Opinion
H032037
4-28-2008
DANIELLE R., a minor, etc., et al., Plaintiff and Appellant, v. K.M., et al., Defendants and Respondents.
NOT TO BE PUBLISHED
In this appeal, plaintiff Susan R., guardian ad litem for her daughter Danielle, seeks review of an order denying her motion to vacate a judgment entered after judicial arbitration. Plaintiff contends that the superior courts refusal to set the judgment aside was error under the mandatory and discretionary relief provisions of Code of Civil Procedure section 473, subdivision (b). We will affirm the judgment.
Although this opinion bears a title designating Danielle as the plaintiff and appellant, we will use the term "plaintiff" to refer to Susan, who brought the action on behalf of Danielle.
Background
In January 2006, plaintiff filed a complaint on Danielles behalf against E.M., a minor, and his parents. Plaintiff alleged that E.M.s parents had negligently supervised him and that E.M. had sexually molested Danielle while she was in defendants home. The superior court ordered the matter to judicial arbitration.
The arbitrator set the matter for a 9 a.m. hearing on Monday, April 2, 2007. On the preceding Friday, plaintiffs counsel requested a continuance to May (beyond the 90 days of the arbitrators appointment) to allow him time to receive medical records and arrange the testimony of a forensic psychologist specializing in juvenile sexual abuse. Defense counsel refused to stipulate to a continuance, and the hearing took place as scheduled. Counsel for both parties and defendants appeared, but plaintiff did not. The defense submitted an offer of proof based on its arbitration brief, and plaintiffs counsel did not present evidence or cross-examine any witnesses. The arbitrator decided the case in defendants favor and mailed his decision to the parties the following day. On April 10, 2007, the arbitrators decision was filed.
In written argument in support of his motion to vacate, plaintiffs counsel represented that he had believed that the matter had been continued (and so informed his clients) until he arrived at his office Monday morning. This statement is not included in his supporting declaration, however.
On May 15, 2007, plaintiff submitted a request for trial de novo. Defense counsel notified plaintiffs counsel that the purported rejection of the award was untimely, as California Rules of Court, rule 3.826, and Code of Civil Procedure section 1141.20 allowed only 30 days in which to request a trial after judicial arbitration. Judgment on the award was entered on May 21, 2007.
In June 2007, plaintiff moved to vacate the judgment and to allow her to file a request for trial de novo. Plaintiff cited both Code of Civil Procedure section 473, subdivision (b) (hereafter "section 473(b)"), and section 1286.2, subdivision (a)(5), but she did not pursue argument on the latter provision. As to section 473(b), plaintiff argued that both mandatory and discretionary relief were appropriate. In an accompanying declaration, her attorney stated that after receiving the award on April 3, 2007, he was "consumed" by a "particularly hostile and antagonizing letter from defense counsel." Consequently, he "failed to determine whether [his] secretary [had] mailed a copy [of the award] to the client and calendared the matter to timely file the Request for Trial De Novo after Judicial Arbitration." Then, during the week of April 9, he and other office members developed a severe headache and persistent cough, which persisted into the following week, and "a number of employees called in sick." Although he worked through his illness, he "felt lousy and had a difficult time concentrating." The time to reject the arbitration award thus was not calendared and the 30-day period expired. Meanwhile, counsel added, defendants took the deposition of a witness.
On July 30, 2007, the court denied plaintiffs motion. Discretionary relief was denied because there was no evidence of excusable neglect. Mandatory relief was not warranted, the court found, "because the only instances where this remedy is available is for relief from 1) default or 2) default judgment or dismissal. The judgment in this case does not fit within these categories." This appeal followed.
Discussion
Plaintiff challenges both aspects of the superior courts ruling. She first contends that the trial court abused its discretion by denying her relief under the discretionary provisions of section 473(b). She further argues that her inability to participate in the arbitration hearing, together with her attorneys failure to file a timely request for trial de novo, operated to compel relief under the mandatory provisions of section 473(b). We first consider her contention that relief is mandatory; if she is correct, it will be unnecessary to address the discretionary provisions of section 473(b).
1. Mandatory Relief
Section 473(b) states, in pertinent part, "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect."
Plaintiff contends that this provision is applicable to her case, where the judgment entered against her due to her attorneys "inadvertent . . . omission" was not on the merits. She relies on Yeap v. Leake (1997) 60 Cal.App.4th 591, 600-601, where the plaintiffs attorney failed to appear at the arbitration hearing, resulting in an arbitration award of $0. A majority of the Second District, Division 4, deemed the result analogous to a dismissal, since appellant had had no opportunity to litigate the merits of her claim.
As plaintiff is aware, the same court retreated from that position in Jerrys Shell v. Equilon Enterprises (2005) 134 Cal.App.4th 1058 and more recently, in Hossain v. Hossain (2007) 157 Cal.App.4th 454. The holdings in those cases were more consistent with Justice Epsteins dissent in Yeap and with the Third Districts opinion in English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130. All of these courts have declined to follow the Yeap majoritys broad interpretation of the mandatory relief provisions of section 473(b). Citing Jerrys Shell, the trial court in this case followed the Yeap dissent.
Justice Epstein was the author in Hossain.
Plaintiff maintains that Yeap can be both harmonized with and distinguished from the subsequent cases adhering to a narrow construction of the provision for relief from default, default judgment, or dismissal. Unlike those cases, she argues, but like Yeap, in this case "(1) the merits were never reached, (2) the lapses of counsel were momentary rather than sustained, (3) the attorneys conduct was in no way strategic, and (4) the represented party was wholly blameless."
Plaintiffs position falls with its central premise. This is not a case in which the merits were never reached. It is not a default or default judgment — or even akin to one — but the result of a contested hearing at which plaintiffs counsel was present and had the opportunity to cross examine defense witnesses. Furthermore, we recently expressed agreement with the English courts narrow construction of section 473(b): "Summary judgments are neither defaults, nor default judgments, nor dismissals. (English, [supra, 94 Cal.App.4th] at p. 133.) The explicit statutory language of section 473(b) thus `provides no basis for extending the mandatory provision to such judgments. (Prieto v. Loyola Marymount University [(2005)] 132 Cal.App.4th [290,] 297 . . . .)" (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1417.) We find no reason to depart from the analysis of Huh and English in the context of judgments entered after judicial arbitration. The dissent in Yeap correctly reasoned that a judgment entered after a judicial arbitration hearing is neither a default — "a formal entry made when a party sued fails to answer the charges" — nor a dismissal. (Yeap, supra, 60 Cal.App.4th at p. 603, dis. opn of Epstein, J.) Instead, "[t]he failure of counsel to. . . present a case at the arbitration hearing resulted in what amounts to an award for the defendant. That award was subject to de novo trial as a matter of right; all appellants counsel had to do was to file a timely request for de novo trial. The failure to do that did not bring about the dismissal of anything. What happened is that the arbitration award ripened to a judgment." (Id. at p. 604, dis. opn of Epstein, J.) Thereafter, "[t]he judgment entered upon the arbitrators award had the same force and effect as any other civil judgment." (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44, citing Code Civ. Proc., § 1141.23 and Cal. Rules of Court, rule 3.825 [formerly rule 1615].) Plaintiff was not entitled to relief under the mandatory provisions of section 473(b).
2. Discretionary Relief
The first sentence of section 473(b) sets forth the terms of discretionary relief: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect." The party seeking relief under this provision " `must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief. [Citation.] In determining whether the attorneys mistake or inadvertence was excusable,`the court inquires whether "a reasonably prudent person under the same or similar circumstances" might have made the same error. [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error `fairly imputable to the client, i.e., mistakes anyone could have made. [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.)
Plaintiff concedes that with respect to the discretionary ruling, the trial courts findings of fact are entitled to "an appropriate degree of deference," but she maintains that where those facts "could support relief under § 473(b), relief must be granted." She emphasizes that as the law and public policy strongly favor trial and disposition on the merits, the trial courts denial of relief must be scrutinized carefully. In this case, she argues, the "inadvertent" failure to file a timely request for trial de novo was excusable and caused no prejudice to defendants.
A more complete explication of the standard of review weakens plaintiffs position on appeal. "In determining whether to grant relief under this provision, the court is vested with broad discretion (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233), and its factual findings are entitled to deference. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368 . . . .)" (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1007.) Reversal requires a clear showing of abuse. (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 257; see also State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [ruling on section 473 motion for discretionary relief may not be disturbed on appeal absent a clear showing of abuse].) "[W]e indulge all legitimate and reasonable inferences to uphold the judgment and reverse only upon a showing that the trial court exceeded the bounds of reason in light of all the circumstances." (Ayala v. Southwest Leasing & Rental, Inc., supra, 7 Cal.App.4th at p. 44.) More specifically, "[i]n deciding whether counsels error is excusable, the reviewing court looks to the nature of the mistake or neglect and whether counsel was otherwise diligent in investigating and pursuing the claim. When examining the mistake or neglect, the court inquires whether a reasonably prudent person might have made the same error under the same or similar circumstances. [Citation.]" (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782-1783.)
Here the trial court expressly found no evidence of excusable neglect. Plaintiff insists that her attorneys "inadvertent" conduct was excusable, that his "oversight" was one that anyone could have made. She protests that her attorneys failure to file a request for trial de novo was due to reliance on "an established office procedure," which "broke down due in large part to illness among key law office personnel and the departure of the firms managing partner." Plaintiff compares these circumstances to Elston v. City of Turlock (1985) 38 Cal.3d 227, 232-233 [superseded by statute on another ground], where the Supreme Court found an attorneys failure to respond to requests for admissions excusable because his office was understaffed, the request for admissions was misplaced, and the matters contained in the request were deemed admitted. This case offers no sound basis for reaching a similar result. The deadlines for filing a request for trial de novo after judicial arbitration are firm: An arbitration award "shall be final" if the request is not filed within 30 days of the award. (Code Civ. Proc., § 1141.20 [italics added]; see also Cal. Rules of Court, rules 3.826, 3.827.) In this case counsel already had neglected to ascertain that the arbitration hearing had been continued; he apparently assumed that his faxed request was sufficient. He therefore allowed the hearing to proceed without preparing for it or ensuring his clients appearance. In these circumstances the trial court could have believed that a reasonably prudent attorney would have made an extra effort to remedy the situation by making a timely request for a trial de novo. That counsel failed to attend to this simple matter apparently constituted inexcusable neglect in the trial courts view. Whether we might have reached a different conclusion is immaterial, because nothing in the record or plaintiffs argument on appeal convinces us that the trial courts decision was beyond the bounds of reason. As no abuse of discretion is shown, reversal is not required.
The court commented that there were "no issues of mistake, inadvertence, or surprise."
There is no statement in her attorneys declaration that his "oversight" had anything to do with the departure of the law firms managing partner. The only mention of this asserted fact occurred during the hearing on the motion. At that hearing counsel offered his excuse that everyone in the office thought that office procedure had been followed and the award had been rejected. Counsel then seemed to imply that those in charge of office administration were at fault: "It wasnt too terribly long before that, if you recall, we had a different managing partner on the civil side that would ordinarily automatically reject on such an order immediately. We have had some changes in the office, and some of the responsibilities of the associates have — were in flux because of how the administrative procedures occurred — or actually didnt occur in our office."
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.