Page v. Khazin

Filed 1/10/07  Page v. Khazin CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

                      APPEAL from Order of the Superior Court of Los Angeles County.  Andria K. Richey, Judge.  Affirmed with directions. 

                      Law Offices of Yevgeniya G. Lisitsa, Yevgeniya G. Lisitsa for Defendant and Appellant.

                      Ogden Page in Propria Persona, Plaintiff and Respondent.

_________________________

                      Azar Khazin appeals an order of the trial court vacating a dismissal of the action.  Plaintiff Ogden Page's attorney dismissed the action without plaintiff's knowledge before an arbitration award could be affirmed or challenged.  Khazin challenges the trial court's vacation of the dismissal under its equitable powers, contending that the dismissal was not procured by extrinsic fraud or mistake.  We affirm. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

                      Page's complaint for contract damages was filed as a limited civil action on January 5, 2004.  On or about April 12, 2004, Khazin filed a cross-complaint, and the matter was transferred to the unlimited civil docket.     

                      The matter proceeded to arbitration before Carol Medof, who rendered her award in favor of Page on November 19, 2004, in the sum of $8,551.74.  After a post-arbitration status conference held November 30, 2004, Page's counsel dismissed the action without Page's knowledge.     

                      On February 15, 2005, Page, through counsel, filed a motion to confirm the arbitration award.  The trial court issued an Order to Show Cause regarding the petition, and at the hearing on the petition held May 16, 2005, the court noted the case had been dismissed.  Counsel for Page advised the court the case should not have been dismissed because a judgment on the award was needed.  The court advised him to bring a motion to vacate the dismissal, at which time the court could consider the motion and if appropriate, vacate the dismissal and set a hearing on the petition to confirm the award. 

                      On May 31, 2005, Page, in propria persona, moved to set aside the dismissal on the grounds of extrinsic fraud and mistake pursuant to the court's equitable powers.  Page contended that he did not learn of the dismissal until May 16, 2005, when his counsel advised him that the petition to confirm the award had been denied because of the dismissal. 

                      Khazin's opposition, filed June 30, 2005, contended that the motion was an untimely Code of Civil Procedure section 473[1]  motion and the court lacked jurisdiction to grant it.     

                      At the July 12, 2005 hearing, Khazin argued that he had been prejudiced because the 100 day time limit to move for vacation of the arbitration award had passed, and he had not moved to vacate the award because he believed the case had been dismissed.[2]  The court stated that both parties had been â€