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

Tiana SILLIPHANT, Plaintiff and Appellant, v. CITY OF BEVERLY HILLS et al., Defendants and Respondents.

Civ. B0l8985.

Decided: November 02, 1987

Maginnis & Maginnis and J. Patrick Maginnis, Los Angeles, for plaintiff and appellant. Cotkin, Collins & Franscell, Carol Ann Hummer and Douglas J. Collodel, Los Angeles, for defendants and respondents.

May a trial court effectively dismiss a lawsuit with prejudice for failure to participate in arbitration if the dismissal was preceded by repeated and unjustified attempts to delay and frustrate the judicial process?   We conclude that the answer is yes and hold that the trial court's action in this case was proper.   Because the trial court's decision was based upon appellant's failure to participate in the arbitration, as well as her continual dilatory tactics, it is clearly distinguishable from the Supreme Court's decision in Lyons v. Wickhorst (1986) 42 Cal.3d 911, 231 Cal.Rptr. 738, 727 P.2d 1019.   Accordingly, we uphold the trial court's exercise of its discretion and affirm.


Appellant's case began with a parking ticket issued by Beverly Hills Police Officer Harold Moody on December 12, 1983.   Appellant claims that what started as a simple misunderstanding escalated into a violent confrontation marked by excessive physical contact by Officer Moody, verbal harassment, and her unwarranted arrest.   The incident culminated in an alleged strip search of appellant at the Beverly Hills jail.   Appellant sued Officer Moody and the City of Beverly Hills for assault and battery, intentional infliction of emotional distress, false arrest and the violation of her civil rights.

On December 4, 1984, respondents propounded interrogatories to appellant.   Appellant's counsel was granted a 30–day extension to answer the interrogatories, but allowed the extension to lapse without producing the necessary answers.   Respondents moved on February 22 for an order to compel answers to the interrogatories.   At a hearing on the motion on March 19, without the benefit of opposition papers or an appearance by appellant's counsel, the court ruled that appellant had 30 days from the date of the hearing to provide respondents “with answers to the interrogatories without objection, or be subject to dismissal.”   On March 26, respondents noticed appellant's deposition for April 30, after scheduling the date with the secretary for appellant's counsel, who advised respondents' counsel that appellant frequently traveled abroad but would be “in the country on that date.”

The time in which to produce the interrogatory answers ordered by the court expired, so on April 26, 1985, respondents moved to dismiss the complaint for failure of appellant to obey the court's discovery order pursuant to Code of Civil Procedure section 2034.   On April 29, the day before the scheduled date for the deposition, appellant's counsel was contacted to confirm the deposition date, and the secretary for respondents' counsel was advised that appellant would not appear for her deposition “because she had a dental appointment.”

Respondents' motion to dismiss for failure to provide the court-ordered answers to interrogatories was heard on May 20, 1985, a week after an arbitration conference and the transfer of the case to the Superior Court Arbitration Department.   Although the court declined to dismiss appellant's case, it found her failure to comply with the court's prior order “wilful and without substantial justification” and ordered compliance with the prior order within 20 days.

By formal notice, respondents continued the taking of appellant's deposition to June 4.   Counsel for respondents telephoned on June 3, 1985, to confirm the deposition but was advised that appellant was in Bangkok and her deposition would not be taken as scheduled.   Respondents' counsel replied that “we would probably be proceeding by motion” for sanctions, which was met with some expletives and an accusation of “hardball” by appellant's counsel.   At some unspecified time “[l]ate on June 3,” appellant's counsel learned that his client would be arriving late that night from Bangkok.   The two of them arranged to meet the next morning and discuss her case on the way to the deposition.

When appellant and her counsel unexpectedly materialized for the deposition at the office of respondents' attorney, they were informed that “the deposition had been cancelled per their ․ [prior] conversation” and based upon the representation that appellant was in Bangkok.   Appellant's counsel demanded that unless a court reporter appeared within 30 minutes, respondents would lose the opportunity to take appellant's deposition.   Counsel for respondents protested that it would be nearly impossible to obtain a court reporter on such short notice, and the deposition never began.   The following day, respondents again moved to dismiss for failure to permit discovery, based on the statements made at the aborted deposition.   Prior to a hearing on the motion, the parties agreed to reschedule the deposition.

Appellant finally appeared for her deposition on June 28, 1985, but the proceedings did not run smoothly.   Apart from appellant's refusal to answer some of the questions, appellant's counsel began to answer some of the questions put to appellant, to interpose leading questions, and to direct demeaning remarks at respondents' counsel.   After a heated exchange between counsel, the deposition was terminated by respondents' counsel.   Respondents then brought multiple motions, seeking:  a protective order to compel answers to questions at the deposition;  an order appointing a referee to supervise the deposition;  and the imposition of sanctions, costs and fees.   Respondents' motions were heard on September 3, 1985.   Appellant's counsel was ordered to “refrain from answering questions posed ․ [to appellant] or interjecting leading questions, or other interruptions (as opposed to good faith objections, and instructions to the client) until the closure of all questions posed” by respondents' counsel.   The court further found “wilful conduct on the part of ․ [appellant's] counsel in interrupting and interfering with the deposition,” determined that $1,200 as reasonable costs, expenses and attorney's fees should be paid by appellant's counsel, and ordered that a referee be appointed to supervise the remainder of appellant's deposition with the referee's fee to be paid by appellant's counsel.

Following the hearing, protracted wrangling ensued concerning when appellant would be further deposed.   Appellant's counsel also wanted Officer Moody's deposition “moved up.”   Counsel for respondents refused to permit Officer Moody to be deposed until appellant's deposition was finished but requested that appellant's counsel stipulate to a continuance of the arbitration hearing scheduled for November 1, 1985, so that discovery could be completed.

Appellant's deposition was finally resumed on October 24, in the presence of the court-appointed referee.   Despite respondents' requests for a continuance of the scheduled arbitration hearing to permit further discovery, including the deposition of Officer Moody, appellant's counsel stated at the deposition that he was “․ not going to continue the arbitration in this matter so we can have 25 more depositions and waste more time.”

Having received no response to their requests for a continuance of the arbitration hearing, apart from the comments made by appellant's counsel at her deposition, respondents advised the arbitrator on October 29 that appellant would not agree to a continuance.   In addition, a declaration submitted by the arbitrator indicates that appellant's counsel “left a vague telephonic message” with the arbitrator's receptionist on October 31 “regarding the time for which the [a]rbitration was set to begin ․ [but] made no request for a [c]ontinuance ․ and [made] no additional telephone calls” to the arbitrator's office.   This vague message obviously served to give the arbitrator the impression that appellant's counsel would appear at the arbitration hearing.   Appellant's counsel disputed this conclusion, claiming that he made no request for a continuance because the arbitrator failed to respond to his telephone message.

Whatever impression the arbitrator may have had of counsel's willingness to appear evaporated quickly on November 1, the day of the arbitration hearing.   Only respondents' counsel and witness showed up.   The arbitrator briefly delayed the start of the hearing and telephoned appellant's counsel, who “gave no reasons as to why he was not at the [a]rbitration and instead, became rude and offensive and began cursing.”   On November 4, the arbitrator entered an award in favor of respondents.

The next day, appellant filed a request for a trial de novo.   In response, respondents moved to strike appellant's request for trial de novo, to dismiss for failure to comply with court orders, and to impose sanctions.   The motion to dismiss was based not only on appellant's failure to appear at the court-ordered arbitration, but also on appellant's “contempt for the judicial process” as indicated by appellant's successive failures to pay court-ordered sanctions, to answer interrogatories in the absence of two court orders, to appear for a deposition in the absence of a court order, and to answer deposition questions in the absence of a court order.

After a hearing on the motion on January 7, 1986, at which appellant once again failed to appear, the court ordered that appellant's request for a trial de novo be stricken and that a judgment be entered based on the arbitrator's award, with a finding of “bad faith” by appellant.   On January 16, appellant's counsel brought a motion for reconsideration and declared that based upon conversations with his secretary and letters from respondents' counsel, he had “believed that the [a]rbitration was going to be continued to another date.”

On February 5, at a hearing on the motion to reconsider the dismissal, the court stated:  “It appears to the Court that the moving party consistently had been dillatory [sic ] and not cooperating with discovery and other matters required of her, the failure to show up on the date of the arbitration was arbitrary and without cause.  [¶] There are means whereby either arbitrators can be asked to continue matters or Courts can be called upon to intervene, none of those steps were taken, ․ [¶]․ [¶] Motion for Reconsideration is denied.”   It is from this final determination of her case that appellant takes this appeal.


We observe preliminarily that the trial court did not, strictly speaking, dismiss the case.   Rather, it granted respondents' motion to strike appellant's request for trial de novo following the arbitrator's award in respondents' favor.   The result was, however, the same as a dismissal because the court effectively ended appellant's lawsuit without a determination on the merits.

Appellant's underlying contentions, that she was misled by respondents and lulled into thinking the arbitration hearing would be continued and that she was entitled to a trial de novo as a matter of law, are without merit.   After entry of an arbitration award, “[a]ny party may elect to have a de novo trial, by court or jury, both as to law and facts ․” (Code Civ.Proc., § 1141.20, subd. (b)), provided the right is timely exercised.  (Herbert v. Harn (1982) 133 Cal.App.3d 465, 470, 184 Cal.Rptr. 83.)   Nonetheless, “[i]t cannot be said that there is an absolute right to a de novo trial.”  (Merritt v. Marks (1985) 175 Cal.App.3d 825, 827, 221 Cal.Rptr. 88;  see also Genovia v. Cassidy (1983) 145 Cal.App.3d 452, 460–461, 193 Cal.Rptr. 454;  Herbert Hawkins Realtors, Inc. v. Milheiser (1983) 140 Cal.App.3d 334, 339, 189 Cal.Rptr. 450.)

The principal case affecting our determination is Lyons v. Wickhorst, supra, 42 Cal.3d 911, 231 Cal.Rptr. 738, 727 P.2d 1019, and we conclude that it is factually distinguishable.   In that case, the trial court dismissed the action solely on the basis of appellant's nonparticipation in the compulsory arbitration proceedings.   The court in Lyons held that “An immediate and unconditional dismissal entered at the first suggestion of noncooperation [by a refusal to participate or present evidence at the arbitration hearing] is too drastic a remedy in light of the fact that arbitration was not intended to supplant traditional trial proceedings, but to expedite the resolution of small civil claims.”  (Id. at p. 919, 231 Cal.Rptr. 738, 727 P.2d 1019.)   The court noted that the “Legislature chose not to provide for dismissal as a sanction if a party refuses to participate [in the arbitration process].”  (Ibid.)   Nonetheless, even without any express legislative authorization, “a trial court may, under certain circumstances, invoke its limited inherent discretionary power to dismiss claims with prejudice.  [Citation.]”  (Id. at p. 915, 231 Cal.Rptr. 738, 727 P.2d 1019.)   Our state courts have upheld the imposition of the drastic sanction of dismissal for a party's evasive, obstructive or dilatory tactics in responding to civil discovery requirements.  (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775;  Martin v. Cook (1977) 68 Cal.App.3d 799, 137 Cal.Rptr. 434;  Stein v. Hassen (1973) 34 Cal.App.3d 294, 109 Cal.Rptr. 321.)

The dismissal of the action in Lyons was also “without notice and without an opportunity to be heard.”  (Lyons v. Wickhorst, supra, 42 Cal.3d at p. 918, 231 Cal.Rptr. 738, 727 P.2d 1019.)   The lack of relevant statutes and case law at the time of the denial of the request for a trial de novo in Lyons also reflected a “lack of substantive guidelines ․ [by which the party's] conduct was to be judged.”  (Id. at p. 918, fn. 8, 231 Cal.Rptr. 738, 727 P.2d 1019.)

In contrast to Lyons, the present case involves more than “the first suggestion of noncooperation” (id. at p. 919, 231 Cal.Rptr. 738, 727 P.2d 1019) by the failure of appellant or her counsel to appear at the scheduled arbitration hearing.   Regarding the taking of appellant's deposition, the court found “wilful conduct on the part of ․ [appellant's] counsel in interrupting and interfering with the deposition,” such as to warrant a protective order, the supervision of the deposition by a referee and the imposition of costs, expenses and attorney's fees.   Regarding respondents' difficulties in obtaining answers by appellant to interrogatories, the court found that appellant's failure to comply with a prior order was “wilful and without substantial justification” and required a further court order for compliance.

The day before the date scheduled for the arbitration hearing, appellant's counsel telephoned the arbitrator's receptionist but made no request for a continuance.   Nor did appellant's counsel make such a request during his offensive telephone conversation with the arbitrator when he failed to appear for the hearing.   His assertion that he believed the matter had been continued to some unspecified time at the end of November 1985—because of an October 23 telephone communication between the secretaries for opposing counsel—is untenable because such a belief was never conveyed to respondents nor to the arbitrator.   On the contrary, the only statement made to respondents regarding a continuance was that he was not willing to continue the arbitration matter.

Accordingly, the failure of appellant or her counsel to appear at the arbitration hearing was merely the culmination of a series of events demonstrating the dilatory or disobedient conduct of counsel.   A “pattern of conduct ․ so ‘severe [and] deliberate’ as to constitute extreme circumstances” (Lyons v. Wickhorst, supra, 42 Cal.3d at p. 917, 231 Cal.Rptr. 738, 727 P.2d 1019) had been established, and “alternatives less severe than dismissal” (ibid.) had already been used and were thus not available to vindicate the court's authority.

Moreover, unlike the situation in Lyons, appellant had notice and an opportunity to be heard prior to the termination of her action and again when her motion to reconsider was heard and denied.   Also unlike Lyons, appellant's counsel should have been aware of case law establishing dismissal as a proper sanction in appropriate circumstances for failure to comply with a court-ordered arbitration proceeding.  (See, e.g., Genovia v. Cassidy, supra, 145 Cal.App.3d 452, 193 Cal.Rptr. 454;  Herbert Hawkins Realtors, Inc. v. Milheiser, supra, 140 Cal.App.3d 334, 189 Cal.Rptr. 450.)

Finally, appellant's request for the imposition of sanctions upon respondents, pursuant to Code of Civil Procedure section 128.5 and In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179, is, of course, denied.


The judgment is affirmed.

BOREN, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur.

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