Herbert Hawkins Realtors, Inc. v. Milheiser

• Court: California Court of Appeals
• Writing for the Court: WORK; BROWN, P.J., and BUTLER
• Citation: 189 Cal.Rptr. 450,140 Cal.App.3d 334
• Parties: HERBERT HAWKINS REALTORS, INC., et al., Plaintiffs and Respondents, v. Richard D. MILHEISER, et al., Defendants and Appellants. Civ. 28364.
• Decision Date: 25 February 1983

Page 450

189 Cal.Rptr. 450 140 Cal.App.3d 334 HERBERT HAWKINS REALTORS, INC., et al., Plaintiffs and Respondents,
v.
Richard D. MILHEISER, et al., Defendants and Appellants. Civ. 28364. Court of Appeal, Fourth District, Division 1, California. Feb. 25, 1983.

Page 451

[140 Cal.App.3d 336] William E. Gummerman, Huntington Beach, and Linnea Long, Newport Beach, for defendants and appellants.

Morris Stone, Norwalk, for plaintiffs and respondents.

WORK, Associate Justice.

The sole issue is whether plaintiffs Herbert Hawkins Realtors, Inc., Robert P. Irish and Di Anna Bennett (Realtors) are entitled to voluntarily dismiss their breach of contract action without prejudice after having requested a trial de novo following a judicial arbitration award favoring defendants Richard D. and Kathleen Milheiser. The Milheisers appeal the order denying their motion to amend the order of dismissal to one with prejudice, and awarding costs. ¹ They assert this issue must be answered in the negative "to preserve the integrity of the judicial arbitration process ...." We reverse the order with directions. ²

140 Cal.App.3d 337

Factual and Procedural Background

After Realtors sued alleging breach of contract, the Milheisers asserted several defenses and claimed attorney fees and costs. When the matter was referred to judicial arbitration, the parties stipulated the arbitration hearing would be held before a specific arbiter on March 20, 1981, at his office. That day, Realtors counsel called the arbiter's office and stated his client was ill. The arbiter telephoned Realtors' counsel and was told he was in court in Downey. The arbitration proceeded and the arbiter found in favor of the Milheisers, awarding them $1,043 in costs (including attorney fees). The award was filed March 23, 1981.

Realtors timely requested a trial de novo. The case was restored to the civil active list and set for a mandatory settlement conference. Before conference, Realtors' voluntary dismissal without prejudice was entered by the court clerk. The Milheisers' request for an abstract of judgment based on the arbitration award and the memorandum of costs and disbursements was denied on the ground the dismissal was without prejudice. Contending he had effectively nullified the arbiter's decision, Realtors' counsel refused to withdraw the dismissal so the arbitration award could be reinstated.

The Milheisers then moved for an order of dismissal with prejudice and awarding of costs, arguing Realtors had illegally circumvented Orange County Superior Court Rule, rule 31, section 17(7). ³ Rule 31, § 17(7) provides: "If a party has requested trial after arbitration, the request may not be withdrawn except by a written instrument, signed by counsel for all parties appearing in the case, expressly agreeing that a non-appealable judgment may be entered on the arbitration award." The trial court denied the motion, commenting the Realtors did not seek "withdrawal," but a dismissal, and rule 31, section 17(7) did not apply. We conclude the superior court rule is not in derogation of any statute, California Rules of Court or decisional law, and correctly reflects the legislative policy underlying judicial arbitration.

THE REALTORS WERE NOT ENTITLED TO DISMISS WITHOUT PREJUDICE

The Milheisers contend an arbitration before an arbiter appointed pursuant to the judicial arbitration statutes must be construed as a "trial" for purposes of denying a plaintiff the absolute right to dismiss an action without prejudice under Code of Civil

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Procedure section 581, subdivision 1. ⁴ In essence, they contend any other result mocks the judicial arbitration statutes and defeats the [140 Cal.App.3d 338] legislatively declared statutory purposes to efficiently, promptly, and equitably resolve minor civil disputes through the most economical use of limited court resources (§ 1141.10). The Realtors rely on the facially absolute right to dismiss an action without prejudice any time before commencing trial (§ 581, subd. (1)) with the accompanying right to refile the same litigation.

We have a "statutory duty to construe each provision of the Code of Civil Procedure liberally and with a view to effect its objects and promote justice. (Code Civ.Proc., § 4.)" (Justus v. Atchison, 19 Cal.3d 564, 579, 139 Cal.Rptr. 97, 565 P.2d 122.) To do so, we must first ascertain the intent of the Legislature in enacting the law. (Moyer v. Workmen's Comp. Appeals Board, 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.) " '[A] statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts ....' " (People ex rel. Younger v. Superior Court, 16 Cal.3d 30, 40, 127 Cal.Rptr. 122, 544 P.2d 1322.) "Wherever possible, potentially conflicting provisions should be reconciled in order to carry out the overriding legislative purpose as gleaned from a reading of the entire act." (Wells v. Marina City Properties, Inc., 29 Cal.3d 781, 788, 176 Cal.Rptr. 104, 632 P.2d 217.) "A construction which makes sense of an apparent inconsistency is to be preferred to one which renders statutory language useless or meaningless." (Ibid.) Finally, statutes must be construed in a reasonable and common sense manner consistent with their apparent purpose and the legislative intent underlying them--one practical, rather than technical, and one promoting a wise policy rather than mischief or absurdity. (City of Costa Mesa v. McKenzie, 30 Cal.App.3d 763, 770, 106...