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District Court of Appeal, Second District, Division 2, California.


Civ. 10165.

Decided: March 27, 1935

Joseph L. Fainer, R. E. Parsons, and W. V. Anderson, all of Los Angeles, for petitioners. Everett W. Mattoon and D. De Coster, both of Los Angeles, for respondents.

This is a petition for a writ of review of a proceeding in the superior court which may be briefly stated as follows: Heretofore petitioners brought suit for damages alleged to have resulted from medical malpractice against certain physicians individually and as members of a copartnership of physicians designated as “Ross-Loos Medical Group,” hereinafter referred to as “Medical Group.”

Although the complaint alleges that petitioners are members of the Medical Group, a reading of the pleadings and exhibits reveals that, instead of being members, petitioner Steven N. Spanach was, at the times herein concerned, a member of a voluntary association known as “Los Angeles Police Relief Association.” Such “Relief Association,” as it will hereafter be designated, and “Medical Group” entered into a long and detailed “Memorandum of Agreement” by the terms of which the Medical Group became obligated to furnish certain medical and allied services to “subscribers” or members and their families of the “Relief Association.” Elna Marie Spanach, the other petitioner, was the wife of Steven N. Spanach, and the alleged malpractice relates to treatment accorded her by a physician attached to the Medical Group.

The superior court action reached the point of taking testimony when defendants requested leave to amend their answers by alleging that said agreement provided that the alleged cause of action was subject to compulsory arbitration. The amendments were finally allowed, and plaintiffs (petitioners here) by their counsel orally acceded to arbitration. Before such accession, however, there was much discussion turning on the effect of the arbitration provision of the agreement and the court suggested that it was probably without jurisdiction to proceed with the case and that its jurisdiction could be tested by a writ of mandate. Thereafter the court made an order that all proceedings should be stayed “until arbitration might be had in accordance with the arbitration agreement.”

Subsequently thereto, plaintiffs-petitioners moved the court under section 473, Code of Civil Procedure, to be relieved from the order of the superior court staying “proceedings until arbitration has been had in accordance with the terms of the arbitration agreement” (quoting from the order) and therein petitioned that said order and all other orders made by the court in relation thereto be set aside and that the court declare a mistrial of such action; the grounds of the motion were that counsel in acceding to arbitration, acted under mistake, believing at the time that the arbitration provision of the agreement covered the alleged cause of action but that in fact this was erroneous. The court denied the motion.

Petitioners here claim that the court was without jurisdiction to decline to proceed with the trial until after arbitration had been had. It is upon this claim that this proceeding depends.

Without question the court was within its jurisdiction when, after the plaintiffs acceded to arbitration, the proceedings were stayed. Equally clear is the proposition that the court was within its jurisdiction to entertain the motion under section 473, Code of Civil Procedure, and to rule thereon. Its ruling is subject to appeal but, being a discretionary matter, the ruling is not subject to review in this proceeding. But these matters are beside the point.

It is apparent that the plaintiffs desire their cause to be reinstated on the calendar for trial in due course. It will not be denied that the action should be back on the trial calendar and tried if the subject-matter of the action does not come within the terms of the arbitration clause referred to. In other words, if the arbitration paragraphs of the agreement do not cover the superior court action then the action is within the jurisdiction of the court. Yet the court not only refused to take jurisdiction, but continues up to the present moment to so refuse. This is not mere error in the course of the trial of a cause; it is a refusal to proceed with the cause at all.

If the said arbitration provision does not in fact bar the court's jurisdiction of the action, the writ herein prayed should issue. We shall examine the agreement inasmuch as it was before the court in its entirety. It contains a paragraph subtitled “Grievances,” and is as follows: “Complaints made by either or any of the parties interested shall be forthwith investigated by the Committee of the Relief Association and of the Medical Group, and a full detail report in writing be filed, a copy of each such complaint and/or report to be filed with the Relief Association and/or officer appointed by the Board of Trustees of such association, and with the Medical Group.” Immediately following this paragraph is another entitled “Arbitration,” and is as follows: “In the event the explanation offered is not satisfactory, a board of arbitration shall be selected. Said board shall consist of one member appointed by the Relief Association, one by the Medical Group and a third selected by the two representatives thus appointed. Such Board shall meet in arbitration without unnecessary delay and their decision shall be final.”

It is our opinion that these two paragraphs should be read together, and that they plainly refer to methods and conditions of contact between the contracting entities and their individuals members and do not at all include personal damage claims by individuals.

The only result contemplated by the arbitration paragraph is to inquire into a grievance which has first been submitted to a joint committee for explanation. A tort is more than a grievance answerable by an explanation. A tort is a civil wrong not arising out of contract, and is the subject of measurable compensation. See Hallidie v. Enginger, 175 Cal. 505, at page 507, 166 P. 1.

We think the court's jurisdiction is clear and that the petitioners have a right to have their case placed upon the trial calendar and tried.

Let the writ issue providing therefor, and the order staying proceedings is annulled.

STEPHENS, Presiding Justice.

We concur: CRAIL, J.; SCOTT, Justice pro tem.

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