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District Court of Appeal, Second District, Division 3, California.

April Robin DOYLE, a Minor by Thomas A. Doyle, Jr., her Guardian ad Litem, Plaintiff and Appellant, v. Canzio E. GIULIUCCI, M.D., Philipp E. Schmidt, M.D., and Ross-Loos Medical Group, a copartnership, Defendants and Respondents.

Civ. 27349.

Decided: December 03, 1964

Thomas A. Doyle, Jr., in pro. per. Delbridge, Hamblin & Linton and Donald W. Hamblin, Pasadena, for respondents.

The plaintiff, a minor, has appealed from a judgment entered in conformity with an order confirming an award in arbitration. (Code Civ.Proc., §§ 1287.4, 1294, 1294.2.)1 The question presented is whether it was proper to require the plaintiff to submit her cause of action in tort to arbitration.

The pertinent facts will be stated. The plaintiff's father, Thomas A. Doyle, Jr., entered into a contract entitled ‘health Care Certificate’ with the Ross-Loos Medical Group, a copartnership of physicians and surgeons. Therein Mr. Doyle was designated as a ‘Subscriber.’ A portion of the agreement was as follows: ‘ROSS-LOOS agrees (subject to the same terms and conditions as are applicable to a Subscriber) to provide the same care and service to dependents of the Subscriber as it available for the Subscriber. The Subscriber shall be personally liable for the fees and charges for services rendered to his dependents, with or without his consent, as set forth in the paragraph entitled ‘Fees.” Under the heading of ‘Conditions,’ there was the following paragraph: ‘ARBITRATION: In the event of any controversy between a Subscriber or a dependent or the heirs-at-law or personal representative of a Subscriber or dependent, as the case may be, and Roos-Loos, whether involving a claim in tort, contract or otherwise, the same shall be settled by arbitration. Within fifteen (15) days after a Subscriber, or a dependent (hereinafter called the ‘claimant’), or Ross-Loos shall give notice to the other of its demand for arbitration of said controversy, the claimant and Ross-Loos shall each appoint an arbitrator and give notice of such appointment to the other. Within fifteen (15) days after such notices have been given, the two arbitrators so selected shall select a third arbitrator and give notice of the selection thereof to the parties. The arbitrators shall hold a hearing within thirty (30) days from the date of notice of selection of the third arbitrator. Not less than ten (10) days notice of the time and place of said hearing shall be given to the claimant and Ross-Loos. The arbitrators shall make written findings of fact and decision and shall send copies thereof to the claimant and Ross-Loos. All notices or other papers required to be given shall be given in writing by United States registered mail. Except as provided herein, the procedure in connection with said arbitration shall be that prescribed in the California Code of Civil Procedure. The decision of a majority of said arbitrators shall be binding upon the parties thereto, subject to the power of any court having jurisdiction to confirm, modify, or vacate the award as provided in the California Code of Civil Procedure.'

With respect to medical treatment which his daughter April had received, Mr. Doyle wrote to the Ross-Loos Medical Group on September 29, 1961, his letter being in part as follows: ‘As per the contract, we wish to submit our malpractice claim to arbitration. I have contacted the American Arbitration Assn. and they advise me that I must * * * secure your permission in order for them to handle the matter. They further state that in order for them to handle the matter that you must agree to waiving the procedure outlined in your contract and will abide by their rules.’ The medical group consented to such procedure but state that they did not waive their right to arbitrate under the arbitration clause in the contract in the event that the American Arbitration Association proceedings should be abandoned or terminated without an award. Thereafter the designated board of arbitrators made a written statement on December 21, 1961, the body of which is set forth in the footnote.2

On January 25, 1962, an action was filed in the superior court in which April Robin Doyle, then four years of age, was the plaintiff. Her father, Thomas A. Doyle, Jr., was appointed as her guardian ad litem. The defendants were the Ross-Loos Medical Group, Dr. Giuliucci, Dr. Schmidt and others. It was alleged in the complaint that the medical group and the two doctors were employed by the plaintiff, acting by and through her parents and natural guardians, to diagnose and treat an internal malady from which she was suffering, that such defendants did make a diagnosis and render treatment but ‘in so doing did not exercise the care and skill usual in their profession in the place in which they practice in that they negligently failed properly to daignose [sic] and treat such malady.’ The defendants named hereinabove made a motion for an order staying further proceedings and requiring the plaintiff to submit the matter to arbitration. The motion was opposed on behalf of the plaintiff, the opposition being placed in part on the ground that one of the defendants named in the complaint was a corporation which was alleged to have been culpable with respect to the drugs used in the child's treatment and that the best interests of the minor would not be served by a disposition of the issues as to part of the defendants by resort to arbitration. It was further contended that the minor was not under any binding obligation to arbitrate the matter. On May 10, 1962, the motion was granted.

On October 24, 1962, a form of the American Arbitration Association entitled a ‘stipulation’ was signed by Thomas A. Doyle, Jr., described therein as guardian ad litem for the minor, and by the attorney who had filed the action in the superior court. The attorney was described as the attorney for Mr. Doyle, guardian ad litem for the minor. The body of the document is set forth in the footnote.3

The board of arbitrators consisted of the same persons who had undertaken to arbitrate the controversy prior to the filing of the minor's action in the superior court. Their award of December 10, 1962, was in part as follows: ‘The claim of THOMAS A. DOYLE, guardian ad litem for APRIL R. DOYLE, a minor, against the ROSS-LOOS MEDICAL GROUP is denied.’

On February 18, 1963, Mr. Doyle filed a notice of motion for an order vacating the award. In his memorandum of points and authorities he contended that the arbitrators could not render an award which would be binding on the minor plaintiff. That motion was denied on February 26, 1963, and, as has been noted, the motion of the defendants for an order confirming the award was granted.

The scope of permissible review of the proceedings of the superior court on this appeal is set forth in section 1294.2 of the Code of Civil Procedure. That section is in part as follows: ‘Upon an appeal from any order or judgment under this title, the court may review the decision and any intermediate ruling, proceeding, order or decision which involves the merits or necessarily affects the order or judgment appealed from, or which substantially affects the rights of a party.’

For the reasons which will be stated, we have reached the conclusion that in the prosecution of her asserted cause of action for negligence the minor, April Robin Doyle, was not bound by the provision for arbitration in the contract between her father and the Ross-Loos Medical Group.

It has been stated generally that an agreement by a minor to submit a dispute to arbitration is voidable. (See 2 Williston on Contracts (3d ed.) § 227, p. 11; 5 Am.Jur.2d, Arbitration and Award §§ 62, 65, 172; Estate of Carpenter, 127 Cal. 582, 585, 60 P. 162; Millsaps v. Estes, 137 N.C. 535, 50 S.E. 227, 228–229, 70 L.R.A. 170.) But that is not the problem here presented. In the present case the minor was not a party to the contract for medical services and was not seeking to recover under the terms thereof. Mr. Doyle had no authority to act effectively with respect to the child's cause of action for negligence except pursuant to order of court. (See Burge v. City & County of San Francisco, 41 Cal.2d 608, 613, 262 P.2d 6.) While we may assume, without deciding the question, that there may be instances in which in the exercise of a sound discretion a court may be warranted in authorizing a guardian to submit to arbitration a controversy in which a minor is interested (see 5 Am.Jur.2d, Arbitration and Award § 63), the order which compelled arbitration in the present case was not of that nature. Here the court required the minor to submit her cause of action in tort to a board of arbitrators on the erroneous assumption that the child was bound by the provision for arbitration in the contract between her father and the Ross-Loos Medical Group. Such disposition of the matter was no more within the province of the court than it was within the province of a parent acting alone.

The conclusion heretofore expressed is not affected by the fact that Mr. Doyle signed the stipulation of October 24, 1962 (see footnote 3 to this opinion). Such act was consonant with the order compelling arbitration and could not cure the error inherent in that order.

The judgment is reversed and the cause is remanded to the superior court for further proceedings in harmony with the views herein expressed.


1.  On February 26, 1963, the motion of the defendants Ross-Loos Medical Group, Canzio E. Giuliucci and Philipp E. Schmidt for an order confirming the award and for entry of judgment in conformity therewith was granted and counsel for the defendants were directed to prepare the judgment. That minute order was entered on February 28, 1963. On March 12, 1963, the judge signed a document entitled ‘Order Confirming Award of Arbitrators and Judgment on Award of Arbitrators' which was entered on March 13, 1963, and was in pertinent part as follows: ‘Now, therefore, it is hereby ADJUDGED * * * that the award of * * * the arbitrators in the above entitled matter, dated December 10, 1962, be and the same is hereby confirmed in all respects. ‘It is further ADJUDGED that said [defendants] * * * shall recover from said plaintiff their costs expended herein in the sum of $_____.’ The notice of appeal was filed on March 11, 1963. Therein it was stated that the appeal was from ‘the Unwritten Order Confirming Award of Arbitrators, and Judgment in Favor of [the defendants] * * * entered February 26, 1963.’ While no question has been raised as to the sufficiency of the notice of appeal, we have considered that matter. The defendants have not been misled in any way as to the nature of the appellate review sought by the plaintiff. Pursuant to Rule 2(c), California Rules of Court, we treat the notice of appeal as having been filed immediately after the entry of the judgment of March 12, 1963. (See Larrus v. First National Bank, 122 Cal.App.2d 884, 886, 266 P.2d 143.) We deem the notice to be sufficient as a notice of appeal from the judgment entered on March 13, 1963. (See Evola v. Wendt Construction Co., 158 Cal.App.2d 658, 660–662, 323 P.2d 158; Estate of Hewitt, 160 Cal.App.2d 584, 586, 325 P.2d 113.)

2.  ‘Thomas A. Doyle, Jr. and Constance A. Doyle, parents and natural guardians of April R. Doyle, a minor, Claimants in the above-entitled matter, stated that they reserved their rights to be appointed Guardian ad Litem for the child, April R. Doyle, and at a later time bring a civil action against the Ross-Loos Medical Group. a co-partnership, if the results of the proposed Arbitration were not satisfactory to them. ‘The Board of Arbitrators decided that all Parties at interest should be properly represented in the Arbitration and that a Guardian ad Litem should therefore be appointed for the child, April R. Doyle, and participate in any future Arbitration to be held. ‘The Board of Arbitrators does not wish to prejudice any legal rights of either Party by a hearing of the Arbitration this date. ‘The Board of Arbitrators suggest further that the parents of April R. Doyle, and the child, should have competent counsel representing them.’

3.  ‘IT IS HEREBY STIPULATED AND AGREED. In the above entitled Arbitration that THOMAS A. DOYLE, JR., the duly appointed and acting guardian, ad litem for APRIL R. DOYLE, a minor, hereby ratifies the Demand for Arbitration, with the letter attached, dated October 11, 1961, and filed with the American Arbitration Association upon October 12, 1961, by THOMAS A. DOYLE, JR., then acting as parent and natural guardian for APRIL R. DOYLE, a minor.’

FORD, Justice.

SHINN, P. J., and FILES, J., concur.

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