Cabrera v. Plager, B020147
| Decision Date | 17 September 1987 |
| Docket Number | No. B020147,B020147 |
| Citation | 241 Cal.Rptr. 731,195 Cal.App.3d 606 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Maria Luisa CABRERA, et al., Plaintiffs and Appellants, v. Ernest F. PLAGER, Defendant and Respondent. |
Southern California Law Center of John R. Ortega and Associates and John R. Ortega, Compton, for plaintiffs and appellants.
Early, Maslach, Nutt & Peterson, Lynn R. Eastman, Los Angeles, Greines, Martin, Stein & Richland, Alan G. Martin and Pamela E. Dunn, Beverly Hills, for defendant and respondent.
Plaintiffs Maria Luisa Cabrera and Edmundo C., a minor, by his guardian ad litem, Maria Luisa Cabrera, appeal from a judgment in defendant's favor entered upon an arbitration award, and from order denying their "motion for a new trial." 1
In 1981, in municipal court, plaintiffs sued defendant for damages for personal injuries and property damage arising out of a motor vehicle accident. Defendant answered the complaint and filed a cross-complaint for indemnity and property damages against plaintiff Maria Cabrera. In 1984, upon motion by plaintiffs, the action was transferred to the superior court. On April 25, 1985, after an arbitration conference, the court found the amount in controversy not to exceed $25,000 and ordered the case to superior court arbitration pursuant to California Rules of Court, rules 1601-1617. On June 6, 1985, the arbitration administrator served notice by mail on both parties that an arbitrator had been appointed and the matter was set for hearing on August 15, 1985, 70 days later. On August 15 defendant put on his case, but the hearing was continued at plaintiffs' request. The hearing was continued to September 18, 1985, and then to October 1, 1985. Although the record does not reflect the reason for the continuance from September 18 to October 1, appellants' opening brief states the arbitrator was ill. The arbitration hearing was concluded on October 1, 1985, and on October 2, 1985, the arbitrator awarded judgment in favor of defendant and against the plaintiffs. 2 On that day, the arbitration clerk served the award by mail on both parties. The award was entered as a judgment on November 13, 1985.
Claiming not to have received the "Notice of Ruling of the Arbitrator" and not to have discovered the award had been filed until December 4, 1985, plaintiffs' attorney filed on December 20, 1985, "notice of intention to move for new trial," "points and authorities in support of petition to vacate award of arbitrators" and a supporting declaration. In the declaration, plaintiffs' attorney sought a waiver of the statutory time for filing a request for a trial de novo and, in addition, sought to set aside the arbitration award on the ground that it "fails to consider the multiple violations of the Vehicle Code [by] the defendant...." Defendant opposed the motion. After hearing, the court denied the motion pursuant to Code of Civil Procedure section 1141.20. 3
Plaintiffs filed a timely notice of appeal from the order denying their motion for new trial (motion to vacate judgment; see fn. 1, ante ) and also filed an "amended notice of appeal" purporting to appeal from the judgment entered on the arbitrator's award. 4
Appellants' sole argument on appeal is that the court committed reversible error in failing to vacate the award because the August 15, 1985 hearing date exceeds 60 days from the date of assignment of the arbitrator, in violation of California Rules of Court, rule 1605(b), and such delay constitutes a ground for disqualification of the arbitrator. Before we address this contention, we first discuss the argument raised by respondent that no appeal lies from the order denying the motion to vacate the judgment because the judgment itself is not appealable under section 1141.23 and appellant is attempting on this appeal to improperly render appealable a nonappealable judgment.
While section 1141.23, Code of Civil Procedure, deprives appellant of an appeal from a judgment properly entered pursuant to that section, the statute does not purport to deprive parties of an appeal from a post-judgment order upon a motion to set aside the judgment. In the absence of the prohibition in section 1141.23 of an appeal from such judgment, it would be appealable under Code of Civil Procedure section 904.1, subdivision (a). Thus, the post-judgment order herein falls within that subdivision of section 904.1 which allows an appeal from "an order made after a judgment made appealable by subdivision (a)." (Code Civ.Proc., § 904.1, subd. (b).)
"Witkin explains that there are three [common law] requirements which must be met for such an order to be appealable: the judgment which precedes the order must be 'final' in the trial court, the appeal from the order may not present the same issues as an appeal from the judgment itself, and the order must either affect the judgment or relate to it either by enforcing it or staying its execution." (Williams v. Thomas (1980) 108 Cal.App.3d 81, 84, 166 Cal.Rptr. 141.) All three requirements are met by the instant appeal. The judgment preceding the order is final in the trial court. Inasmuch as there is no appeal from the judgment, the issue can be reviewed only on the present appeal from the order denying motion to vacate the judgment. Finally, the instant order affects the judgment in that it denies appellants relief from their failure to timely request a de novo trial, thus resulting in the award having the same force and effect as a judgment in any civil action or proceeding. We conclude the order herein to be appealable.
Appellants' contention of error involves two considerations: (1) whether the 70-day period from June 6 to August 15, 1985 constitutes a violation of California Rules of COURT, RULE 1605(B) AND (2)5 whether such a violation subjects the arbitrator to disqualification within the meaning of rule 1615(d). 6 Appellants concede that the issue of disqualification was not raised below; they argue, however, that this court has discretion to address the issue.
(CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal.App.3d 598, 618, 222 Cal.Rptr. 276.) In such a case, the failure to raise a point below will not constitute waiver. (See Heldt v. Municipal Court (1985) 163 Cal.App.3d 532, 537, fn. 6, 209 Cal.Rptr. 579.)
Appellants claim that the issue raised is a legal question determined from facts which are uncontroverted on the record. We agree. We thus disagree with respondent's argument that facts pertinent to the issue have not been established because our record does not show the date of assignment of the case to the arbitrator, the event which triggers the 60-day period in rule 1605(b), but only the date the arbitration administrator served the parties with notice of appointment of the arbitrator and the hearing date. The only reasonable inference from the instant record is that the case was assigned to the arbitrator on or before June 6, 1985. The record on its face thus establishes the fact that the time limit of rule 1605(b) was violated.
Whether a violation of rule 1605(b) constitutes a ground to set aside the judgment under rule 1615(d) presents a question of interpretation and application of rules of court. The interpretation and applicability of a statute is a question of law. (State of California ex rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1024, 228 Cal.Rptr. 576.) Rules of court are also subject to rules of statutory interpretation. (McBride v. Alpha Realty Corp. (1975) 49 Cal.App.3d 925, 929, 123 Cal.Rptr. 270.) Inasmuch as the issue presented is one of law which affects the due administration of justice, we exercise our discretion to consider it.
Applying the principle of statutory construction that the same term or phrase used in a similar manner in two related statutes concerning the same subject should be given the same meaning in both statutes unless countervailing indications require otherwise (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 356, 220 Cal.Rptr. 602), we interpret the term "disqualification" in rule 1615(d) consistently with its use in rule 1606.
Rule 1606(a) specifically addresses the issue of disqualification of an arbitrator and sets out the grounds for disqualification:
A violation of the time limit of rule 1605(b) does not fall within any of the grounds for disqualification set out in Code of Civil Procedure section 170.1. 7 Moreover rule 1605(b), by its language only gives the administrator the authority to "vacate" the appointment of the arbitrator; the remedy for a violation of rule 1605(b) is thus not disqualification, but a return of the case to the top of the hearing list and...
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