Nanfito v. Superior Court

Opinion

CROSBY, J.

Does the superior court retain jurisdiction to dismiss litigation for failure to diligently prosecute (Code Civ. Proc., §§ 583.410, 583.420) after submission of the cause to judicial arbitration?

Yes.

I

Hye Cha Ice filed a tort action against Mary Nanfito on August 26, 1986. The at-issue memorandum did not follow until June 1991, two months before the lawsuit’s fifth anniversary. At that time plaintiff also unilaterally elected to submit the case to arbitration.

Nanfito responded with a motion to dismiss for failure to diligently prosecute. On July 11, 1991, before the motion was heard, however, the presiding judge of the Orange County Superior Court, acting on plaintiff’s

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election, ordered the case to mandatory arbitration.

1

The judge slated to hear Nanfito’s motion to dismiss then determined plaintiff’s election and the superior court’s order for arbitration stripped him of any jurisdiction to rule. He conceded it was “a strange situation,” but added, “in any event, I can’t overrule . . . another judge.”

2

Nanfito petitioned for a peremptory writ of mandate. We stayed the arbitration and invited responses from the court and the real party in interest. None was received. Issuance of an alternative writ would not assist our resolution of this matter and would cause unnecessary delay. A peremptory writ in the first instance is appropriate.

(Palma

v.

U.S. Industrial Fasteners, Inc.

(1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893].)

II

The superior court’s power to terminate litigation previously ordered into arbitration depends on the nature of the arbitration, i.e., judicial or true. In true arbitration, e.g., where parties stipulate to binding arbitration