Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05AS03905
CANTIL-SAKAUYE, J.
After defendant, WL Homes, LLC, compelled contractual arbitration in this construction defect case, it failed to appear for the arbitration hearing. Plaintiffs John and Suzanne Rush obtained an arbitration award of $119,365 against defendant WL Homes, LLC, doing business as John Laing Homes. Plaintiffs petitioned the trial court to confirm the award. Defendant opposed plaintiffs’ petition and requested the court vacate the award under Code of Civil Procedure section 1286.2, subdivision (a)(5), which authorizes a trial court to vacate a contractual arbitration award on the ground that defendant’s rights were substantially prejudiced by the refusal of the arbitrator to postpone the hearing upon sufficient cause being shown. The trial court denied defendant’s request to vacate the award and granted plaintiffs’ petition to confirm the award. Defendant then filed a motion for relief from the ruling under section 473. The trial court denied defendant’s motion and entered judgment for plaintiffs.
Hereafter, undesignated statutory references are to the Code of Civil Procedure. We refer to section 1286.2, subdivision (a)(5) as section 1286.2(a)(5).
Defendant appeals from the judgment claiming the trial court erred in refusing to vacate the arbitration award and in denying its section 473 motion for relief. Defendant also claims the trial court abused its discretion in refusing to hear oral argument after the issuance of its tentative ruling on defendant’s motion for relief. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The record designated by the parties for appeal discloses the following facts. We include some detailed information that is particularly relevant to consideration of the arbitrator’s denial of defendant’s requests for continuance.
Plaintiffs filed a class action construction defect complaint in 2005 against defendant, the builder of new homes in The Parkway subdivision in Folsom, California. In 2006, the trial court granted defendant’s petition to compel plaintiffs to arbitrate their claims regarding their residence pursuant to a contractual arbitration agreement contained in their purchase agreement. The litigation was stayed pending arbitration.
The Setting of the Arbitration Hearing
The arbitration agreement called for arbitration through Construction Arbitration Services (CAS). An initial arbitrator was appointed by CAS and eventually an arbitration hearing was set for April 18, 2007. The day before the hearing, counsel for plaintiffs faxed a letter to CAS seeking to vacate the hearing date. Plaintiffs’ counsel represented that the notice of hearing did not arrive in his office until April 11, 2007, and that he was under the impression from correspondence with the defense that the matter would be continued in order to permit preparation for the arbitration. Plaintiffs’ counsel indicated witnesses necessary to the arbitration were not available due to the late notice. Defendant did not object to the request. The arbitrator granted plaintiffs’ request, imposing a $150.00 “Adjournment Fee.”
The following month, the appointed arbitrator recused himself and a second arbitrator was appointed.
In October 2007, plaintiffs advised the second arbitrator that they were “moving to remove the case from arbitration” due to defendant’s refusal to respond to or provide legal objections to plaintiffs’ discovery requests. Defendant responded to CAS regarding plaintiffs’ accusations regarding discovery problems. Ultimately, plaintiffs advised CAS of their willingness to proceed with the arbitration hearing then set for January 3, 2008. However, on December 28, 2007, CAS advised the parties that the second arbitrator had informed CAS he had an unexpected schedule conflict and that the January hearing needed to be rescheduled. CAS indicated new calendars would be submitted to the parties to confirm a new hearing date.
In January 2008, the second arbitrator disclosed the fact he had served as the arbitrator in a previous case involving defendant represented by the same defense counsel. Based on the disclosure, plaintiffs objected to the second arbitrator and requested appointment of another arbitrator “with mutual approval of the parties.” On February 29, 2008, the second arbitrator withdrew as arbitrator. CAS notified the parties it would be appointing a new arbitrator and contacting the parties to determine available dates for the hearing.
On March 10, 2008, apparently as a result of discussion between counsel regarding the difficulties encountered with the CAS program, plaintiffs sent defendant a list of four individuals not associated with CAS that plaintiffs felt could serve as arbitrator.
However, the next day, March 11, 2008, CAS appointed a third arbitrator and enclosed a 45-day scheduling calendar form to be completed and returned by the parties for the purpose of setting a new arbitration hearing date.
On March 27, 2008, plaintiffs faxed their scheduling calendar form to CAS and defense counsel, showing their availability for hearing on several possible dates in May. CAS acknowledged receipt of plaintiffs’ calendar form by a letter dated the following day. Copies of its acknowledgment were sent to the third arbitrator and to defendant.
Defendant did not submit its 45-day scheduling form or respond to plaintiffs’ form. Defendant proceeded to review the backgrounds of the four non-CAS arbitrators proposed by plaintiffs.
By a notice of hearing dated March 31, 2008, the third arbitrator set the arbitration hearing for May 19, 2008, a date which plaintiffs had indicated on their scheduling form they were available. Defendant received the notice of hearing on April 8, 2008.
On May 7, 2008, almost two months from when plaintiffs sent the non-CAS arbitration list to defendant and only 12 days away from the CAS arbitration hearing, defense counsel called plaintiffs’ counsel to advise plaintiffs of defendant’s willingness to use either of two of the four proposed non-CAS arbitrators. Plaintiffs’ counsel, in turn, advised the defense of plaintiffs’ intention to go forward with the CAS hearing set for May 19, 2008.
On May 13, 2008, six days later and only six days before the scheduled hearing, defendant sent a written request to CAS seeking a continuance of the hearing. Defense counsel stated that “[d]ue to the rather convoluted history of this matter, our office was under the (mistaken) impression that the matter may be transferred to an independent Neutral. As such, I did not timely bring the Arbitration date to the attention of my client and now I am confronted with both a conflict on my own schedule and, more importantly, I have recently learned that my primary client contact will not be available during the last 2 weeks of May. His presence and participation in the hearing is critical toward our defense.” The request also sought a pre-hearing inspection of plaintiffs’ property.
Plaintiffs objected to a postponement of the hearing, contending “cause” had not been shown. Plaintiffs also objected to defendant’s request for inspection. The arbitrator denied defendant’s request for continuance.
On May 14, 2008, defendant sought reconsideration of the arbitrator’s decision. Defense counsel expanded on defendant’s need for a continuance as follows: “[I] fear that perhaps the issues concerning discovery got mixed up - and became more important than - the real reason that we had no alternative but to request a continuance of the hearing itself: the fact that our primary defense representative is unavailable to attend the hearing.... [T]he simple fact remains that our client representative is not available to attend the Arbitration hearing on Monday (he has a two-week prepaid vacation ending the Memorial Day weekend). This will no doubt prejudice my client and substantively impact our position during the hearing. To further complicate matters, our lead defense expert also has a scheduling conflict (while someone else from his office could attend, this also impacts and prejudices the defense position to have a ‘backup’ expert present our case.)” Defendant further explained it had been proceeding under the false impression that the case was going to be reassigned to a neutral arbitrator. According to defendant, such assumption was the reason defendant did not submit its 45-day scheduling form, which if it had, would have blacked out the problem dates. Defense counsel claimed he did not learn the third CAS arbitrator was acceptable to plaintiffs until May 7 and that he was surprised by that decision. On the same day, defendant sent a separate response to plaintiffs’ discovery complaints.
When the arbitrator again denied defendant’s request for continuance, defendant filed on May 16, 2008, an ex parte application for extension of the arbitration hearing date with the trial court. The application was submitted on a Sacramento County Superior Court local form pursuant to information a paralegal for defense counsel received from a court clerk. Notice of the application for extension of the arbitration hearing date was provided to plaintiffs on the day the application was filed.
The text of the application form stated, “[t]he parties to the above action have stipulated that the arbitration hearing in this matter cannot be heard within the time period prescribed by [former] California Rules of Court [rule] 1607 [relating to continuances in judicial arbitrations - see now Cal. Rules of Court, rule 3.818.].” Further, the form stated, “[a]ll parties to the action and the arbitrator have stipulated” to the proposed new hearing period of the “week of June 16, 2008[.]” The language regarding the stipulation of the parties and arbitrator to the requested continuance was not crossed out or modified. The reasons for the requested extension of time were contained in attachments to the form application. Defense counsel signed the form under penalty of perjury.
In the attachment to the ex parte application, defendant explained its scheduling conflict with the May 19 arbitration date, adding further details as follows: “[T]he primary defense witness/representative -- the Vice President of Homeowner Customer Care, who has responded to plaintiffs’ myriad complaints and coordinated repairs to the residence on numerous occasions -- is unavailable to attend the Arbitration hearing on Monday (he has a two-week prepaid vacation bookending the Memorial Day weekend).... To further complicate matters, our lead defense expert also has a scheduling conflict: his sister is getting married out of town over this weekend. While someone else from his office conceivably could attend, this also impacts and prejudices the defense position to have a ‘backup’ expert present this highly technical, expert intensive, construction defect case.” Defendant again asserted it had been proceeding under the false assumption the case was going to be reassigned to a different arbitrator and was surprised when plaintiffs decided to proceed with the scheduled CAS arbitration. In the attachment, defendant indicated “CAS refuses to continue the hearing date - even for a short duration.” Defendant did not indicate in the attachment whether plaintiffs stipulated to the continuance. The trial court granted the application the same day it was filed and ordered “that the arbitration hearing shall be concluded no later than 6/20/08.” (Italics added.)
Plaintiffs immediately responded to defendant and CAS that they did not consider the order to be a continuance and denied they had stipulated to the application.
CAS informed the parties that the third arbitrator had also indicated there was no stipulation of all the parties and the arbitrator as represented in the application. CAS informed the parties that the third arbitrator had taken note of the court order, but also that the order only required the hearing to be concluded by June 20, 2008. CAS stated the arbitrator intended to proceed with the May 19 hearing as scheduled.
On the morning of May 19, 2008, plaintiffs’ counsel called defense counsel. Defense counsel said he would not be attending the hearing. The arbitrator then asked to speak with defense counsel, who was put on a speaker phone. Defense counsel stated he had no intention to appear at the hearing. He insisted defendant was entitled to a different hearing date based on the trial court’s order. The matter was discussed for some time, but defense counsel continued to refuse to participate in the arbitration hearing that day.
The arbitration hearing proceeded without defendant’s presence and the arbitrator issued an award against defendant of $119,365 in favor of plaintiffs.
Plaintiffs filed a petition in the trial court to confirm the arbitration award. In opposition, defendant moved to vacate the award under section 1286.2(a)(5), contending defendant was substantially prejudiced by: the arbitrator’s refusal to postpone the hearing in light of the trial court’s ex parte order, the unavailability of defense witnesses, and the defense being misled into a reasonable belief that the matter was being transferred from CAS.
The trial court denied defendant’s motion to vacate the award and granted plaintiffs’ motion to confirm the award.
Defendant subsequently filed a motion for relief from the ruling on plaintiffs’ petition to confirm the award pursuant to section 473. Defendant claimed section 473 was designed to relieve parties from “an order or proceeding against them based on their counsel’s inadvertence, mistake or excusable neglect.” Defendant again claimed it was misled into reasonably believing the matter was being transferred from CAS, that there was good cause to continue the arbitration hearing and that defendant reasonably filed the ex parte application and believed the court had ordered a continuance.
The trial court denied defendant’s motion for relief, which it found to be in reality a motion for reconsideration under section 1008 that had to be denied for defendant’s failure to satisfy the requirements of section 1008. The trial court declined to hear oral argument on defendant’s motion.
DISCUSSION
I.
The Trial Court Did Not Err In Denying Defendant’s Request To Vacate The Arbitration Award Under Section 1286.2(a)(5)
The merits of an arbitrator’s decision resolving a controversy between parties pursuant to a private contractual arbitration agreement are not subject to judicial review. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11; SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1195-1198 (SWAB Financial); Hall v. Superior Court (1993) 18 Cal.App.4th 427, 430 (Hall).) On a petition to confirm, correct, or vacate a private arbitrator’s award, section 1286 strictly limits the trial court’s role to (1) confirming the award as made, (2) correcting the award and confirming it as corrected, (3) vacating the award, or (4) dismissing the proceeding. (Hall, supra, at p. 433.)
Section 1286.2 provides a trial court may vacate an arbitration award on five grounds, including that “[t]he rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.” (§ 1286.2(a)(5).) This operates as “a safety valve in private arbitration that permits a court to intercede when an arbitrator has prevented a party from fairly presenting its case.” (Hall, supra, 18 Cal.App.4th at p. 439.)
When a trial court is asked to vacate an arbitration award under section 1286.2(a)(5), the court must resolve two issues: (1) whether the arbitrator abused his or her discretion in denying a continuance of the arbitration hearing and (2) whether the moving party suffered substantial prejudice. (SWAB Financial, supra, 150 Cal.App.4th at p. 1198.) On appeal, we conduct a de novo review of the trial court’s determination. (Ibid.; Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55 .)
Defendant claims on appeal the trial court erred in denying its request to vacate the arbitrator’s award under section 1286.2(a)(5). Defendant argues the unavailability of its two critical witnesses constituted good cause for postponement and that it was substantially prejudiced by the arbitrator’s refusal to continue the hearing because the two witnesses were necessary for it to adequately defend the merits of plaintiffs’ claims. Defendant further contends, in its argument addressing prejudice, that its counsel did not appear at the arbitration hearing because counsel was under the reasonable belief the ex parte order postponed the hearing.
Plaintiffs contend defendant voluntarily and intentionally failed to appear at the commencement of the arbitration hearing and that such failure to appear is not one of the enumerated grounds for vacating the arbitrator’s award. Plaintiffs argue there was no “failure to postpone” within the meaning of section 1286.2(a)(5) because defendant’s failure to participate in the hearing precluded the application of statutory and contractual accommodation for the presentation of its witnesses. On the merits, plaintiffs claim the arbitrator had good cause to commence the hearing and no substantial prejudice resulted.
In reply, defendant claims it never refused to participate in the arbitration and always made their willingness and desire to participate clear. Defendant simply wanted a postponement to allow all parties to present their experts and witnesses. Defendant claims plaintiffs’ argument regarding the available statutory and contractual accommodations concedes the arbitrator was required to postpone the hearing. Defendant reiterates it was substantially prejudiced by the arbitrator’s refusal to postpone the hearing.
We conclude defendant failed to show sufficient cause for a continuance and therefore, the arbitrator did not abuse her discretion in denying defendant’s requests for continuance. We also conclude the arbitrator did not abuse her discretion in proceeding with the scheduled hearing after receipt of the ex parte order. Any prejudice defendant suffered by not having its witnesses testify at the arbitration hearing was a result of its unreasonable refusal to attend the hearing and not a consequence of the arbitrator’s refusal to postpone the hearing.
A. Defendant’s Requests For Continuance
Defendant compelled arbitration under a contractual agreement with plaintiffs that called for arbitration through CAS. The arbitration rules of CAS allow arbitration hearings to be postponed for good cause. Section 1282.2 also provides in pertinent part that “(b) The neutral arbitrator may adjourn the hearing from time to time as necessary. On request of a party to the arbitration for good cause, or upon his own determination, the neutral arbitrator may postpone the hearing to a time not later than the date fixed by the agreement for making the award, or to a later date if the parties to the arbitration consent thereto.” (Italics added.) “The word ‘may’ is permissive rather than mandatory.” (SWAB Financial, supra, 150 Cal.App.4th at p. 1197.)
The appellate record contains two different sets of CAS arbitration rules submitted by the parties to the trial court. We need not decide which was applicable as both contain provisions authorizing postponement of the hearing on a showing of good cause.
The showing of “good cause” (§ 1282.2, subd. (b)) necessary for a continuance of a private arbitration hearing has been equated to the “good cause” required for a continuance of a civil trial. (See Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724 (Roitz); Moore v. Griffith (1942) 51 Cal.App.2d 386, 389 (Moore).) We construe the term “sufficient cause” used in section 1286.2(a)(5) (trial court may vacate award if “[t]he rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor”) as synonymous with “good cause.”
For purposes of continuing civil trials, it has long been settled a party seeking a continuance on the ground that a witness is unavailable must show by affidavit both the materiality of the testimony of the absent witness and that due diligence was exercised in trying to secure the appearance of the witness. (§ 595.4; Carey v. Philadelphia & California Petroleum Co. (1867) 33 Cal. 694, 697 [continuance may be denied if affidavit discloses neither names of the absent witnesses nor what the party expects to prove by them]; Kuhland v. Sedgwick (1860) 17 Cal. 123, 128 [“absence of evidence is no ground for a continuance, unless reasonable diligence has been used to procure it”]; see Roitz, supra, 62 Cal.App.4th at pp. 724-725; Moore, supra, 51 Cal.App.2d 386 at p. 389.) Rule 3.1332 of the California Rules of Court provides that “[a]lthough continuances of trials are disfavored, ” the unavailability of “an essential lay or expert witness” due to “excusable circumstances” can constitute good cause for a continuance. (Rule 3.1332(c)(1), italics added.)
Further undesignated rule references are to the California Rules of Court.
Here, defendant first requested postponement of the May 19 arbitration hearing date by a letter dated May 13. In the letter, defense counsel stated that “[d]ue to the rather convoluted history of this matter, our office was under the (mistaken) impression that the matter may be transferred to an independent Neutral. As such, I did not timely bring the Arbitration date to the attention of my client and now I am confronted with both a conflict on my own schedule and, more importantly, I have recently learned that my primary client contact will not be available during the last 2 weeks of May. His presence and participation in the hearing is critical toward our defense.”
First, this letter was unaccompanied by any affidavit or declaration supporting the facts stated.
Second, the letter gave no details of defense counsel’s claimed conflict in schedule and indicated simply that counsel’s “primary client contact” would be unavailable to attend the hearing. No where does the letter name this person or indicate that he or she is expected to be a witness. The letter does not provide a description of the expected role of this “primary client contact” at the hearing much less summarize any expected testimony so that an evaluation of materiality could be made.
Finally, it does not appear defendant exercised due diligence in this matter. Although the parties apparently had some communication about using a non-CAS arbitrator after the recusal of the second CAS arbitrator, when the third arbitrator was appointed by CAS, plaintiffs submitted to CAS a 45-day scheduling form indicating their available dates for an arbitration hearing with the newly appointed arbitrator. A copy of plaintiffs’ scheduling form was faxed to defense counsel. The receipt of a scheduling calendar form that indicated the dates plaintiffs were available for an arbitration hearing should have alerted defense counsel to plaintiffs’ willingness to accept the third arbitrator. It was unreasonable for defendant to simply assume that was not the case and that the arbitration hearing would not be set or if set, that it later would be vacated. Defense counsel should have promptly contacted plaintiffs’ counsel to check whether plaintiffs intended to proceed with the third CAS appointed arbitrator or continue looking for a non-CAS arbitrator. Defendant should have submitted its own 45-day scheduling calendar or at least responded to CAS regarding the dates listed in plaintiffs’ calendar. Defendant should have contacted CAS to notify it of the potential for a stipulated removal of the matter from CAS arbitration. Further, due diligence required defense counsel to contact defendant’s necessary witnesses to determine their potential availability for the dates the plaintiffs indicated they were available in the event arbitration was not transferred to a different arbitrator. Instead, defendant remained silent and apparently did nothing. Even after defendant received the notice that CAS had set the hearing date for May 19, defendant waited another month before contacting plaintiffs’ counsel and then another six days before requesting a continuance.
The arbitrator did not abuse her discretion in denying defendant’s request for continuance; denial was virtually compelled on these facts.
The arbitrator was not required to grant defendant’s request over plaintiffs’ objection just because plaintiffs had previously been granted a continuance under distinguishable facts and circumstances and without objection by defendant.
Defendant sought reconsideration of the denial by a letter request dated May 14. Defendant claimed “the real reason that we had no alternative but to request a continuance of the hearing itself [was]: the fact that our primary defense representative is unavailable to attend the hearing.... [T]he simple fact remains that our client representative is not available to attend the Arbitration hearing on Monday (he has a two-week prepaid vacation ending the Memorial Day weekend). This will no doubt prejudice my client and substantively impact our position during the hearing. To further complicate matters, our lead defense expert also has a scheduling conflict (while someone else from his office could attend, this also impacts and prejudices the defense position to have a ‘backup’ expert present our case.)” Defense counsel asserted he had been proceeding under the false impression that the case was going to be reassigned to a neutral arbitrator. According to defense counsel, such assumption was the reason defendant did not submit its 45-day scheduling form. Defense counsel claimed he did not learn the third CAS arbitrator was acceptable to plaintiffs until May 7 and that he was surprised by that decision.
Again, this letter was not supported by any affidavit or declaration. The letter now identified the “primary client contact” as defendant’s “client representative, ” but still did not indicate this unnamed person was an expected witness. The letter did not provide any description of this person’s proposed testimony. The letter dropped the claim of counsel’s unavailability, but added a new assertion that defendant’s primary defense expert also had a scheduling conflict. From the use of the term “expert, ” it could be assumed this person was an expected witness, but again, no information was provided about the nature of the expert’s testimony. Furthermore, the letter indicated someone else from the expert’s office could attend the hearing as a backup expert. There were no facts stated to support defendant’s claim that its case would be prejudiced by the use of such backup expert. Finally, the explanation of why defendant failed to submit its own scheduling calendar, including counsel’s assumptions and supposed surprise, was either incredible or unreasonable on its face. No due diligence was shown. Again, the arbitrator’s decision to deny the renewed request for continuance was manifestly not an abuse of discretion.
Defendant did not identify its representative as a witness until it filed its ex parte application for an extension of time for arbitration.
B. The Ex Parte Order
Defendant proceeded to seek intervention by the trial court through an ex parte application for a continuance of the hearing date. There are multiple problems with defendant’s application.
First and foremost, there is no authority for a trial court to grant a continuance of a private contractual arbitration. A court “‘may not step into a case submitted to arbitration [pursuant to a private contract] and tell the arbitrator what to do and when to do it: it may not resolve procedural questions, order discovery, determine the status of claims before the arbitrator or set the case for trial because of a party’s alleged dilatory conduct. It is for the arbitrator, and not the court, to resolve such questions.’” (SWAB Financial, supra, 150 Cal.App.4th at pp. 1200-1201.) Thus, it is no surprise that the only local court form available for an ex parte application to extend an arbitration date is limited on its face (through its reference to the applicable court rule) to use in judicial arbitrations. Defense counsel attempts to shift the blame for the use of such form to his paralegal and an anonymous court clerk, but counsel is responsible for researching and determining the legal availability of the remedy sought.
Moreover, the preprinted language on the form indicates all the parties and the arbitrator have stipulated to the proposed new hearing period. Defense counsel signed the form under penalty of perjury without striking out or modifying the stipulation language. Defense counsel argues the attachment to the form contained statements notifying the court that neither plaintiffs nor the arbitrator had stipulated to the continuance. In the attachment, defendant did state that “CAS refuses to continue the hearing date[.]” However, the statement to which defendant points as notification that plaintiffs did not stipulate to a continuance actually states only that plaintiffs no longer wanted to transfer the matter to a non-CAS arbitrator. There is no statement in the attachment that plaintiffs did not stipulate to the proposed continuance. Thus, defendant’s attachment to the application only partially corrected the preprinted language on the form regarding the stipulation of all parties and the arbitrator. By leaving out the fact that plaintiffs had not stipulated to the continuance, defendant misleadingly suggested in the attachment that the parties had agreed and it was just the CAS arbitrator who was stubbornly refusing to grant it.
Next we observe defendant provided notice of its application to plaintiffs on the day the application was filed. Rule 3.1203(a) provides, “[a] party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice.” (Italics added.) Defendant made no attempt to show exceptional circumstances justifying the late notice.
And last but not least, the trial court order granting defendant’s application ordered “that the arbitration hearing shall be concluded no later than 6/20/08.” (Italics added.) Nowhere did the trial court order indicate the arbitration hearing date of May 19 was to be continued. CAS, the third arbitrator, and plaintiffs all informed defendant that such order was not a continuance of the May 19 start date for the parties’ contractual arbitration. They were clearly correct.
The arbitrator did not abuse her discretion in proceeding with the arbitration hearing.
C. Evaluation of Prejudice
The arbitrator and plaintiffs’ counsel spoke with defense counsel on the morning of May 19. Notified the hearing would be commenced, defense counsel refused to attend, taking the unreasonable position that defendant was entitled to a different hearing date based on the trial court’s order.
If defense counsel had attended and participated in the arbitration, requests could have been made under the applicable CAS arbitration rules and section 1282.2, subdivision (b) for an adjournment of the hearing, for permission to present defendant’s evidence at a later arbitration session or for permission to submit defendant’s evidence as a posthearing filing. Counsel voluntarily and intentionally chose not to attend the hearing and seek such remedies. As a result, any prejudice defendant suffered by not having its witnesses testify at the arbitration hearing can be traced to counsel’s refusal to attend the hearing and request one or all of the available accommodations, not the arbitrator’s refusal to postpone the start of the hearing.
Section 1282.2, subdivision (b), provides in pertinent part: “The neutral arbitrator may adjourn the hearing from time to time as necessary.”
After an independent review, we conclude the trial court did not err in denying defendant’s request to vacate the arbitration award under section 1286.2(a)(5).
II.
The Trial Court Did Not Err In Denying Defendant’s Motion For Relief Under Section 473
Defendant filed a motion for relief under section 473, seeking to set aside the trial court’s “ruling on Plaintiff’s [sic] Petition to Confirm an Arbitration Award.” Defendant referenced the portion of section 473 that provides a court may “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).) Although its motion was directed at the trial court’s ruling confirming the arbitration award, defendant did not argue the ruling was entered based on any mistake, inadvertence, surprise or excusable neglect by defense counsel. Instead, defendant again challenged the underlying arbitration award, claiming it was misled into reasonably believing the matter was being transferred from CAS, that there was good cause to continue the arbitration hearing, and that defendant reasonably filed the ex parte application and believed the court had ordered a continuance.
Nor do we see any basis for such an argument.
The trial court denied defendant’s motion, finding that in reality it was a motion for reconsideration under section 1008 that had to be denied for a failure to satisfy the conditions of section 1008. The trial court stated defendant had failed to offer any new facts or law not previously considered when the court ruled defendant was not misled by plaintiffs and that defendant was unreasonable in assuming plaintiffs would object to the third arbitrator. Addressing defendant’s arguments regarding the arbitrator’s denial of a continuance, the court concluded that when defendant’s request for continuance was refused, defendant should have attended and participated in the hearing. The court found no mistake in defendant’s failure to appear for the arbitration hearing. Rather, it was a conscious decision on the part of defendant’s attorney not to attend. With respect to the ex parte application and order, the court found “no mistake when counsel declared under penalty of perjury that the parties had stipulated that the matter could not be heard when there was in fact no such stipulation.” Nor was there any mistake that the ex parte order so obtained did not continue the arbitration date, but only ordered arbitration be completed by June 20, 2008. The trial court stated that if defendant was relying on the attorney fault provisions of section 473, they were not available as there was no default here. There was a hearing on the merits in which defendant refused to participate.
Section 1008 provides in relevant part: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, ..., any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Italics added.)
On appeal defendant claims the trial court abused its discretion in denying its section 473 motion for relief. We disagree.
To begin with, defendant cites no authority supporting its underlying premise that relief from a contractual arbitration award is available under section 473. It is not. “Judicial review of arbitration awards is limited exclusively to the statutory grounds for vacating or correcting the award.” (SWAB Financial, supra, 150 Cal.App.4th at p. 1201.)
Furthermore, the record does not support defendant’s claims that in denying the motion the trial court failed to consider (a) the prior correspondence between the parties that led defense counsel to mistakenly believe the parties had agreed to transfer the matter from CAS, or (b) defendant’s reasonable reliance on the ex parte order extending the arbitration date. Rather, the record shows the trial court, generously treating defendant’s section 473 motion both as a motion for relief and as a motion for reconsideration under section 1008, once again rejected defendant’s position with respect to these matters. Specifically, the trial court determined that any mistaken belief by defense counsel that the matter would be transferred was unreasonable and that defendant’s reliance on the ex parte order as a continuance of the arbitration hearing was unjustified. We completely agree.
The trial court did not err in denying defendant’s motion for relief.
III.
The Trial Court Did Not Abuse Its Discretion By Failing To Grant Defendant’s Request For Oral Argument
In its tentative ruling denying defendant’s request for relief under section 473, the trial court stated that “[s]ince most of these matters have been raised and decided, and since Defendant has failed to make the procedural showing for either a motion under... [section] 1008 or a motion under... [section] 473, and since the parties were provided the opportunity to orally argue their positions at the prior court hearing, the Court declines to hear any further oral argument.”
The trial court denied defense counsel’s request for oral argument and affirmed its tentative ruling.
Defendant now claims the trial court abused its discretion by refusing to grant its request for oral argument. Defendant contends that once it requested oral argument in compliance with rule 3.1308(a)(1) of the California Rules of Court, oral argument was mandatory. Defendant also claims the denial of oral argument was an abuse of discretion because, contrary to the statement by the trial court, it did not previously have an opportunity to argue its motion for relief, only its motion to vacate the arbitration award. Finally, defendant complains that the denial of oral argument prevented defendant from clarifying material factual inaccuracies in the tentative ruling. We reject each of these claims.
It is well established that a trial court is not required to listen to oral arguments in support of a motion, but may, in its discretion, decide the matter solely based on the submitted written arguments and evidence. (Wilburn v. Oakland Hospital (1989) 213 Cal.App.3d 1107, 1111; In re Marriage of Lemen (1980) 113 Cal.App.3d 769, 784; 6 Witkin, Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 36, p. 457.) Neither rule 3.1308(a)(1) nor Sacramento Superior Court Local Rule 3.04(B) change this general principle. These rules impose a mandatory duty on the party requesting oral argument to meet specific notice requirements. It does not restrict the trial court’s discretion to conclude oral argument is unnecessary.
Rule 3.1308(a)(1) provides, in pertinent part, that “[i]f the court has not directed argument, oral argument must be permitted only ifa party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear.” (Italics added.)
Sacramento Superior Court Local Rule 3.04 (B) provides: “The tentative ruling shall become the ruling of the court, unless a party desiring to be heard so advises the courtroom clerk of the designated department no later than 4:00 p.m. on the court day preceding the hearing, and further advises the courtroom clerk that such party has notified the other side of its intention to appear.”
The trial court found oral argument was unnecessary here because the issues in defendant’s section 473 motion had previously been raised and decided on defendant’s section 1286.2(a)(5) motion, after an opportunity for oral argument. Defendant contends the focus of the two motions was different and therefore, the opportunity to argue the former did not cover its arguments on the latter. While in theory a section 473 motion has a different legal “focus” than a section 1286.2(a)(5) motion, both of defendant’s motions were premised on the same facts, circumstances, and essential issues. Thus, the trial court did not abuse its discretion in concluding defendant had already been afforded an opportunity to argue and no further argument was necessary.
Defendant claims, however, that the denial of oral argument prevented it from clarifying factual inaccuracies in the tentative ruling. Specifically, defendant contends the trial court’s ruling was based on a mistaken belief that defense counsel in applying for the ex parte order had misrepresented that all parties and the arbitrator stipulated to the postponement of the hearing. As defense counsel did make such misrepresentation, any further oral argument on such point would have been fruitless.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents. (Cal. Rules of Court, rule 8.278(a)(1) & (a)(2).)
We concur: ROBIE, Acting P. J., BUTZ, J.