LYONS v. WICKHORST

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Court of Appeal, Second District, Division 5, California.

Edward J. LYONS, Plaintiff and Appellant, v. Erwin WICKHORST, et al., Defendants and Respondents.

Civ. B005210.

Decided: August 28, 1984

Edward J. Lyons, in pro. per. Patricia F. Clothier, Torrance, for defendants and respondents.

Edward J. Lyons, an attorney acting in propria persona, appeals a dismissal of his action against Erwin Wickhorst and The Cove Restaurant, Inc., defendants and respondents.   The dismissal was granted at the request of respondents after appellant had failed to present any evidence at two mandatorily ordered arbitration proceedings.

On August 11, 1979, appellant was acting as attorney for the owner of the Chancellor Hotel.   The Cove Restaurant was a tenant of the hotel and the owner of the corporation owning The Cove Restaurant was respondent Erwin Wickhorst.   The hotel and the restaurant were involved in several disputes concerning the lease and operation of the restaurant, and on the day in question, appellant attempted to examine the kitchen of the restaurant.   The inspection, according to appellant, was to determine if there were any health or safety violations.   The police were called to the scene by an employee or representative of The Cove Restaurant and appellant was placed under citizen's arrest by respondent Erwin Wickhorst.   He spent the afternoon in jail and was bailed out later that day.   No complaint was filed by the city attorney's office.

Appellant filed the underlying lawsuit for unlawful arrest and sought compensatory and punitive damages.   Plaintiff did not, however, seek damages in excess of $25,000, therefore, on January 11, 1982, pursuant to California Code of Civil Procedure section 1141.11,1 the court ordered the matter to mandatory arbitration.   This apparently was contrary to appellant's wishes.   The declaration accompanying the Motion to Dismiss the Complaint of Douglas C. Fladseth, the attorney handling the matter for respondents, states:  “When counsel met with the arbitrator, just before the arbitration was to begin, MR. LYONS indicated he would not be presenting any evidence.   He would not go forward with his case because he felt the case was not a proper one for arbitration and he would simply wait until he could have a jury trial in the Superior Court.   He said this was the only way he could ‘get to’ ERWIN WICKHORST.”   True to this statement, appellant refused to put on any evidence in support of his case.

The arbitrator attempted to persuade appellant to proceed with the case but was unsuccessful.   The matter was continued to see if certain stipulations could be made primarily in connection with punitive damages but the parties could not agree.   The arbitrator wrote a letter to the superior court indicating that appellant was unwilling to put on any testimony.

A new arbitration hearing was set by the superior court for June 15.   Although appellant appeared, he again refused to put on his case.   The arbitrator entered an award in favor of defendants with date of service of June 17, 1984.   On the same day, appellant filed his request for trial de novo.

Respondents then moved to dismiss the action for failure of appellant to comply with court ordered arbitration and that motion was granted on December 7, 1983.   The minute order of the court reads as follows:  “Plaintiff has had two cracks at court-ordered arbitration.   He has rejected both.   The action borders on contempt.   Thus, the plaintiff appeared before the first arbitrator and refused to offer any evidence.   The arbitrator sent the file back to this court.   Believing that plaintiff intended to do the same before the next (second or third doesn't matter) arbitrator, defendants did not even appear at the arbitration hearing.2  Plaintiff offered no evidence anyway regarding his alledged [sic] false imprisonment or damages therefrom, the arbitrator found for the defendants on June 17 and plaintiff prepared request for trial de novo under date of June 17.   The court detects from the foregoing and from the file and plaintiff's response to the motion, a continuing, and willful rejection of the whole arbitration program by plaintiff.  Genovia, which plaintiff also rejects, did not make law and plaintiff's [sic] argument that it applies prospectively only is rejected.   Grant motion to dismiss for wilfull [sic] failure to participate in court-ordered arbitration.”

Appellant, contending the dismissal of his action was error, explains his unlawyer-like conduct and reasons as follows:  “There is nothing in any of the arbitration rules that demands that I put on evidence at an arbitration trial.   Obviously, if I do not put on evidence at an arbitration trial, then I will probably lose that case.   In which case I have an absolute right to file for a trial de novo within twenty days and insist upon my right to a jury trial in this matter.”   He also relies on Herbert v. Harn, 133 Cal.App.3d 465, 184 Cal.Rptr. 83, where a default judgment was rendered against a defendant for $7,211.40 and the Court of Appeal held that the defendant was entitled upon proper motion to a trial de novo.

Appellant's excuse does not get to the heart of the matter.   The trial court dismissed his lawsuit because his action bordered on contempt and an attitude that displayed a “continuing, and wilful rejection of the whole arbitration program․”  There is substantial evidence to support the court's decision.   If appellant's actions were condoned, the mandatory arbitration proceedings established by the Legislature could be meaningless in many cases.   The fact that he is also an attorney-at-law as well as the plaintiff emphasizes the seriousness of his conduct.   In Genovia v. Cassidy, 145 Cal.App.3d 452, 193 Cal.Rptr. 454, in a similar arbitration proceeding, plaintiff did not personally appear but plaintiff's counsel offered in evidence bills and records of medical and hospital care and the police report of the accident involved in the litigation.   After introduction of the evidence, the following occurred:  (1) Plaintiff's counsel asked the arbitrator to enter a verdict (sic) for the defendant and award costs to him on the basis of plaintiff's failure to appear at the hearing.  (2) He stated he did not want any money to be awarded to the plaintiff as that would have the force and effect of section 998 (sic) offer and would not allow plaintiffs to recover their costs in a subsequent jury trial, with which he wished to proceed, unless the verdict at such trial exceeded the amount of the arbitration award.   Eventually, the arbitrator complied with the request and entered an award for the defendant.   Plaintiff then filed a request for a trial de novo and defendant filed his notice of motion to dismiss based on the asserted disobedience of the court order for arbitration.

Affirming the dismissal, the Court of Appeal stated, at page 458, 193 Cal.Rptr. 454:  “․ we find here a substantially uncontroverted instance of a premeditated, intentional and purposeful course of action taken by Genovia and his counsel to seek an avenue of escape from a clearly mandated arbitration procedure.”   The court then stated that it had considered the case of Hebert v. Harn, supra, 133 Cal.App.3d 465, 184 Cal.Rptr. 83, and opined that it did not deem it to be germane to the case at bench.   The reason was that it did not deal with a deliberate plan to circumvent the mandated provisions of the 1978 judicial arbitration statutes.   The opinion then proceeds to cite other cases and factual situations where the Court of Appeal and the Supreme Court have approved dismissals of actions where the conduct of the parties and counsel has been less than in good faith.   The opinion cites Morales v. Camello, 12 Cal.App.3d 370, 90 Cal.Rptr. 718, which explains why conduct that borders upon contempt of lawful orders cannot be condoned.   It states, “ ‘․ plaintiffs fell below minimum standards of compliance with court procedures required from litigants and their counsel and charted a course which can best be described as trifling with the court.   In persisting in that course plaintiffs brought about their own denial of a hearing on the merits of their cause.’ ”  (145 Cal.App.3d at p. 458, 193 Cal.Rptr. 454.)   This comment is directly in point and mirrors appellant's conduct in our present case.

The evidence supports the decision of the trial court that dismissed for appellant's cause of action for reasons similar to those stated in Morales v. Camello, supra.

The judgment is affirmed.

FOOTNOTES

1.   The pertinent provisions of Code of Civil Procedure section 1141.11 are:  “(a) In each superior court with 10 or more judges, all at-issue civil actions pending on or filed after the operative date of this chapter shall be submitted to arbitration, by the presiding judge or the judge designated․“(e) In the Counties of Los Angeles ․ actions in which the amount in controversy does not exceed twenty-five thousand dollars ($25,000) shall be submitted to arbitration.”

2.   Defendants had sent a letter to the arbitrator informing him that appellant had stated he again would not introduce any evidence, therefore, their attendance would be a futile act.

HASTINGS, Associate Justice.

FEINERMAN, P.J., and STEPHENS, J., concur.

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