Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV237388
Reardon, J.
Appellant Chauncey Banks (Banks) appeals the order denying his motion to vacate the judgment entered in a mandatory judicial arbitration proceeding. We affirm.
I. BACKGROUND
In September 2005, plaintiff Banks and others sued respondents for breach of contract, intentional interference with prospective business advantage and negligent interference with business relations, and sought damages and injunctive relief for discrimination under the Unruh Civil Rights Act. (Civ. Code, § 51.) The dispute centered on Simon Property Group’s rejection of plaintiffs’ application to extend their short-term lease of a retail establishment in the Santa Rosa Plaza shopping center.
Respondents are Simon Property Group, Rex Dengler, EMI Santa Rosa LP, Laura Kozup and Santa Rosa Plaza Corporation.
The matter proceeded to judicial arbitration pursuant to Code of Civil Procedure section 1141.10 et seq. On October 27, 2006, the arbitrator entered and served its award specifying that Banks take nothing and respondents recover their costs. The court served notice of entry of judgment on November 27, 2006, and an amended notice on December 19, 2006. The first notice incorrectly stated that judgment was entered on October 27 instead of November 27.
All further statutory references are to the Code of Civil Procedure.
Nearly nine months later, on August 23, 2007, Banks moved to set aside the judgment “and to correct clerk’s oversight in not filing request for trial de novo.” Banks’s attorney filed a declaration stating that on November 21, 2006, he sent a substitution of attorney to the court along with a request for trial de novo for the three plaintiffs and a request for dismissal on behalf of one. The clerk returned a file-stamped request for dismissal, returned the substitution of attorneys requesting a separate form for each plaintiff, but did not return the request for trial de novo, with or without a file stamp. Banks’s attorney further declared that he resubmitted the request for trial de novo which the court returned as untimely. The attorney followed up with a letter to the clerk explaining that he mailed the request for trial de novo along with the other documents, indicating that the clerk “overlooked” it and enclosing the cover letter. The clerk responded that the request for trial de novo was received on December 11, 2006.
In their opposition, counsel for respondents stated that as of November 27, 2006, she had not received a request for trial de novo from Bxanks’s counsel.
At the hearing counsel for Banks explained that he did not bring the motion under section 473 “because the time was up on that—it would require six months.” Rather, independent of statute, he argued that the trial court has the power to correct inadvertent mistakes. The trial court denied the motion to set aside the judgment. It concluded that Banks had not shown diligence in seeking relief; after discovery of the mistake there was an unexplained delay of more than eight months in filing the motion. This appeal followed.
II. DISCUSSION
Section 1141.20, subdivision (a) sets forth the time for filing a request for trial de novo following judicial arbitration: “An arbitration award shall be final unless a request for a de novo trial is filed within 30 days after the date the arbitrator files the award with the court.” Absent a timely request, the award becomes a judgment that may only be attacked or set aside as provided by section 473 or 1286.2 (grounds for vacating arbitration award), or Judicial Council rule (§ 1141.23; Cal. Rules of Court, rule 3.827). Rule 3.828(a) provides that “[a] party against whom a judgment is entered under an arbitration award may, within six months after its entry, move to vacate the judgment . . . upon one of the grounds set forth in . . . sections 473 or 1286.2(a)(1), (2), and (3), and on no other grounds.” (Italics added.) Such a motion will only be granted on “clear and convincing evidence that the grounds alleged are true, and that the motion was made as soon as practicable after the moving party learned of the existence of those grounds.” (Rule 3.828(b); see former rule 1615(d).) These provisions echo the six-month time frame included in section 473, subdivision (b).
All references to rules are to the California Rules of Court.
Section 473, subdivision (d), without any reference to a time frame, allows the trial court to correct a clerical mistake in a judgment “so as to conform to the judgment or order directed,” and to set aside any void judgment.
Banks argues nonetheless that the trial court had the power to vacate the judgment caused by clerical error and has inherent equitable authority to correct an extrinsic mistake, even if statutory relief is not available, citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 (articulating test to qualify for relief on grounds of extrinsic mistake). Not so.
Section 1141.22 specifically empowers the Judicial Council to adopt rules specifying the grounds on which the court may “correct, modify or vacate an award.” Rule 3.828 unambiguously identifies both the time frame for moving to vacate a judgment and the particular means of proceeding, which are finite. Banks did not move to vacate within the six-month time frame, nor did he pursue one of the identified means. It is true, as a general matter, that the trial court has equitable power to vacate judgments obtained by extrinsic mistake. However, equitable jurisdiction is still subject to modification or abrogation by the Legislature, as is the case here. Section 1141.22 and rule 3.828 clearly limit the court’s equitable power to vacate judgments in judicial arbitration proceedings. (Usher v. Soltz (1981) 123 Cal.App.3d 692, 696.) Under the governing law, the trial court had no discretion to grant relief.
Even if we were to ignore rule 3.828 and review this under an abuse of discretion standard as Banks would have us, we would find no abuse. First, it would take a leap this court is not positioned to take to agree with Banks that there is “abundant evidence that he attempted to file a timely request for trial de novo but that the clerk failed to file the document.” As respondents point out, Banks does not have a certified mail receipt, a return receipt, or any other evidence demonstrating that the request for trial de novo was mailed when he said it was. Further, the trial court would be well within its discretion to conclude that Banks did not display diligence in seeking to set aside the judgment. There was no evidence supporting an explanation for the nearly nine-month delay in filing the motion. Certainly the delay was not due to lack of awareness. Now Banks asserts that significant health issues impacted his ability to proceed. He acknowledges, however, that this information was never brought to the trial court’s attention. The only reason advanced at the hearing for not filing the motion sooner was that Banks could not pay his attorney to do so. Even this reason was not submitted by declaration or affidavit.
III. DISPOSITION
The order denying Banks’s motion to set aside the judgment is affirmed.
We concur: Ruvolo, P.J., Rivera, J.