Mitchell v. Hemacare Corp
Filed 5/17/06 Mitchell v. Hemacare Corp. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CAPRICE MITCHELL, Plaintiff and Appellant, v. HEMACARE CORPORATION et al., Defendants and Respondents. | B181181 (Los Angeles County Super. Ct. No. BC301739) |
APPEAL from an order of dismissal of the Superior Court of Los Angeles County, Jan A. Pluim, Judge. Reversed.
Law Offices of Alfred O. Anyia and Alfred O. Anyia for Plaintiff and Appellant Caprice Mitchell.
Patterson, Ritner, Lockwood, Gardner & Jurich and Kevin P. Hillyer for Defendants and Respondents Hemacare Corporation, Inter Community Hospital, Citrus Valley Medical Center, Citrus Valley Health Care Partners and Citrus Valley Blood Donor Program.
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Caprice Mitchell appeals from the trial court's order dismissing her medical malpractice action for failure to prosecute. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. Prosecution of Mitchell's Medical Malpractice Action Through the Date of Trial
On September 2, 2003 Mitchell filed a complaint for negligence, lack of informed consent and related causes of action arising out of injuries she had allegedly sustained while giving blood in connection with a blood drive program at her place of employment.
The trial court issued a status conference order on July 26, 2004, setting the final status conference for November 5, 2004 and trial, estimated for five days, for November 15, 2004. The order also provided information and filing or exchange deadlines for pretrial and trial-related motions and documents.
On November 2, 2004 Mitchell served defendants with her statement of the case, exhibit list and witness list. At the final status conference counsel for defendants requested a continuance to accommodate his trial schedule and anniversary plans with his wife. The case trailed day-to-day from November 15, 2004 until the court called counsel on November 29, 2004 and instructed them to appear the next day for trial (the clerk left a message for Mitchell's counsel).[1]
2. The Court's Dismissal of Mitchell's Complaint for Failure to Prosecute
The morning of November 30, 2004 David Ivalombe appeared for Mitchell on behalf of her trial counsel, Alfred Anyia. Ivalombe, who had helped Anyia with discovery in the case, informed the court Anyia was unavailable through December 27 due to a family emergency. Ivalombe, who had received a voicemail message regarding the appearance but had not spoken directly to Anyia, did not know the nature of the emergency. The court stated it intended to begin trial at 1:30 p.m. and, if Anyia or Ivalombe was not present and ready to try the case, it would dismiss the action.
Anyia appeared at 1:30 p.m. as ordered. He told the court his wife had just been released from the hospital following surgery five days earlier related to complications with her pregnancy, she was restricted to bed rest for the balance of the pregnancy and he needed to be at home caring for her. He further explained, although he had been ready to begin trial on November 15, 2004, the date set at the final status conference, he now required a continuance due to the change in his personal circumstances and his other professional obligations (including a scheduled deposition the following day in Las Vegas, which Anyia indicated he might now have to reschedule even without the conflicting trial date). Although the court indicated its skepticism about the basis for Anyia's request to continue the trial date,[2] it declined to look at documents offered by Anyia regarding his wife's condition. Instead, the court ordered Anyia to justify the requested continuance by providing a physician's declaration by 9:00 a.m. the following morning stating Anyia was required to care for his wife. Anyia responded he could not be present in court the following morning.
The court ordered the case dismissed on November 30, 2004. An order of dismissal was entered on December 8, 2004.
DISCUSSION
The trial court is authorized to dismiss an action for delay in prosecution on its own motion if the action has not been brought to trial within two years of its commencement. (Code Civ. Proc., §§ 583.410, 583.420; Cal. Rules of Court, rule 372, subd. (a).) The trial court is also authorized to sanction a party or the party's counsel, including the sanction of dismissal, for failure to comply with any of the California Rules of Court or the trial court delay-reduction rules adopted by the Los Angeles Superior Court pursuant to the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) and Code of Civil Procedure section 575.1. (Code Civ. Proc., § 575.2, subd. (a).) A case may also be dismissed if the plaintiff abandons the matter â€
