Opinion
A145353
01-23-2018
KEVIN WILLIAMS, Plaintiff and Appellant, v. ERIC SAFIRE, ET AL., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-05-440797)
Kevin Williams appeals from a judgment of dismissal entered due to his failure to prosecute the case in a timely manner. (See Code Civ. Proc., §§ 583.310, 583.320.) He contends the court erred both in dismissing the case and in denying his motion to vacate the dismissal. Respondents Eric Safire and John Houston Scott cross-appeal, contending the court erred in vacating an earlier arbitration decision. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
In July 2002, Williams retained Safire and Scott as his attorneys in an action against the City and County of San Francisco, pursuant to an Attorney Client Fee Agreement (Fee Agreement). The Fee Agreement contained a clause requiring arbitration of claims or controversies, including legal malpractice claims.
In April 2005, Williams filed a complaint against Safire and Scott, alleging legal malpractice and other causes of action. In June 2005, the court granted Safire and Scott's petition to compel arbitration, based on the arbitration clause in the Fee Agreement.
A. Appointment of the Arbitrator 2005-2008
The parties had difficulty agreeing on an arbitrator. Williams objected to some of Safire and Scott's proposals and charged some potential arbitrators with bias; other potential arbitrators rejected the appointment.
In March 2006, on the motion of Safire and Scott, the court ordered that the matter would be arbitrated by Martin Quinn, or if Quinn could not serve, by Justice Daniel M. Hanlon. Williams objected to Quinn and moved to disqualify him. Although Williams had exercised his one peremptory challenge, he also objected to Justice Hanlon. (See Code Civ. Proc., § 1281.91, subd. (b)(2).)
At Williams's request, Safire and Scott agreed to arbitrate before Judge Rebecca Westerfield, and the court appointed her as the arbitrator. However, Williams subsequently charged Judge Westerfield with bias, and she recused herself.
By letter of December 1, 2006, through counsel, Williams declared the Fee Agreement void on the ground that it did not comply with provisions of Business and Professions Code section 6147.
Business and Professions Code section 6147, subdivision (a) requires an attorney to include certain matters in a contract to represent a client on a contingency basis. Business and Professions Code section 6147, subdivision (b) states: "Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee."
In January 2007, Safire and Scott obtained an order appointing Justice Hanlon as the arbitrator. Williams filed an ex parte application to revoke the order. When that application was denied, he filed a motion to reconsider the order confirming Justice Hanlon. That motion was also denied. Williams then refused to sign the arbitrator's fee agreement, even after Safire and Scott offered to advance the arbitration fees.
In March 2007, Justice Hanlon sent his disclosure statements for a second time, reporting that he currently served, or in the past two years had served, as a dispute resolution neutral in matters in which a party was represented by a lawyer from the law firm representing Safire and Scott. Williams did not object to the disclosures.
In February 2008, Williams's attorney confirmed that Williams was prepared to arbitrate the case on March 11, 2008, before Justice Hanlon. Justice Hanlon's disclosure statement was sent for a third time, again asserting that he had served in the prior two years as a dispute resolution neutral in matters in which a party was represented by Safire and Scott's counsel. Again, Williams did not object. Also in February 2008, Williams and his attorney signed the "JAMS" fee agreement and a stipulation confirming that Williams waived any conflicts in the disclosure statement and accepted Justice Hanlon as the arbitrator.
B. Justice Hanlon's Arbitration Decision in 2008
A one-day arbitration took place on March 11, 2008. On May 8, 2008, Justice Hanlon entered an award in favor of Safire and Scott. Noting it was undisputed that the Fee Agreement was void for purposes of the arbitration due to Williams's invoking Business and Professions Code section 6147, Justice Hanlon calculated the attorney fees to which Safire and Scott were entitled using a quantum meruit approach.
C. Arbitration Award Vacated in 2010
Williams filed a motion for a new trial, which the trial court denied. Williams appealed the denial to this court, and we dismissed the appeal because it was taken from a non-appealable order.
In July 2009, the trial court initially granted Safire and Scott's petition to confirm the arbitration award and denied Williams's cross-petition to vacate it. However, after arguments over the terms of the statement of decision, the court changed its ruling, vacated the arbitration award on the ground that Justice Hanlon should have been disqualified for the perception of potential bias, and ordered the parties back to arbitration. The final statement of decision vacating the arbitration award and ordering the parties to return to arbitration was not entered until June 22, 2010.
D. Failure to Prosecute the Case after June 2010
After Williams convinced the court to vacate the arbitration award, he filed a petition for a writ of mandate for relief from the portion of the order that referred the parties back to arbitration. We denied the petition. Williams petitioned the California Supreme Court for review of our denial of his writ petition; the petition for review was denied. Williams next filed an appeal from the order vacating the arbitration award, which we dismissed as taken from a non-appealable order.
In December 2010, Williams filed a motion in the trial court for relief from the arbitration order due to his alleged indigence. On February 15, 2011, the court denied the motion and ordered the parties to meet and confer regarding the selection of an arbitrator. Williams filed an appeal, which we dismissed because it was taken from a non-appealable order.
The parties submitted their list of proposed arbitrators, and on March 22, 2011, the court appointed Ruth Glick as the arbitrator and named Justice William Stein as an alternate.
In July 2011, Safire and Scott began the process of engaging Glick, who was with the American Arbitration Association (AAA), to serve as the arbitrator. Williams demanded appointment of a panel of three arbitrators, based on his view of AAA Special Rules and his claim to $1,350,000 in damages.
The court confirmed Glick as the arbitrator, and she served a disclosure statement to which neither party objected. Later, however, Glick gave notice that she was unable to be the arbitrator due to time constraints.
On December 2, 2011, Williams sought ex parte relief based upon Safire and Scott's purported "unilateral ex parte withdrawal from AAA and the arbitration process." The ex parte request was denied.
Based on an email chain in the appellate record, it appears Williams believed that Safire and Scott were withdrawing from the arbitration process because their attorney had advised AAA that the court-ordered alternative to Glick was Justice Stein, who was associated with ADR Services rather than AAA. On that basis, counsel advised that they would "not be able to proceed with AAA." When AAA replied that Justice Stein could be made available through AAA, Safire and Stein agreed to proceed with Justice Stein as the arbitrator.
In December 2011, Safire and Scott agreed that Justice Stein could be asked to serve as the arbitrator under AAA rules. When queried by the AAA, Williams replied: "Without waiving any legal rights, including but not limited to California Rules of Court, amendments to the California Rules of Court and related statutory authority, AAA rules, policies, and procedures, it is agreed that Justice Stein is acceptable to invite as an arbitrator."
In his disclosures and supplemental disclosures served in December 2011, Justice Stein answered "no" to each disclosure question, including questions asking whether he had arbitrated or mediated with any party or lawyer in the case, or if he would entertain other offers of employment during the arbitration. Williams nonetheless objected to Justice Stein for cause.
The court granted Safire and Scott's petition to confirm Justice Stein as the arbitrator in March 2012. In March 2013, however, Safire and Scott were advised that Justice Stein would no longer accept the case.
In the next two years from March 2013 to March 2015, Williams did not contact Safire and Scott or file any document with the court. Safire and Scott contend they tried to find another arbitrator but, unable to locate anyone and not having heard from Williams about the arbitration, they stopped searching.
E. Dismissal of the Case in 2015 for Failure to Prosecute
On January 12, 2015, the trial court issued an order to show cause (OSC) why the action should not be dismissed or sanctions imposed for failure to "file case management statements re: status of binding arbitration." The OSC and local court rule required any responsive papers to be filed and served five days before the OSC hearing that was set for March 17, 2015.
Safire and Scott, through their attorney, filed a response on March 12, 2015. They explained that sanctions should not be imposed for failure to file a case management statement because the case management conference had been continued by a separate order to January 28, 2015, so the case management statement was not due until January 13, 2015, and therefore no statement was due when the OSC issued on January 12, 2015. However, Safire and Scott added, the case was almost 10 years old, and because of Williams's failure to proceed with the arbitration, the case should be dismissed under Code of Civil Procedure sections 583.110 et seq. To that end, Safire and Scott set forth a brief history of the proceedings.
Williams did not timely respond to the OSC. One day before the OSC hearing, he filed a declaration in opposition to the declaration of Safire and Scott's counsel, setting forth several reasons he believed the case should not be dismissed.
Counsel for Safire and Scott appeared at the OSC hearing on March 17, 2015; Williams did not. The court passed the matter to the end of the calendar so it could review Williams's tardy declaration, which it had not received until the morning of the hearing.
The court thereafter issued the following written order, dismissing the case: "An order to show cause for failure of Plaintiff to comply with court orders and rules was called for hearing on Mar-17-2015 at 10:30 am in Department 610. [¶] There was no appearance nor objection filed. [¶] Therefore, [¶] IT IS HEREBY ORDERED that this case is dismissed for failure to prosecute in [a] timely manner." (Italics added.)
Williams filed a motion to vacate the dismissal under Code of Civil Procedure section 473. His motion was denied on May 22, 2015. The court concluded that Williams failed to establish mistake, inadvertence, surprise or excusable neglect that would warrant relief under the statute, since he did not contact Safire and Scott, file a document, or do anything else in the case from March 2013 to March 2015, and he failed to appear at the hearing despite notice of the OSC.
Williams filed a notice of appeal from the "judgment" entered on May 22, 2015, attaching both the May 22 order denying his motion to vacate and the March 20 order of dismissal. (We interpret the notice of appeal broadly to challenge both the judgment of dismissal and the motion to vacate the dismissal.) Safire and Scott filed a cross-appeal from the judgment, including the June 2010 final statement of decision.
II. DISCUSSION
A. Williams's Appeal from the Dismissal for Failure to Prosecute
As mentioned, the court dismissed Williams's action for a "failure to prosecute in [a] timely manner." As codified in the Code of Civil Procedure, it is "the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition." (Code Civ. Proc., § 583.130.)
Except where otherwise indicated, all statutory references hereafter are to the Code of Civil Procedure.
Section 583.310 states: "An action shall be brought to trial within five years after the action is commenced against the defendant." (Italics added.) Here, by the time the case was dismissed in March 2015, well over five years had passed since the action was commenced by the filing of the complaint in April 2005 and the order compelling arbitration in June 2005.
Furthermore, section 583.320 provides that an action shall be brought to retrial within three years after entry of an order granting a new trial, or within three years after the issuance of the remittitur from an appeal of that order. (Code Civ. Proc. § 583.320.) Therefore, if the May 2008 arbitration was a "trial," the final statement of decision vacating the arbitration decision and ordering the parties back to arbitration was an order for a "new trial." The March 2015 dismissal occurred more than three years after the new trial order in June 2010, and more than three years after the remittitur from the dismissal of the appeal of that ruling in December 2010.
Accordingly, dismissal was required, under either section 583.310 or section 583.320. As discussed next, Williams's arguments to the contrary are unavailing, even though respondents do not address them in their respondents' brief.
1. Abuse of Discretion
Williams contends the court abused its discretion in dismissing the complaint because, "[a]ccording to the 'Superior Court Registry of Actions' appellant filed in excess of 70 pleadings and motions, made 35 personal appearances in court, perfected 9 appeals, and filed 16 Case Management Statements throughout the course of this 12 year litigation."
Williams's argument is misplaced, because sections 583.310 and 583.320 dictate mandatory rather than discretionary dismissals. (See § 583.360.) Moreover, filing a lot of documents with the court does not necessarily reflect a diligent effort to prosecute a matter toward trial or arbitration. Indeed, the 16 filings Williams sets forth in his opening brief show just the opposite, as they consist of 10 declarations in opposition to orders to show cause for failure to arbitrate or failure to file a judgment or dismissal (starting in January 2008), a declaration in opposition to a motion for sanctions, a declaration in opposition to another order to show cause, an ex parte application for an order vacating an order to show cause, two case management statements, and a proof of service. Although the case history as a whole might be interpreted in various ways, substantial evidence supported the conclusion that, despite Williams's court filings, he was not reasonably diligent in prosecuting the case. Indeed, in the two years preceding dismissal, after the parties had been ordered to a new arbitration hearing, Williams did nothing.
2. Case Management Order
Williams contends the "case management department" of the superior court mistakenly issued the OSC 16 days before the previous case management order had expired - in other words, no case management statement was overdue as of the date the OSC was issued. He argues that the order dismissing the case should therefore be reversed. (Citing Metis Development LLC. v. Bohacek (2011) 199 Cal.App.4th 748, 759.)
Williams is incorrect. The trial court's mistaken belief that a case management statement was overdue was not the reason the case was dismissed. Instead, the case was dismissed "for failure to prosecute in [a] timely manner."
3. Due Process
Williams contends the court denied him due process, because he did not receive notice that the case would be dismissed for failure to appear for a status conference. Again, his premise is incorrect. The case was not dismissed because he failed to appear for a status conference. It was dismissed because he failed to prosecute the action within the statutory time periods.
The OSC gave Williams notice that he was to show cause why the action should not be dismissed and that a hearing would be held on March 17, 2015. Although the OSC did not specify that the case would be dismissed for the reason of failing to prosecute, Williams had notice from Safire and Scott's response to the OSC - before the hearing date - that they were asking the court to dismiss the case on that ground. Williams had an opportunity to be heard on this issue, not only by filing a written opposition, but also by appearing at the scheduled hearing. The fact that Williams chose not to show up for the hearing does not mean he lacked notice and opportunity to be heard. We find no due process violation.
4. Res Judicata
Williams argues that the " 'final order' of the case management judge" was binding on the law and motion department under the res judicata doctrine. He also argues that a judge may not overrule the order of another judge.
Under the res judicata doctrine, a final valid judgment has preclusive effect in another case; Williams does not establish that it applies to two orders in the same case. Furthermore, he does not establish that one judge improperly overruled another judge in this matter: the case management order dismissed the case for failure to prosecute; the law and motion judge denied Williams's motion to vacate that dismissal on the ground that he failed to meet the requirements of section 473.
5. Motion to Set Aside the Dismissal
Williams contends the court abused its discretion in denying his motion to set aside the dismissal under section 473. Specifically, he argues, he filed a responsive declaration before the OSC hearing, and his failure to attend the OSC hearing was due to his "mistaken belief the matter would be continued as was routinely done many times before after his statement had been duly filed."
Williams fails to show that his mistaken belief was reasonable or excusable under the circumstances. The fact that the case management conference had been continued previously did not excuse his decision to skip the OSC hearing on March 17, 2015, particularly after knowing that opposing counsel had explicitly urged the court to dismiss the case due to Williams's failure to prosecute.
Williams contends he had "good cause" to rely upon a case management order from back in March 2013, which stated that any requests for dismissing the case or lifting the stay would require a motion in "Dept. 302," the law and motion department. He also contends he presented evidence showing that Safire and Scott withdrew from arbitration and sought to move the arbitral forum. However, neither of these matters show that Williams was justified in foregoing the OSC hearing (where he could have made his arguments), or that the dismissal should have been set aside under section 473.
6. Terminating Sanctions
Williams contends the court erred in dismissing the case because terminating sanctions should be imposed only when there has been previous noncompliance with a rule or order. In this regard, he refers us to Link v. Cater (1998) 60 Cal.App.4th 1315 (Link).
In Link, the plaintiff did not show up for trial. The court dismissed the case for failure to prosecute, although pursuant to a provision in section 581 allowing for a discretionary dismissal due to the failure to appear at trial. (Link, supra, 60 Cal.App.4th at pp. 1319-1321.) The appellate court reversed, holding that the trial court based its decision on a number of misapprehensions and failed to consider the plaintiff's diligence for over four years in bringing the case to trial. (Id. at pp. 1324-1325.) Because the plaintiff had no history of noncompliance and had been prosecuting the case diligently, a less severe sanction would have sufficed. (Id. at p. 1326; see also Wantuch v. Davis (1995) 32 Cal.App.4th 786, 794-795 [error in striking plaintiff's pleadings and entering judgment against plaintiff where he failed to appear at a status conference due to his incarceration but had prosecuted the case diligently].)
Link is inapposite. In Link, the case was dismissed because the plaintiff missed a trial date, even though he had diligently prosecuted the matter. Here, the case was dismissed because Williams had not prosecuted the matter as required, and had failed to bring the matter to a conclusion in nearly 10 years. Moreover, in Link the court's decision was discretionary, so the plaintiff's history of compliance with rules and orders should have been considered in the court's exercise of its discretion. Here, section 583.310 and 583.320 are mandatory.
Williams also refers us to Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342. At issue in Salas was the denial of a plaintiff's motion to specially set a trial so the trial could commence before the expiration of the five-year period. That is not the issue here. In any event, Salas ruled that the trial court did not abuse its discretion in denying the motion for preferential setting. (Id. at pp. 349-350.)
On another track, Williams contends the case was dismissed pursuant to section "581(5)" - ostensibly section 581, subdivision (b)(5) - which allows for a dismissal without prejudice " 'when either party fails to appear at the trial and the other party appears and asks for dismissal.' " However, the case was not dismissed under that provision. He also refers us to language in section 581, subdivision (b)(4), which permits a dismissal "without" prejudice "pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110)." He argues that the court erred because "reconsideration was denied with prejudice." (Underscoring in original.) There is, however, no way for Williams to cure his failure to bring the matter to trial (or a new trial) within the mandatory statutory period. Dismissal with prejudice was therefore appropriate.
7. Williams's Duty to Arbitrate
After the court vacated Justice Hanlon's arbitration decision, Safire and Scott filed an opposition to the court's proposed statement of decision on December 23, 2009. Among other things, Safire and Scott argued that principles of judicial economy did not favor ordering the parties to arbitration (because Williams would file an appeal), but instead "dictate confirming the award as made, and moving the case along to appeal now, so [Williams] may seek his jury trial in the appropriate court." Williams contends he had no further duty to arbitrate once Safire and Scott made this statement.
Whether or not Safire and Scott argued that the matter should be tried to a jury rather than arbitrated, the bottom line is that Williams, as plaintiff, was obligated to prosecute the case. Since the trial court ordered that the matter be arbitrated, and Williams did not obtain relief from that order, he was obligated to pursue arbitration. He failed to move the matter to a second arbitration hearing within the statutory period.
Williams also argues that Safire and Scott unilaterally and voluntarily withdrew from the arbitration, apparently based on their notification to AAA that Justice Stein was associated with ADR Services rather than AAA. We do not conclude from this that Safire or Scott failed to cooperate in bringing the matter to a disposition. Furthermore, Williams was still obligated to prosecute his case, yet he did nothing for the two years preceding the dismissal.
8. Fee Agreement Void
Williams contends Safire and Scott admitted that the Fee Agreement is void (based on Williams's invocation of Business and Professions Code section 6147), so the Fee Agreement and its arbitration clause are unenforceable. (Citing Fergus v. Songer (2007) 150 Cal.App.4th 552, 574.) But the purported unenforceability of the arbitration clause did not relieve Williams of his obligation to prosecute his case after the arbitration decision was vacated. Although Williams believed the parties should not have to arbitrate and disagreed with the order sending them back to arbitration, a plaintiff cannot quit pursuing his case just because he thinks it should be in another forum.
9. Attorney Fees and Costs
Williams contends he is entitled to recover attorney fees and costs for obtaining the order that vacated the arbitration decision. But as the trial court explained, that was an interim ruling rather than a final determination on the merits, and it did not establish Williams as the prevailing party in the case. To the contrary, based on the judgment of dismissal, Williams is not the prevailing party. We find no prejudicial error in the court's refusal to award Williams his attorney fees and costs.
In the final analysis, Williams fails to establish error with respect to the trial court's dismissal of his complaint or its denial of his motion to vacate the dismissal.
In his opposition to the OSC, Williams did not contend the time he has taken to prosecute his action should exclude any period for the arbitration under section 583.340. He therefore forfeited a challenge to the dismissal order on this ground. (Hepner v. Franchise Tax Board (1997) 52 Cal.App.4th 1475, 1486; see In re S.C. (2006) 138 Cal.App.4th 396, 406-407.) Moreover, he waived any such argument in this appeal - as to the dismissal or his motion to vacate - by failing to assert the argument in his opening brief. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) A reference in his appellate reply brief is insufficient. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489.)
At any rate, section 583.340 would not apply. The order staying the litigation for the arbitration did not deprive the trial court of jurisdiction, and a plaintiff's lack of reasonable diligence precludes a finding that bringing the matter to trial was impossible, impracticable or futile, even where the matter was stayed for arbitration. (Preston v. Kaiser Foundation Hospitals (1981) 126 Cal.App.3d 402, 407-409; Boutwell v. Kaiser Foundation Health Plan (1988) 206 Cal.App.3d 1371, 1373-1375; accord Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1798-1799.) And while Brock ruled that a lack of reasonable diligence in the arbitration did not preclude application of section 583.340, subdivision (b), there was no indication that the plaintiff in that case had delayed the appointment of an arbitrator, let alone amassed a history of failing to cooperate in the appointment of an arbitrator despite repeated efforts by the defense and the repeated intervention of the trial court. (Brock, supra, at pp. 1793-1794.) To apply section 583.340, in this particular case, would allow a plaintiff to evade the prosecution statutes by simply refusing to cooperate in the arbitrator's appointment, which was plainly not the intention of section 583.340.
B. Safire and Scott's Appeal
With respect to their cross-appeal, Safire and Scott argue that, if the order of dismissal for failure to prosecute is reversed, we should find that the order vacating the arbitration award was in error and direct the trial court to enter judgment for Safire and Scott on that ground. Because we affirm the order of dismissal for failure to prosecute, we need not and do not consider Safire and Scott's cross-appeal.
On December 5, 2016, Williams filed a request for judicial notice of an unpublished decision in Maxon v. Initiative Legal Group APC (Oct. 2, 2015, A139068) [nonpub. opn.].). On January 4, 2017, Williams filed a request for judicial notice of portions of certified reporter's transcripts. We deferred ruling on the requests until our decision on the merits. We now deny the request of December 5, 2016 (Cal. Rules of Court, rule 8.1115) and grant the request of January 4, 2017.
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.