Lyons

decision, I have omitted from my opinion any discussion of the implications *920 of the trial court’s actions on the constitutional jury trial guarantee. I write separately to express my concern regarding this issue.

Article I, section 16 of the California Constitution gives to all its citizens the inviolate right to trial by jury. This right has been long protected and cherished in our jurisprudence.

The jury system is an essential part of our courts’ ability to safeguard the rule of law in the face of constant challenges to the authority of that fundamental principle. In fact, our reliance on, and confidence in, the institution of the jury is primarily a function of the key role that the jury system plays in protecting our citizens against the unchecked powers of government, and concomitantly in providing a critical counterbalance to the power and persuasiveness of lawyers and judges.

The framers of our federal and state Constitutions were “reluctan[t] to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.” (Duncan v. Louisiana (1968) 391 U.S. 145, 156 [ 20 L.Ed.2d 491, 500 , 88 S.Ct. 1444 ].) The guarantee of a jury trial,…

I agree with the majority that dismissal here was too drastic a penalty for appellant’s refusal to present evidence at the arbitration proceedings, which took place (1) after Hebert v. Harn (1982) 133 Cal.App.3d 465 [ 184 Cal.Rptr. 83 ], had furnished a reasonable basis for assuming that such tactics would not impair appellant’s right to a trial de novo and (2) before a contrary possibility had been indicated by the filing of Genovia v. Cassidy (1983) 145 Cal.App.3d 452 [ 193 Cal.Rptr. 454 ]. Accordingly, I concur in reversing the judgment of dismissal.

On the other hand, since it is clear that the judicial arbitration program was intended by the Legislature to be mandatory, the trial courts should actively support it by taking appropriate measures to encourage or require good-faith participation by litigants. As the majority points out, Code of Civil Procedure section 128.5, empowering trial courts to require payment of reasonable expenses incurred as a result of bad-faith actions or tactics, is made expressly applicable to judicial arbitration proceedings. 1 (§ 128.5, subd. (a).) Section 128.5 provides a means of avoiding the danger that a party will refuse to participate in…

Unlike the Chief Justice (see conc. opn. of Bird, C. J., ante), I believe that the Legislature may constitutionally authorize a trial court to dismiss an action if a plaintiff intentionally refuses to participate in a legislatively established, mandatory judicial arbitration process. Indeed, as a policy matter, it may well be that dismissal is the most appropriate sanction for such conduct.

I have joined the lead opinion, however, because as I read the relevant statutes, the Legislature has to date declined to authorize the denial of a trial de novo and the dismissal of the plaintiff’s action as a sanction for such conduct. The provisions of the Judicial Arbitration Act explicitly embrace an alternative sanction, under which a party who requests a trial de novo is required to pay specified costs if the judgment after the trial de novo is not more favorable to such party than the arbitration award. (Code Civ. Proc., § 1141.21.) 1 In addition a separate statute—section 128.5— authorizes a trial court to order a party to a judicial arbitration proceeding to pay “any reasonable expenses, including attorney’s fees” which the opposing party incurs “as a result of bad-faith actions” or…

Does a trial court exceed its authority when it dismisses a plaintiff’s action with prejudice because no evidence was presented at a court-ordered arbitration?

I.

In June of 1980, appellant Edward Lyons filed a lawsuit against respondent Erwin Wickhorst seeking actual, compensatory, and punitive damages for unlawful arrest and false imprisonment. 1 Since appellant did not seek dam *914 ages in excess of $25,000, the trial court ordered mandatory arbitration pursuant to Code of Civil Procedure section 1141.11. 2

The first arbitration hearing was set for November of 1982. Immediately prior to the arbitration, appellant informed the arbitrator and counsel for respondent that he did not intend to present any evidence in support of his case. In response, respondent made no attempt to refute appellant’s claims. Thus, no evidence was introduced at the first hearing.

The superior court appointed a new arbitrator and set a new hearing for June of 1983. During this second attempt at arbitration, appellant once again declined to present evidence. Respondents did not attend the hearing after informing the arbitrator that attendance would be futile in light of appellant’s refusal…

Does a trial court exceed its authority when it dismisses a plaintiff's action with prejudice because no evidence was presented at a court-ordered arbitration?

In June of 1980, appellant Edward Lyons filed a lawsuit against respondent Erwin Wickhorst seeking actual, compensatory, and punitive damages for unlawful arrest and false imprisonment. [1] Since appellant did not seek damages in excess of $25,000, the trial court ordered mandatory arbitration pursuant to Code of Civil Procedure section 1141.11. [2]

The first arbitration hearing was set for November of 1982. Immediately prior to the arbitration, appellant informed the arbitrator and counsel for respondent that he did not intend to present any evidence in support of his case. In response, respondent made no attempt to refute appellant's claims. Thus, no evidence was introduced at the first hearing.

The superior court appointed a new arbitrator and set a new hearing for June of 1983. During this second attempt at arbitration, appellant once again declined to present evidence. Respondents did not attend the hearing after informing the arbitrator that attendance would be futile in light of appellant's…