Briones v. Stillwell Hotel

Filed 7/23/07 Briones v. Stillwell Hotel CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Reversed and remanded.

Law Offices of Robert J. Vars, Robert J. Vars and Irina P. Lemberg, for Plaintiff and Appellant.

Robert A. Rogers for Defendant and Respondent.

Appellant Frank Briones challenges an order dismissing his action against respondent Hotel Stillwell, and the denial of his motion under Code of Civil Procedure section 473^[1] for relief from that order. We reverse the dismissal order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 7, 2005, Briones filed a complaint asserting a single claim of negligence against respondent. The complaint alleged that respondent failed to prevent an assault on Briones while he was respondents invited guest, and sought $275,000 in damages. Respondent answered the complaint on March 10, 2005. At the case management hearing on May 2, 2005, the trial court set the final status conference for March 10, 2006, and the trial for March 14, 2006.

On January 5, 2006, Briones filed a motion for an order compelling respondent to respond to interrogatories and for an award of sanctions. In support of the motion, Brioness counsel, Irina P. Lemberg, submitted a declaration and documentation indicating that respondent had failed to answer form interrogatories she had propounded in August 2005. Lemberg, who was unable to attend the hearing, arranged for another attorney to represent Briones. The trial court granted the motion and directed respondent to pay $1,240 in sanctions.

When no one appeared for either party at the final status conference on March 10, 2006, the trial court ordered Lemberg to show cause why Brioness action should not be dismissed for [Brioness] failure to prosecute and failure to appear at the final status conference.^[2] (Capitals deleted.) The trial court set a hearing on the matter for March 14, 2006, the previously set trial date. Lemberg received the mailed notice on March 13, and made a telephonic appearance at the hearing because she had another hearing scheduled at the same time. She stated she had miscalendared the dates for the final status conference and the trial after the case management hearing, and did not discover her error until she received the notice of the order to show cause the day before. Lemberg requested a continuance, explaining that she had received no discovery from respondent, despite the order to compel. The trial court responded that Lemberg had not submitted a written motion for a continuance. Following the hearing, it dismissed Brioness action by a minute order, stating: [The c]ourt finds that there is no good cause for plaintiffs failure to appear at the Final Status Conference . . . , and for plaintiffs failure to proceed to trial on this date to prosecute the action.

On March 22, 2006, Briones filed a motion to set aside the dismissal under section 473. In support of the motion, Briones submitted a declaration from Lemberg, who stated that had she not miscalendared the final status conference and trial, she would have sought a continuance of the trial at or before the final status conference due to respondents failure to participate in discovery. Respondent filed no opposition to the motion, and no one appeared on its behalf at the hearing on the motion. Following the hearing, the trial court denied the motion, reasoning that Briones had not established a basis for relief under section 473. This appeal followed.

DISCUSSION

The dispositive issue before us is whether the trial court properly dismissed Brioness action due to his failure to appear at the final status conference and on the date set for trial.^[3] As we explain below, the trial court erred. Neither ground cited in the minute order dismissing Brioness action supports the ruling.

We begin with Briones and attorney Lembergs failure to appear at the final status conference. Although the minute order does not recite the authority for the dismissal, rule 7.13 of the Local Rules of the Los Angeles County Superior Court (Local Rules) permits the trial court to impose sanctions for violations of the local rules intended to implement the Trial Court Delay Reduction Act (Gov. Code,  68600 et seq.) (Delay Reduction Act). These rules, which comprise Chapter 7 of the Local Rules, govern the setting of the trial date and final status conference in the case management order (Local Rules, rules 7.9(g), 7.9(h)). Rule 7.13 permits the trial court to impose sanctions upon a party or the partys counsel for noncompliance with the rules in question.^[4]

As the court explained in Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1060-1061 (Tliche), the statutory scheme governing rule 7.13 of the Local Rules imposes significant constraints on its scope. The Legislature enacted Code of Civil Procedure sections 575.1 and 575.2, together with Government Code section 68608, subdivision (b), to empower courts to adopt local rules that implement the Delay Reduction Act. Section 575.2, which allows local rules to prescribe sanctions, nonetheless places an important limitation . . . upon a judges exercise of this power. (Tliche, supra, 66 Cal.App.4th at p. 1061.) Subdivision (b) of Code of Civil Procedure section 575.2 provides: It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the partys cause of action or defense thereto.

This provision limits the trial courts authority to dismiss a partys action due to conduct by the partys counsel that violates local rules intended to implement the Delay Reduction Act. In Tliche, the plaintiffs attorney failed to achieve service of process upon the defendants within the time limits set under the rule 7.7 of the Local Rules. (Tliche, supra, 66 Cal.App.4th at pp. 1056-1057.) The trial court dismissed the action pursuant to rule 7.13 for noncompliance with the Local Rules, and subsequently denied relief under section 473. (Id. at pp. 1055-1058.)

Following a careful discussion of the governing statutes, including section 575.1, subdivision (b), the court in Tliche determined that there are at least two limitations or restrictions on the trial courts power to dismiss an action for noncompliance with local rules: (1) dismissal is inappropriate if the noncompliance was the responsibility of counsel alone, rather than the party [citations]; and (2) dismissal is appropriate only if less severe sanctions would be ineffective. (Tliche, supra, 66 Cal.App.4th at pp. 1061-1062.)  Because there was no evidence in Tliche that the plaintiff himself had prevented timely service or otherwise engaged in misconduct, the court reversed the order of dismissal as premature and unauthorized, reasoning that the trial court had failed to apply statutorily mandated principles. (Id. at p. 1062; see also Dockery v. Hyatt (1985) 169 Cal.App.3d 830, 832-834 [trial court improperly dismissed plaintiffs action on the basis of his counsels failure to appear at a trial setting conference].)

In view of Tliche, the failure of Brioness counsel to appear at the final status conference is not a proper basis for the dismissal order. Neither Briones nor Lemberg engaged in any misconduct prior to the final status conference. Lemberg accepted full responsibility for the calendaring mistake that led to her nonappearance at the final status conference, and nothing before us suggests Briones was implicated in this error. Furthermore, there is no evidence Lembergs mistake prejudiced respondent, which had failed to cooperate in discovery, did not appear at the final status conference, and gave no indication of being ready for trial.

Nor is the dismissal order properly supported by (1) Brioness own failure to appear for trial on March 14, 2006, or (2) Lembergs acknowledgement that she was unprepared for trial. Regarding item (1), subdivision (b)(3) of section 581 provides that an action may be dismissed [b]y the court, without prejudice, when no party appears for trial following 30 days notice of time and place of trial. However, this provision is inapplicable when, as here, the partys counsel appears on the date of trial. In Cohenv. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, the trial court dismissed a plaintiffs action because he was not physically present when his case was called for trial, although his attorney and the opposing parties were present. (See id. at pp. 1695‑1697.) The court in Cohen reversed, holding that for the purposes of section 581, subdivision (b)(5), which permits the trial court to dismiss an action when either party fails to appear [at] the trial and the other party appears and asks for dismissal, a party appears through his or her attorney, regardless of whether the party is physically present in the courtroom. (See id. at pp. 1699‑1700.) Here, Lemberg made a telephonic appearance before the trial court on the date set for trial, and thus dismissal was improper under subdivision (b)(3) of section 581.

Regarding item (2), we discern no ground for affirming the dismissal on the basis of Lembergs inability to proceed to trial. For the reasons indicated above, dismissal would be improper under rule 7.13 of the Local Rules. Because the complaint had been served within three years after the complaint was filed and the March 14, 2006 hearing occurred within five years after this date, dismissal would be improper under sections 583.250 and 583.360. Although the trial court may dismiss an action for delay on various other grounds (see Code Civ. Proc.,  583.150, 583.410, 583.420), dismissal for failure to prosecute the action is generally improper less than two years after the commencement of the action, and due process requires the trial court to provide adequate notice that it intends to dismiss. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915-916; Cohenv. Hughes Markets, Inc., supra, 36 Cal.App.4th at pp. 1698-1699; Cal. Rules of Court, rule 3.1340(b) [requiring trial court to give 20 days notice of its intention to dismiss under sections 583.410 through 583.430 for lack of prosecution].) Here, the sole factual basis for dismissing the action for failure to prosecute identified in the notice of the order to show cause was Lembergs nonappearance at the final status conference; the trial court did not indicate it might dismiss on other grounds until the hearing on the order to show cause. This was inadequate notice. (See Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768-769 [trial court denies plaintiff due process by dismissing his action without prior notice after ruling that plaintiffs attorney failed to sign amended complaint].) In sum, the trial court erred in dismissing Brioness action.^[5]

DISPOSITION

The order dismissing Brioness action is reversed, and the matter is remanded to the trial court with directions to vacate the dismissal order. Brioness trial counsel is to bear the costs of appeal.^[6]

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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^[1] All subsequent statutory citations are to the Code of Civil Procedure, unless otherwise indicated.

^[2] This notice is not contained in the record, as designated by Briones. We have obtained a copy of the notice, and hereby order that it be incorporated into the record. (Cal. Rules of Court, rule 8.155(a)(1)(A).)

^[3] We requested supplement briefing from the parties on this issue after they submitted their original briefs, which addressed whether the trial court properly denied relief to Briones under the mandatory provisions of section 473.

^[4] Rule 7.13 states: The court may impose appropriate sanctions for the failure or refusal (1) to comply with the Rules, (2) to comply with any order made hereunder or (3) to meet the time standards and/or deadlines established herein. Counsel are directed to Code of Civil Procedure sections 128, 128.7, 177.5, 575.2, 583.150, 583.430, 2016 through 2036, Government Code section 68609(d), and Rule 227 of the California Rules of Court. Such sanctions may be imposed on a party and/or, if appropriate, on counsel for such party. While the court may impose sanctions for specified conduct, the court should do so sparingly and only when clearly warranted.

^[5] In view of this conclusion, we do not address Brioness contentions regarding the denial of relief from the dismissal order under section 473.

^[6] Although Briones is the prevailing party, respondent did not seek the dismissal of the action, which the trial court ordered sua sponte on the basis of the conduct of Brioness trial counsel. Under these circumstances, it is appropriate for Brioness trial counsel to bear the costs of appeal. (Cal. Rules of Court, rule 8.276(a)(4); Tliche, supra, 66 Cal.App.4th at p. 1064.) Because respondent has not suffered any prejudice from the dismissal and was not obliged to make an appearance on appeal, we decline to consider sanctions against Briones or his trial counsel, as respondent has requested in its supplemental brief.