Opinion
G044097
08-31-2011
FRANCISCO ROLDAN et al., Plaintiffs and Respondents, v. RICHARD E. QUINTILONE II, Defendant and Appellant.
Richard E. Quintilone II, in pro. per., Quintilone & Associates, Richard E. Quintilone II, Michelle E. Harvey; Jacks & Maybaum, Jerid R. Maybaum, and Russell W. Clampitt, for Defendant and Appellant. Law Offices of Steven R. Young and Jim P. Mahacek for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2009-00303966)
OPINION
Appeal from an order of the Superior Court of Orange County, Glenda Sanders, Judge. Motion to strike reply brief. Motion for sanctions. Order affirmed. Motion to strike reply brief denied. Motion for sanctions denied.
Richard E. Quintilone II, in pro. per., Quintilone & Associates, Richard E. Quintilone II, Michelle E. Harvey; Jacks & Maybaum, Jerid R. Maybaum, and Russell W. Clampitt, for Defendant and Appellant.
Law Offices of Steven R. Young and Jim P. Mahacek for Plaintiffs and Respondents.
Plaintiffs Francisco and Joan Roldan sued defendant Richard E. Quintilone II (Quintilone) and codefendants Callahan & Blaine, Edward Susolik and Lee Burrows (collectively Callahan) for elder abuse, conversion, breach of fiduciary duty, negligence, and related claims. The trial court granted Callahan's petition to compel arbitration but denied Quintilone's on the ground the arbitration clause in Quintilone's contingency fee agreement did not apply to plaintiffs' tort claims. It granted Quintilone's request to stay the litigation against him until after the completion of the binding arbitration between Callahan and plaintiffs. Quintilone contends the court should have consolidated his arbitration proceeding with Callahan's. We disagree and affirm the order denying his petition to compel arbitration.
Plaintiffs filed separate motions to strike Quintilone's reply brief and for appellate sanctions. We deny the motions.
DISCUSSION
1. Consolidation
Quintilone asserts "[t]his [a]ppeal involves the single issue of whether the [c]ourt should consolidate the separate arbitration proceedings pursuant to Code of Civil Procedure section 1281.3" (all further statutory references are to this code). Under that statute, a "court may order consolidation of separate arbitration proceedings when: [¶] (1) Separate arbitration agreements or proceedings exist between the same parties; or one party is a party to a separate arbitration agreement or proceeding with a third party; and [¶] (2) The disputes arise from the same transactions or series of related transactions; and [¶] (3) There is common issue or issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators. . . ." (§ 1281.3.)
According to Quintilone, the court erred in refusing his request to consolidate under section 1281.3. The contention lacks merit. Because the court denied his petition to compel arbitration there was no separate arbitration proceeding to consolidate. (§ 1281.3.) Unlike here, the cases cited by Quintilone, Garden Grove Community Church v. Pittsburgh-Des Moines Steel Co. (1983) 140 Cal.App.3d 251 and Gordon v. G.R.O.U.P, Inc. (1996) 49 Cal.App.4th 998, involve consolidation of separate arbitrations and thus are inapposite.
Quintilone does not challenge the court's denial of his petition under the arbitration clause contained in his own fee agreement. Rather, and despite the singular issue he claims on appeal, Quintilone suggests he was entitled to arbitration under the Callahan agreement because Quintilone "was included as co-counsel in the [Callahan] agreement." Plaintiffs assert this claim was forfeited because it was not included in the opening brief. It was, albeit unclearly and not under a separate heading as required by California Rules of Court, rule 8.204(a)(1)(B).
Quintilone relies primarily on Laswell v. AG Seal Beach LLC (2010) 189 Cal.App.4th 1399 (Laswell). Laswell addressed the applicability of section 1281.2, subdivision (c), which provides an "exception[] to the enforcement of contractual arbitration provisions . . . where '[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.' [Citation.]" (Laswell, supra, 189 Cal.App.4th at p. 1405.) It held that a nonsignatory with a right to enforce the arbitration agreement is not a third party within the meaning of section 1281.2, subdivision (c), making the provision inapplicable. (Laswell, supra, 189 Cal.App.4th at pp. 1407-1408.)
But Quintilone has not shown the court denied his petition for compel arbitration under section 1281.2, subdivision (c). It did not. Rather, the court concluded the arbitration clause in Quintilone's contingency fee agreement had no application to plaintiffs' tort claims. We agree.
The arbitration provision in Quintilone's fee agreement states in relevant part: "Any dispute that may arise out of this Agreement, without any limitation, shall be resolved by binding arbitration through [the] Orange County Bar Association ('OCBA')." In their opposition to his petition to compel arbitration, plaintiffs pointed out, among other things, that the OCBA conducted only mandatory fee arbitrations and that Rule 4.B of the OCBA Rules of Procedure for Mandatory Fee Arbitration states "[t]he MFA Committee will not hear or settle disputes in which a client seeks relief for damages on the basis of alleged malpractice or professional misconduct. The MFA Committee cannot hear or rule on any counter-claim for damages."
In his reply to plaintiffs' opposition, Quintilone declared that "[i]n at least one of the cases I have mediated with the OCBA, claims for malpractice, breach of contract, fraud, assault, harassment, property damage, and intentional infliction of emotional distress were mediated." But mediation is different from arbitration: Mediation is a process aimed at reaching mutual agreement, while arbitration is one in which the parties "'hav[e] a resolution imposed upon them by an authoritative third party.' [Citation.]" (Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 270.) Quintilone presented no evidence or authority giving the OCBA jurisdiction to arbitrate any claims other than fee disputes. Nor does he do so on appeal.
Neither has Quintilone established he had a right to enforce the arbitration clause in Callahan's agreement with plaintiffs based on his cocounsel status. In Laswell, "all of the defendants [were] related . . . entities" (Laswell, supra, 189 Cal.App.4th at p. 1407), consisting of the healthcare facility that signed the arbitration agreement, its licensee and operator, its owner, and its management company (id. at pp. 1402, 1407). Additionally, "all defendants were represented by the same counsel" and agreed to "participate in the arbitration proceedings" and the plaintiff's claims were "based on the same facts and theory . . . ." (Id. at p. 1407.)
Quintilone claims the allegations against him and Callahan were "inseparable and common" and that he "was included as co[]counsel" under Callahan's agreement. Even if so, that does not demonstrate Quintilone was an agent, officer, director, or shareholder of Callahan's, a third party beneficiary of Callahan's agreement with plaintiffs, or Callahan's alter ego. (See Laswell, supra, 189 Cal.App.4th at pp. 1407-1408.) Quintilone represented plaintiffs for almost two years before Callahan was associated into the action. They had plaintiffs sign separate fee agreements, with different arbitration provisions. And unlike in Laswell, Quintilone and Callahan were represented by different counsel. Quintilone's failure to cite any authority supporting his position the mere fact he and Callahan may have been cocounsel made them "related" within the meaning of section 1281.2, subdivision (c) forfeits the contention. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [point not supported with citations to authority is waived].)
Based on our independent review of the undisputed facts and evidence, we conclude the court did not err in denying Quintilone's petition to compel arbitration. (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 707-708.) Because the arbitration clause in Quintilone's agreement did not cover plaintiffs' claims and Quintilone failed to demonstrate he was entitled to arbitration under Callahan's arbitration provision, it was unnecessary for the court to address the presence of common facts or the likelihood of conflicting rulings.
2. Plaintiffs' Motion to Strike
Plaintiffs filed a motion to strike Quintilone's reply brief because it goes beyond the single issue of consolidation that he presented in his opening brief. Having reviewed both briefs, we conclude the majority of the claims made in the reply brief were sufficiently raised in the opening brief or were in response to respondents' brief. To the extent the reply brief raised new issues, this court has disregarded them, making the motion to strike moot.
3. Motion for Sanctions
Plaintiffs also filed a motion for sanctions, claiming Quintilone's appeal was frivolous because no "reasonable attorney [would] objectively believe Quintilone's appeal had any semblance of merit[.]" We deny the motion.
California Rules of Court, rule 8.276(a) provides: "On motion of a party or its own motion, a Court of Appeal may impose sanctions, including the award or denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay . . . ." There are two standards to determine whether an appeal is frivolous—subjective and objective—which are to be "sparingly applied." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649.) "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (Id. at p. 650.)
We cannot say the appeal in this case, although without merit, is "indisputably" meritless or "prosecuted for an improper motive." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) The issue of consolidation may have lacked objective merit but Quintilone's argument he was entitled to arbitration under Callahan's agreement with plaintiff was "arguably correct" and Quintilone had the right to present it even if unlikely he would win. (Ibid.)Nor are we convinced the appeal was taken for the purpose of harassment or delay rather than due to Quintilone's belief the order denying his petition to compel arbitration was incorrectly entered.
DISPOSITION
The order denying Quintilone's petition to compel arbitration is affirmed. Respondents' motions to strike the reply brief and for sanctions are denied. Respondents are entitled to costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: O'LEARY, J. MOORE, J.