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

February 23, 2011

C. R., A MINOR, ETC., ET. AL., PLAINTIFF AND APPELLANT,
v.
STEVE DAVIS ET AL., DEFENDANTS AND RESPONDENTS.



Super. Ct. No. 74098

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

C.R. v. Davis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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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.

RELEVANT PROCEDURAL HISTORY*fn2

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 ...


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