Attorney's Failure to Appear for An Arbitration Hearing
In Yeap v. Leake (1997), a decision by Division Four of this District (an opinion by Baron, J., with Hastings, J., concurring, and dissenting opinion by Epstein, Acting P. J.), the plaintiff brought a medical malpractice action, which was submitted to arbitration.
After her counsel failed to appear for the arbitration hearing (having missed it because of a calendaring error), an arbitration award of $ 0 was entered.
After the plaintiff's attorney also failed to make a timely request for trial de novo, judgment against the plaintiff was entered on the arbitration award.
When the plaintiff moved, pursuant to section 473, to have the award set aside and to have a trial de novo, the trial court denied her motions.
The reviewing court held that the issuance of an arbitration award of $ 0 had the same effect as a dismissal for failure to appear (her counsel, as noted above, had failed to appear).
It then concluded that a dismissal for failure to appear was analogous to a default, so that the mandatory provisions of section 473 were applicable, and that therefore the plaintiff was entitled to relief, because her claim would have proceeded to arbitration on its merits but for her attorney's inadvertent mistakes.
Because the evidence supported the trial court's determination that the plaintiff's counsel's failure to submit the request for trial de novo in a timely fashion was not excusable neglect, the appellate court noted that it could only reverse the trial court's decision using the mandatory provisions of section 473, which is exactly what it did.
The dissent in Yeap disagreed that there had been either a default or dismissal in that case, because:
(1) a default entered by the clerk is not some adverse result flowing from the failure of an attorney to do an act (as occurred in Yeap), but is, instead, a formal entry made when a party sued fails to answer the charges, or where its answer is stricken,;
(2) a dismissal is not what occurs when an arbitration award ripens into a judgment (as occurred in Yeap), but is, instead, the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by a court.
Thus, the dissent argued that because there was neither a default nor a dismissal in the case before it, the mandatory provisions of section 473 did not apply, and the trial court had not abused its discretion to deny relief.
Therefore, the dissent would have affirmed the judgment. ( Yeap, supra, 60 Cal. App. 4th at pp. 603-605 (dis. opn. of Epstein, Acting P. J.).)