Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. CIVSS802873, W. Robert Fawke, Judge.
Bernard J. Austin for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Ramirez P.J.
William Austin, defendant, appeals from an order denying a postjudgment motion to vacate an arbitrator’s award. Defendant participated in nonbinding arbitration but failed to make a timely motion for trial de novo after the arbitrator entered judgment in favor of plaintiff, Jesse Sailor, claiming he was unaware the arbitrator’s award would become the judgment if he did nothing. On appeal, defendant claims the trial court should have vacated the award pursuant to Code of Civil Procedure section 473, subdivision (b), as the judgment was due to mistake, inadvertence or excusable neglect. Regarding the merits, defendant claims the arbitrator was biased against him. Because ignorance of the law is not excusable, we affirm.
BACKGROUND
Defendant has not provided us with a history of the facts leading up to the litigation, nor does the record include a copy of the complaint. However, the trial court recited the following facts during the hearing on defendant’s motion to vacate the judgment: Plaintiff was a contractor who sued Austin, the owner of real property, following a dispute over the construction of improvements to defendant’s property. The complaint alleged five causes of action: (a) breach of contract, (b) account stated, (c) open book, (d) reasonable value of services, and (e) foreclosure of mechanic’s lien.
Most of the historical information about the litigation has been obtained from the register of actions.
On May 5, 2009, at a case management conference, the court ordered the parties to participate in nonbinding arbitration. Subsequently, defendant made an amended motion for summary judgment and summary adjudication of issues. On August 12, 2009, the court granted summary adjudication as to the second and third counts of the complaint, but denied the motion as to the balance of the complaint.
On August 28, 2009, the arbitrator filed his award in favor of plaintiff. The register of actions reflects that the award would become judgment on September 29, 2009. On September 29, 2009, judgment was entered on the first amended complaint of plaintiff in the principal amount of $49,228.64. On November 25, 2009, defendant filed a motion to vacate the judgment. The grounds for defendant’s motion were that (a) the arbitrator was biased and opposing counsel acted inequitably, and (b) the judgment was entered due to the mistakes, inadvertence and excusable neglect of defendant’s counsel, his brother, because defendant could not afford an experienced attorney with support staff. Following a hearing, the court denied defendant’s counsel because the motion was untimely, and counsel’s ignorance of the law did not excuse the failure to make the motion on time. Defendant appealed.
On March 19, 2010, we made an order dismissing the appeal as to the September 29, 2009, judgment on the arbitration award as untimely, construing the notice of appeal to have been taken from the order filed February 10, 2010, denying defendant’s motion to vacate the judgment.
DISCUSSION
Defendant claims the trial court abused its discretion by denying his motion to vacate the judgment where the judgment was entered due to the mistake, ignorance, or excusable neglect of his attorney. In support of his position, defendant claims his counsel “was thrown” by the word “non-binding” when the trial court first referred the case for arbitration, and that counsel was unaware that the nonbinding arbitration would become judgment if he did nothing. Counsel’s unfamiliarity with the language of arbitration is no excuse.
The plaintiff has failed to file a respondent’s brief. However, this does not automatically require reversal. The rule we follow in such circumstances “is to examine the record on the basis of appellant’s brief and to reverse only if prejudicial error is found. [Citations.]” (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; see also Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7; Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2; In re Bryce C. (1995) 12 Cal.4th 226, 232-233.)
Defendant did not argue that he did not receive timely notice of the arbitrator’s award (see Domingo v. L.A. County Metro. Transp. Auth. (1999) 74 Cal.App.4th 550, 553-555), so the award became final after 30 days. (Cal. Rules of Court, rule 3.826(a).) The judgment on the arbitrator’s award has the same force and effect as a judgment in any civil action or proceeding, except that it is not subject to appeal and may not be attacked or set aside except as provided by sections 473 and 1286.2 of the Code of Civil Procedure or Judicial Council rule. (Code Civ. Proc., § 1141.23.)
Code of Civil Procedure section 473, subdivision (b) (hereafter section 473), provides that a court has discretion to relieve a party “‘from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 979.) While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 476.) The burden of affirmatively demonstrating error is on the appellant, and a ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
Excusable neglect is neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances. (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.) An honest mistake of law is a valid ground for granting relief where a problem is complex and debatable (Ontario v. Superior Court (1970) 2 Cal.3d 335, 346), but not every mistake of law is excusable. (Viles v. State of California (1967) 66 Cal.2d 24, 29.)
General ignorance of the law or lack of knowledge of the rules, unjustifiable negligence in the discovery or research of the law, laxness or indifference, will not justify a trial court in granting relief, and such facts will certainly sustain a finding denying relief. (Ron Burns Construction Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1414; Fidelity Federal Sav. & Loan Assn. v. Long (1959) 175 Cal.App.2d 149, 154, citing Security Truck Line v. Monterey (1953) 117 Cal.App.2d 441, 445.) Thus, where the alleged mistake of law could have been cleared up by “elementary legal research, ” the trial court does not abuse its discretion in denying discretionary relief. (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238.)
Thus, a mistake of law may be excusable when made by a layman but not when made by an attorney. (Security Truck Line v. Monterey, supra, 117 Cal.App.2dat p. 479.) A lawyer is presumed to know the laws and rules of procedure which govern the forms of litigation and legal remedies which he selects and pursues, so those who elect to arbitrate also elect to follow and be governed by the laws and rules governing arbitration. (American Home Assurance Co. v. Benowitz (1991) 234 Cal.App.3d 192, 203.)
The issue of which mistakes of law constitute excusable neglect presents a fact question (Ron Burns Construction Co., Inc. v. Moore, supra, 184 Cal.App.4th at p. 1414); the determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. (A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620.) “Excusable neglect is ‘that neglect which might have been the act of a reasonably prudent person under the same circumstances.’” (Torbitt v. State of California (1984) 161 Cal.App.3d 860, 866, & cases cited.)
Here, the trial court determined that defendant’s counsel’s failure to act on the arbitration award was not due to excusable neglect, it was due to ignorance. Defendant’s counsel admitted as much. Given defense counsel’s acknowledgment that he had previously handled but a single arbitration, it would be reasonable to expect counsel to do the necessary research, or consult another lawyer reasonably believed to be competent, to insure his competence. The State Bar Rules of Professional Conduct, specifically rule 3-110(C), require as much. “Generally, the attorney-client relationship imposes upon the lawyer the obligation to represent his client with ‘“such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake.”’” (Janik v. Rudy, Exelrod & Zieff (2004) 119 Cal.App.4th 930, 937, quoting Kirsch v. Duryea (1978) 21 Cal.3d 303, 308.)
Attorneys are expected to possess knowledge of those plain and elementary principles of law which are commonly known by well informed attorneys, and to discover those additional rules of law which, although not commonly known, may readily be found by standard research techniques. (Camarillo v. Vaage (2003) 105 Cal.App.4th 552, 561.) Even as to legal issues on which well-informed lawyers may entertain a reasonable doubt, an attorney is expected to perform sufficient research to enable him to make an informed and intelligent judgment on behalf of his client. (Smith v. Lewis (1975) 13 Cal.3d 349, 360 [overruled on another point in In re Marriage of Brown (1976) 15 Cal.3d 838, 851].)
Alternatively, an attorney inexperienced or unskilled in a particular area of law is expected to associate or consult with other counsel reasonably believed to be competent. (Rules Prof. Conduct, rule 3-110(C).) Counsel’s declaration in support of the motion to vacate the judgment indicates he did neither. As the trial court found, his ignorance was therefore inexcusable.
Counsel argued in the trial court, as well as in this appeal, that relief is available for those missing the deadline to file a motion for trial de novo following an arbitration award, citing Maynard v. Brandon (2005) 36 Cal.4th 364, 378. That case, which involved a late request for a trial de novo in a Mandatory Fee Arbitration Act case (MFAA), held that section 473, subdivision (b), cannot remedy a failure to meet the 30-day deadline for seeking a trial following an MFAA arbitration, because the time limit was jurisdiction. (Maynard, at pp. 369, 377-378.) In dicta, the Supreme Court distinguished mandatory fee arbitrations from judicial arbitrations in that discretionary relief from late filing may be granted in the latter. (Id. at pp. 379-380.) But the fact that relief from late filing may be granted in cases referred for judicial arbitration does not mean relief must be granted. (Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40, 44.)
On this record, we find the court did not abuse its discretion.
DISPOSITION
The judgment is affirmed. Because respondent did not appear in this appeal, no costs are awarded.
We concur: McKinster J., Richli J.