Lai v. Chen

Filed 6/29/06 Lai v. Chen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Andy Lai, Choice Properties, Inc., and Reliant Financial Service, Inc. (collectively, Lai) brought suit against James Chen and Bay Realty Investment and Franchise, Inc. (collectively, Chen).[1] Lai allowed judgment to be entered against him after an award was rendered in a nonbinding judicial arbitration in this action. Thereafter, Lai filed a motion to vacate judgment (motion), pursuant to Code of Civil Procedure section 473, subdivision (b) (section 473(b)).[2] Lai's counsel claimed that he had allowed judgment to be entered based on the erroneous assumption that the action was stayed when Chen--after the arbitration award was filed but before judgment was entered--served a petition for writ of prohibition (writ petition or petition) that challenged a discovery order. Chen opposed the motion, and it was denied.

Lai contends on appeal that the court abused its discretion by denying the motion. We find no abuse of discretion by the trial court and will therefore affirm.

PROCEDURAL HISTORY[3]

The complaint in this action was apparently filed in June 2004.[4] The first amended complaint filed by Lai on or about October 7, 2004, alleged 12 causes of action, arising out of a former business relationship between Lai and Chen involving a real estate firm, Bay Realty Investment and Management, Inc.

On or about November 30, 2004, the court ordered the case to nonbinding judicial arbitration. On or about March 18, 2005,[5] the award of arbitrator was filed with the court. The parties do not dispute that the arbitration award rendered was in Chen's favor.[6] The clerk of the court served a notice of entry of judgment on the arbitration award on April 19.

On May 10, Lai filed the motion to vacate judgment, which was opposed by Chen. The court denied the motion on June 2. Lai filed a notice of appeal from the order on July 29. The notice was timely, and an appeal properly lies from an order denying a motion for relief under section 473(b). (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394 (Generale Bank); Jade K. v. Viguri (1989) 210 Cal.App.3d 1459, 1469.)

DISCUSSION

I. Issue On Appeal

Lai contends that the court abused its discretion by denying his motion. He asserts that relief from default should have been granted because (1) the law favors trials on the merits, and (2) he established that entry of the judgment on the arbitration award was the result of excusable neglect warranting relief under section 473(b).[7] Chen naturally disagrees.

II. Standard of Review

A motion brought under section 473(b) for relief from a judgment is subject to the discretion of the court, and â€