Lamb v. Holy Cross Hospital

Citation148 Cal.Rptr. 273,83 Cal.App.3d 1007
CourtCalifornia Court of Appeals
Decision Date18 August 1978
PartiesGeorgia LAMB, Plaintiff and Appellant, v. HOLY CROSS HOSPITAL et al., Defendants and Respondents. Civ. 52310.

Russell S. Balisok, Sherman Oaks, for plaintiff and appellant.

Early, Maslach, Leavey & Nutt, Frank J. Ceglar, Jr. and Michael A. Griott, Los Angeles, for defendant and respondent Holy Cross Hospital.

Fidler, Bell & Dyer, and Michael A. Bell, Los Angeles, for defendant and respondent Olsen.

Keenan & Tobin, P. Dennis Keenan and David A. Lowe, Los Angeles, for defendants and respondents Adler, Covin, Harris and Walters.

KINGSLEY, Associate Justice.

Plaintiff appeals from a judgment confirming an award of arbitration adverse to her. We dismiss the appeal.

Plaintiff filed a medical malpractice action against defendant hospital and her attending physicians and surgeons. The defendants demanded arbitration, which was ordered by the trial court. 1 The arbitration was in favor of the defendants who moved, successfully, for confirmation.

After defendant's petition for confirmation had come duly on for hearing, no one appeared in opposition and an order of confirmation was entered on June 10, 1976. The Clerk's notice of that order was mailed on June 11, 1976, to the then counsel for plaintiff. On July 9, 1976, plaintiff, appearing by new counsel, filed her motion to vacate the judgment of confirmation. After the filing of declarations in support of and in opposition to the motion, and oral argument, the motion was denied on August 26, 1976. On September 24, 1976, plaintiff filed a notice of appeal, reciting that it was both from the "judgment" of the confirmation and from the order denying the motion to vacate.

I

The notice, insofar as it purports to appeal from the order of confirmation, having been filed more than 60 days after notice of entry of that order, was not timely under subdivision (a) of Rule 2, California Rules of Court, unless the time for appeal had been extended under subdivision (b) of Rule 3 of those rules.

That subdivision reads as follows:

"When a valid notice of intention to move to vacate a judgment or to vacate a judgment and enter another and different judgment is served and filed by any party on any ground within the time in which, under rule 2, a notice of appeal may be filed, or such shorter time as may be prescribed by statute, and the motion is denied or not decided by the superior court within 150 days after entry of the judgment, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after entry of the order denying the motion to vacate or until 180 days after entry of the judgment, whichever shall be less."

To be effective, a notice under Rule 3(b) must be a "valid" motion. We construe that term to mean a motion based on some recognized grounds for vacation; it cannot be stretched to include any motion regardless of the basis for it. So far as we can discover, the only grounds that have been recognized under Rule 3(b) are motions based on section 663 of the Code of Civil Procedure, motions based on section 473 of that code, or a non-statutory motion based on extrinsic fraud or mistake. (See Estate of Lacy (1975) 54 Cal.App.3d 172, 177, 126 Cal.Rptr. 432.) The motion herein involved contains no language indicating that it was based on section 473 and no attempt has been made in this court to sustain it on that theory. Nor does the notice set forth any grounds cognizable under section 663. That section authorizes a motion to vacate as follows:

"A judgment or decree, when based upon findings of fact made by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of such party and entitling him to a different judgment:

"1. Incorrect or erroneous conclusions of law not consistent with or not supported by the findings of fact; and in such case when the judgment is set aside, the conclusions of law shall be amended and corrected.

"2. A judgment or decree not consistent with or not supported by the special verdict."

The order herein involved was not based on the special verdict of any jury, nor were there any findings of fact made by the trial court. Furthermore, the grounds set forth in the motion are not the grounds listed in the statute. The notice states, as grounds, only: "GROUNDS: (1) Defendants perpetuated a fraud on the arbitration tribunal; (2) the arbitration tribunal had no jurisdiction; (3) the order staying proceedings and ordering arbitration is void and unenforceable."

The notice of motion merely asked the trial court to reconsider what had already been decided by the order of August 26, 1976....

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    ...courts have looked to cases interpreting section 904.1 for guidance in interpreting section 1294. (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1011, 148 Cal.Rptr. 273; Lovret v. Seyfarth (1972) 22 Cal.App.3d 841, 852, 101 Cal.Rptr. Section 904.1 effectively codified the "one fina......
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