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Court of Appeal, Fourth District, Division 1, California.

Harriette Lee BLANTON, Plaintiff and Appellant, v. WOMANCARE CLINIC, INC., et al., Defendants and Respondents.

Civ. 26660.

Decided: July 19, 1983

Irwin L. Schroeder and Schroeder & McElroy, San Diego, for plaintiff and appellant. Rhoades, Hollywood & Neil, Daniel S. Belsky, San Diego, Richard P. Booth, Jr., Los Angeles, and Moore, Graves & Madory, Tustin, for defendants and respondents.

Harriette Lee Blanton brought this action against Jody Mack, Benjamin Fiorica, M.D., and Womancare, Inc. for medical negligence.   By stipulation, the matter was submitted to arbitration where an award was rendered in favor of the defendants.   After judgment was entered on the arbitration award, Blanton appeals.

Attorney Wesley H. Harris was employed by Blanton to represent her in this action.   He prepared the complaint against Mack, a fourth-year medical student at a licensed specialty clinic, Womancare, and the supervising physician Fiorica.   Trial was to commence on July 29, 1980, and at Blanton's request was continued until April 6, 1981, and later until July 30, 1981.   On July 28, 1981, Harris requested arbitration and, acting on Blanton's behalf, Harris dismissed with prejudice the action against Fiorica and signed a stipulation as follows:

“1. The captioned case will be taken off the trial calendar and submitted to binding arbitration.

“2. Any award rendered to the plaintiff in arbitration shall be limited to a maximum of $15,000.

“3. Daniel S. Belsky, attorney for defendant, Womancare, shall have the right to select the arbitrator pursuant to the following conditions:

“(a) There shall be only one arbitrator.

“(b) The arbitrator shall be an individual reasonably familiar with the law pertaining to medical malpractice.

“(c) Mr. Belsky's right to choose the arbitrator shall be exclusive in the event he chooses an arbitrator whose practice consists primarily of defending medical malpractice actions.

“(d) In the event Mr. Belsky chooses an arbitrator whose practice consists primarily of prosecuting medical malpractice actions, said individual shall also be approved by Mr. Wes Harris.” 1

The stipulation was approved by the court and an order was entered accordingly.

Blanton first became aware of the stipulation about three months later and immediately objected to it.   She fired her attorney, replacing him with Irving Schroeder who has represented her continuously since that date.

Blanton, using her new attorney moved to set aside the dismissal as to Fiorica and the stipulation executed by Harris.   Fiorica withdrew his opposition to the motion to set aside his dismissal and he was reinstated as a party defendant.2  The court refused to set aside the stipulation as to arbitration and, after a continuance of the arbitration hearing to permit the new counsel to prepare for the hearing, the matter was submitted to arbitration and the arbitrator ruled in favor of the defense.

Blanton requested a trial de novo but was advised the award was final and judgment would be entered accordingly.   This appeal followed.

Blanton contends first Harris had no authority to stipulate to arbitration.   The record, including the affidavits of Harris and Blanton, affirms the fact Harris never had positive authority to execute the agreement.   The record also discloses, however, this was not brought to the attention of opposing counsel or the court until over 30 days after the stipulation was submitted to the court, a hearing held and approval given by the court.   The stipulation proposes two features which Blanton finds objectionable:  (1) a waiver of her right to trial by court or jury, and (2) a limitation on the size of the possible judgment.   We discuss these in order.

At the outset, we must negate the position which Blanton suggests, i.e., that Harris was told by the court his client must go to trial or binding arbitration.   The record before us does not reveal that fact.   All we are provided is the vague testimony of Harris which is recorded as follows:

“There must have been some discussion where we came down to see you before the trial date where you indicated the binding arbitration before July 28, 1981, I believe.   Maybe Mr. Belsky might remember that, but I believe that it was his Honor that said:  You have two choices.   One you either go to trial or you go to binding arbitration.”  (Emphasis added.)

The uncertainty of this statement makes it hardly reliable as being a court order limiting Blanton's options.   Moreover, we do not know the balance of the earlier conversation and therefore do not know the context in which it was made.   If, for example, the court was unable (see Code Civ.Proc.,3 § 1141.16) or unwilling (see § 1141.11) to make a finding the claim would not exceed $15,000, then arbitration could not be ordered without a stipulation (see § 1141.12).   It appears from the letter of July 28, Womancare was willing to accept arbitration but would stipulate to it only on certain conditions.   If that were so, under the assumed facts Blanton did have only two choices—go to trial or accept Womancare's offer of binding arbitration.   We do not find in this record it was the court which delivered the ultimatum;  rather, it appears the circumstances put the plaintiff in a box having only the two alternatives.

The option to stipulate to binding arbitration was apparently knowingly made by Harris without his client's consent on the assumption his client would accept his advice in that regard.   She did not accept his advice, however, and, after she learned he had signed such a stipulation, she told him she was opposed to that sort of proceeding and fired him.

We are now called upon to determine whether an attorney can bind his client to arbitration without his client's consent.

Section 283 reads in part as follows:

“An attorney and counselor shall have authority:

“1. To bind his client in any of the steps of an action or proceeding by his agreement filed with the Clerk, or entered upon the minutes of the Court, and not otherwise;  ․”  (Emphasis added.)

 Ordinarily a stipulation in proper form is binding upon the parties to a lawsuit (see Palmer v. City of Long Beach, 33 Cal.2d 134, 141, 144, 199 P.2d 952).   The attorney is the agent of the client and, under general rules of agency, the client as principal is bound by the acts of the attorney-agent within the scope of his authority (cf. Yanchor v. Kagan, 22 Cal.App.3d 544, 549, 99 Cal.Rptr. 367).   While the authority of an attorney, as an officer of the court, has certain limitations, his apparent authority covers all ordinary procedural steps in the prosecution of a legal proceeding, such as pleadings, remedies, trial, and his actions in that regard will bind the client (Redsted v. Weiss, 71 Cal.App.2d 660, 663–664, 163 P.2d 105).   While he may not compromise the client's substantial rights or the cause of action and consent to a decree itself (see Linsk v. Linsk, 70 Cal.2d 272, 74 Cal.Rptr. 544, 449 P.2d 760), the attorney is authorized to bind his client in procedural matters (Redsted v. Weiss, supra, 71 Cal.App.2d 660, 664, 163 P.2d 105).

Linsk v. Linsk, supra, 70 Cal.2d 272, at pages 277 and 278, 74 Cal.Rptr. 544, 449 P.2d 760, reviews cases considering the attorney's authority to control the proceedings, and notes it has been held that an attorney may refuse to call a witness even though his client desires that the witness testify (Nahhas v. Pacific Greyhound Lines, 192 Cal.App.2d 145, 146, 13 Cal.Rptr. 299);  may abandon a defense he deems to be unmeritorious (Duffy v. Griffith Co., 206 Cal.App.2d 780, 793, 24 Cal.Rptr. 161;  but see Robinson v. Sacramento City etc. School Dist., 245 Cal.App.2d 278, 287, 53 Cal.Rptr. 781);  may stipulate that the trial judge could view the premises (Lachman Bros. v. Muenzer, 143 Cal.App.2d 520, 525, 300 P.2d 295), that a witness, if called, would give substantially the same testimony as a prior witness (Newman v. Los Angeles Transit Lines, 120 Cal.App.2d 685, 695, 262 P.2d 95) and that the testimony of a witness in a prior trial be used in a later action (Smith v. Whittier, 95 Cal. 279, 289, 30 P. 529);  and he may waive the late filing of a complaint (Union Storage & Transfer Co. v. Smith, 79 N.D. 605, 58 N.W.2d 782, 786).

In contrast Linsk further points out, among other things, an attorney may not agree to the entry of a default judgment (Ross v. Ross, 120 Cal.App.2d 70, 74, 260 P.2d 652), or a summary judgment against his client (Roscoe Moss Co. v. Roggero, 246 Cal.App.2d 781, 786–787, 54 Cal.Rptr. 911), may not compromise his client's claim (Bice v. Stevens, 160 Cal.App.2d 222, 231, 325 P.2d 244), or stipulate to a matter which would eliminate an essential defense (Fresno City High School Dist. v. Dillon, 34 Cal.App.2d 636, 646–647, 94 P.2d 86), or stipulate that only nominal damages may be awarded (Price v. McComish, 22 Cal.App.2d 92, 99, 70 P.2d 978), and he cannot agree to an increase in the amount of the judgment against his client (Knowlton v. Mackenzie, 110 Cal. 183, 188–189, 42 P. 580).

In Linsk v. Linsk, supra, 70 Cal.2d 272, 74 Cal.Rptr. 544, 449 P.2d 760, the court summarizes these cases as follows:

“The dichotomy in the foregoing cases appears to relate to whether the attorney has relinquished a substantial right of his client in entering into a stipulation on his behalf.   If counsel merely employs his best discretion in protecting the client's rights and achieving the client's fundamental goals, his authority to proceed in any appropriate manner has been unquestioned.   On the other hand, if counsel abdicates a substantial right of the client contrary to express instructions, he exceeds his authority.”  (Id. at p. 278, 74 Cal.Rptr. 544, 449 P.2d 760.)

 Arbitration is a “procedure” for settling disputes, it is a substitute for proceedings in court (M.E. Church v. Seitz, 74 Cal. 287, 291, 15 P. 839).   Its purpose is to expedite and facilitate the resolution of disputes and to overcome delays (see McRae v. Superior Court, 221 Cal.App.2d 166, 171, 34 Cal.Rptr. 346;  and see § 1141.10).   Submitting the case to arbitration in the manner provided by law does not alter the nature of the claim (see 6 Cal.Jur.III, Arbitration and Award, § 25, pp. 52–53), only the manner of presenting evidence and resolving the dispute.

 The stipulation of attorney Harris to submit his client's case to arbitration does deny Blanton the right to trial by a court and her right to a jury.

 While the right to a jury is a constitutional right, the law requires a demand be timely made or the right is deemed waived (see § 631).   The waiver can be also effected by the attorney by stating in the memo for setting a jury trial is not demanded (Cloud v. Market Street Ry. Co., 74 Cal.App.2d 92, 102, 168 P.2d 191).   Thus, it was in Cloud the court held “the waiving of a jury trial does not in any sense affect the substantial rights of a party” and held the attorney and the guardian ad litem of a minor can waive those rights for him (id. at pp. 102–103, 168 P.2d 191).   Similarly, the attorney's failure to demand a jury trial or post fees may constitute a waiver (Glogau v. Hagan, 107 Cal.App.2d 313, 317, 237 P.2d 329;  Deberry v. Cavalier, 113 Cal.App. 30, 34–35, 297 P. 611;  Shores Co. v. Iowa Chemical Co., 222 Iowa 347, 268 N.W. 581, 582–583, quoted with approval in Zurich G.A. & L. Ins. Co., Ltd. v. Kinsler, 12 Cal.2d 98, 105–107, 81 P.2d 913).   California law thus, at least in civil cases, gives the attorney the power to effect a waiver of the right to a jury trial.

 The attorney also has the power to authorize for his client the hearing of his case by a judge pro tem.   The California Constitution gives the parties the right to stipulate to the hearing of their cause by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the case (Cal. Const., art. VI, § 21), and an attorney can effect the stipulation for his client (see Estate of Soforenko, 260 Cal.App.2d 765, 766, 67 Cal.Rptr. 563).   A judge pro tem is very little different from the arbitrator, especially where the arbitrator is a respected member of the Bar as here.   We conclude, therefore, the attorney has authority in civil cases to stipulate for a client that an arbitrator may hear the cause to be submitted.

Finally, it should be noted the right to appeal is not a routine procedural step committed primarily to the good judgment of the attorney and the abandonment of the right to appeal would appear to be beyond the authority of the attorney (see Wuest v. Wuest, 53 Cal.App.2d 339, 345, 127 P.2d 934;  cf. Fowlkes v. Ingraham, 81 Cal.App.2d 745, 747, 185 P.2d 379;  1 Witkin, Cal.Procedure, Attorneys, § 121, pp. 131–133, discusses the attorney's authority and criticizes Fowlkes ).

Those cases and the basis for Witkin's criticism, however, go to the case where the attorney makes a waiver of the entire right to appeal.   That does not exist here.   The stipulation and order were to “binding arbitration” and, while that would constitute a waiver of certain rights on appeal, the only appellate rights it abandons are those claims of error dealing with “procedure” which the attorney would have the right to forego for the client at the trial anyway.   Blanton has not lost her entire right to appeal by reason of the stipulation to binding arbitration.   We here provide her appellate rights.

 We conclude, therefore, the attorney may stipulate to arbitration on behalf of his client and that stipulation is binding on the client.4

Judgment affirmed.



1.   While the terms of section 3 appear to be most favorable to the defendants and provide an adequate reason for Blanton's dissatisfaction with the making of the stipulation, she does not contend the selection of J. Lawrence Irving as arbitrator was improper or that he could not act impartially in his handling of the issues.   Irving now sits as a judge of the U.S. District Court in San Diego.

2.   Dr. Fiorica's counsel accepted Harris' declaration he had no authority to dismiss the action against Fiorica and agreed the dismissal of Fiorica should be set aside.   The dismissal was set aside and, since Fiorica was not a party to the stipulated arbitration, the cause of action against him presumably remains viable.   He was not a party to the arbitration award or this appeal.

FN3. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN3. All statutory references are to the Code of Civil Procedure unless otherwise specified.

4.   Under the holding of this case that the attorney may bind his client to arbitration without the client's consent, it is unnecessary for us to address the issue whether Blanton by proceeding with arbitration waived any objection she may have had to the order affirming the attorney's action.   We would state for the record, however, she did not.   At that point, she had no choice but to proceed with the arbitration hearing.   Had she not proceeded, she could have jeopardized her right to assert her claim at all.We also view the stipulation limiting her claim to $15,000 to be nonprejudicial since the award was for the defendants.

COLOGNE, Acting Presiding Justice.

WIENER and LEWIS,* JJ., concur.