Hardy v. Western Landscape Construction
| Decision Date | 04 April 1983 |
| Citation | 141 Cal.App.3d 1015,190 Cal.Rptr. 766 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert HARDY, et al., Plaintiffs and Appellants, v. WESTERN LANDSCAPE CONSTRUCTION, et al., Defendant and Respondent. Civ. 26271. |
Sparber, Haas & Ferguson and R. Ted Haas, San Diego, for plaintiffs and appellants.
Wingert, Grebing, Anello & Chapin and Michael M. Angello, San Diego, and Monteleone & McCrory and Patrick J. Duffy, III, Los Angeles, for defendants and respondents.
Plaintiffs Robert Hardy and his wife appeal the order denying their motion to vacate a mandatory arbitration award pursuant to Code of Civil Procedure section 473. 1 We reverse.
Under California Rules of Court, rule 1616(a) 2 a party may request a trial de novo by filing a request with the clerk of the court within 20 days after the arbitration award is filed. Rule 1615(c) 3 requires the clerk to enter the award as a judgment after the 20-day period has expired if no party has served and filed a request for trial. The arbitration award has 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 in rule 1615(d). Under former rule 1615(d), 4 within six months of its entry a party could move to vacate the judgment on the ground the arbitrator was subject to a disqualification, or upon one of the grounds set forth in subdivisions (a), (b), and (c) of section 1286.2.
Here, the Hardys failed to request a de novo trial within 20 days after the filing of the arbitration award. Judgment was entered pursuant to rule 1615(c). Because none of the grounds listed in former rule 1615(d) was applicable, the Hardys moved under section 473 5 to vacate the judgment because of their excusable neglect in failing to file for a de novo trial within 20 days. The court denied their motion on the ground it had no jurisdiction to grant relief under section 473. This appeal ensued.
When the court ruled on the applicability of relief under section 473, appellate decisions on this issue were in conflict. 6 Now, however, under amended rule 1615(d), 7 effective January 1, 1983, a party against whom a judgment is entered pursuant to an arbitration award may move to vacate the judgment upon any of the grounds set forth in section 473. The amended rule applies here because a procedural statutory change applies to all pending suits. (Pacific Vegetable Oil Corp. v. C.S.T., Ltd. (1946) 29 Cal.2d 228, 232-233, 174 P.2d 441; Olson v. Hickman (1972) 25 Cal.App.3d 920, 922, 102 Cal.Rptr. 248; Romero v. Hern (1969) 276 Cal.App.2d 787, 791-792, 81 Cal.Rptr. 281.) A lawsuit remains pending until its final determination on appeal. (Olson v. Hickman, supra, 25 Cal.App.3d at p. 922, 102 Cal.Rptr. 248; Romero v. Hern, supra, 276 Cal.App.2d at pp. 791-792, 81 Cal.Rptr. 281.) We see no reason not to apply this legal principle to changes in the California Rules of Court.
The change in rule 1615(d) is a procedural change accomplished by the Judicial Council under power to "... provide by rule for practice and procedure for all actions submitted to arbitration under this chapter." (§ 1141.14.) Moreover, parties do not have vested rights in existing remedies and rules of procedure. (See 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 285, pp. 3574-3575.) Western Landscape has no vested right to the former procedure.
Because of the procedural posture of this case when the section 473 motion was first considered, we remand to permit the trial court to consider the motion on its merits. Both counsel may file further and/or supplemental declarations in support and/or opposition to the motion.
Order reversed for further proceedings consistent with this opinion.
1 All statutory references are to the Code of Civil Procedure unless otherwise specified.
2 All rule references are to the California Rules of Court. Rule 1616(a) provides:
3 Rule 1615(c) provides: ...
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