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Lyons & Wolivar, Inc. v. Superior Court

California Court of Appeals, Fourth District, Third Division
Nov 21, 2007
No. G039219 (Cal. Ct. App. Nov. 21, 2007)

Opinion


LYONS & WOLIVAR, INC. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent WALTER KANE et al., Real Parties in Interest. G039219 California Court of Appeal, Fourth District, Third Division November 21, 2007

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Linda Shelton, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition granted, Super. Ct. No. 06CC00692

Epstein Becker & Green, David Jacobs, Deanna L. Ballesteros, and Daniel Parker Jett for Petitioners.

No appearance for Respondent.

Leeds, Morelli & Brown and Jeff Brown; Law Offices of Ashley D. Posner and Ashley D. Posner for Real Parties in Interest.

OPINION

THE COURT:

Before O’Leary, Acting P.J., Aronson, J., and Ikola, J.

Petitioners Lyons & Wolivar, Inc. and its six principals seek extraordinary relief from an order denying their motion to dismiss an arbitration action against the six principals. As explained below, we find the trial court erroneously concluded “law of the case” mandated denial of the dismissal motion. Finding plain error, we issue a peremptory writ of mandate in the first instance directing the trial court to rehear the motion to dismiss on the merits.

Background

Walter Kane and ten other individuals (collectively, the franchisees) entered into franchise agreements with Lyons & Wolivar, Inc. (L&W) for the purchase of “investigative services company” franchises. Each franchise agreement contained an arbitration provision. When L&W eventually pursued arbitration against the various franchisees individually, the franchisees jointly sought an order from the trial court consolidating the individual arbitrations into a single proceeding. The trial court denied the petition for consolidation of arbitration claims.

The franchisees then filed a petition for a writ of mandate seeking relief from the order denying their consolidation petition. The sole real party in interest in that first writ proceeding was L&W. On October 13, 2006, this court issued an alternative writ of mandate directing the trial court to grant the consolidation petition. The trial court complied with the alternative writ.

The franchisees’ AAA statement of claims named not only L&W but also the six principals of L&W as respondents in the arbitration proceeding. On June 29, 2007, the six principals of L&W specially appeared before the superior court, along with L&W, to move the court for an order dismissing the arbitration as to the six principals. The motion to dismiss was made on two grounds: (1) that the six principals were not parties to the franchise agreements containing the arbitration provision and thus cannot be forced to arbitrate the franchisees’ claims against them, and (2) the arbitration panel has no jurisdiction over the six principals because none of them had been served with process or otherwise consented to the arbitrator’s or the court’s jurisdiction.

On August 21, 2007, the superior court denied the motion to dismiss the AAA arbitration as to the six principals on the sole ground that it was “required” to do so by the alternative writ of mandate this court issued in the first writ proceeding. The trial court concluded the alternative writ of mandate created “law of the case” which mandated denial of the motion to dismiss. The trial court did not rule on the merits of the dismissal motion.

L&W and its six principals filed a petition for a writ of mandate. We invited the franchisees to file an informal response, which they did. After reviewing the franchisees’ response, we notified the parties of our intent to issue a peremptory writ of mandate. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) We received no objection to this proposed procedure.

As we explain below, the trial court plainly erred in failing to rule on the merits of the motion to dismiss. Because “petitioner[s’] entitlement to the relief requested is so obvious that no purpose could be served by plenary consideration of the issue,” we issue a peremptory writ of mandate in the first instance. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1260.)

Discussion

The trial court misperceived the effect of the alternative writ. An alternative writ does not create law of the case. “[A]bsent a written opinion following issuance of the alternative writ, this court’s reasoning in issuing the alternative writ is not the law of the case[.] (See Kowis v. Howard (1992) 3 Cal.4th 888, 893-894.)” (Ross v. San Francisco Bay Area Rapid Transit Dist. (2007) 146 Cal.App.4th 1507, 1513, fn. 6; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 895, p. 928.)

The alternative writ we issued in the prior writ proceeding was a narrow directive to the trial court, unaccompanied by a written opinion. It thus did not create law of the case. Moreover, it could have no binding effect on the six principals of L&W, who were not parties to that proceeding.

The trial court plainly erred in failing to decide the motion to dismiss on the merits. Consequently, the court must rehear the matter, taking into consideration, among other things, (1) whether the court had jurisdiction over the six principals based on service of process or otherwise, and (2) if the court did have jurisdiction, whether the six principals agreed to arbitrate the claims made against them or are otherwise bound by the arbitration provision in the franchise agreement between the franchisees and L&W.

Disposition

Let a peremptory writ of mandate issue directing the superior court to vacate its order denying the motion to dismiss the arbitration as to the six principals and to rehear the matter on the merits of the motion.

The franchisees’ request for judicial notice of documents submitted in opposition to the petition for writ of mandate, and the petitioners’ motion to strike certain of the documents filed by the franchisees, are both denied because neither motion is necessary to the determination of this writ proceeding.

This decision shall be final within ten days of its filing. (Cal. Rules of Court, rule 8.264(b)(3).)


Summaries of

Lyons & Wolivar, Inc. v. Superior Court

California Court of Appeals, Fourth District, Third Division
Nov 21, 2007
No. G039219 (Cal. Ct. App. Nov. 21, 2007)
Case details for

Lyons & Wolivar, Inc. v. Superior Court

Case Details

Full title:LYONS & WOLIVAR, INC. et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Nov 21, 2007

Citations

No. G039219 (Cal. Ct. App. Nov. 21, 2007)