional negligence) claims as well as contract claims. (See Vianna v. Doctors Management Co., supra, 27 Cal.App.4th at p. 1189.) Thus, we reject Dawodus arguments that it cannot apply to tort claims.

Dawodu attempts to circumvent this broad language in the LSC by relying on Mayhew and Younesi, both of which are inapposite. Mayhew involved an attorney and client who had business dealings with each other; the attorney sought to enforce the retainer agreements arbitration provisions relating to disputes arising out of the provision of legal services with respect to the failed business venture. (Mayhew v. Benninghoff, supra, 53 Cal.App.4th at p. 1368.) Mayhew held that an attorney could not rely on such provisions to arbitrate disputes arising out of business transactions. (Id. at p. 1370.) Mayhew is inapplicable in the instant case because the LSC covered "any dispute," not "disputes relating to the provision of legal services." Younesi was an insurance defense case and involved the application of Civil Code section 2860, subdivision (c), which pertains to the selection of independent counsel for the insured and the insurers obligation to pay fees to the independent counsel, and has no application to the instant case. (Firemans Fund Ins. Companies v. Younesi, supra, at p. 454.)

IV. Dawodus Argument Regarding Payment of Fees is Premature.

Dawodu argues that he should not be forced to pay for an arbitration that was forced upon him.

The LSC is silent concerning the allocation of arbitration fees, but states that the arbitration shall be conducted pursuant to "California Law." Therefore, the arbitration will be conducted according to the provisions of the California Arbitration Act, Code of Civil Procedure sections 1280 et seq. (See, e.g., Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Under Code of Civil Procedure section 1284.2, each party must bear the fees and expenses incurred for the partys own benefit. Thus, the determination of fees awaits the outcome of the arbitration, when it may be determined which fees were incurred for a "partys own benefit."

V. Business & Professions Code Sections 6203 and 6204 Do Not Prohibit the Arbitration of Legal Malpractice Claims.

Dawodu argues that forcing him into binding arbitration is unconscionable because Business & Professions Code sections 6203 and 6204 prohibit binding arbitration and Davis was not entitled to any fees for services performed. Dawodu requests that even if this court determines that arbitration is still warranted, it should limit arbitration to non-binding arbitration pursuant to Business & Professions Code section 6200, et seq. We disagree.

The relevant portion of the LSC provides that "[a]ny dispute (other than one concerning legal fees only), including but not limited [to as] set forth in section 6200-6206 of the California Business and Professions Code . . . will be determined by submission to binding arbitration as provided by California law . . ." (emphasis added). Business and Professions Code sections 6200 et seq., apply solely to fee disputes. To the extent that Dawodus claims involved allegations of legal malpractice, they are not governed by Business and Professions Code sections 6200 et seq.

The LSC contains a provision relating to disputes as to fees at paragraph 12.1, which provides "[a]ny dispute between you and us as to the reasonable value of services under this Agreement shall be arbitrated under the provisions of the State Bar Fee Arbitration Program by the Los Angeles County Fee Arbitration Program."

Business and Professions Code, Section 6200, subdivision (b), provides that "This article shall not apply to any of the following: [& para;] . . . [¶] (2) claims for affirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct, except as provided in subdivision (a) of section 6203." Section 6203, subdivision (a) provides in relevant part that "[e]vidence relating to claims of malpractice and professional misconduct, shall be admissible only to the extent that those claims bear upon the fees, costs, or both, to which the attorney is entitled. The arbitrators shall not award affirmative relief, in the form of damages or offset or otherwise, for injuries underlying any such claim. Nothing in this section shall be construed to prevent the arbitrators from awarding the client a refund of unearned fees, costs or both previously paid to the attorney."

In fact commencement of the instant lawsuit may have constituted a waiver of the right to mediate any fee disputes under section 6200 et seq. (See Bus. & Prof. Code, § 6201, subd. (d)(2) [initiation of action for legal malpractice waives clients right to request or maintain arbitration under provisions of sections 6200 et seq.]; see also Bus. & Prof. Code § 6201, subd. (d)(3) [parties may stipulate to set aside such waiver].)

VI. No Error Resulted from the Introduction of Late-Filed Irrelevant and Inflammatory Documents.

Dawodu argues that the trial court abused its discretion in allowing Davis to file untimely and inflammatory documents, to which he was not able to file any objections because Daviss reply papers on the motion to compel arbitration were not faxed to him until one day prior to the hearing. (Cal. Rule Court, rule 317(d) [late-filed papers].) He also asserts that the documents introduced relating to his felony conviction were irrelevant and should have been excluded.

Dawodu has moved on appeal to strike portions of Daviss brief that he contends contain irrelevant, immaterial, and inflammatory items because they relate to alleged criminal proceedings pending against him. We grant his motion to strike. (Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 314.)

We disagree. By Dawodus own admission in his brief, California Rule of Court, rule 317(d) states that "[n]o paper shall be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late-filed paper, the minutes or order shall so indicate." There is no indication in the record that Dawodu objected to the papers. Furthermore, even if the court abused its discretion in considering the papers, there is no evidence that Dawodu was prejudiced in any manner, as the papers were irrelevant to the issue of whether the LSC created an agreement to arbitrate, which was the issue before the court on the motion to compel. (People v. Watson (1956) 46 Cal.2d 818, 836 [no reversal for evidentiary error absent prejudice].)

VII. No Grounds Exist to Refer Davis to the State Bar.

Dawodu argues that pursuant to Rule of Professional Conduct 5-200, Davis should be referred to the State Bar because he misrepresented facts to the court. Davis argues that Dawodu is precluded by a prior proceeding before the State Bar, which was resolved in Daviss favor, from raising the issue in this action.

No documents from these proceedings are part of the record on appeal in this matter, nor have we been requested to take judicial notice of them.

We decline to refer this matter to the State Bar because the record contains insufficient evidence of any violation of rule 5-200. Rule 5-200 provides that "[i]n presenting a matter to a tribunal, a member: [¶] (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; [¶] (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law; [¶] (C) Shall not intentionally misquote to a tribunal the language of a book, statute or decision." The record does not support Dawodus contentions in this regard.

DISPOSITION

The judgment of the superior court is affirmed. Respondent is to recover costs on appeal.

We concur: PERLUSS, P. J. and JOHNSON, J.


Summaries of

Dawodu v. Davis

Court of Appeals of California, Second District, Division Seven.
Nov 13, 2003
No. B165688 (Cal. Ct. App. Nov. 13, 2003)
Case details for

Dawodu v. Davis

Case Details

Full title:TOYIN DAWODU, Plaintiff and Appellant, v. VINCENT W. DAVIS, Defendant and…

Court:Court of Appeals of California, Second District, Division Seven.

Date published: Nov 13, 2003

Citations

No. B165688 (Cal. Ct. App. Nov. 13, 2003)