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Brown v. Williams2/10/2000
CERTIFIED FOR PUBLICATION
Appeal from an order of the Superior Court of Los Angeles County. Ralph W. Dau, Judge. Affirmed.
La Tanya Brown (plaintiff) allegedly was injured when she slipped and fell down three stairs on premises owned by Maurice and Rosemary Williams (defendants). Plaintiff filed suit against defendants, and was awarded nothing by the judicial arbitrator, then failed to timely request a trial de novo. Thus, the arbitration award became final.
Plaintiff sought relief from her failure to timely request a trial de novo pursuant to Code of Civil Procedure section 473, subdivision (b) and California Rules of Court, rule 1615(d), on the ground that it was due to the neglect of her attorney, and that such neglect entitled her to mandatory relief. The relief she requested was (1) to be allowed to file her belated request for trial de novo, and (2) to vacate the arbitration award. The trial court denied her motion for relief, and she now appeals from that order.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff sued defendants, who answered her complaint. At the July 1998 status conference, the case was ordered into judicial arbitration, which was to be concluded by September 30, 1998. Plaintiff's counsel did not appear at the status conference, but notice of the ruling was served on him on July 30, 1998.
The arbitrator failed to schedule an arbitration hearing despite several attempts to contact him to set up a hearing date. On September 25, 1998, defendants' counsel made an ex parte application to extend the arbitration completion date so that the parties could select another arbitrator, because of the first arbitrator's lack of cooperation. This application was denied, and the superior court ordered the parties to show cause, on October 22, 1998, why sanctions should not be imposed for failure to complete the arbitration. Plaintiff's attorney also failed to appear at the hearing on the ex parte application.
The parties selected a new arbitrator, and the arbitration was scheduled for September 29, 1998. Plaintiff and her attorney both attended the arbitration and presented testimony, documents, and argument. Plaintiff did not present any expert testimony, because her safety expert had not yet inspected the premises. At the conclusion of the arbitration, the arbitrator announced his intended decision was in favor of the defendants, plaintiff having failed to carry her burden of proof. The arbitration award was served by mail on October 6, 1998 and filed shortly thereafter, and the order to show cause was vacated, the arbitration having been completed before the September 30, 1998 deadline.
No request for a trial de novo was filed, and on November 9, 1998, the time to make such a request having passed, the clerk of the court entered judgment on the award pursuant to section 1141.23. On December 3, 1998, plaintiff's attorney filed a motion for relief from his failure to file a request for a trial de novo, and sought the mandatory relief provided by section 473, subdivision (b), or, alternatively, the discretionary relief allowed by statute.
This motion was supported by the declaration of plaintiff's attorney, who stated, among other things, that (1) he had been unable to present expert testimony at the arbitration because his expert had not yet inspected the premises; (2) on October 22, 1998, his expert did inspect the premises and discovered evidence which, plaintiff's attorney opined, would allow him to carry the plaintiff's burden of proof at trial on the issue of liability; (3) on September 17, 1998, his secretary quit without notice, and he did not make arrangements for a permanent secret
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