Home/California Court of Appeal/Tri-Cor, Inc. v. City of Hawthorne

Tri-Cor, Inc. v. City of Hawthorne

8 Cal. App. 3d 134, 87 Cal. Rptr. 311, 1970 Cal. App. LEXIS 2028
CourtCalifornia Court of Appeal
DecidedMay 26, 1970
DocketCiv. 34936
StatusPublished
Cited by7 cases

This text of 8 Cal. App. 3d 134 (Tri-Cor, Inc. v. City of Hawthorne) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tri-Cor, Inc. v. City of Hawthorne, 8 Cal. App. 3d 134, 87 Cal. Rptr. 311, 1970 Cal. App. LEXIS 2028 (Cal. Ct. App. 1970).

Opinion

Opinion

KINGSLEY, J.

This is an appeal from an order denying a petition to order arbitration and to stay proceedings in a pending lawsuit until the termination of such arbitration. For the reasons set forth below, we affirm the order.

Plaintiff Tri-Cor, Inc., and defendant City of Hawthorne had entered into a contract for the construction by plaintiff of an airport administration buildiñg. The contract did not contain an arbitration clause. Construction was delayed and plaintiff brought an action in declaratory relief, alleging that the delay was due to the fault of the city and of certain subcontractors, and seeking a declaration of rights and a money judgment. The city filed an answer and a cross-complaint, alleging that the delay was due to the fault of plaintiff and alleging damages to the city from that delay. Plaintiff thereafter filed a petition to stay the litigation and for arbitration. The trial court denied the petition; plaintiff has appealed; we affirm.

After the plaintiff’s action was commenced the parties discussed the possibility of arbitration. Mr. Keel, the city attorney of defendant city, and Mr. Lucas, plaintiff’s attorney, agreed on the telephone that the dispute would be submitted to arbitration and that the subcontractors could join. On August 7, 1968, Mr. Keel, the city attorney, wrote a letter to Mr. Lucas agreeing to arbitration. On August 9, 1968, Mr. Lucas replied by letter agreeing that the dispute should be heard by a panel of three arbitrators. 1

For about one month, Mr. Keel was on vacation; thereafter, Mr. Lucas telephoned Mr. Keel on September 16, 1968, to arrange for submission of the arbitration agreement. Mr. Keel said that the City of Hawthorne had *137 retained associate counsel, Brown & Brown, to assist in arbitration, and Brown & Brown would contact Mr. Lucas. After waiting 11 days, Mr. Lucas again called Mr. Keel, who assured Mr. Lucas that contact would be made. After 11 days Mr. Lucas called Mr. Brown who said he would not be able to participate in arbitration proceedings until February 1969. At the request of Mr. Brown, Mr. Lucas agreed to prepare the submission agreement which was to be submitted to the American Arbitration Association. Plaintiff prepared the submission, plaintiff signed it, and mailed it to Mr. Brown. In a letter dated January 3, 1969, defendant refused to execute the agreement. Plaintiff’s petition to compel defendant to arbitrate and to stay proceedings followed.

Although three subcontractors were named as defendants in the complaint, and one of them, J. Herman Co., Inc., had appeared and filed an answer and counterclaim, and although plaintiff sought to compel defendant to arbitrate with the three defendant subcontractors, defendant did not serve the three defendant subcontractors with notice of the proceedings. Also, the original exchange of letters between plaintiff’s attorney and the City Attorney of Hawthorne do not mention the subcontractors.

The trial court denied planitiff’s motions. Neither plaintiff nor defendant requested findings, and none were made.

I

Plaintiff’s first contention is that when a trial court denies a petition to order arbitration, it is required to make findings of fact and conclusions of law, and that the failure to do so constituted reversible error.

The parties have discussed the provisions of section 1291 of the Code of Civil Procedure and of subdivision 1 of section 632 of that same code, plaintiff arguing that the effect of section 1291 is to require findings of fact in proceedings relating to arbitration, in spite of the provisions of section 632. So far as we can discover, only two cases 2 have considered the matter and both of them antedate the effective date of the 1968 revision of section 632 et seq. We need not pursue the inquiry in this case. As we point out below, there is no evidence which would have supported a finding in favor of plaintiff on one controlling issue in the case. Since the only finding that would have found support in the record would necessarily have been adverse to plaintiff, the absence of findings, even if required, is not here material.

*138 II

Defendant argues that there was no agreement to arbitrate because Mr. Keel, the city attorney of defendant city, had no authority to bind the city to an arbitration agreement.

■ Clearly the record does not show any express authority to execute the agreement herein relied on. In fact, such evidence as there is tends to show the contrary. In a declaration filed in opposition to the petition, the city manager of defendant city stated: “That the City Council and the Mayor of the City of Hawthorne at no time took formal action at a City Council meeting to enter into an arbitration agreement with Tri-Cor Inc. All discussions prior to the date of the letter of August 7, 1968 sent by Mr. Keel, formerly the City Attorney, among the members of the City Council and the declarant and Mr. Keel was to the effect that the City of Hawthorne should explore the possibility of submitting its dispute with Tri-Cor Inc. to arbitration. Mr. Keel was directed to negotiate with Tri-Cor Inc. concerning the possibility of arbitration as a method of settling this dispute and he was to submit to the City Council for its approval any proposed agreement providing'for arbitration. That the City Council has not approved any proposed agreement for arbitration.”

If authority is to be found, it must be discovered in the general powers of Mr. Keel inherent in his office.

It is argued that an attorney retained to represent a municipal corporation in defending a law suit may, as a power inherent in that retainer, agree to submit issues therein involved to arbitration. But, for the reasons hereinafter stated, we do not reach that problem on the record before us.

The duties of a city attorney in a general law city such as defendant are specified by statute. (People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636 [107 P.2d 388].) Those duties are now set forth, in very general terms, in sections 41801 to 41803.5 of the Government Code. The only provisions here pertinent are those contained in sections 41801 and 41803, which read as follows: Section 41801: “The city attorney shall advise the city officials in all legal matters pertaining to city business.” Section 41803: “He shall perform other legal services required from time to time by the legislative body.”

Under these statutes a city attorney of a general law city has no authority *139 to appear and defend a suit against the city until the legislative body of the city has authorized him so to do. In the case at bench, we do not have evidence of even that authority in Mr. Keel. We are not cited to any ordinance or resolution of the city council of defendant city either granting a general authority to appear and defend suits against the city, or granting a specific authority to act in the case herein involved. The only evidence in the record, again, is to the contrary.

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Bluebook (online)
8 Cal. App. 3d 134, 87 Cal. Rptr. 311, 1970 Cal. App. LEXIS 2028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tri-cor-inc-v-city-of-hawthorne-calctapp-1970.