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C. R., A Minor, Etc., Et. Al v. Steve Davis et al


February 23, 2011


Super. Ct. No. 74098

The opinion of the court was delivered by: Robie ,j.

C.R. v. Davis CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Plaintiff, C. R.,*fn1 appeals from an order denying her motion to vacate the judgment after an arbitration award was entered against her and in favor of defendants, Steve Davis et al. (defendants). We affirm.


Plaintiff filed a complaint for damages against defendants on October 29, 2008, and the matter was referred to judicial arbitration. The arbitration hearing was scheduled for September 11, 2009. Prior to the hearing, the parties and the arbitrator agreed to treat the hearing as a mediation. The parties submitted briefs, but no witnesses testified and no evidence was presented.

No settlement was reached at the arbitration, and on September 18, 2009, the arbitrator filed an award of arbitration denying plaintiff's claims and awarding statutory costs to defendants. Plaintiff's counsel took no action relative to the award. Specifically, counsel did not request a trial de novo.

On October 20, 2009, the clerk entered judgment in favor of defendants as provided in the arbitrator's award and mailed notice of entry of judgment to the parties. Despite the entry of judgment, the parties continued to engage in a variety of pretrial activity. Defendants filed a motion for a gag order, a request for judicial notice, and a general demurrer to the fourth amended complaint and set the matter for hearing on December 18, 2009.

On December 18, 2009, the trial court issued a tentative ruling, finding: "These matters will not be heard on December 18, 2009 because the court does not have jurisdiction. On September 18, 2009, the arbitrator's award was filed. The proof of service shows it was served on all attorneys on September 17, 2009. Pursuant to the arbitration statutes, a party seeking a trial de novo on an arbitration award must file a written request within 30 days after the arbitration award is filed and served. Otherwise the award becomes final automatically. [Citations.] Since no party filed a request for trial de novo within the time limit, the clerk filed and served notice of entry of judgment on October 20, 2009. Since that date, no party has sought relief under Code of Civil Procedure[*fn3 ] Section 473. Until such relief is sought and only if the court grants relief, may this matter proceed and the subject hearings be held."

Three days later, plaintiff filed a motion to vacate or grant relief from the judgment entered on October 20, 2009, under section 473, subdivision (b) (section 473(b)) invoking the court's authority to grant relief from a judgment "'taken against him or her through his or her mistake, surprise, inadvertence or excusable neglect.'" Plaintiff also asserted that defendants would suffer no prejudice if the relief was granted.

Plaintiff's counsel, Kevin Snider, attached a declaration to the motion declaring he was one of the attorneys who participated in the arbitration. He stated he and opposing counsel had agreed to submit briefs to the arbitrator and to treat the arbitration as a settlement conference, rather than a binding arbitration. Shortly after the arbitration, Snider assigned an associate, Matthew McReynolds, to handle the case because he had "extensive appellate obligations in other cases." Snider was "confused by the arbitration award and did not understand it to be a final disposition of the case because no arbitration took place at the hearing . . . . It was not marked by the ordinary components that are present and necessary for there to be due process in an adversarial proceeding. In sum, the hearing was essentially negotiations. [¶] . . . Further, after the hearing, the parties have proceeded under the mutual understanding that the litigation was going forward . . . . [¶] . . . The Court's tentative ruling on the Defendants' gag motion and demurrer stating the Court lacked jurisdiction due to the judgment has taken counsel for plaintiff by surprise."

The court denied the motion to set aside the judgment and affirmed the tentative ruling. The court noted there are two types of relief available under section 473(b): mandatory relief due to attorney fault; or discretionary relief due to mistake, inadvertence, surprise or neglect. The court found mandatory relief was not available under section 473(b) because the attorney did not move for relief on those grounds, his affidavit was insufficient to support relief on those grounds, and the mandatory relief provisions of section 473(b) do not apply to a judgment entered after failing to contest an arbitration award. The court also rejected the claim for relief under the discretionary provision of section 473(b), finding that while the attorney may have been "surprised" at the filing of the award, that surprise did not explain his failure to act thereafter and request a trial de novo. The court further noted that a mistake of law is a valid ground for relief when the legal problem is complex and debatable and the requirement to request a trial de novo to contest an arbitration award is neither. Thus, the failure to request a trial de novo was the result of inexcusable neglect. The court rejected any claim of mistake of fact as to the nature of the arbitration proceeding, finding such an error did not excuse the failure to act subsequent to the clerk filing the arbitration award. Plaintiff appeals from this denial of the motion to vacate.


Section 473(b) provides for discretionary or mandatory relief from particular court orders. The discretionary provision permits the court to "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 mandatory provision requires the court to vacate any default, default judgment or dismissal if the application for relief is timely filed, in proper form, "accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and . . . the attorney's mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default. (§ 473, subd. (b).)" (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.)


Mandatory Relief

Plaintiff contends the trial court erred as to each of the three bases supporting the denial of relief under the mandatory provision of section 473(b). She claims she sought relief under the mandatory provision, as well as the discretionary one and argues Snider's affidavit was sufficient to entitle her to such relief under the mandatory provision. Plaintiff's argument is without merit since the mandatory provision of section 473(b) does not apply to judgments entered after a judicial arbitration award. (Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 320.) "As expressly worded, section 473(b) applies only to relief sought in response to defaults, default judgments or dismissals." (Id. at p. 320.) "[F]or purposes of the mandatory provision of section 473(b), a 'default' means only a defendant's failure to answer a complaint, and a 'default judgment' means only a judgment entered after the defendant has failed to answer and the defendant's default has been entered." (Id. at p. 321, italics added.) "Dismissal" also has a limited meaning under section 473(b). That is, "'the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by a court.'" (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 144.) Judgment entered on an arbitrator's award does not fit within any of these definitions. Because the judgment at issue here is not a default, default judgment or dismissal within the meaning of the mandatory provision of section 473(b), that provision of section 473(b) cannot be invoked to grant relief from the judgment, notwithstanding the attorney's admitted failure to timely file a request for trial de novo. (See Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44.)

Contrary to plaintiff's argument, our Supreme Court's decision in Maynard v. Brandon (2005) 36 Cal.4th 364 does not render Vandermoon and English "inapposite." Maynard addressed the availability of relief under section 473(b) "upon a failure to comply with the 30-day deadline for seeking a trial following arbitration under the [mandatory fee arbitration act]." (Maynard, at p. 371.) The court concluded section 473(b) could not remedy such a failure. (Maynard, at p. 369.) In reaching that conclusion, the court relied on numerous distinctions between a mandatory fee arbitration act and a judicial arbitration. (Id. at pp. 379-382.) Among those distinctions was the fact that "the judicial arbitration statute and California Rules of Court expressly authorize section 473 relief from a judgment entered following judicial arbitration (§ 1141.23; Cal. Rules of Court, rule 1615(d)(1)), while the [mandatory fee arbitration act] makes no mention of section 473, subdivision (b)." (Maynard, at p. 378.) Plaintiff relies on this statement to support her contention that judicial arbitration awards are subject to the mandatory provisions of section 473(b).

There is no question that relief from a judgment entered following an arbitration award is available under discretionary provisions of section 473(b). There is no claim otherwise in this case. Vandermoon and English neither decided nor suggested that "section 473(b)" relief is unavailable to judgments entered after a judicial arbitration. Rather, each determined which provisions of section 473(b), mandatory or discretionary, were available to provide relief. The general availability of section 473(b) relief is a distinct question from whether both the mandatory and discretionary provisions of section 473(b) may be utilized to provide that relief. Maynard does not address the latter question. Of course, to rely on Maynard for the proposition that the mandatory provisions of section 473(b) apply to judicial arbitrations would "violate the axiom that cases are not authority for propositions not considered therein." (Johnson v. Bradley (1992) 4 Cal.4th 389, 415.)

Plaintiff also contends the mandatory provisions should apply in this case, as she was denied her day in court because "[t]he judicial arbitration did not come close to adjudicating the merits of this case." While the mandatory provision of section 473(b) is intended to alleviate the hardship on a party that has been utterly deprived of either the right to present her case or to defend herself by her attorney's failure to act, it is not "'intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.' [Citations.]" (English v. IKON Business Solutions, Inc., supra, 94 Cal.App.4th at p. 147; Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257; Huens v. Tatum (1997) 52 Cal.App.4th 259, 264.)

Plaintiff was not denied her day in court. "[A]n arbitration is viewed as a trial on the merits. . . . [A]bsent a request for a trial de novo, the award becomes a final judgment." (Kelley v. Bredelis (1996) 45 Cal.App.4th 1819, 1827.) If a party fails to either settle the case, or go through a trial de novo, "he or she has had his or her day in court." (Ibid.) Plaintiff and her attorney both appeared for the arbitration and had the opportunity to present their case. They made a choice not to call witnesses or present evidence, but rather to treat the matter as a mediation. Her attorney then failed to make a timely request for a trial de novo. This was poor judgment on counsel's part, but not a deprivation of the right to present her case. "In such circumstances, an attorney's affidavit of fault does not entitle the moving party to relief." (Brown v. Williams (2000) 78 Cal.App.4th 182, 188.)


Discretionary Relief

Plaintiff also contends the trial court abused its discretion in denying her relief under the discretionary provision of section 473(b). She contends counsel's error was excusable, he reasonably relied on opposing counsel's conduct after the entry of judgment, and counsel was otherwise diligent in pursuing her claim. We find no abuse.

"'A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 257.) A court will only be found to have abused its discretion if it "exceeded the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) "In reviewing the evidence in support of a section 473 motion, we extend all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597.)

To obtain discretionary relief under section 473(b) on the basis of counsel's mistake or inadvertence, a party "must demonstrate that such mistake, inadvertence, or general neglect was excusable." (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.) The mistake must be one that "'a reasonably prudent person under the same or similar circumstances' might have made the same error'" that is, a "'mistake[] anyone could have made.'" (Zamora v. Clayborn Contracting Group, Inc., supra, 28 Cal.4th at p. 258.) If the attorney failed to meet the professional standard of care, such error is not imputable to the client, and appropriate relief is via an attorney malpractice action. (Ibid.) Section 473(b) also requires that the party be diligent by seeking relief "'within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.'" (Zamora, at p. 258, quoting § 473(b).) Finally, the relief must not prejudice the opposing party. Resolution of the case on the merits should still be possible and fair. (Zamora, at p. 258.)

The mistake made in this case was counsel's failure to file a request for a trial de novo within 30 days of the issuance of the arbitrator's award. Snider claims that he misunderstood the nature of the arbitration; because of his busy schedule he assigned the case to an associate after the arbitration; he relied on opposing counsel's continuing pretrial efforts as evidence that the trial would go forward; and he was thus "confused" and "surprised" at the issuance of the judgment. Only one of these claims relates to the mistake of not filing the trial de novo request: that he assigned the case to an associate because of the "press of business." That statement, however, does not explain why the associate did not file a request for a trial de novo.

Moreover, standing alone, the press of business does not constitute excusable neglect. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 235, superseded by statute on another point.) "To constitute grounds for relief, an exceptional workload generally must be accompanied by some factor outside the attorney's control that makes the situation unmanageable, such as a mistake 'caused by a glitch in office machinery or an error by clerical staff.' [Citations.]" (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1424.)*fn4 There is no claimed factor outside the attorney's control which made the situation unmanageable. There are no claimed clerical mistakes, staffing changes, disappearing associate attorneys, misfiled papers or other extraordinary circumstances. Nor does counsel's declaration establish that he was unaware of the judgment or in any way unaware of the need to file a request for a trial de novo.

Plaintiff also contends the trial court should have found excusable neglect based on a mistake of law, claiming that "the convoluted and debatable issue is whether the application of the thirty day rule to request a trial de novo from a judicial arbitration award is inflexible and unyielding, even when the Trial Court has already set and re-set trial dates on its own."

"'"An honest mistake of law is a valid ground for relief where a problem is complex and debatable."' [Citations.] The controlling factors in determining whether a mistake is excusable are: (1) the reasonableness of the misconception; and (2) the justifiability of the failure to determine the correct law. [Citations.]" (Miller v. City of Hermosa Beach (1993) 13 Cal.App.4th 1118, 1136.) The need to file a request for a trial de novo within 30 days of the issuance of an arbitration award was not a "complex and debatable" legal issue.

The law in this regard is well settled and clear. "An arbitration award shall be final unless a request for a de novo trial is filed within 30 days after the date the arbitrator files the award with the court." (§ 1141.20, subd. (a).) This statute has not been amended since 1984. Where a party disagrees with the judicial arbitrator's decision to award or deny attorney fees and costs, the only remedy is to request a trial de novo. (Kelley v. Bredelis, supra, 45 Cal.App.4th at pp. 1824-1825; Wagy v. Brown (1994) 24 Cal.App.4th 1, 7.) There was no showing or claim that Snider was unaware of the law or confused by it. Based on the state of the law and the clarity of its expression, we cannot find that counsel's failure was "[a]n honest mistake of law . . . [founded on a] legal problem [that] '"[wa]s complex and debatable."'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.) Moreover, even if we accept the premise that Snider was ignorant of the law, there also was no showing that he attempted to ascertain the law until after the deadline for filing a request for trial de novo had long since passed. Where an attorney's ignorance of the law is "'coupled with negligence in ascertaining it,'" no relief under section 473(b) is warranted. (Generale Bank Nederland v. Eyes of the Beholder Ltd., supra, 61 Cal.App.4th at p. 1402.)

Similarly, there is no merit to the claim that Snider was "surprised" by the entry of the judgment. "The term 'surprise,' as used in section 473[(b)], refers to '"some condition or situation in which a party . . . is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against."'" (State Farm Fire & Casualty Co. v. Pietak, supra, 90 Cal.App.4th at p. 611.) Ordinary prudence would have guarded against this situation. Even if counsel believed there was no arbitration at the hearing, once the award issued, ordinary prudence dictated he preserve his client's claim by filing a request for a trial de novo.

The trial court reasonably concluded that plaintiff failed to establish excusable neglect and thus, was not entitled to discretionary relief under section 473(b). Accordingly, the trial court properly denied plaintiff's motion.


The judgment is affirmed. Respondents are granted costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

We concur:



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