Yeap v. Leake
| fullCitation | Yeap v. Leake, 70 Cal.Rptr.2d 680, 60 Cal.App.4th 591 (Cal. App. 1997) |
| Decision Date | 30 December 1997 |
| Citation | 60 Cal.App.4th 591,70 Cal.Rptr.2d 680 |
| Docket Number | No. B097361,B097361 |
| Parties | , 97 Cal. Daily Op. Serv. 35, 97 Daily Journal D.A.R. 8 Angeline YEAP, Plaintiff and Appellant, v. Donald LEAKE et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Moreno, Becerra & Guerrero, Gregory W. Moreno, Montebello, Danilo J. Becerra, Los Angeles, and Arnoldo Casillas, Long Beach, for Plaintiff and Appellant.
Bonne, Bridges, Mueller, O'Keefe & Nichols, David J. O'Keefe, Thomas G. Scully, Santa Ana, Greines, Martin, Stein & Richland, Kent L. Richland and Carolyn Oill, Beverly Hills, for Defendants and Respondents.
Section 473 of the Code of Civil Procedure 1 grants a court discretion "upon any terms as may be just," to "relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (§ 473, subd. (b).) In addition, under a separate, mandatory provision, "the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (Ibid.)
In Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 8 Cal.Rptr.2d 637, this court held that the mandatory provision of section 473 does not apply where due to a late request for a trial de novo by the defendants, an arbitration award becomes final and is entered as the judgment. Since Ayala was decided, section 473 was amended,
and the phrase "or dismissal" was added to subdivision (b)(2). In this case, we address the issue of the applicability of section 473's mandatory provision where the plaintiff initially fails to appear at the arbitration, resulting in the entry of a defense award, and then fails to timely request a trial de novo. We conclude that where the plaintiff loses the opportunity to participate in the arbitration due to negligence of counsel, and the award becomes final also due to attorney misfeasance, the mandatory provision does apply.
Appellant Angeline Yeap filed a complaint for medical malpractice on September 1, 1993. Discovery was conducted, and a defense motion for summary judgment heard and rejected. Appellant filed an undertaking in the amount of $12,500 pursuant to section 1030. A January 12, 1995, status conference was attended by Arnoldo Casillas, an associate with the law firm of Moreno, Becerra & Guerrero, on behalf of appellant. There, the matter was ordered into judicial arbitration. Casillas and counsel for defendant went to the clerk's office, agreed to an arbitration date of April 12, 1995, and chose retired Judge Robert Einstein as the neutral arbitrator.
Casillas's secretary had recently resigned. When he returned to the office, he gave the new secretary notes from the proceedings, but she "did not recognize the notes and did not properly calendar the arbitration hearing date for April 12, 1995." The arbitration was, therefore, not calendared by the firm at that time.
Gregory Moreno, the attorney who intended to try the matter, was advised by his staff "that Mr. Casillas had neglected to submit an 'Appearance Worksheet' as is the custom and practice of [the] firm following all court appearances...." On February 6, 1995, Casillas obtained a copy of the court's status conference order, because he "could not recollect the outcome of the Status Conference." The status conference order indicated that the parties were to return post-arbitration for a further status conference on June 22, 1995. The order did not contain a date for arbitration and did not jog his memory that a date for arbitration had been set. According to his declaration, he calendared April 15, 1995, as a date "to contact the arbitrator and set a hearing date if one had not been set by this date," and "did not recall that an arbitrator had already been selected." Moreno, after reviewing the order, believed that the parties "had to complete the arbitration hearing by June, 1995."
No one appeared to represent appellant at the arbitration on April 12. After waiting an hour for appellant to appear, Judge Einstein rendered an award of "$0." The arbitration award was filed April 12, 1995, and entered as a judgment on May 15, 1995.
Moreno received notice of the arbitration award on April 18, 1995, and contacted opposing counsel to express surprise and concern that appellant might be forced to pay respondents' costs if she did not do better at trial than at the arbitration. (See § 1141.21.) "Although [defense counsel] agreed he would not hold it against [appellant]," Moreno "indicated that it was still [his] intention to file a motion to vacate the award so as to not be sanctioned by the court." Both sides agreed to waive the discovery cutoff during that conversation. Moreno also contacted the arbitrator to apologize. He asked his secretary, Maria Cruz, to calendar the deadline for requesting a trial de novo. She mistakenly calendared 30 days from the date the notice of arbitration award was received. Both Moreno and Cruz were busy with work on other trials at that time.
Appellant filed a request for trial de novo on May 16, 1995. The court sent a letter to appellant's counsel dated May 22, 1995, stating that the request had been denied as untimely. Moreno stated that he did not receive that letter. Maria Cruz, who prepared and arranged to have the request for trial de novo filed, also denied receiving the letter. Hazel Gonzalez, who reviewed and distributed mail for the office, did not recall seeing that letter.
Appellant filed a motion to have the arbitration award set aside and to have the matter re-submitted to arbitration on May 26, 1995. In the opposition filed on June 14 On July 21, appellant attempted to file an ex parte application to shorten time to hear a motion to vacate the judgment or alternatively continue the hearing on the motion to set aside the arbitration award to a date on which both motions could be heard. According to counsel, the clerk refused to file the application because it was "not necessary, moot and redundant given that the [motion to set aside the arbitration award] was already on calendar." Appellant then prepared a reply to the opposition to the motion to set aside the arbitration award which contained essentially the same facts used to support the proposed motion to vacate.
1995, respondents pointed out that the request for trial de novo was untimely and that a judgment had already been entered. The hearing was continued to July 27, 1995.
At the hearing, both sides stipulated to have the matter heard by Commissioner Anita Rae Shapiro. The court indicated that the motion would be considered "a request to file the de novo late" or to "set aside [the] judgment to allow the de novo to be filed" and to allow another arbitration to go forward. Initially, the court gave two reasons for denying the motion: (1) the moving papers failed to address why the request for trial de novo was never filed; 2 and (2) after discovery of the failure to calendar the dates arising from the status conference and assuming that Casillas reported that no arbitration had been set, counsel simply decided to wait three months to see what would happen rather than make an affirmative attempt to schedule the arbitration ordered by the court which was to have taken place within 90 days. 3 The court also questioned why, once the arbitration award in favor of respondents had been entered due to appellant's failure to appear, counsel did not immediately file the de novo request which would have set aside the award without the necessity of a motion. Counsel for appellant explained that he was primarily concerned with getting the arbitration award set aside by motion so there could be a new arbitration, and did not realize the de novo request was filed late until he received the opposition in June. The motion was denied. The court specified three grounds: (1) "a large amount of the evidence was presented in a reply brief"; (2) "I considered the totality of what happened, and I believe it's inexcusable neglect"; and (3)
On August 10, 1995, appellant filed a "Motion to Allow Late Filing of Request For Trial De Novo Pursuant to C.C.P. Section 473 and Set Aside Judgment" based on mistake, inadvertence, and excusable neglect. Appellant contended that because this was a motion to set aside the judgment rather than the arbitration award, it was distinct from the motion heard and decided by Commissioner Shapiro. 4 Appellant apparently attempted to peremptorily challenge Commissioner Shapiro who was not, as it turned out, assigned to the department on the day the hearing was to be held.
The motion was heard by the Honorable James L. Wright. The court stated that the previous motion to vacate under section 1285 should not have been filed because none of the grounds set forth in section 1286.2 existed. 5 The court gave the following reasons Notice of entry of the judgment based on the arbitration award was served on August 10, 1995. Notice of appeal from the orders denying relief was filed on October 5, 1995.
for the tentative decision to deny the motion: "[W]hen you find out a mistake...To continue reading
Request your trial
-
in re Cantos Y.
...we have discretion to consider a new theory on appeal when the theory involves applying the law to undisputed facts. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) We exercise that discretion where, as here, an......
-
In Re: Santos Y.
...we have discretion to consider a new theory on appeal when the theory involves applying the law to undisputed facts. (Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) We exercise that discretion where, as here, an......
-
Huh v. Wang
...of the application by a court.'" (Id. at p. 144, 114 Cal.Rptr.2d 93, quoting Justice Epstein's dissent in Yeap v. Leake (1997) 60 Cal.App.4th 591, 603, 70 Cal. Rptr.2d 680 (Yeap).) A defense summary judgment cannot be considered a dismissal since it "does not constitute a removal of the pla......
-
Canister v. Emergency Ambulance Service
...of law to undisputed facts. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316-1317, 88 Cal.Rptr.2d 758; Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6, 70 Cal.Rptr.2d 680.) We may in any event decide a case on any legal theory, regardless of whether it is urged by counsel in the appella......