Blue v. Harris

Filed 7/18/07 Blue v. Harris CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County.

Helen I. Bendix, Judge. Affirmed.

William J. Blue III, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

_________________________

Appellant William J. Blue III (Blue), a prisoner serving a term of more than 20 years with the California Department of Corrections, sued respondent Kimberly M. Harris (Harris) to recover $20,000.[1] The case was dismissed after Blue failed to make a telephonic appearance at an Order to Show Cause (OSC) as to why his case should not be stayed or dismissed. His subsequent motion to set aside the dismissal was denied. He appealed that denial.

We find no error and affirm.

FACTS

Blue sued Harris on September 17, 2004.

For a case management conference on January 18, 2005, Blue filed a notice of intent to appear by telephone. On that date, however, Blue did not call or otherwise appear. As a result, the trial court set an OSC as to why the case should not be stayed or dismissed.

The OSC was scheduled for February 15, 2005. Once again, Blue filed a notice of intent to appear by telephone. When Blue failed to call on February 15, 2005, his case was dismissed without prejudice.

On May 12, 2006, Blue moved to set aside the dismissal pursuant to Code of Civil Procedure section 473. The argument portion of his motion was the following sentence: [Blue] is in the custody of the California Department of Corrections, at CSP-Solano, in Vacaville, California, under Warden Tom Carey, and has made this fact known to this court, also [Blue] has mailed all necessary documents to this court for filing prior to the Case Management Conference, and the Order to Show Cause, which is clearly shown on the Case Summary. Blue offered no explanation for why he failed to appear at the OSC.

Blue filed a notice of intent to appear by telephone for the July 10, 2006 hearing on his motion to set aside the dismissal.

Once again Blue failed to appear. The tentative ruling, which was read into the record and placed in the minute order, stated that [Blue] does not address the grounds for the dismissal of his case. A brief chronology of events and case law is instructive. Under [Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch)], the court held that it was an abuse of discretion to strike a prisoners pleadings and enter default judgment for failing to appear at a scheduled status conference without considering other alternatives. The alternatives specifically suggested by the appellate court are, inter alia, appearance by correspondence or telephonically where the prisoner has otherwise diligently prosecuted or defended his case. [Citation.]

The minute order detailed Blues absences from the proceedings. In conclusion, the trial court stated that it followed the procedures set forth in [Wantuch], has allowed [Blue] to appear telephonically, and has continued status conferences to give him another opportunity to appear, yet to no avail. [Blue] has never appeared at any status conference despite his undisputed knowledge that he could have done so, and his motion does not present any evidence that the fact of his imprisonment has prevented him from appearing by telephone, for example, a declaration indicating that the prison authorities would not allow him to make such a call. [] Under these circumstances, the [trial court] has been disabled from managing this case because [Blue] simply has not appeared or responded to the [trial courts] queries as to how to manage this case in light of [Blues] lengthy prison sentence.

Blues motion was denied. Subsequently, he filed a notice of appeal from the denial of that motion.

STANDARD OF REVIEW

The denial of motion to vacate a dismissal pursuant Code of Civil Procedure section 473, subdivision (b) will not be disturbed on appeal unless there has been a clear abuse of discretion. Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] We have said that when two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. [ Citations.] (Yeap v. Leake (1997) 60 Cal.App.4th 591, 598.)

DISCUSSION

Blue offers three arguments in support of his appeal. (1) The trial court violated his right as an indigent prisoner to prosecute a bona fide civil action. (2) The pretrial proceedings could have been conducted in writing or by telephone. (3) The trial court abused its discretion.

Harris did not file an appellate brief. As required under California Rules of Court, rule 8.220(a)(2), we must decide this appeal based on the record, the opening brief, and any oral argument offered by Blue.

1. An indigent prisoners rights.

An indigent prisoner who files a bona fide civil action has a right to meaningful access to the courthouse. (Wantuch, supra, 32 Cal.App.4th at p. 792.) Access does not have to be provided in any particular way. (Ibid.) Remedies to secure access may include: (1) deferral of the action until the prisoner is released [citation]; (2) appointment of counsel for the prisoner [citation]; (3) transfer of the prisoner to court [citation]; (4) utilization of depositions in lieu of  personal appearances [citations]; (5) holding of trial in prison [citation]; (6) conduct of status and settlement conferences, hearings on motions and other pretrial proceedings by telephone [citation]; (7) propounding of written discovery; (8) use of closed circuit television or other modern electronic media; and (9) implementation of other innovative, imaginative procedures [citations]. (Id. at pp. 792793, fns. omitted.)

When deciding how to provide an indigent prisoner an opportunity to litigate his case, a trial court should consider the nature of the action, the potential effect on the prisoners property, the necessity for the prisoners presence, the prisoners role in the action, the prisoners literacy, intelligence and competence to represent himself or herself, the stage of the proceedings, the access of the prisoner to a law library and legal materials, the length of the sentence, the feasibility of transferring the prisoner to court and the cost and inconvenience to the prison and judicial systems. [Citations.] (Wantuch, supra, 32 Cal.App.4th at p. 793.)

In general, an indigent prisoner has no right to have counsel appointed to represent him. But if there is a bona fide threat to an indigent prisoners personal or property interests, and there is no other feasible alternative for providing him with the ability to litigate his case, the indigent prisoner must be provided with counsel. (Wantuch, supra, 32 Cal.App.4th at p. 793.)

Despite the foregoing, a trial court can impose a terminating sanction if an indigent prisoner fails to comply with delay-reduction rules or court orders. (Wantuch, supra, 32 Cal.App.4th at p. 795.) But [p]reventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. [Citations.] Terminating sanctions should not be ordered as a first response when noncompliance is through no fault of the party. [Citation.] (Ibid.)

If a prisoner has otherwise diligently prosecuted a case, a trial court cannot simply dismiss his case because he failed to appear at a status conference and subsequent OSC. (Wantuch, supra, 32 Cal.App.4th at p. 789.) Instead, the trial court must determine: (1)  Is the prisoner indigent? (2)  Is the lawsuit a bona fide action involving a threat to the prisoners personal or property rights? If the answer to those two questions is affirmative, the trial court must then determine the best way to provide the prisoner with access to the courthouse. (Ibid.)

2. The trial court did not abuse its discretion.

In arguing this appeal, Blue relies on Wantuch. But Wantuch is not on point. In that case, the prisoner appealed the dismissal of his action. Here, Blue is appealing the denial of his motion to vacate. As a result, we are presented with materially different issues. Because Blue did not appeal his dismissal, it cannot be reviewed for error. The only question presented by Blues appeal is whether the trial court should have granted his motion to vacate the dismissal.

Code of Civil Procedures section 473, subdivision (b) provides that a court may . . . relive a party . . . from a . . . dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Therefore, for Blue to obtain relief, he had to demonstrate that his failure to appear was the result of mistake, inadvertence, surprise or excusable neglect. His motion did not meet that burden. In other words, he did not explain why he failed to appear.

There was no abuse of discretion.

Only on appeal has Blue explained what happened. He contends that the trial court never contacted the Prison Litigation Office at CSP-Solano to facilitate [Blues] Motion(s) to Appear by Telephone. According to Blue, he cannot just pick up a telephone and call the trial court. Further, Blue tells us that after filing his notice of intent to appear by telephone that he awaited [confirmation] from the Prison Litigation Office as to what time to appear at his counselors office for a call from the [trial court], but this [confirmation] never came.

From the foregoing, it appears that Blue mistakenly believed that the trial court would arrange the telephone calls for his appearances. But statements in a brief are not evidence, so they cannot be taken as true. More importantly, this information was never presented to the trial court. From the trial courts perspective, it appeared that Blue was to blame for not appearing.

This is not a case where a prisoner was denied access to the courthouse. From its minute order, it is apparent that the trial court was prepared to follow Wantuch. Instead, this is a case in which the trial court and plaintiff prisoner did not fully communicate their intentions and expectations to each other, and then the plaintiff prisoner did not alert the trial court to this problem.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

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[1] This appeal was filed with the appellate department of the Superior Court. But below, Blues case was treated as an unlimited civil case pursuant to Code of Civil Procedure sections 85, 86 and 88. In other words, the trial court presumed that this case involved more than $25,000 in controversy. Even though Blues action for conveyance and/or reimbursement of funds for [breach] of fiduciary duty and constructive fraud sets his damages at $20,000, he sought punitive damages according to proof. As well, though he did not sue for actual fraud, Blues prayer requested, in part, a judgment finding Harris liable for damages for actual fraud in the sum of $33,666.66 plus exemplary damages in the amount according to proof if [Harris] refuse to reimburse $20,000.000 back to [Blue] forthwith. Because Blues action was an unlimited civil case, we have jurisdiction over the appeal.