Kisling v. Otani

• Decision Date: 07 March 1962
• Citation: 19 Cal.Rptr. 913,201 Cal.App.2d 62
• Parties: George KISLING, on behalf of himself and all other members of Retail Clerks Union, Local 1288, Petitioner and Respondent, v. Ed OTANI, individually and dba Farmers' Supply Co., Respondent and Appellant. Civ. 28.
• Court: California Court of Appeals Court of Appeals

Page 913

19 Cal.Rptr. 913

201 Cal.App.2d 62

George KISLING, on behalf of himself and all other members of Retail Clerks Union, Local 1288, Petitioner and Respondent, v. Ed OTANI, individually and dba Farmers' Supply Co., Respondent and Appellant.

Civ. 28.

District Court of Appeal, Fifth District, California.

March 7, 1962.

Hearing Denied May 2, 1962.

Hill, Farrer & Burrill and Ray L. Johnson, Jr., Los Angeles, for appellant.

Carroll, Davis, Burdick & McDonough and Roland C. Davis, San Francisco, for respondent.

STONE, Justice.

This appeal is from an order denying motion under Code of Civil Procedure, section 473, to vacate an order confirming award of an arbitrator.

Respondent Kisling, secretary of Retail Clerks Union, Local 1288, filed this action on Behalf of two former employees of appellant. At the time of the employment there was in effect a collective bargaining agreement between Retail Clerks Union, Local 1288, and appellant Otani. Originally the two employees filed an action in the superior court attempting to collect wages through civil litigation. Appellant resisted the action upon the ground the employees had not exhausted their administrative remedies, and the action was dismissed and abated pending arbitration. Appellant refused to arbitrate upon a voluntary basis, contending that the collective bargaining agreement had expired before the employees took action to recover wages. Respondent filed the present action to compel arbitration. Appellant answered, pleading twelve defenses to the petition to arbitrate, emphasizing that the collective bargaining agreement required a demand to arbitrate before the expiration of the agreement.

Thereafter the court, upon its own motion, ordered a summary trial during which appellant contended that the court was under a duty to rule upon his twelve defenses before granting the petition to arbitrate. The court, declining to consider the objections, ruled that the sole issue before the court for determination was whether arbitration was being refused. Since appellant conceded that he refused to arbitrate, the court ordered that the matter proceed to arbitration. Appellant's counsel advised the arbitrator that he did not intend to put on any evidence or to cross-examine witnesses for the reason that he did not wish to waive appellant's legal position that the superior court should have considered his defenses to the petition to arbitrate and upon the additional ground that the trial court should have determined the scope of the arbitration. The arbitrator proceeded with the hearing and made an award in favor of respondent and against appellant on the claim of employee Matsumoto in the sum of $15,386.80, and on the claim of employee Kovacevich in the amount of $9,439.09.

Respondent next filed an application for an order confirming the award of the arbitrator. Appellant countered with a motion for order vacating the award, presenting the same objections as had been asserted during the earlier proceedings, namely, that the court erred in ordering arbitration without considering and determining the affirmative defenses raised by appellant's answer. There was the additional objection that the arbitrator had been guilty of misconduct.

On August 31, 1960, respondent's application for order confirming award, and appellant's motion for order vacating award, were argued and taken under submission. At the hearing, respondent presented a proposed formal written order confirming the award, which the court asked appellant's attorney to look over and notify the court of his objections, if any, as to form. At the same time attorney for appellant requested the court to notify him if any changes were made in the order and judgment. Counsel for appellant asserts that the court agreed to so advise him.

Appellant stresses his 'understanding' with the court concerning notification of any change in the proposed order confirming the award of the arbitrator, and charges the court with making a change and not notifying him. However, the record indicates that the only change in the proposed order or judgment was a denial, by interlineation, of appellant's motion for an order vacating the award. This did not, in substance, change the order or judgment in any respect. It simply eliminated a second and separate order denying respondent's counter-motion to vacate. The denial of appellant's motion was corollary to the order confirming the award.

In any event, the court made a minute order confirming the award on September 14, 1960, and on September 16, 1960, a written order was signed and entered. No notice of either order was given. On October 3, 1960, counsel for appellant wrote a letter to the court citing a case which he considered to be a new and additional authority for his position. On October 5, counsel for respondent replied by a letter addressed to the court, distinguishing appellant's new authority. The court did not reply to either letter, although the judgment had been entered two weeks earlier.

On December 2, 1960, counsel for respondent, by letter, artfully inquired when the court would decide the matter. On December 7, 1960, the court had the clerk mail to counsel for the parties a copy of the minute order of September 14, 1960. Counsel for appellant then wrote the court enclosing a proposed ex parte nunc pro tunc order to amend the minute order in preparation for the filing of a formal written order. December 22, 1960, the court wrote to counsel for appellant informing him that it would be impossible to make the nunc pro tunc order as requested, because a formal written order had been signed and filed on September 16. The court further acknowledged the failure of the clerk to give notice of the entry of the minute order and the judgment according to the custom of the court. The letter suggested that appellant seek relief by noticing an appropriate motion. In response, appellant filed a motion under Code of Civil Procedure, section 473, to have the judgment vacated and set aside upon the ground that the judgment had been taken against him through his miskate, inadvertence, surprise and excusable neglect, and through judicial inadvertence. After a hearing, the court took the matter under submission, and denied the motion for relief. Appellant appeals from that order.

Appellant cites rule 15, section 3, of the local rules of Fresno County Superior Court, as follows:

'Whenever the court makes a minute order in a cause or matter which has been previously submitted and taken under advisement, the clerk of the court is directed to notify the counsel of record for each party promptly, either orally or in writing of the date and contents of such order.'

The record does not disclose that appellant was aware of this rule of court or that he relied upon it, nor did appellant state in his briefs or in his oral argument that he was aware of this rule and consequently that he relied upon it. However, we do not think the rule of court would be controlling even though appellant had known of it and had he relied upon it. Similarly we do not believe the court's failure to respond to letters of counsel received after the judgment had been entered, or the filing of the judgment with an interlineation, and not notifying counsel for appellant, are controlling. These matters all concern the court's discretion or abuse thereof under Code of Civil Procedure, section 473, whereas in our view the determination of appellant's rights in this case turn not upon whether the court abused its discretion, but whether as a matter of law the trial court had authority to act under section 473.

The many cases recited by appellant reflect a liberal interpretation of section 473 by the courts, stemming from the established principal that courts look upon default judgments with disfavor. However, the gist of the cited cases granting relief is that a litigant has been deprived of an opportunity to have his case heard on its merits. Here, appellant had a hearing on the merits.

Although appellant's defense to the judgment was legal rather than factual, he had an opportunity, nevertheless, to present that defense. The order was not a default judgment in the traditional sense, nor in the sense that the term is used in the cases cited by appellant. What happened was that after a hearing the matter was decided adversely to appellant and a judgment entered without notice to either party. The important thing is that the judgment was not entered without a hearing on the merits by reason of appellant's mistake, inadvertence or excusable neglect.

From the foregoing analysis of the proceedings in this case, it is readily apparent that what appellant really seeks is to be relieved from his default or failure to give notice of motion for a new trial. This is implicit in appellant's reply brief. Respondent raised the question of the sufficiency of appellant's motion under section 473, pointing out that appellant failed to attach to his motion a copy of any pleading which he proposed to file if the judgment were set aside. To this objection appellant replied, in his closing brief:

'Code of Civil Procedure, Section 473, does require in connection with applications for relief that they be accompanied by a copy of the answer or other pleading proposed to be filed but this is patently applicable only to situations where the applicant proposes to file an answer or other pleading such as a demurrer to the complaint. Appellant respectifully submits that a motion for new trial does not constitute a pleading within the meaning of Code of Civil Procedure, Section 473, and therefore, it was not necessary to attach a copy of any motion for new trial to the application. Appellant's defense of the action was purely on the basis of questions of law in the Superior Court and Appellant did submit with his application his letter to the Court which would have formed the basis for a motion for new trial had Appellant been...