Flower v. Pep Boys
Filed 5/10/06 Flower v. Pep Boys CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARIANNE FLOWER, Plaintiff and Appellant, v. PEP BOYS, Defendant and Respondent. | D045933 (Super. Ct. No. 770847) |
APPEAL from a judgment and order of the Superior Court of San Diego County, S. Charles Wickersham, Judge. Affirmed.
I.
INTRODUCTION
Marianne Flower[1] appeals from a judgment of dismissal and a postjudgment order denying her motion to set aside the judgment pursuant to Code of Civil Procedure[2] section 473, subdivision (b). Flower claims the trial court abused its discretion in dismissing the action on the ground that she was unprepared to proceed with the trial. Flower also contends that the trial court erred in denying her motion to set aside the judgment of dismissal, which was based on Flower's " surprise" (§ 473, subd. (b)) that defense counsel would not consent to a continuance of the trial. We affirm both the judgment and the postjudgment order denying the motion to set aside the judgment.[3]
II.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2001, Flower filed a form complaint alleging fraud and breach of contract stemming from her purchase of an automobile engine from Pep Boys. In December 2001, Flower filed an amended complaint in which she asserted causes of action for breach of contract and fraudulent misrepresentation, and sought damages. In March 2002, the trial court sustained Pep Boys' demurrer as to the fraudulent misrepresentation claim, without leave to amend. Pep Boys moved for judgment on the pleadings as to the remaining breach of contract claim on the basis of a release Flower had signed. Flower opposed the motion on the ground that she had signed the release under duress. The trial
court granted Pep Boys' motion for judgment on the pleadings. In August 2003, this court affirmed the trial court's judgment as to the fraudulent misrepresentation claim, but reversed the judgment as to the contract claim. (Flower v. Pep Boys (Aug. 26, 2003, D040667) [nonpub. opn.].)
On remand to the trial court, at a case management conference in January 2004, the court set a trial date of August 13, 2004. In April, the trial court granted Flower's application for a continuance, and reset the trial for December 3. The court also set a trial readiness conference for November 5, and established a deadline of October 29 for the completion of motions and discovery.
On November 3, 2004, the court rescheduled the trial readiness conference from November 5 to November 12. At the trial readiness conference on November 12, in response to Flower's comment that " some of the witnesses that I'm working with are . . . going on vacation," the trial court stated, " This case will start on December 6th." During the same conference, the court reviewed its advance trial review order with the parties. The court explained that it had the authority to conclude a party's case if the party's witnesses were not available:
" [The Court:] Number eleven, it's just an admonishment. If you do not have your witnesses available, I can conclude the presentation of your case.
" Ms. Flower: What does that mean?
" The Court: That means if you run out of witnesses, I have the power under this paragraph to say you have finished your presentation. So that is what that means.
" Ms. Flower: This is about a fair trial. I hope I can get one.
" The Court: Have your witnesses available.
" Ms. Flower: That is why I was trying to tell you my witnesses ─ that is what I'm trying to say, this is December. People are enjoying the holidays. [¶] Okay. I don't know what their schedule is. That is why I say if you give [Pep Boys] an extension [of] time, I have no problem with it. If they called me and asked, I would say, 'No problem. My witness will be going to Japan.' This is the one that put in the fraudulent motor. He said if you can do it after January, he said he would be here. He was the one. This is 8-13-99 when the fraud happened.
" The Court: If you don't have a witness and the witness is a critical witness, then you have to make a motion to continue the trial."
The trial court's advance trial review order states in relevant part:
" 11. Trial will not be delayed to accommodate witness scheduling problems. In the absence of extraordinary circumstances, the party will be deemed to have concluded the presentation of his/her case once the examination of available witnesses is concluded."
The order also states:
" Failure of counsel for any party to comply with the above orders may result in the exclusion of evidence or be considered an abandonment or failure to prosecute or defend diligently. Accordingly, judgment may be entered against the defaulting party either with respect to a specific issue or on the entire case."
One week later, on November 19, 2004, Flower filed a motion to continue the trial to March 21, 2005. In her declaration in support of her motion, Flower stated that the mechanic who had installed the engine in her car was in Japan and was unavailable to testify at trial, she had not completed discovery, and she required additional time to prepare her trial brief and voir dire because she had spent a significant amount of time responding to Pep Boys' motions.
On November 29, at the hearing on Flower's motion, Flower stated that she had not yet subpoenaed any witnesses for trial, which was scheduled to commence on December 6. The trial court asked counsel for Pep Boys whether he opposed Flower's motion to continue the trial date. Counsel for Pep Boys stated that he was not opposed to a " slight continuance." When the court responded that it would not be available to try the case the following week, counsel for Pep Boys stated, " Then my response would be, let's try the case."
The court asked Flower, " Have you done anything to prepare for trial?" Flower responded, " That is what I'm doing. I have prepared a trial brief." The court responded:
" This trial has been set on multiple occasions. This case was filed on July 17, 2001. This case has been set for trial on numerous occasions. I personally have continued this trial at your request. [¶] . . . [¶] You have had ample notice of the trial date. We had a trial readiness conference. I don't believe that you have shown good cause to continue the trial."
The court denied the motion for a continuance. Flower responded by asserting that she would " take as long as I need to do this trial," and stated, " I will not have all of my witnesses here."
The next day, Flower filed an ex parte application to continue the trial, on the ground that she was suffering from chronic pain. On Friday, December 3, at a hearing on her application, Flower stated that she required a continuance because, among other reasons, she suffered from " chronic mania," and " two broken hips and ribs." The court observed that Flower had been present in court several times during the past month and that this was the first time she had mentioned having broken hips. The court noted that Flower was standing during the proceedings. The court denied Flower's application, and stated that the trial would commence the following Monday, December 6, at 1:30 p.m.
On December 6,[4] the court asked Flower whether she was prepared to try the case. Flower responded, " No, I am working on it." The court then asked whether Flower would be ready to call witnesses that day after picking the jury. Flower stated, " No, I'm not. I just picked up the subpoenas on Friday." In response to further questions from the court regarding when her witnesses would be available to testify, Flower stated that they would not be ready to testify during the remainder of that week. The court stated, " Ms. Flower, you're not prepared to go to trial." Flower agreed, stating, " No, I wasn't prepared. I told you that I need a continuance." The court proceeded to dismiss the case.
On December 23, the court entered a judgment of dismissal. On December 27, Flower filed a joint motion for reconsideration (§ 1008, subds. (a), (c)) and motion to set aside the judgment (§ 473, subd. (b)). In her motion, Flower contended that the court should reconsider its decision to dismiss the case and that it should set aside the judgment, for a number of reasons, including that Flower had been surprised by Pep Boys' counsel's opposition to her motion to continue the trial. Flower claimed that because of counsel's refusal to agree to a continuance, she was forced to go to trial unprepared and, as a result, the trial court dismissed her case.
On January 21, 2005, the court denied Flower's motion for reconsideration and her motion to set aside the judgment. With respect to Flower's motion for reconsideration, the court ruled that it lacked jurisdiction to reconsider its judgment. As to her motion to set aside the judgment, the court ruled that Flower had had " eight months to prepare for a known trial date," and that her " assumption that the trial date would be continued . . . [did] not constitute neglect of the excusable variety."
Flower appeals.
III.
DISCUSSION
A. The trial court did not abuse its discretion in dismissing the action
Flower contends the trial court abused its discretion in dismissing the case. We disagree.
As is detailed in the factual and procedural background in part II, ante, the trial court allowed Flower ample time to prepare her case and warned her repeatedly of the consequences if she were not prepared to try the case on the date set for trial. The trial court specifically told Flower that she must have her witnesses available to testify. It is undisputed that Flower had no witnesses available to testify on the date the trial was scheduled to begin, and she admitted that she was not ready to proceed. Under these circumstances, a court may dismiss a plaintiff's case. (See Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1204 [trial court may dismiss case where plaintiff is not ready to proceed at trial]; Wegner etal., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2005) ¶ 1:426 [" The moral is clear: If plaintiff is unprepared to proceed to trial at the appointed time, absent very good cause, the case is likely to be dismissed" ].)
We reject Flower's various arguments that the trial court abused its discretion in dismissing the case. Flower claims the trial court did not follow this court's directions remanding the case after her first appeal. However, this court's prior opinion did not address any issues pertaining to the trial court's discretion to dismiss Flower's action for failing to be prepared to proceed with the trial. (Flower v. Pep Boys, supra, D040667.)
Flower also contends that the trial court abused its discretion in denying her motion to continue the trial. Flower's motion was premised on the unavailability of one witness, as well her general lack of readiness for trial. With regard to the unavailability of the witness, Flower did not make clear in her motion why the witness's testimony was crucial to her case. In addition, Flower did not state when she learned that the witness would be unavailable to testify at trial, or when the witness would be available to testify. Flower knew of the witness's unavailability at least a week prior to filing the motion for a continuance. She stated at the trial readiness conference that the witness would be in Japan at the time of the trial. At the trial readiness conference, Flower also said that the witness could testify " after January," but she sought to postpone the trial until March 21. The court could have reasonably found both that Flower did not promptly seek a continuance upon learning of the witness's unavailability, and that she was seeking to continue the case beyond the time needed to allow the witness to return to the United States to testify.
With regard to Flower's lack of readiness for trial, Flower had ample time to prepare for the trial and also had sufficient warning as to what the consequences might be if she were not ready to begin the trial on the scheduled date. At the November 29 hearing on her motion for a continuance, the trial court learned that Flower had not subpoenaed any witnesses for trial despite the fact that the trial was scheduled to commence in approximately one week. We conclude that the trial court did not abuse its discretion in denying Flower's motion to continue the trial.
Flower also contends that having to respond to Pep Boys' numerous motions throughout the proceedings prevented her from being prepared for trial.[5] It was Flower's responsibility to be prepared for trial, regardless of whether Pep Boys filed motions in the proceedings.[6]
Finally, Flower claims that the failure of various " court clerks" to provide her with transcripts or a fee waiver impeded her ability to be prepared for trial. However, Flower points to nothing in the record to substantiate either claim. Further, Flower's brief contains a letter from the San Diego County Sheriff's Department stating that on December 2, 2004, four days prior to her scheduled trial date, Flower requested that the sheriff serve various civil subpoenas in her case. The letter states that the sheriff's department did not request a fee waiver because it was aware that Flower had previously obtained such a waiver, having served documents on her behalf in the past. However, the sheriff's department returned the subpoenas to Flower because it did not receive them sufficiently in advance of the trial date.
We conclude that the trial court did not err in dismissing the case.
B. The trial court did not abuse its discretion in denying Flower's motion to set aside the judgment
Flower claims the trial court erred in denying her motion to set aside the judgment of dismissal on the basis of her " surprise" (§ 473, subd. (b)) that Pep Boys' counsel would not agree to continue the trial. We review the trial court's denial of Flower's motion to set aside the judgment for abuse of discretion. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399.)[7]
Section 473, subdivision (b) provides in relevant part:
" The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."
Assuming, without deciding, that 473, subdivision (b) provides a trial court with the authority to set aside a judgment of dismissal entered on the ground that a party was not prepared to proceed with trial, the trial court did not abuse its discretion in refusing to set aside the judgment of dismissal in this case. Even if Flower was in fact surprised by Pep Boys' " opposition" [8] to her motion to continue the trial, the trial court was not obliged to continue the trial pursuant to a stipulation of the parties. (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13 [affirming trial court's denial of parties' stipulated request for a continuance].) Flower assumed the risk that the trial court might deny her motion for a continuance, regardless of Pep Boys' position on the matter. The trial court repeatedly warned Flower that the trial would proceed on the date previously set, and specifically directed her to have her witnesses ready for trial on that date. At the time of the trial, Flower had no witnesses available to testify.
We conclude that the trial court did not abuse its discretion in denying Flower's motion to set aside the judgment of dismissal.[9]
C. The parties' requests for sanctions are denied
Pep Boys has filed a request for sanctions in the amount of $4,210 for having to respond to Flower's repeated attempts to submit an " amended complaint" to this court in this case. Flower has filed a request for sanctions on various grounds including that " defendants have misrepresented the laws on this case."
The Court of Appeal has " the inherent authority to impose sanctions for the filing of a frivolous motion on appeal, and will exercise its discretion to do so upon an appropriate showing." (Dana Commercial Credit Corp. v. Ferns & Ferns (2001) 90 Cal.App.4th 142, 147.) In In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, the Supreme Court held that " an appeal should be held to be frivolous only when it is prosecuted for an improper motive─ to harass the respondent or delay the effect of an adverse judgment─ or when it indisputably has no merit─ when any reasonable attorney would agree that the appeal is totally and completely without merit."
In this case, Flower filed two motions to augment the record on appeal and an additional motion for judicial notice, seeking to add to the record on appeal a " Misplaced Complaint of 43 Causes." Each motion was denied.[10] Flower's motions are largely incomprehensible and the complaint she seeks to add to the record on appeal is irrelevant to the issues on appeal. However, in light of Flower's apparent confusion as to proper appellate procedure and the lack of any evidence that her motions were filed for an improper purpose, we exercise our broad discretion in denying Pep Boys' request for sanctions.
Flower's request for sanctions appears to be premised on various unsubstantiated claims that defendants have " altered" records in this case. Her request for sanctions is denied.
IV.
DISPOSITION
The trial court's judgment of dismissal and postjudgment order denying Flower's motion to set aside the judgment are affirmed. The parties' requests for sanctions are denied. Pep Boys is entitled to costs on appeal.
AARON, J.
WE CONCUR:
McINTYRE, Acting P. J.
O'ROURKE, J.
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[1] Flower represented herself in the trial court and is representing herself on appeal.
[2] All statutory references are to the Code of Civil Procedure, unless otherwise specified.
[3] Flower's notice of appeal states that she is appealing from " the order granting judgment on the pleadings rendered by the . . . court January 21, 2005, in favor of the defendant, Pep Boys." There was no such January 21, 2005 order granting Pep Boys judgment on the pleadings. However, we liberally construe Flower's notice of appeal to encompass both the trial court's January 21, 2005 postjudgment order denying her motion to set aside the court's December 23, 2004 judgment of dismissal as well as the court's December 23, 2004 judgment of dismissal. (See Cal. Rules of Court, rule 1(a)(2) [a notice of appeal is to be liberally construed].)
[4] The court's minutes and its judgment indicate that the proceedings took place on December 6, 2004, while the reporter's transcript for this proceeding is dated December 7, 2004. We assume the proceeding took place as scheduled on December 6, 2004, as the record contains no reference to a continuance. However, the distinction is not material for our resolution of this appeal.
[5] We consider Flower's argument pertaining to Pep Boys' opposition to her motion for a continuance of the trial in part III.B, ante.
[6] Further, we have reviewed the record and it does not appear that Pep Boys filed an inordinate number of motions. In light of our conclusion, we deny as irrelevant Pep Boys' request that we take judicial notice of various proceedings in a related action in the federal court.
[7] Although Flower's brief is not entirely clear, in light of her contentions regarding her " surprise" at opposing counsel's opposition to her motion to continue the trial, we interpret her brief as raising this argument.
[8] Pep Boys' counsel initially stated that he did not oppose a short continuance, but upon learning of the trial court's unavailability to try the case the following week, indicated that he would prefer to begin the trial as scheduled.
[9] In light of our conclusion, as well as the procedural posture of this case, we need not address Flower's other arguments regarding various aspects of the merits of the underlying action.
[10] After oral argument in this case, Flower filed an additional motion to augment the record to include this complaint. The motion is incomprehensible. We deny the motion.
