Opinion
No. C042235.
10-16-2003
MELANIE WORK, Plaintiff and Appellant, v. ARROW RENTALS, INC., Defendant and Respondent.
FACTS AND PROCEEDINGS
The underlying dispute involves plaintiffs action for national origin discrimination and harassment arising from her employment with Arrow.
The trial court referred the matter to arbitration on August 9, 2001, and the arbitrator conducted a hearing on November 28, 2001. Both plaintiff and Arrow presented evidence at the arbitration hearing.
The arbitrator filed his award in the trial court and served it on plaintiffs counsel on December 7, 2001. The award found that Arrow was not liable and awarded Arrow its costs. Plaintiff filed a request for trial de novo on January 10, 2002 — four days beyond her deadline to reject the award. On January 18, 2002, the court entered a judgment in conformance with the arbitrators award.
Five months later, on June 26, 2002, plaintiff filed a motion pursuant to section 473 for an order vacating and setting aside the judgment. Her attorney submitted a declaration in support of the motion in which he stated that "[t]he judgment taken against defendant[] were [sic] the result of my mistake, inadvertence, surprise and/or excusable neglect," in that when he calendared the time within which the request for trial de novo had to be filed, he, "through [his] own mistake and negligence, did not realize that the 30[-]day period to request trial de novo was not extended by the provisions of . . . section 1013, subdivision (a)."
Section 1013, subdivision (a) provides that in the case of service by mail, "[t]he service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California . . . ." (§ 1013, subd. (a).)
Neither the motion nor the attorneys declaration sought to explain the five-month delay between the entry of judgment and the motion to set the judgment aside. Arrow opposed the motion, maintaining that plaintiff was not entitled to mandatory relief and arguing that discretionary relief was not warranted because counsels mistake was not excusable and because Arrow had been prejudiced by plaintiffs delay in seeking relief.
The trial court issued a tentative ruling denying plaintiffs motion. The court ruled that plaintiff was not entitled to mandatory relief pursuant to section 473, subdivision (b) because the mandatory relief provision was not available to relieve a party from a judgment entered on an arbitration award. The court also noted that plaintiff did not request discretionary relief under section 473, subdivision (a). The court added that such a request would have been futile in any event because it is well established that section 1013 of the Code of Civil Procedure, which allows five additional days to do an act or make a response when notice is received by mail, does not apply to a request for a trial de novo. No appearance was requested and the tentative ruling became final.
DISCUSSION
"Section 473, subdivision (b), permits a party or the partys legal representative to be relieved from the consequences of a dismissal entered as a result of mistake, inadvertence, surprise, or neglect. Two aspects of subdivision (b) achieve this end. First it provides for discretionary relief, in that it states 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. A party seeking such relief must show `mistake, inadvertence, surprise, or excusable neglect, and it is within the trial courts discretion to grant relief under this provision." (J.A.T. Entertainment, Inc. v. Reed (1998) 62 Cal.App.4th 1485, 1491.)
Subdivision (b) of section 473 also includes an "attorney affidavit," or "mandatory," provision. It states in pertinent part: "Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is [timely], is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise or neglect, vacate any . . . (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." (J.A.T. Entertainment, Inc. v. Reed, supra, 62 Cal.App.4th 1485 at p. 1491.) Under the "mandatory" provision of section 473, subdivision (b), a party is relieved from the consequences of his or her attorneys mistake, inadvertence, surprise, or neglect and the relief is available regardless of whether the attorneys neglect is excusable. (J.A.T. Entertainment, Inc. v. Reed, supra, 62 Cal.App.4th at p. 1492.)
I
Mandatory Relief of Section 473, Subdivision (b)
Plaintiff contends that in light of her attorneys declaration of fault, the court was required by section 473, subdivision (b), to set aside the entry of judgment on the arbitrators award. We disagree.
The mandatory portion of section 473 is limited in scope.
When an attorney errs and files an affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, the court shall "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 . . . ." (§ 473, subd. (b).) Neither event within the meaning of the statute transpired here. Consequently, the mandatory relief provision of section 473, subdivision (b), cannot operate to relieve plaintiff from the effect of her attorneys failure to file a request for trial de novo.
The statutes limited scope reflects the Legislatures intent to provide for mandatory relief only when a party has been utterly deprived, by his attorneys failure to act, of either the right to present his case or to defend himself. (Huens v. Tatum (1997) 52 Cal.App.4th 259, 263.) The former version of section 473, which afforded mandatory relief only from a default or default judgment, has been held not to afford relief in circumstances virtually identical to the instant case. (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40.) In Ayala, the defendants counsel failed to file a timely request for trial de novo after an adverse arbitration award and judgment was entered on the award. (Id. at pp. 42-43.) In affirming the trial courts denial of defendants motion under section 473 to set aside the judgment, the court in Ayala held that judgment entered on an arbitrators award "does not involve a default judgment" within the meaning of the mandatory provision of section 473; to the contrary, defendants "not only answered the complaint, they also participated in discovery and in an arbitration hearing." (Id. at p. 44.) Thus, the mandatory provisions of section 473 cannot be invoked to grant relief from a judgment entered after an adverse arbitration award, notwithstanding the attorneys admitted failure to timely file a request for trial de novo. (Ibid.)
Although section 473 has been amended since Ayala to add the phrase "or dismissal" to subdivision (b)(2), the amendment neither adds to, nor detracts from, our holding. The failure of plaintiffs counsel to act in a timely fashion permitted the arbitration award to ripen into a judgment against plaintiff. The legal reasoning of Ayala remains sound, and a judgment for a plaintiff or a defendant may not be set aside under the mandatory provisions of section 473, subdivision (b).
Appellants reliance on Yeap v. Leake (1997) 60 Cal.App.4th 591, is misplaced. Although the court in Yeap reversed the trial courts refusal to set aside a judgment entered on an arbitrators award after plaintiffs counsel failed to timely request a trial de novo, it indicated that it was persuaded to do so because the plaintiff had not participated in the arbitration upon which the adverse award was based. (Id. at p. 601.) The court held: "Like the plaintiff in Avila [v. Chua (1997) 57 Cal.App.4th 860]—and unlike appellants in Ayala—appellant herein never had an opportunity to litigate the merits of her claim. Although the arbitrator purported to issue an `award of `$0, the effect was the same as a dismissal for failure to appear on the first day of trial. [Citation.] Thus, the judgment entered in this matter was analogous to a default because it came about as a result of appellants failure to appear and litigate at the arbitration hearing. For that reason, we believe that the mandatory provision is applicable." (Ibid.)
First, even if Yeaps conclusion on this point was correct, that conclusion does not control here: Plaintiff had the opportunity to, and did, present the merits of her claim at the arbitration that gave rise to the award upon which the judgment is based. Consequently, the judgment in this case is not analogous to a default judgment or dismissal, and mandatory relief from the judgment is not available. (Brown v. Williams (2000) 78 Cal.App.4th 182, 188-189.)
"[T]here is no mandatory relief for negligence which consists of failing to timely request a trial de novo after there has been an arbitration hearing in which the plaintiff and her attorney actually participated." (Id. at p. 189.)
Second, as we thoroughly explained in English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143-144, 148, the mandatory provision of section 473, subdivision (b) does not apply to every "`omission" or "`failure" in the course of an action that might be characterized as a "`default" under the general meaning of the term, nor does it apply to occurrences "`analogous" to dismissals. On its face, the mandatory provision requires the court, if certain prerequisites are met, to vacate a "`default," a "`default judgment," or a "`dismissal." (English v. IKON Business Solutions Inc., supra, 94 Cal.App.4th at pp. 143-144, 148.) "It is not an appellate courts task, nor, indeed, its prerogative, when interpreting a statute, to extend the scope of the statute to encompass situations `analogous to those the statute explicitly addresses. Rather, an appellate courts task is simply to determine what the Legislature meant by the words it used, relying first and foremost on the words themselves." (English v. IKON Business Solutions, Inc., supra, at p. 144.)
Here, failure to file a timely request for trial de novo did not result in a default, default judgment, or dismissal. Thus, the trial courts refusal to set aside the judgment under the mandatory provision of section 473 was not error.
II
Discretionary Relief Under Section 473
We next consider plaintiffs contention that the trial court abused its discretion under the discretionary relief provision of section 473, subdivision (b) when it refused to set aside the judgment.
Plaintiff claims on appeal that she sought both mandatory and discretionary relief in the trial court, although her request for discretionary relief was "obliquely stated." A review of the record, however, discloses no request for discretionary relief and no attempt by plaintiff to establish the necessary requirements for such relief, such as diligence in seeking relief and lack of prejudice to Arrow. (See Elston v. City of Turlock (1985) 38 Cal.3d 227, 233-234; Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740.) Moreover, the trial court noted in its tentative ruling that relief under the discretionary provision was not being sought, yet plaintiff failed to call for a hearing to clarify the courts understanding or assert otherwise. Thus, the courts denial of discretionary relief is waived under the well-established rule that "`[a] party is precluded from urging on appeal any point not raised in the trial court." (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; see also Lucich v. City of Oakland (1993) 19 Cal.App.4th 494, 498.)
In any event, in an apparent abundance of caution, the trial court determined that relief under the discretionary provision of section 473 was not warranted because counsels mistake was not excusable. We find no error.
A motion for relief under "`"section 473 is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof the exercise of that discretion will not be disturbed on appeal."" (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 897-898.) "Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] We have said that when two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598.)
To determine whether the mistake or neglect was excusable, the court "inquires whether `a reasonably prudent person under the same or similar circumstances might have made the same error" and also whether counsel was "otherwise diligent in investigating and pursuing the claim." (Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276; Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782-1783.)
Although, under appropriate circumstances, calendar errors by an attorney or his staff may be excusable (Nilsson v. City of Los Angeles (1967) 249 Cal.App.2d 976, 980 and cases cited therein), the trial court did not abuse its discretion in concluding that those circumstances did not exist here.
An honest mistake of law is a valid ground for relief when the legal problem posed "`is complex and debatable." (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 360; Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 329.) The controlling factors in determining whether a mistake of law is excusable are the reasonableness of the misconception and the justifiability of the failure to determine the correct law. (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 360; Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 329.) "[W]here the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice [citation], general ignorance of the law or lack of knowledge of the rules [citation], or unjustifiable negligence in the discovery or research of the law, laxness or indifference [citations][,] normally relief will be denied." (Fidelity Fed. Sav. & Loan Assn. v. Long (1959) 175 Cal.App.2d 149, 154.) There is nothing in section 473 to suggest it "was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal." (Huens v. Tatum, supra, 52 Cal.App.4th at p. 264.)
"The issue of which mistakes of law constitute excusable neglect presents a fact question; the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.]" (A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.) Here, the trial court could reasonably have concluded that there was no excusable mistake of law because the question whether the five-day extension provided by section 1013 applied to extend the time within which to request a trial de novo was neither complex nor debatable. Since 1979, the law has been settled that section 1013 does not apply to extend the time to file a request for trial de novo after an arbitration award. (See Amoroso v. Superior Court (1979) 89 Cal.App.3d 240, 241-243.) Moreover, well-recognized treatises, including Witkin and The Rutter Group, specifically state that section 1013 does not apply to requests for trial de novo. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 570, pp. 1008-1009; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2003) ¶ 13:146.2, p. 13-58.)
"Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief." (A & S Air Conditioning v. John J. Moore Co., supra, 184 Cal.App.2d at p. 620.) On these facts, we cannot say the trial court abused its discretion in concluding that the plaintiffs counsels negligence was not excusable. (See Amoroso v. Superior Court, supra, 89 Cal.App.3d at p. 243, fn. 1.)
DISPOSITION
The judgment is affirmed. Arrow shall recover its costs on appeal. (Cal. Rules of Court, rule 27(a).)
We concur: DAVIS, Acting P.J. and ROBIE, J.