Merritt v. Marks

Opinion

ASHBY, J. —Respondent Celeste Merritt sued appellants Elaine Marks, Gary Goldberg and Norma Berson for fraud in the sale of real property. [827]The case was ordered into judicial arbitration. Appellants and their attorney failed to appear. The arbitrator awarded $9,108 to respondent. Appellants timely filed a request for a trial de novo, pursuant to Code of Civil Procedure section 1141.201 and California Rules of Court rule 1616. The request was denied without prejudice to their making a motion to set aside the default before the arbitrator. This appeal followed.

Under section 1141.20, subdivision (b), “[a]ny party may elect to have a de novo trial, by court or jury, both as to law and facts. ...” The judicial arbitration legislation (§ 1141.10 et seq.) sets forth no procedural prerequisites for a defaulting defendant before he or she seeks trial in the superior court other than making the request within 20 days. (Hebert v. Ham (1982) 133 Cal.App.3d 465 , 470 [184 Cal.Rptr. 83].) It cannot be said that there is an absolute right to a de novo trial. Where a party deliberately attempts to circumvent court-ordered arbitration proceedings by requesting the arbitrator to enter an award in favor of the other party, it is not an abuse of discretion by the superior court to dismiss the action. (Genovia v. Cassidy (1983) 145 Cal.App.3d 452 [193 Cal.Rptr. 454].) Where a party, ordered into arbitration, wilfully fails to participate in the arbitration by refusing to put on evidence, dismissal is proper. (Lyons v. Wickhorst (Cal.App.).) Dismissal is justified because no party may deliberately avoid a legislatively created arbitrable process and a court’s order to proceed with arbitration, and because an opposing party is deliberately deprived of a right to a speedy and economical resolution of the dispute by arbitration.2 (Genovia v. Cassidy, supra, at p. 457; see also Herbert Hawkins Realtors, Inc. v. Milheiser (1983) 140 Cal.App.3d 334 [189 Cal.Rptr. 450] [holding that after trial de novo is granted a party may not voluntarily dismiss without prejudice to avoid adverse arbitrator’s award].) Where a defendant defaults and there is neither a finding nor a showing of a “premeditated, intentional and purposeful course of action” (Genovia v. Cassidy, supra, at p. 458), there is no justification for dismissing the matter, and the request for a trial de novo should be granted.

The trial court made no finding that appellants deliberately did not appear at the arbitration hearing.3 The record does not support respondent’s