Casillas v. Westhaven

Filed 6/11/08 Casillas v. Westhaven CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Ernest M. Hiroshige, Judge. Affirmed.

Law Offices of Akudinobi & Ikonte, Emmanuel C. Akudinobi and Chijioke O. Ikonte for Plaintiff and Appellant.

Spierer, Woodward, Corbalis & Goldberg, Stephen B. Goldberg and Peter Rustin for Defendant and Respondent.

_____________________

Enrique Casillas (Casillas) appeals from a judgment of dismissal the trial court entered after Casillas repeatedly failed to comply with its orders to file status reports and to complete arbitration proceedings. Casillas appeals, contending the trial court lacked authority to dismiss his action and to terminate the arbitration proceedings. Casillas also claims the trial court abused its discretion in ordering him to pay attorneys fees to the party prevailing on the contract. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Casillas and others purchased a real property located at 623 West 80th Street in Los Angeles in 2002. The purchase agreement contained an arbitration clause, which Casillas initialed, providing that the parties would arbitrate disputes or claims arising from the purchase agreement or transaction.[1]

On October 4, 2002 Casillas filed suit against the real estate agents on both sides of the transaction, the listing agent, the real estate brokers, the real estate brokerage firm, the appraiser, a termite control company, and Does 1 through 50. Casillass complaint alleged numerous defects with the home, including an unpermitted structural modification and an allegedly undisclosed order to abate issued by the City of Los Angeles with respect to the propertys condition. Casillass complaint asserted claims for fraud, misrepresentation and breach of fiduciary duty, among other claims. Casillas sought compensatory and punitive damages. He also sought an award of contractual attorneys fees.

Casillas reached settlement agreements with most of the defendants. In August 2003, Casillas amended his complaint to name the seller of the property, respondent Westhaven, LLC (Westhaven), as Doe 1. Westhaven answered Casillass complaint in February 2004.

Thereafter, Casillas and Westhaven unsuccessfully attempted to revolve their dispute through mediation. On July 14, 2004, Westhavens counsel wrote to Casillass counsel, requesting arbitration to resolve the case as inexpensively as possible. Casillass counsel agreed to discuss the matter with his clients.

Westhaven apparently received no further response and in September 2004 filed a petition to compel arbitration. Casillas did not oppose the motion. The trial court granted Westhavens petition to compel arbitration and vacated the trial date. The court, however, did not stay trial court proceedings, and scheduled a status conference for March 30, 2005 to review the results of the arbitration.

Apparently, the parties had no further contact until March 30, 2005. On that date the court set a hearing for April 29, 2005 on an order to show cause re: dismissal for Casillass failure to comply with the courts order to submit the dispute to arbitration.

By the April 29, 2005 hearing Casillas had taken no steps to proceed with the arbitration. The court ordered counsel for the parties to meet and confer to select an arbitrator. At this hearing the court also issued an order to show cause for sanctions against Casillas for failing to proceed with the court-ordered arbitration. The court scheduled the hearing for May 19, 2005.

The parties met and selected an arbitrator. Casillas informed the court of their selection on May 18, 2005. The following day the court held an in camera hearing on the order to show cause. The court imposed sanctions of $2,500 against Casillass counsel for unreasonable delay in process of arbitration payable to Westhavens counsel within 30 days. The court ordered the arbitration to be completed within 180 days.

By November 15, 2005, or 180 days after the courts order, the parties had apparently had conferences with the arbitrator but no arbitration had actually begun.

The trial court held a status conference on May 11, 2006. The court set a further status conference for September 8, 2006 and ordered Casillass counsel to file a status report concerning the arbitration at least three days before the hearing.

At the September 2006 status conference the court learned the parties had still not begun arbitration. In addition, Casillass counsel had not filed a status report. The court set an order to show cause for sanctions against Casillass counsel and/or dismissal for failure to follow court orders to complete arbitration and to file a status report. The court directed Casillass counsel to notice his client to appear at the order to show cause hearing scheduled for October 10, 2006.

Apparently, Casillass counsel took no further steps to prosecute the arbitration and did not file opposition to the courts proposed orders. Thus, on October 10, 2006 the trial court sustained the order to show cause and ordered the case dismissed with prejudice.

Shortly thereafter, Westhaven moved for an award of $23,684.00 in contractual attorneys fees and $3,040.99 in costs. The hearing on Westhavens motion was scheduled for December 4, 2006. On December 1, 2006 Casillas applied ex parte to continue the hearing date. The court granted Casillass application and reset the hearing date for January 4, 2007. However, because Casillass application was untimely, the court ordered Casillass counsel to pay Westhavens counsel $500 in attorneys fees.

Casillas opposed Westhavens application for attorneys fees and costs. Casillas argued Westhaven was not entitled to a contractual attorney fee award because: (1) Westhaven had not satisfied the contractual condition precedent of submitting the matter to mediation; (2) Westhaven could not be considered the prevailing party because Casillas had obtained the relief sought from his lawsuit through settlements with the other defendants; (3) Westhavens fee request was unreasonable; and (4) Casillas had no ability to pay any amount in attorneys fees.

Among other arguments in its reply, Westhaven urged the court not to consider Casillass opposition because it too had been untimely filed.

The court rejected Casillass arguments. It concluded Westhaven had been the prevailing party on the contract and thus entitled to an award of attorneys fees and costs. The court reduced the amount of attorneys fees requested to eliminate amounts charged for duplicative work and excessive hours. The court also reduced the costs requested to eliminate ineligible expenses, such as travel costs and unpaid amounts awarded Westhaven as sanctions.

Thereafter, the court entered a signed judgment dismissing Casillass action and awarding Westhaven attorneys fees of $17,310.60 and costs of $355.26.

DISCUSSION

Casillas appeals from the judgment of dismissal. He contends the trial court lacked authority to dismiss his lawsuit and terminate the arbitration. He also contends the trial courts award of attorneys fees to Westhaven was an abuse of discretion.

I. The Trial Court Had Inherent Authority To Dismiss A Lawsuit With Prejudice For Failing To Comply With Its Orders.

Casillas argues because the trial court cited no particular authority when it dismissed his lawsuit the court possibly relied on the discretionary dismissal provision of Code of Civil Procedure section 583.410.[2] If this was a discretionary dismissal on the courts own motion under Code of Civil Procedure section 583.410, Casillas argues, then Code of Civil Procedure section 581, subdivision (b)(4) directs the dismissal be without prejudice.[3] Accordingly, Casillas asserts the trial court lacked authority to dismiss his case with prejudice.

The trial court did not invoke any statutory authority when it dismissed Casillass action. Nothing in the record suggests the trial court dismissed Casillass action based on the discretionary dismissal statutes for delay in prosecution. Instead, the record reflects the trial court dismissed Casillass action under its inherent authority to enforce its orders and to control the proceedings before it. (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [It is also well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them].)

Independent of specific statutory grounds for dismissal, trial courts possess an underlying inherent discretionary power to dismiss actions and claims. Code of Civil Procedure section 583.150 provides the chapter does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court. Similarly, Code of Civil Procedure section 581, subdivision (m) provides that [t]he provisions of this section shall not be deemed to be an exclusive enumeration of the courts power to dismiss an action or dismiss a complaint as to a defendant.

The Supreme Court in Lyons v. Wickhorst (1986) 42 Cal.3d 911 reviewed a trial courts inherent authority to dismiss actions or claims. In the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice. (Id. at p. 915.) This power had typically been confined to two types of situations: 1) the plaintiff had either failed to prosecute diligently; or (2) the complaint was shown to be fictitious or sham such that the plaintiff had no valid cause of action. (Ibid.) The Lyons Court provided guidelines for trial courts to follow when exercising inherent authority to dismiss a case with prejudice. First, the court must discern whether the plaintiffs pattern of conduct was so severe [and] deliberate as to constitute extreme circumstances. [Citations.] Second, the court must look to see whether alternatives less severe than dismissal are available. The sound exercise of discretion requires the judge to consider and use lesser sanctions unless the courts authority cannot possibly be otherwise vindicated. [Citation.] (Id. at p. 917.) In applying this rule to the case before it, the Lyons Court found an immediate and unconditional dismissal entered at the first suggestion of noncooperation was too drastic a sanction for refusing to participate in mandatory judicial arbitration. (Id. at p. 919.)

The record in the present case shows Casillass and his counsels pattern of ignoring court orders was severe and deliberate. When lesser sanctions failed to prompt compliance with its orders, the trial court concluded only the ultimate sanction of dismissal would suffice to vindicate its authority. (Rail Services of America v. State Comp. Ins. Fund (2003) 110 Cal.App.4th 323, 331 [Dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the courts authority cannot be vindicated through the imposition of a less severe alternative].)

We find no abuse of the courts discretion. Casillas did nothing in the seven months between the courts order to arbitrate the dispute and the status conference. No arbitration had begun and no arbitrator had yet been selected. This pattern of neglect continued for the next year and a half. During this time the trial court attempted to prod Casillas to action. It ordered the parties to meet and confer to select an arbitrator. The court imposed sanctions of $2,500 against Casillass counsel for failing to comply with its earlier order to complete arbitration. When those sanctions and the threat of further sanctions failed to produce compliance with the courts orders, the court then set a date certain for completion of the arbitration on threat of further sanctions, including possible dismissal of the action. The courts order to complete the arbitration within the next 180 days was similarly ignored, as was the courts order nearly a year later to file a status report regarding the arbitration proceedings. The prospect of additional monetary sanctions apparently had no effect on Casillas or his counsel. The trial court gave Casillas a last chance to rectify the situation and to keep his case alive. On September 8, 2006 the court gave Casillas more than 30 days notice of its intent to dismiss the case absent a showing of good cause.[4] Yet Casillas still did nothing. By October 10, 2006 Casillas had still not begun arbitration and had also failed to file a status report regarding the arbitration as ordered.

Given Casillass repeated violations of court orders, the trial court was justified in concluding no sanction short of dismissal would suffice. We find no abuse of discretion. (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183 [A courts decision to impose a particular sanction is subject to reversal only for manifest abuse exceeding the bounds of reason].)

II. Counsels Negligence Is Imputed to Casillas.

Normally, counsels negligence and inexcusable neglect is attributed to his or her client. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 [attorneys negligence is imputed to his or her client; the clients redress for inexcusable neglect by counsel is an action for malpractice]; Freedman v. Pacific Gas & Electric Co. (1987) 196 Cal.App.3d 696, 705 [the general rule is an attorneys inexcusable neglect is chargeable to the client].)

There is a narrow exception to this rule for extreme negligence amounting to positive misconduct which has the effect of depriving the client of representation. (Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at pp. 898-899; Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 73 [the exception applies where an attorney abandons the client through a total failure to represent that client]; Freedman v. Pacific Gas & Electric Co., supra, 196 Cal.App.3d. at p. 706 [the general rule applies unless counsel totally fails to represent his or her client and de facto substitutes out of the case].)

This exception does not apply in this case because the record demonstrates counsel did not abandon Casillas through a total failure to represent him. (Compare, Carroll v. Abbott Laboratories, Inc., supra, 32 Cal.3d at pp. 898-901; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 391.) Casillass counsel appeared and represented Casillas at all the status conferences. Counsel appeared at the hearings on the orders to show cause. Counsel eventually selected an arbitrator. Casillass counsel opposed Westhavens request for contractual attorneys fees. Counsels negligence is thus properly imputed to Casillas because the record establishes counsel did not completely abandon his client.

III. The Trial Court Had Inherent Authority To Dismiss Claims Subject to Contractual Arbitration.

When a court grants a partys motion to compel arbitration trial court proceedings are not automatically stayed. A party must specifically request a stay of the trial court proceedings. (Code Civ. Proc., 1281.4.)[5]

Once a court grants the petition to compel arbitration and stays the action at law, the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration. This vestigial jurisdiction over the action at law consists solely of making the determination, upon conclusion of the arbitration proceedings, of whether there was an award on the merits (in which case the action at law should be dismissed because of the res judicata effects of the arbitration award [citations] or not (at which point the action at law may resume to determine the rights of the parties). [Citations.] The court also retains a separate, limited jurisdiction over the contractual arbitration which was the subject of the [Code of Civil Procedure] section 1281.2 petition [to compel contractual arbitration]: After a petition has been filed under this title [i.e., title 9 ([Code Civ. Proc.,] 1280-1294.2)], the court in which such petition was filed retains jurisdiction to determine anysubsequent petition involving the same agreement to arbitrate and the same controversy, and any such subsequent petition shall be filed in the same proceeding. ([Code Civ. Proc.,]  1292.6 [italics added].) (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.)

Thus, when court proceedings are stayed during the arbitration, several courts have held only the arbitrator -- not the court -- has the authority to dismiss a contractual arbitration for delay in prosecution. (See Blake v. Ecker (2001) 93 Cal.App.4th 728, 737, disapproved on another ground in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, [Once the trial court stayed plaintiffs civil action, it was stayed for all purposes during the arbitration proceedings. Defendants only avenue for redress when plaintiff failed to timely prosecute the arbitration was in the arbitration proceeding]; Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at pp. 1794, 1808 [held, trial court erred in granting the defendants motion to dismiss both the action at law and the arbitration on the ground more than five years had elapsed since the plaintiffs had filed their complaint; This does not mean that a party to an arbitration proceeding has no remedy against dilatory tactics. The offended party may move in the arbitration proceedings to terminate them for failure to pursue the arbitration claim with reasonable diligence]; Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1314, 1316 [the defendants moved the court to dismiss the complaint for failure to bring the action to trial within five years; held, it was for the arbitrator, not the court, to resolve such questions while an arbitration which is the result of a contractual agreement between the parties is pending].)

These courts have held a trial courts role is limited to confirming, correcting, or vacating an arbitration award once an action is ordered to contractual arbitration and the court action stayed. (Code Civ. Proc., 1285; Byerly v. Sale, supra, 204 Cal.App.3d at p. 1315; Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1806.)

These are, as Casillas observes, the usual rules that apply to dismissal of stayed actions for delay in prosecuting a contractual arbitration. However, these rules do not directly apply to this case. First, the action at law in this case was not stayed. Thus, the trial court in this case retained more than vestigial jurisdiction over the action. (Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1796.) Second, unlike the decisions noted above, the dismissal in this case was not prompted by a motion to dismiss under one of the dismissal statutes for delay. (Code Civ. Proc., 583.410, 583.420 [discretionary dismissal statutes]; 583.310, 583.360 [mandatory five-year dismissal statutes].) Instead, the court dismissed the case on its own motion, not simply for delay in prosecuting the arbitration, but for willful disobedience to its orders to complete the arbitration and to file status reports by dates certain. We have already concluded that given Casillass inexcusable neglect and willful disregard of the courts orders, the trial court had the inherent authority to dismiss the action as a last resort to vindicate its authority. (Lyons v. Wickhorst, supra, 42 Cal.3d at p. 917.)

IV. Award of Attorneys Fees

Civil Code section 1717, subdivision (a) states that [i]n any action on a contract, where the contract specifically provides that attorneys fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorneys fees in addition to other costs.

The parties contract contained an attorney fee provision. This clause in the purchase agreement stated, [i]n any action, proceeding, or arbitration between Buyer and Seller arising out of this Agreement, the prevailing Buyer or Seller shall be entitled to reasonable attorney fees and costs from the non-prevailing Buyer or Seller, except as provided in paragraph 17A.

Paragraph 17A of the purchase agreement was the mediation clause. It obligated the parties to submit disputes to mediation before resorting to arbitration or court action. The mediation clause further specified any party who refused to mediate, or filed a lawsuit without first attempting to the resolve the dispute through mediation, would not be entitled to recover attorneys fees even if the party would have been otherwise entitled to attorneys fees under the contract.[6]

Casillas argues the courts award of attorneys fees to Westhaven constituted error under these provisions and amounted to an abuse of discretion. He argues (1) Westhaven did not mediate the dispute and thus did not satisfy the purchase agreements condition precedent for entitlement to attorneys fees; (2) Westhaven is not the prevailing party because Casillas received the relief he sought from his lawsuit through settlements with the other defendants; (3) the amount of attorneys fees awarded Westhaven is unreasonable; and (4) the trial court erred in failing to consider his ability to pay.

The standard of review on issues of attorneys fees and costs is abuse of discretion. The trial courts decision will only be disturbed when there is no substantial evidence to support the trial courts findings or when there has been a miscarriage of justice. (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.) The trial court also has broad authority to determine what constitutes a reasonable amount of fees in a given case. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) An experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his [or her] judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong -- meaning that it abused its discretion. (Ibid.)

A. Mediation Clause

Under the parties purchase agreement Casillas was required to mediate his dispute with Westhaven before pursuing either arbitration or court action. This he did not do. Instead Casillas filed his lawsuit and brought Westhaven into the action by eventually naming Westhaven, the seller, as a Doe defendant. As the person filing the court action, it was Casillass obligation under the contract to initiate mediation before filing suit. Because he did not do so, Casillas would not have been entitled to fees if he had prevailed on his claims against Westhaven. (Frei v. Davey, supra, 124 Cal.App.4th at p. 1520 [Seeking mediation is a condition precedent to the recovery of attorney fees by the party who initiates the action].)

There is no evidence in this record to suggest Westhaven refused to mediate the dispute and thereby disqualified itself from receiving an award of contractual attorneys fees under paragraph 17A of the purchase agreement, as Casillas claims. (See Frei v. Davey, supra, 124 Cal.App.4th at p. 1520 [this clause means a party refusing a request to mediate a dispute that ripens into litigation may not recover attorney fees at the conclusion of the litigation, even if that party is the prevailing party]; People v. Perkins (1890) 85 Cal. 509, 511 [To refuse is to decline the acceptance of something offered, or to fail to comply with some requirement].) Instead, the record shows the parties unsuccessfully attempted to mediate their dispute in July 2004.

B. Prevailing Party

Casillas asserts the trial court should have found no party prevailed on the contract for the purpose of awarding attorneys fees (Civ. Code, 1717, subd. (b)(1)), and claims the trial court erred in finding Westhaven the prevailing party on the contract. Casillas asserts he achieved his litigation objectives through settlements with other defendants involved in the real estate transaction and for this reason it is immaterial his action against Westhaven was ultimately dismissed.

Casillass arguments do not apply to the factual circumstances in this case. Although he relies on Maria P. v. Riles (1987) 43 Cal.3d 1281, there the plaintiffs were entitled to attorneys fees, not because they obtained some benefit from others no longer part of the lawsuit, but because they obtained the relief they sought directly from the defendants they sued.

In Maria P. the plaintiffs sued the state superintendent of public instruction, a school district and others, seeking a preliminary injunction to prevent the district from reporting the child plaintiffs immigration status to the authorities as then required by statute. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1286.) The trial court ruled in favor of the plaintiffs and issued a preliminary injunction barring enforcement of the reporting law. (Id. at p. 1287.) The plaintiffs took no further action on their case after the Legislature amended the law to delete the reporting requirement. On the defendants motion the trial court dismissed the action for failure to bring it to trial within five years. (Id. at p. 1288.) Thereafter, the plaintiffs moved for an award of attorneys fees under the private attorney general provision (Code. Civ. Proc., 1021.5). (Ibid.) The Supreme Court found an award of attorneys fees appropriate despite the dismissal, explaining, An award of attorney fees under section 1021.5 is appropriate when a plaintiffs lawsuit was a catalyst motivating defendants to provide the primary relief sought, or when plaintiff vindicates an important right by activating defendants to modify their behavior. [Citations.] (Id. at pp. 1291-1292.) Because the plaintiffs lawsuit had achieved these aims and forced the defendants to modify their behavior the Supreme Court affirmed the trial courts attorney fee award to the plaintiffs. (Id. at p. 1293.)

In the present case, Casillas obtained no benefit and achieved no relief from Westhaven as a result of his lawsuit. A defendant in whose favor a dismissal is entered is properly considered a prevailing party. (See Code Civ. Proc., 1032, subd. (a)(4) [Prevailing party includes . . . a defendant in whose favor a dismissal is entered].) Because Westhaven accomplished its goal of being dismissed as a defendant from the lawsuit, and because Casillas took nothing as against Westhaven, it was well within the courts discretion to determine Westhaven was the prevailing party on the contract.

That Casillas might have obtained some relief from other defendants is immaterial to the analysis whether Westhaven, in whose favor a dismissal was entered, was the prevailing party. (See Civ. Code, 1717, subd. (b)(1) [except in certain circumstances, the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract]; Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1154 [We conclude the party recovering greater relief in the action on the contract under [Civil Code] section 1717, subdivision (b)(1) does not necessarily mean the party receiving the greater monetary judgment].)

The trial court did not abuse its discretion in finding Westhaven was the prevailing party on the contract.

C. Amount of Attorney Fees

Casillas contends the amount of fees awarded is unreasonable because (1) the attorney hours spent on this matter were excessive; (2) the trial court failed to consider his ability to pay an award of attorneys fees;[7]and (3) counsels declaration attesting to a range of hourly rates for his colleagues covering several years was based on information and belief rather than personal knowledge.

With regard to the latter assertion, courts have long held that affidavits on information and belief may be sufficient in a variety of contexts where the facts would otherwise be difficult or impossible to establish. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 87.) Casillas cites no authority for the proposition an asserted hourly rate for an attorney when requesting an attorney fee award must be based on personal knowledge, rather than on information and belief.

In his opposition, Casillas raised the issue concerning the reasonableness of the hours Westhaven allegedly expended on the case. The record makes clear the court carefully considered his arguments in determining a reasonable fee. The court did not accept as either established or warranted the amount of hours allegedly expended on this matter by Westhaven. The trial court carefully scrutinized Westhavens billing records and determined the full amount requested was unwarranted. Westhaven had requested $23,684.00 in attorneys fees and $3,040.99 in costs. The court reviewed Westhavens substantiating documents, apparently item by item. The court eliminated amounts for duplicative work, eliminated amounts for inflated work hours, and struck ineligible cost items from Westhavens request. With these items removed the court concluded the reduced amount of $17,310.60 in attorneys fees and $355.26 in costs was reasonable.

Casillas has failed to demonstrate any abuse of the courts discretion in determining the amount of reasonable attorneys fees and costs. (Frei v. Davey, supra, 124 Cal.App.4th at p. 1512.)

DISPOSITION

The judgment is affirmed. Westhaven is to recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Paragraph 17B of the purchase agreement was the arbitration clause. It stated in part: (1) Buyer and Seller agree that any dispute or claim in Law or equity arising between them out of this Agreement or any resulting transaction, which is not settled through mediation, shall be decided by neutral, binding arbitration, . . . 

[2] Code of Civil Procedure section 583.410, subdivision (a) provides: The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.

[3] Code of Civil Procedure section 581, subdivision (b)(4) states an action may be dismissed [b]y the court, without prejudice, when dismissal is made pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110 [including section 583.410 for discretionary dismissals for delay in prosecution]).

[4] The minute order for September 8, 2006 provided Casillas ample notice of the courts intent to dismiss his case. The minute order states: The Court sets an ORDER TO SHOW CAUSE RE: SANCTIONS AGAINST PLAINTIFFS COUNSEL and or DISMISSAL FOR FAILING TO FILE STATUS REPORT AND FAILING TO COMPLETE ARBITRATION for October 10, 2006 at 9:00 a.m. in this department. [] Plaintiffs counsel is ordered to notice his client to appear.

[5] Code of Civil Procedure section 1281.4 provides in part: If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.

[6] Paragraph 17A of the parties purchase agreement 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. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED.

[7] Curiously, Casillas bases his argument of an inability to pay a fee award on a declaration from one of the three co-owners of the property who is not a party to this appeal. He presents no evidence of his own ability to pay, and thus no basis for a finding of his inability to pay.