Auxier v. Superior Court
Filed 10/21/08 Auxier v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JANET AUXIER, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CITY OF HESPERIA, Real Party in Interest. | E045793 (Super.Ct.No. CIVVS701824) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Larry W. Allen, Judge. Petition granted.
Pacific Legal Foundation, Meriem L. Hubbard and Timothy Sandefur for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
In this matter, we have reviewed the petition and have given real party in interest the opportunity to respond. We have determined that resolution of the matter involves the application of settled principles of law and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Although Code of Civil Procedure section 1775 ff. authorize the court to direct the parties to participate in mediation in most cases where the matter would be subject to mandatory arbitration, cases that raise substantial equitable issuesas does this oneare exempt from arbitration. (Cal. Rules of Court, rule 3.811.) Furthermore, the court should take into account the parties views on the amenability of the case before ordering mediation. (Cal. Rules of Court, rule 3.871.)
Here, both parties recognize that the case involves equitable and legal issues not amenable to mediation. It appears that the essential question in the action is whether petitioner is subject to a certain land-use regulation. It is reasonable to accept the parties position that their disagreement over this question is unlikely to be solved through mediation.
DISPOSITION
Accordingly, we find that the trial court erred in ordering the parties to submit to mediation over their objection. We grant the petition.
Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate its order commanding the parties to participate in mediation. The stay previously ordered is dissolved.
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioner shall bear her own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
GAUT
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
