Winn v. Cal Cow
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 977.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
SECOND
APPELLATE DISTRICT
DIVISION
SIX
MADELEINE WINN,
Plaintiff and Appellant,
v.
CAL COW et al.,
Defendants and Respondents.
2d
Civil No. B189548
(Super.
Ct. No. 1155183)
(Santa
Barbara County)
Appellant Madeleine
Winn entered into a contract to buy land from respondents Cal Cow et al. for $3,000,000.
Unable to meet the financial terms of the contract, respondents notified her
that the contract was cancelled. Winn filed an action for specific performance
and then failed to respond to discovery. Respondents filed a
deemed admissions. Winn did not file opposition to the summary judgment
motion; instead, she filed a motion to compel arbitration. The day before the
hearings on the motions, Winn attempted to dismiss the action. The court
refused to accept the dismissal, granted respondents' motion for summary
judgment and denied Winn's motion to compel arbitration. The court also
awarded respondents' attorney fees under the contract. We affirm and remand
for award of attorney fees on appeal.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Winn
entered into a contract to purchase land from respondents for $3,000,000 on November 11, 2003. The contract was a standard land purchase agreement. It required Winn
to pay a $25,000 deposit into escrow at the time she signed the contract and an
additional $75,000 deposit within 30 days. Winn also was required to provide
to respondents within seven days a letter from a lender or mortgage loan broker
stating that she was prequalified or preapproved for a loan for the remainder
of the purchase price. The contract also required Winn to obtain financing for
the balance of the purchase price and pay that amount to respondents on or
before January 11, 2004.
Paragraph
22A of the contract contained a
stated: "Buyer and Seller agree to mediate any dispute or claim arising
between them out of this Agreement, or any resulting transaction before
resorting to arbitration or court action. . . .
If, for any dispute or claim to which this paragraph applies, any party
commences an action without first attempting to resolve the matter through
mediation, or refuses to mediate after a request has been made, then that party
shall not be entitled to recover attorney fees, even if they would otherwise be
available to that party in any such action."
The
contract contained an attorney fee provision that entitled the prevailing party
in an action on the contract to attorney fees. The contract also included a
time-is-of-the-essence provision and stated that the contract contained the
entire agreement of the parties which could not be modified except in writing.
Winn paid
the initial $25,000 deposit but failed to perform any other obligation of the
contract. At Winn's request, respondents agreed to several extensions of time
to perform under the contract. The final demand letter of respondents, dated March 10, 2004, gave Winn five additional days to pay the full amount of the deposit. Winn
failed to do so, and respondents notified her that the transaction was
cancelled.
Winn filed
a complaint for specific performance of the contract on May 14, 2004. After the trial court overruled respondents' demurrer to a second amended complaint,
respondents filed an answer. On July 6, 2004, the trial court granted
respondents' motion to expunge lis pendens. The court's order states the
motion was granted because "there is no likelihood that the present action
will be successful."
Winn failed
to respond to the discovery requests propounded by respondents, including a
request for admissions. On March 23, 2005, the trial court granted
respondents' motion to compel discovery responses and entered an order deeming
admitted the facts stated in the request for admissions.
Between March 29, 2005, and June 13, 2005, respondents' attorney attempted to schedule a mediation
at a mutually convenient date, time and place. Winn refused to cooperate.
Respondents
filed a motion for summary judgment on May 13, 2005, on the ground that they
were entitled to judgment as a matter
of law based on the deemed admissions. Winn did not file an opposition or
other response to the summary judgment motion. Instead, on July 5, 200 5, Winn filed and served a motion to compel arbitration. The hearing was
scheduled for August 23, 2005, the same day that the motion for summary
judgment was to be heard.
In the
afternoon of August 22, 2005, the day before the scheduled summary judgment hearing,
Winn attempted to file a form dismissal without prejudice. The court clerk
refused to file the document because it was signed by a person purporting to be
Winn's attorney, but the clerk's file indicated that Winn was in pro. per. and
no substitution of attorney had been filed.
Winn failed
to appear at the hearings on August 23, 2005, and the court granted respondents'
summary judgment motion based on the deemed admissions, denied Winn's motion to
compel arbitration, and granted respondents' request for attorney fees.
Two days
later, on August 25, Winn filed a substitution of attorney and submitted a
second dismissal without prejudice signed by her attorney. The court clerk refused
to accept the dismissal because summary judgment had been granted in favor of
respondents two days before.
On August 26, 2005, Winn filed an ex parte application for order compelling the clerk to
enter respondents' voluntary dismissal of action without prejudice.
On November 4, 2005, the trial court filed a memorandum of decision setting forth its reasons
for not accepting the requests for dismissal, granting summary judgment to
respondents and denying Winn's motion to compel arbitration. In the decision,
the trial court stated that "the deemed admissions alone were sufficient
for summary judgment."
On November 16, 2005, judgment for respondents was entered. On March 14, 2006, the court entered an order granting attorney fees and costs in the sum of $84,823.66.
Winn filed
a timely appeal, contending the trial court erred in failing to file her
request for dismissal, denying her motion to compel arbitration and granting
respondents' motion for summary judgment and attorney fees. She also argues
the trial court erred in not staying the action while her motion to compel
arbitration was pending.
DISCUSSION
Standard
of Review
Whether the
trial court has power to grant summary judgment after a plaintiff attempts to
dismiss the action is reviewed for abuse of discretion. (Tire Distributors,
Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)
No
Error in Refusing to Accept Winn's Request for Voluntary Dismissal
The trial
court refused to accept Winn's request for dismissal on the grounds that it was
defective in form and it was filed one day before the hearing on respondents'
motion for summary judgment.
Winn argues
that the court clerk was required to file the request for dismissal submitted
on August 22. She argues in the alternative that, even though the clerk refused
to file it, it was deemed filed. Neither contention has merit.
Winn
correctly posits the rule that the clerk's duty to enter a voluntary dismissal
in the clerk's register is ministerial, and, if statutory conditions are met, the
clerk must make the entry. (Egly v. Superior Court (1970) 6 Cal.App.3d
476, 479.) The request submitted by Winn did not meet statutory conditions.
Code of Civil Procedure section 581, subdivision (j) name="_ftnref1" title="">
dismissal as follows: "No dismissal may be made or entered, or both,
under paragraph (1) or (2) of subdivision (b) except upon the written consent
of the attorney for the party or parties applying therefor, or if consent of
the attorney is not obtained, upon order of dismissal by the court after notice
to the attorney."
The August
22 request for dismissal did not conform to the requirements of section 581,
subdivision (j). It was submitted at a time when Winn had no attorney of
record and was proceeding in pro. per. The form was signed by a person unknown
to the clerk and whose name did not appear in the court's file. The filing of
a substitution of attorney on August 25 after the court had ruled on the motion
for summary judgment did not cure the defective prior submission. A century
ago, our Supreme Court said: "It is . . . the settled law of
this state that while a party to an action may appear in his own proper person
or by attorney he cannot do both . . . . [T]he rule stated
is so firmly settled here that we are not warranted in now departing from it."
(Boca etc. R.R. Co. v. Superior Court (1907) 150 Cal. 153, 155-156; see
also Chapman v. Superior Court (1934) 1 Cal.App.2nd 512, 513-514 ["'While
plaintiff had an absolute right to dismiss the action, such right could be
exercised only in the mode or manner prescribed by the statute; in other words
the right is measured by the mode provided for its exercise'"].)
Moreover,
it is well settled that a party is precluded from voluntarily dismissing an
action if it is a foregone conclusion that the action will be decided against
her. Section 581, subdivision (b)(1) provides that a plaintiff may dismiss an
action with or without prejudice "at any time before the actual
commencement of trial." Winn argues the dismissal statute should be read
literally to prevent voluntary dismissal only after "commencement of
trial." This argument has been rejected consistently by our Supreme Court
and all appellate courts that have considered the issue. (See, e.g., Mary
Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 769, and cases cited.)
Winn has submitted no argument to compel a contrary conclusion.
The phrase "actual
commencement of trial" has been construed to bar voluntary dismissals
without prejudice whether the plaintiff files the dismissal on the verge of
trial or to avoid terminating sanctions or summary judgment. (See, e.g., Groth
Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 69-70.) "These
exceptions generally arise where the action has proceeded to a determinative
adjudication, or to a decision that is tantamount to an adjudication." (Harris
v. Billings (1993) 16 Cal.App.4th 1396, 1402.) "Section 581's purpose
in cutting off the plaintiff's absolute right to dismissal upon commencement of
trial is to avoid abuse by plaintiffs who, when led to suppose a decision would
be adverse, would prevent such decision by dismissing without prejudice and
refiling, thus subjecting the defendant and the courts to wasteful proceedings
and continuous litigation." (Kyle v. Carmon (1999) 71 Cal.App.4th
901, 909.)
Under this
line of cases, a plaintiff who does not file opposition to a motion for summary
judgment cannot voluntarily dismiss the action before the hearing on the
summary judgment. (See Cravens v. State Bd. of Equalization (1997) 52
Cal.App.4th 253, 257 [plaintiff cannot request dismissal without prejudice
after requisite time to file opposition to defendant's motion for summary
judgment had expired, because under summary judgment statute, such lapse could
constitute sufficient grounds to grant motion]; compare Zapanta v. Universal
Care, Inc. (2003) 107 Cal.App.4th 1167, 1173-1174 [voluntary dismissal
filed before deadline for opposing motion for summary judgment was effective
because "case had not yet reached a stage where a final disposition was a
mere formality"].) And, where, as here, summary judgment is requested
based on deemed admissions of the opposing party, voluntary dismissal is not
available. (See Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765,
770 ["Deemed admissions which effectively dispose of the case by resolving
all the issues constitute a trial of the issues for purposes of dismissing
pursuant to [former] section 581, subdivision 1"].)
Also
without merit is Winn's argument that the dismissal was valid because she filed
it in good faith, not as an eleventh-hour escape from a certain judgment
against her. The record contains evidence from which the trial court could
conclude that the dismissal was filed to foil the entry of judgment that was
certain to be made against her. (See Wells v. Marina City Properties, Inc.
(1981) 29 Cal.3d 781, 788 ["Permitting a plaintiff to exercise an absolute
right to dismiss his action without prejudice to recommencing suit based upon
the same allegations, even after the trial court has ruled definitively and
adversely on the sufficiency of those allegations, makes neither good sense nor
good law"].)
Winn's
argument that she was unable to file a response to the summary judgment motion
because she was in pro. per. is belied by the record. The summary judgment
motion was filed May 13, 2005, and heard on August 23, 2005. Winn had until August 9, almost three months, within which to retain an attorney and file an
opposition. (§ 437c, subd. (b)(2).) Alternatively, she could have asked
the court for a continuance, and the court could not have refused her. (§ 437c,
subd. (h); Mary Morgan, Inc. v. Melzark, supra, 49 Cal.App.4th at
pp. 770-771.) The fact that she is in pro. per. does not exempt her from these
rules. (See, e.g., Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009
[nonindigent lay persons must expect and receive same treatment as those
represented by an attorney].)
The trial
court did not abuse its discretion in refusing to allow Winn to dismiss the
case.
No Error in Failing to Stay the Action and
Denying
Winn's Motion to Compel Arbitration
The trial
court did not err in denying the motion to compel arbitration for several
reasons. First, the contract required that the parties mediate the dispute
before submitting it to arbitration. Substantial evidence in the record shows
that Winn's conduct amounted to a refusal to mediate. Therefore, a necessary
condition precedent was absent. (See Blackburn v. Charnley (2004) 117
Cal.App.4th 758, 767-768 [construing mediation provision of real estate
purchase agreement].)
Second,
section 1281.2, subdivision (b) gives the court discretion to deny a motion for
arbitration if "[g]rounds exist for revocation
of the agreement." (See Armendariz v. Foundation Health Psychcare Services
(2000) 24 Cal.4th 83, 125.) The record shows that the trial judge stated 10 months
before the motion was filed that "there is no likelihood the present
action would be successful."
Winn's
argument that a stay should have been granted pending her motion for
arbitration also is without merit. As the trial court noted, the relevant
statute requires that a motion for a stay be filed. (§ 1281.4.) (See Dial
800 v. Fesbinder (2004) 118 Cal.App.4th 32, 45 ["The party seeking
resolution via contractual arbitration must also file a motion in the action at
law to stay it (§§ 1281.4, 1292.8); it will not be stayed automatically"];
see also Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th
1790, 1796 [same].) Winn filed no such motion.
No
Error in Awarding Attorney Fees to Respondents
The
contract Winn sought to enforce contains a provision entitling the prevailing
party to recover attorney fees. (Civ. Code, § 1717.) Winn argues that the
trial court erred in granting respondents' request for attorney fees because
the trial court lost jurisdiction to act after she submitted her August 22
request for dismissal. She also argues that Civil Code section 1717,
subdivision (b)(2) bars a prevailing party in an action based on contract to
recover attorney fees if a plaintiff has voluntarily dismissed the action. As
we conclude that Winn's attempts to dismiss the action were ineffective, the
trial court had jurisdiction to award attorney fees under the contract. (Frei
v. Davey (2004) 124 Cal.App.4th 1506, 1511.) "Defendant prevailed at
the pleading stage and is entitled to attorney fees. [Citation.] '[I]t is
extraordinarily inequitable to deny a party who successfully defends an action
on a contract, which claims attorney's fees, the right to recover its attorney's
fees and costs simply because the party initiating the case has filed a
frivolous lawsuit.'" (Cano v. Glover (2006) 143 Cal.App.4th 326,
331.)
We affirm the
judgment and remand for a determination of reasonable attorney fees on appeal.
Respondents are to recover costs.
NOT TO
BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT,
P.J.
YEGAN, J.
style='page-break-before:always'>
Rodney
S. Melville, Judge
Superior
Court County of Santa Barbara
______________________________
Law Offices
of Wanland & Spaulding, Donald O. Spaulding, Matthew D. Pearson, Donald M.
Wanland, Jr., for Plaintiff and Appellant Madeleine Winn.
Ryan,
Steiner and Leet, W. Carlos Leet for Defendants and Respondents Cal Cow, LLC,
Ganaderia Purisima, LLC, Ellen Knill and Harry Knill.
Publication Courtesy of San
Diego County Legal Resource Directory.
Analysis and review provided by
references are to the Code of Civil Procedure unless otherwise stated.
