Wilson v. Gladych

Filed 6/27/06 Wilson v. Gladych CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed. Respondents' request for judicial notice. Denied. On the court's own motion, judicial notice taken of Commercial Arbitration Rules of the American Arbitration Association.

Gladych & Associates, John A. Gladych and Katherine K. Meleski for Defendants and Appellants.

Geiger, Coon & Keen and Timothy J. Kooy for Plaintiffs and Respondents Jon Nunes, Kelly Nunes, Vincent Bond, Jeanne Bond, Ernesto Esplana and Marlyn Esplana.

Chambers, Noronha & Kubota and Yoshiaki C. Kubota for Plaintiffs and Respondents Brian Wilson, Michelle Wilson, Rick Kurland, Mary Kurland, Kevin O'Neal, Veronica O'Neal and Carole Barton.

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Introduction

A nonsignatory to a written contract containing an arbitration provision petitioned to compel the plaintiffs to arbitrate their claims against it under the theory of equitable estoppel. We need not consider whether equitable estoppel applies here, however. The California Supreme Court has held a finding of waiver of the right to arbitrate is to be reviewed under the substantial evidence test, and has specified the factors trial courts may consider in making such a finding. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (St. Agnes Medical Center).) Even if the nonsignatory in this case could have otherwise compelled the plaintiffs to arbitrate their claims, substantial evidence supports the trial court's finding that the nonsignatory waived any right to compel arbitration by participating in discovery that could not have been obtained under the rules of the American Arbitration Association (AAA) before the nonsignatory filed its petition. Therefore, we affirm the order denying the petition to compel arbitration.Statement of Facts

Brian Wilson, Michelle Wilson, Rick Kurland, Mary Kurland, Kevin O'Neal, Veronica O'Neal, Carole Barton, Jon Nunes, Kelly Nunes, Vincent Bond, Jeanne Bond, Ernesto Esplana, and Marlyn Esplana (collectively plaintiffs) sued Albert F. Quintrall, Brian C. Andrews, Quintrall & Associates, John A. Gladych, Gladych & Associates, Inc., Donovan Westerfeld, Debbie Westerfeld, Homeowners Construction Defect Group, LLC (HCDG), and Robin L. Rochelle (collectively defendants). (John A. Gladych and Gladych & Associates, Inc., are referred to collectively in this opinion as Gladych. None of the other defendants is a party to this appeal.) Plaintiffs alleged causes of action for legal malpractice, breach of fiduciary duty, fraud and deceit, violation of Civil Code section 1770, unauthorized practice of law, conversion, an accounting, and general negligence. Plaintiffs alleged defendants conspired to form HCDG to obtain assignments of construction defect claims from homeowners and pursue those claims through collection. HCDG entered into assignment agreements with plaintiffs by which they assigned their construction defect claims and the right to control future litigation regarding those claims to HCDG. Plaintiffs alleged HCDG controlled the litigation regarding their construction defect claims but bore no risk or responsibility for the outcome of the litigation. When the litigation apparently unraveled at the time of trial, defendants abandoned plaintiffs, leaving them responsible for a defense judgment for costs. Plaintiffs contend Gladych and Quintrall, as licensed attorneys, breached their professional duties of care and their fiduciary obligations by participating in a conspiracy to circumvent statutory prohibitions against such schemes.

The assignment agreements contain an arbitration provision: â€