Alvarado v. City of Port Hueneme

• Decision Date: 09 July 1982
• Court: California Court of Appeals Court of Appeals
• Parties: Fernando ALVARADO and Huberto Franco, Plaintiffs and Appellants, v. CITY OF PORT HUENEME and City of Oxnard, Defendants and Respondents. Civ. 62917.

Page 154

184 Cal.Rptr. 154

133 Cal.App.3d 695

Fernando ALVARADO and Huberto Franco, Plaintiffs and Appellants, v. CITY OF PORT HUENEME and City of Oxnard, Defendants and Respondents.

Civ. 62917.

Court of Appeal, Second District, Division 3, California.

July 9, 1982.

Irachmil B. Taus, II, Beverly Hills, for plaintiffs and appellants.

Archbald & Spray, William J. Stewart and Heather Scott Cissna, Santa Barbara, for defendant and respondent City of Port Hueneme.

Kosmo & Cho, and Frederick W. Kosmo, Ventura, for defendant and respondent City of Oxnard.

POTTER, Acting Presiding Judge.

Plaintiffs Fernando Alvarado and Huberto Franco appeal from the order of the superior court denying their "Request for Relief from Judgment Pursuant to Code of Civil Procedure Section 473 and Request that a Trial de Novo be Ordered" after a judgment had been entered upon an arbitrator's award pursuant to Code of Civil Procedure section 1141.23. ¹ At the conclusion of plaintiffs' case on January 22, 1981, the arbitrator granted a nonsuit. The following day he signed an award in favor of defendants and served it upon the parties by mail. The award was received by the court clerk and stamped "Filed" on January 26, 1981. It was entered on the appropriate page of the register of actions on that same day. A record of its filing was also entered on an arbitration index card maintained by calendar control for arbitration administration purposes. The award was not inserted in the file folder for the case but remained on the processing desk for the 20-day period during which a request for a de novo trial is permitted under section 1141.20. After the expiration of that period, on February 17, 1981, the judgment was entered upon the award in defendants' favor.

On February 25, 1981, plaintiffs filed a request for a de novo trial, which was received by the clerk but marked "untimely." Plaintiffs' request for relief under section 473 was filed March 13, 1981. It was supported by declarations of (1) plaintiffs' counsel, (2) a law clerk in his office, and (3) the supervising deputy of the Ventura County Clerk's Office. Counsel's declaration stated that his office never received notice of the award until February 20, 1981; that he sent his law clerk to the county clerk's office on February 10 to ascertain whether or not the award had been filed but "did not specifically instruct him where to check since he many times (had) checked court records for (him)"; that the clerk returned and advised him "that there was no record of the decision having been filed"; and that counsel relied upon the clerk's statement.

Counsel's declaration also recited that on some undetermined date his secretary informed him that on February 11, 1981, (1) she called the arbitrator's office and spoke to his secretary, (2) inquired as to the disposition of the arbitration, (3) indicated that counsel's office had received no notice of the award, (4) was advised by the arbitrator's secretary that a copy of the award had been mailed to counsel's office, but (5) was not informed that the award had been filed with the court. Counsel's declaration further stated that he "relied on the fact that no award had been 'filed', as (he) interpreted the term 'filed', on or about February 10, 1981" and was surprised when he was informed that the clerk took the position "that the Award had been 'filed', as the County Clerk interpreted the meaning of 'filed', on January 26, 1981."

The law clerk's declaration described his inquiry at the clerk's office on February 10. He was dispatched by plaintiffs' counsel who "did not specify where (he) should look for such a filing." He reasoned that because the award would not be a final judgment until 20 days had elapsed, there was "no reason to believe that it would be any other place other than the file." He obtained the file folder from the clerk and searched through it, finding no award or notice that an award had been submitted therein. While the file folder was open, he showed it to a deputy clerk and inquired "whether the clerk could see an Arbitration Award"; he was advised in the negative, and "(t)he clerk made no indication that the notice of the award could be 'filed' or in any manner recorded in any place other than in the court file."

The declaration of the county clerk's supervising deputy described the procedure by which awards are processed when filed: after checking for proof of service, "(a)n entry is made on the Register of Action's page for that case." The award is then held on the Civil Processing Desk for 20 days and is not placed in the court file folder which she described as "the official file containing all documents of record filed with the Superior Court" until the end of that period. The clerk's policy in this respect is unwritten and no notice thereof is published.

In opposition, defendants filed a further declaration of the clerk's supervising deputy to correct any misinterpretation which might arise from her prior reference to the file folder as being "the official file." She stated in this respect: "(A) document or paper is deemed 'filed' with the clerk of this Court when it is received by or presented to the clerk for filing. A completed filing is not dependent on physically placing said document or paper in the respective court file folder." Further, "the Register of Actions, and not the court file folder, is the official record of what has been filed with the Ventura Superior Court," and "(t)he Register of Actions is available and open to public review and inspection during regular business hours."

Defendants also filed the declaration of the Civil Processing Clerk responsible for manning the civil filing counter. He detailed the manner in which arbitration awards are processed, stating in this respect: "When received, following a check for proof of service to all parties, the arbitrator's award is stamped 'filed' ... and immediately thereafter, entered in the Register of Actions on the appropriate page designated for the particular case in which the arbitrator's award was made." Thereupon, the 20-day waiting period is calendared "and the award is then placed in the calendar control pick-up bin," so that a notation of its receipt can be made on the arbitration index card maintained by calendar control for arbitration administration purposes. When this is completed, the award "is then returned to the civil processing desk where it remains for the balance of the 20-day waiting period pending the potential receipt of a request for trial de novo."

Defendants objected to the inadmissible hearsay in counsel's affidavit which stated that his secretary informed him of her conversation with the arbitrator's secretary. Defendants also called attention to the defect in the law clerk's declaration that the verification followed the text of the declaration and, instead of declaring that the "foregoing" was true, stated "the following is true and correct to the best of (his) ability," so that, technically, all that is verified is the fact that the document was executed on the 13th day of March 1981 at Oxnard, California.

In their memo in opposition, defendants took alternative positions that: (1) the court was without authority to grant relief pursuant to section 473, and (2) in any event, plaintiffs failed to make the showing required to support relief pursuant to section 473. In denying the motion, the court expressly upheld both of defendants' positions, stating that it was denying the motion "on the grounds that the Court is without authority to grant relief pursuant to CCP § 473 (Cal.Rule of Court 1615(c), (d)) and that, in any event, Plaintiffs have failed to make the showing required to support relief pursuant to CCP § 473, ..."

Contentions

Plaintiffs contend that the trial court erred: (1) in concluding that it was without authority to grant relief pursuant to SECTION 473, AND (2)² in finding that plaintiffs failed to show excusable neglect.

Discussion

Summary

Section 473 is applicable to a party against whom a judgment is entered upon an arbitration award pursuant to section 1141.23. The trial court, however, did not abuse its discretion in finding that plaintiffs failed to show facts justifying such relief.

Section 473 Is Applicable

At the time the trial court ruled, the third paragraph of section 473 provided in pertinent part:

"The court may, upon such terms as may be just, relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect."

Were it not for the special provisions of section 1141.23 and Judicial Council rules issued pursuant thereto, section 473 clearly would apply to a judgment upon a judicial arbitration award. The provisions which raise the question in this respect are the following:

"The arbitration award shall be in writing, signed by the arbitrator and filed in the court in which the action is pending. If there is no request for a de novo trial and the award is not vacated, the award shall be entered in the judgment book in the amount of the award. Such award shall have the same force and effect as a judgment in any civil action or proceeding, except that it is not subject to appeal and it may not be attacked or set aside except as provided by Section 1286.2 or Judicial Council rule." (Code Civ.Proc., § 1141.23.)

"Subject to Section 1286.4, the court shall vacate the award if the court determines, that:

"(a) The award was procured by corruption, fraud or other undue means;

"(b) There was corruption in any of the arbitrators;

"(c) The rights of such party were substantially prejudiced by misconduct of a neutral arbitrator;

"(d) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted; or

"(e) The rights of such party were substantially prejudiced by the refusal of the...