Filed 4/5/22 Marriage of Estrada & Ortega CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Kellee C. Westbrook, Judge.

Jaime Ignacia Estrada, in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

Appellant Jaime Ignacia Estrada, a self-represented inmate at Kern Valley State Prison, appeals the dismissal of his petition for dissolution of marriage. Respondent Maria Ortega did not appear in the superior court or in this appeal.

Estrada’s petition was dismissed after he failed to appear at a December 8, 2020 case management conference and a subsequent hearing on an order to show cause. The trial court’s order stated the inmate locator of the Department of Corrections and Rehabilitation (CDCR) did not show Estrada was in custody.

On appeal, Estrada has demonstrated that he has been in prison since 1994, that his imprisonment was good cause for failing to appear at the case management conference, and that the trial court abused its discretion in dismissing his petition.

We therefore reverse the order of dismissal.

BACKGROUND

On our own motion, we take judicial notice of the clerk’s transcript in appellant’s most recent criminal matter before this court, People v. Estrada, case No. F083278, which related to a 1998 escape attempt. (Evid. Code, §§ 452, 459.) The Stanislaus County Superior Court assigned that criminal matter case No. 198532. The purpose of taking judicial notice of the clerk’s transcript is to provide information about Estrada’s incarceration.

Estrada was born in 1973. He shot and killed a man in 1994. A jury convicted Estrada of murder in 1995 and he was sentenced to 15 years to life with the possibility of parole.

In December 1998, Estrada (under the name Alexandro Munoz) was one of five persons indicted for a March 21, 1998 attempt to escape from the Stanislaus County jail by force, battery of a custodial officer, and battery with serious bodily injury. In March 1999, Estrada pleaded guilty to the charges. After sentencing on those charges, the total term of Estrada’s sentence was 30 years eight months.

Dissolution Proceeding

In 2019, Estrada filed a petition for dissolution of marriage. On December 18, 2019, the trial court filed a notice of family law case management conference that set a conference for May 22, 2020, at 8:30 a.m. in department 25.

On January 6, 2020, the trial court filed (1) Estrada’s income and expense declaration, which stated he had not had a job for 26 years, (2) a declaration regarding service of the income and expense declaration, and (3) a proof of service of summons on Judicial Council form FL-115.

On February 4, 2020, the trial court filed Estrada’s request to enter default on mandatory Judicial Council form FL-165. In the part of the form for court use only, the deputy clerk marked boxes indicating the request for default was mailed to respondent on February 4, 2020, and the default was entered as requested on February 4, 2020. The appellate record does not contain documents showing, one way or the other, whether Estrada attempted to comply with the local rules addressing the steps to be taken after entry of the default in a marriage dissolution proceeding.[1]

In May 2020, the trial court issued an order stating that, due to the COVID-19 pandemic and the Governor’s directives, the case management conference set for May 22, 2020, was continued to October 23, 2020.

In September 2020, the trial court issued another order continuing the case management conference to December 8, 2020.

On December 8, 2020, the case management conference was held in department 25. The resulting family law case management conference order stated Estrada and respondent did not attend, the petition has been served, and respondent had not filed a response.[2] In item 10 of the order, an order to show cause was issued as to why the court should not impose sanctions or dismiss the case for Estrada’s failure to attend the case management conference. In item 11 of the order, the court wrote: “CDC inmate locator does not show petitioner in custody.” The hearing on the order to show cause was set for January 12, 2021, at 8:30 a.m. in department 25.

On January 12, 2021, the order to show cause came before the trial court. Estrada and respondent did not appear. The court’s order stated the case was dismissed for “Failure to attend Case Management Conference/OSC.”

On February 9, 2021, Estrada filed a notice of appeal challenging the dismissal. The notice asserted Estrada had informed the court by letter that he has been incarcerated since 1994, that he could not attend the case management conference, that the court needed to issue an order of transportation to the CDCR if it required his physical attendance, and that, in the interim, the court should issue an order for a video call so he could appear. The notice stated Estrada was still in prison with an undetermined parole date, that he was indigent and unable to hire an attorney, and that he requested the court to provide counsel on appeal.

DISCUSSION

Estrada’s opening brief contends (1) the trial court abused its discretion by dismissing his bona fide petition without considering alternative methods for holding a hearing without him being physically present; (2) the trial court denied his right to meaningful access to the courts; (3) the court had the discretion to appoint counsel for an indigent inmate with a bona fide claim; and (4) his state and federal rights were violated by dismissal of the proceeding, which constituted a miscarriage of justice.

Generally, appellate courts review a trial court’s decision to dismiss a matter for abuse of discretion. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) California has a “strong public policy in favor of deciding cases on the merits when possible .…” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1365.) There is, however, a “countervailing policy, evidenced by the dismissal statutes, of expediting the administration of justice .…” (Link, at p. 1321.) “[T]he policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence .…” (Code Civ. Proc., § 583.130.) Nevertheless, a trial court has “broad discretion” in deciding how to balance these policy goals on the facts before it. (Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1012–1013.) An abuse of discretion has occurred “when the trial court’s ruling is arbitrary, capricious, exceeds the bounds of reason or prevents a fair hearing from being held.” (Link, at p. 1321.)

In this case, Estrada has established that he has been in the custody of the CDCR since 1994. Our independent check of the CDCR’s inmate locator confirms that Jaime Estrada, CDCR number J25281, is currently being held at the Kern Valley State Prison. Estrada has designated a post office box for that facility as his mailing address in this appeal and in case No. F083278. Therefore, we conclude Estrada has established his incarceration, which is good cause for failing to attend the case management conference in December 2020 and the hearing on the order to show cause in January 2021.

In Wantuch v. Davis (1995) 32 Cal.App.4th 786, Albert Wantuch, an indigent inmate, “failed to appear at a status conference of which he had notice. As a result of his nonappearance, the trial court ordered a further status conference and a hearing on an order to show cause for failure to prosecute. Wantuch informed the trial court he was serving a lengthy state prison sentence and requested appointment of counsel or transfer to court. Wantuch did not appear at the further status conference and hearing on the order to show cause. The trial court struck Wantuch’s pleadings [in his legal malpractice action] and entered judgment against him.” (Id. at p. 794.) The appellate court concluded Wantuch’s nonappearance was not willful, but was the result of his imprisonment. (Id. at p. 795.) As a result, the appellate court concluded the trial court had abused its discretion by imposing terminating sanctions solely because Wantuch failed to appear at the status conference. (Ibid.) To remedy the abuse of discretion, the appellate court concluded the “matter must be returned to the trial court for further proceedings consistent with Wantuch’s right of access to the civil courts.” (Ibid.)

Here, we conclude that Estrada has a bona fide interest in access to the family law court to obtain the dissolution of his marriage and further conclude that the dismissal of his case frustrated his pursuit of that interest and resulted in a miscarriage of justice. (See Crane v. Dolihite (2021) 70 Cal.App.5th 772, 787–788 [test for whether a denial of access to the court occurred when inmate’s personal injury civil action was dismissed].) Consequently, we conclude Wantuch is controlling authority and the trial court abused its discretion by dismissing the marriage dissolution proceeding because Estrada, an indigent prisoner, failed to appear at the case management conference and subsequent hearing on the order to show cause. As in Wantuch, the matter must be remanded to the trial court for further proceedings consistent with Estrada’s right to access to the civil courts.[3]

Because Estrada has prevailed in this appeal, his request for appointment of counsel on appeal is denied.

DISPOSITION

The order dismissing this proceeding is reversed and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion. Respondent had not appeared in this court or the trial court and, therefore, no costs on appeal are awarded to Estrada. (Cal. Rules of Court, rule 8.278(a)(5).)

* Before Detjen, Acting P. J., Franson, J. and Meehan, J.

[1] Stanislaus County Superior Court Local Rule 7 applies to family law proceedings. Local Rule 7.24.D states: “Declaration for Default or Uncontested Dissolution/Legal Separation: After the default has been entered and the declaration regarding service of the preliminary declaration of disclosures has been filed, the petitioner must file a completed Declaration for Default or Uncontested Dissolution/Legal Separation (Form FL-170). This Declaration must address all issues in the Petition and may not request any orders in the judgment beyond the relief requested in the petition. A Supplemental Declaration (Local Form FL-019) or Pre-Hearing Statement (Local Form FL-002) can be used for issues not covered within the contents of the Judicial Council Form FL-170.”

Local Rule 7.03.G states: “Default judgment: When default is entered, the party who requested the entry of default must submit a default judgment against the defaulting party within 60 days after entry of default, unless the Court has granted an extension of time. Failure to diligently obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment may result in an Order to Show Cause being issued as to why sanctions shall not be imposed.”

[2] When a respondent has not filed a response, the order form asks, “has default been entered?” The trial court’s order did not answer this question.

[3] We note that an inmate’s right of access has been addressed recently by the Fifth District in Crane v. Dolihite, supra, 70 Cal.App.5th at pages 783 through 784, and Smith v. Ogbuehi (2019) 38 Cal.App.5th 453 at pages 465 through 468. We also note the Fifth District recently addressed the trial court’s responsibilities in communicating with self‑represented litigants such as Estrada. (Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 809–810.)