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Lazarus v. Titmus

6/16/1998

CERTIFIED FOR PUBLICATION


(Super. Ct. No. BC092680)


APPEAL from an order and judgment of the Superior Court of Los Angeles County, Ronald E. Cappai, Judge. Affirmed.


In September of 1993, after an altercation in a parking lot, appellant Sanford Lazarus was hit by a car driven by respondent Ted Titmus. The car was owned by respondent Carol Forsythe. Appellant brought suit for personal injury against Titmus and Forsythe in November of 1993. A stipulation to binding arbitration was signed by the parties' attorneys in 1995, but respondents refused to go forward. Appellant's petition to compel arbitration was denied in 1996 on the ground the stipulation was void. The case was set for trial. Appellant did not appear. Instead, he requested a two-week continuance based on a new job offer and need to attend an orientation and training seminar. The request was denied, and the case was ultimately dismissed due to the inability of appellant's counsel to go forward in his absence. The issues on appeal are whether the stipulation to binding arbitration was indeed void, as the trial court ruled, and whether the trial court abused its discretion in denying the motion to continue.


RELEVANT PROCEDURAL BACKGROUND


On May 22, 1995, as the matter approached its first trial date and after non-binding judicial arbitration had resulted in a defense award and request for trial de novo, the attorneys for the parties signed a "Stipulation Re Binding Arbitration." The stipulation provided in part: ". . . Plaintiff Sanford Lazarus together with Defendants Ted Titmus and Carol Forsythe, and their respective attorneys do hereby agree and stipulate to binding arbitration as follows: [ ] 1. Each party hereto gives up their right to trial by jury, and any appeal, and agrees to have this dispute resolved by way of binding arbitration. [ ] . . . [ ] 9. Each person executing this stipulation on behalf of anyone, represents and warrants that they have been fully empowered to execute this agreement." Terence Knabb of Thomas Moore & Associates signed on behalf of respondents, and also signed William J. Houser's name on behalf of appellant.


By order dated May 24, 1995, the court ordered the case dismissed without prejudice " ursuant to Stipulation Re Binding Arbitration filed herein this date . . . ." The court "retain jurisdiction to enforce the award."


In January of 1996, Houser was removed from the case by appellant. New counsel, Leslie S. McAfee, substituted in as attorney of record in April of 1996.


On April 24, 1996, appellant, through his attorney McAfee, filed a motion to compel arbitration pursuant to section 1281.2 of the Code of Civil Procedure. McAfee and former counsel Houser stated in declarations that the sole reason given by defendants for refusal to arbitrate was the failure of the stipulation to impose a limit on the amount that could be awarded to appellant by the arbitrator.


Respondents opposed the petition to compel on the ground that because the stipulation was signed by counsel rather than the parties, it was void. The court continued the hearing to allow respondents to file declarations stating that they had not consented to stipulate to arbitration in place of trial. Up to that point, the only declaration in opposition was from respondents' attorney who stated that Knabb had died, and he could find nothing in the record to indicate the clients had approved the stipulation. In his subsequently filed declaration, Titmus stated: "On or about July 10, 1995, Mr. Terence Knabb, my former counsel of record, notified me via facsimile that the matter was going to arbitration again and that my presence was required

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