Opinion
G057004
12-10-2019
TORAN AMINI, Plaintiff and Appellant, v. CITY OF ANAHEIM et al., Defendants and Respondents.
Toran Amini, in pro. per.; Law Office of Kaveh Keshmiri and Kaveh Keshmiri for Plaintiff and Appellant. Robert Fabela, City Attorney and Jesse Jacobs, Deputy City Attorney, for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2016-00886760) OPINION Appeal from an order of the Superior Court of Orange County, Glenn R. Salter, Judge. Affirmed. Toran Amini, in pro. per.; Law Office of Kaveh Keshmiri and Kaveh Keshmiri for Plaintiff and Appellant. Robert Fabela, City Attorney and Jesse Jacobs, Deputy City Attorney, for Defendants and Respondents.
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Plaintiff and appellant Toran Amini (plaintiff) appeals from an order dismissing her complaint against defendants and respondents City of Anaheim and Emily Ladion (collectively defendants) with prejudice. The complaint was dismissed due to plaintiff's multiple failures to comply with court orders requiring her appearance in court.
In her opening brief filed in propia persona plaintiff generally does not address the substance of the order, instead making arguments about the merits of the underlying action and voicing complaints about her former attorney's representation. The reply brief, filed by counsel, argues there was insufficient evidence to show plaintiff had notice of the missed hearings, plaintiff's failure to appear was excusable, less severe sanctions were available, and equity dictates the order should be reversed.
These arguments should have been made in the opening brief. We generally do not consider arguments raised for the first time in the reply brief. (Cox v. Griffin (2019) 34 Cal.App.5th 440, 453.) If we liberally construe them, the arguments in the reply brief can be considered to be in rebuttal to those made in defendants' brief and thus, to the extent they are otherwise proper, we will address arguments in the reply brief. (See United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 158 (Malibu).)
The record reflects the court properly exercised its discretion in dismissing the action and we affirm.
DEFICIENCIES IN PLAINTIFF'S BRIEFING
There are several problems with plaintiff's briefs. First, pursuant to California Rules of Court, rule 8.204(a)(2)(C) (all further references to rules are to the California Rules of Court) an appellant must include "a summary of the significant facts limited to matters in the record." The 15-page statement of facts in the opening brief is devoted to events that preceded, postdated, and/or are extraneous to the issues before us. Plaintiff's counsel did not include a statement of facts in the reply brief or contradict any of the facts set out in the respondent's brief. We consider this an implicit acceptance of the validity of defendants' statement of facts, on which we substantially rely for our statement of facts. (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 108.)
Second, both of plaintiff's briefs fail to comply with rule 8.204(a)(1)(C), which requires a party to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." This applies to all matters referred to in any portion of the brief, not just the statement of facts. (Conservatorship of Kevin A. (2015) 240 Cal.App.4th 1241, 1253.)
In the opening brief, plaintiff cites only to the register of actions and not to any document in the clerk's transcript. In addition, the reply brief relies on facts in support of its argument but cites to the record only once, and the reference does not support the claim.
Although we could strike plaintiff's briefs based on these violations, we decline to do so. Instead we will ignore factual claims and treat as forfeited any arguments not supported by accurate citations to the record. (Villanueva v. Fidelity National Title Co. (2018) 26 Cal.App.5th 1092, 1110, fn. 8; Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169, fn. 10.)
Third, the opening brief violated rule 8.204(a)(1)(B), which requires each issue to be summarized in a separate discrete heading and supported by legal authority. On that basis also we could consider the issues forfeited. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948.)
Fourth, plaintiff did not provide a reporter's transcript. While it is not required, in its absence we cannot consider arguments about what happened at any of the hearings. "A fundamental principle of appellate law is the judgment or order of the lower court is presumed correct and the appellant must affirmatively show error by an adequate record." (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) "[I]f it is not in the record, it did not happen." (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)
The fact plaintiff filed the opening brief acting in propria persona makes no difference. A self-represented litigant is not entitled to "special treatment" (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 524) but is held to the same standards as a party represented by counsel (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543).
Finally, most of the arguments in the opening brief were confusing, rambling, irrelevant, and difficult to follow. To the extent we can understand them and they are otherwise proper, we will consider them. If plaintiff intended to make any other arguments or claims, they are forfeited for all the reasons stated above. We will primarily address the arguments made in the reply to the extent they are proper.
FACTS AND PROCEDURAL HISTORY
In November 2016 plaintiff filed a form complaint for personal injury against defendants. According to defendants' case management statement, plaintiff was in custody in the back seat of a police car being taken to jail. The police car was in an accident with a parked car.
Contrary to plaintiff's claim in the opening brief, this was not a "large civil rights case."
Plaintiff's husband, Ahmad Nonahal, was also a plaintiff and sought damages for loss of consortium. He is not a party to this appeal.
In March 2017 plaintiff's attorney, Jerry N. Gans of Gans & Rosenfield (Gans) was relieved as counsel pursuant to his unopposed motion. At a case management conference a few days later, the court set a hearing for May 23 on an order to show cause (OSC) re dismissal for failure to serve the complaint. Gans attended and was served a copy of the notice of hearing by mail. At the hearing on the OSC, at which Gans appeared but plaintiff did not, the court noted the complaint had been served. It continued the OSC re dismissal to June 27 and set a case management conference for the same day. The court ordered plaintiff to attend personally. Gans gave notice of the ruling. The notice stated in all caps and bold that plaintiff was required to attend the next hearing and her failure to do so could lead to a dismissal of the action.
At the June 27 hearing, a lawyer "specially appearing," advised the court he was reviewing the case to determine if he would substitute in. Plaintiff did not appear as she had been ordered. The court found the special appearance by a lawyer was not compliance with the order for plaintiff to personally appear. It set an OSC re sanctions for plaintiff's violation of the court's order to appear. Plaintiff was served by mail with the notice of the July 25 OSC hearing.
At the July 25 OSC hearing, plaintiff again failed to appear and the court dismissed the action without prejudice. Defendants' counsel gave notice by mail to plaintiff at three different addresses.
Almost four months later, in November 2017, plaintiff, represented by Day, Day & Brown (Brown), filed a motion to set aside the dismissal, which the court granted pursuant to Code of Civil Procedure section 473 (all further statutory references are to this code unless otherwise stated).
In September 2018 the court conducted a mandatory settlement conference (MSC). Once more plaintiff failed to appear. Brown represented to the court he had given notice of the hearing to plaintiff and told her she was required to attend. The court continued the MSC for two weeks and again set an OSC re sanctions for plaintiff's failure to appear. The court ordered plaintiff to personally appear. Notice of the hearing was served on Brown.
Shortly thereafter defendants filed three motions to compel for plaintiff's failure to appear at her deposition, failure to provide verifications to discovery responses, and failure to attend an independent medical examination (IME). Brown told defendants' attorney he had made substantial effort "to locate and speak with [plaintiff], but she did not appear to be cooperating."
Brown had his administrative assistant personally deliver a letter (First Letter) to plaintiff advising her of various obligations. Plaintiff became angry with the assistant, demanded she leave, and slammed the door on her so the assistant taped the First Letter to plaintiff's door.
At about the same time Brown sent plaintiff a letter (Second Letter) outlining his concern about her failure to communicate with him. He advised her lack of cooperation could "seriously jeopardize [her] case." The Second Letter confirmed personal delivery of the First Letter from Brown to plaintiff. The Second Letter again told plaintiff she was obligated to attend the MSC, reminding her she had been ordered to personally attend or the case might be dismissed. It also enclosed copies of the motions to compel discovery and advised she could be subject to monetary sanctions.
At the MSC and hearing on the OSC re sanctions, plaintiff again did not appear. Brown had no explanation for her absence. The court continued the hearing on the second OSC re sanctions and set a second OSC re dismissal for plaintiff's repeated failure to appear. Notice of the hearing, given by defendants' counsel, stated, in bold, that plaintiff had been ordered to personally appear and failure to do so could lead to dismissal of the action again.
Brown sent plaintiff another letter (Third Letter) reminding her she had been ordered to appear and noting her failure to do so. He also advised another hearing had been set and explained the judge's "patience [was] running thin due to your refusal to communicate with our offices and refusal to follow Court orders." The Third Letter notified plaintiff of the time and location of an IME, noting if she failed to appear defendants could file a motion to compel and seek monetary sanctions. The Third Letter expressed Brown's frustration with plaintiff's lack of communication and notified plaintiff he would file a motion to be relieved if she did not get in touch with him and appear at the MSC and second OSC, stating, "Your refusal to cooperate per the terms of our retainer agreement will in all probability cost you your case." (Bold & italics omitted.)
At the hearing on the continued OSC re sanctions and the second OSC re dismissal plaintiff again failed to appear. Brown represented to the court he had given plaintiff notice several times, in writing, in person, and by phone, that she was required to appear and the action would be dismissed if she failed to do so. The court noted the motions to compel discovery, and while not ruling on them, considered them in the context of the OSC's. The court found plaintiff had failed to appear at least six times, despite court orders, and found Brown had "made reasonable efforts" to ensure her appearance and compliance with discovery. The court dismissed the action with prejudice.
DISCUSSION
1. Court's Authority to Dismiss and Standard of Review
Courts have the inherent power to dismiss an action for repeated failures to comply with court orders. (Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 51, 53 (Osborne); see § 581, subd. (m) [grounds for dismissal set out in section not exclusive].) Courts also have statutory authority to enforce orders and control proceedings. (E.g., §§ 128, subd. (a)(4) & (5) [court's authority to "compel obedience" of its orders and control conduct of persons appearing before it]; 575.2, subd. (a) [dismissal proper if provided by local rule]; 583.150 [authority to dismiss set by local rule not limited to Code Civ. Proc.]; Gov. Code, § 68608, subd. (b) [court may dismiss action if less severe sanctions ineffective].)
We review an order of dismissal for abuse of discretion. (Osborne, supra, 247 Cal.App.4th at p. 51.) "[W]e 'view the entire record in the light most favorable to the court's ruling, and draw all reasonable inferences in support of it'" and defer to the court's determinations of credibility. (Ibid.) We also "accept the trial court's factual determinations" "if they are supported by substantial evidence." (Ibid.) 2. Abuse of Discretion
The reply brief sets out several arguments as to why the court abused its discretion in dismissing the action.
Plaintiff first argues (in the introduction) that Brown failed to adequately represent her by failing to appear at any of the hearings. No record reference is provided to support this claim. It is understandable. The record shows both Gans and Brown appeared at all of the hearings but one, which was held after Gans had been relieved and before Brown was retained.
Second, plaintiff argues, again without any record references, she was not given proper notice of the hearings as required by section 575.2, subdivision (a). She claims there is no evidence she was personally served, other than testimony of Brown. In a related argument she maintains the trial court made no findings plaintiff had actual notice of the hearings. These claims have no merit.
Plaintiff cites no authority she was required to be personally served. When she was in propria persona, defendants' counsel did serve her with notice, by mail at three different addresses, of the first dismissal of the action. Clearly plaintiff received the notice because Brown subsequently filed a successful motion to set the first dismissal aside.
In addition, Brown's testimony he gave notice to plaintiff is sufficient. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613 [testimony of single witness may suffice].) The court plainly believed Brown's testimony, citing to it several times in the order of dismissal. As set out above, we do not reweigh credibility.
In similar arguments made in an unrelated claim the reply brief asserts the evidence provided by Brown was "concocted." Plaintiff maintains there is no evidence she received any of the letters and "[f]or all she knew," the statements made by Brown were "fabricated or exaggerated." These arguments do not persuade. They lack record references and are based on pure speculation. Additionally, plaintiff's reaction to notice from Brown does not provide a valid basis for her conduct.
This is similar to the claims in the opening brief that Brown lied about communicating with plaintiff; planned, with defendants, to have the action dismissed; and "kept illegally . . . ordering sanctions" against her as part of his plan to have the case dismissed. These claims are forfeited for lack of record references as is her claim Brown lied when he said she did not appear.
In any event, Brown had no power to and did not order sanctions. The court ordered them.
Third, plaintiff contends her conduct is excusable, and the trial court failed to "assert" plaintiff's conduct was intentional as opposed to "merely negligent" because she was "ignoran[t] of the law." Here, plaintiff relies on factual excuses, including that she is "an elderly Iranian," her attorneys' alleged failure to communicate with and represent her properly, and her lack of understanding of the consequences of failing to appear.
However, not one citation to the record is provided to support these claims, as is required. It is not our responsibility to search the record for evidence supporting plaintiff's claims. (Malibu, supra, 36 Cal.App.5th at p. 156.) As noted above, these claims are forfeited for lack of record references. In addition, plaintiff failed to provide any legal authority to support the arguments, especially the assertion her conduct had to be intentional to justify dismissal. This is another ground for forfeiture of the claim.
Further, even if we considered the merits, these claims fail. The record shows plaintiff's lawyers communicated with her on several occasions and clearly explained to her the consequences of her failure to appear.
Fourth, plaintiff argues the court could have imposed a less severe sanction, suggesting a monetary sanction and setting a schedule for plaintiff to find new counsel. There are several problems with this argument.
Again plaintiff failed to provide record references or legal authority in support of the argument, warranting its forfeiture. Furthermore, even on the merits the argument does not persuade.
On appellate review, "'our task is not to supplant our own judgment for that of the trial court, but to ascertain whether the trial court abused its discretion by imposing a terminating sanction.' [Citations.] The question 'is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose.' [Citation.]" (Osborne, supra, 247 Cal.App.4th at p. 54.) Plaintiff has not shown the court abused its discretion.
Additionally, there is no evidence any lesser sanction would have solved the problem. Plaintiff disregarded all court orders that she personally appear. The court gave her multiple opportunities to comply and she failed to do so. And it was not the lack of counsel that was the problem.
Finally, plaintiff relies on general principles that dismissal "'is a drastic penalty and should be used sparingly'" (J.W. v. Watchtower Bible & Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1169) and cases should be tried on the merits. She claims she "deserves an equitable order" allowing her to have her day in court.
We do not disagree with the general principles but they do not apply here. Plaintiff has had her day in court. She was given notice many times and never once appeared. That, and nothing else, is what prevented the case going forward on the merits. Given this conduct and the prior dismissal that was set aside, there is no reason to believe she would appear if lesser sanctions were imposed and the case proceeded. Nor are there any other applicable equitable reasons to reverse. 3. Arguments in Opening Brief
In addition to those mentioned above, plaintiff made other arguments in the opening brief. She claimed Brown hid documents from her, which he returned after the case was dismissed. In addition to the lack of record references causing these arguments to be forfeited, they are irrelevant to whether the court properly dismissed the action. That is also true of the claim defendants fabricated documents.
Related to the argument in the reply brief the action should be tried on the merits, plaintiff asserted in the opening brief defendants should be prosecuted for their alleged wrongful conduct, which she characterizes as violating her civil rights as well as the civil rights of other plaintiffs in cases filed against defendants, eight of which she lists and describes in the brief. This argument fails.
It is not supported by citations to the record or legal authority, and thus is forfeited. Additionally, the other actions listed are irrelevant to the instant action and are outside the scope of this appeal.
Finally, plaintiff makes a claim about a substitution of attorney allegedly presented to her by Brown after dismissal of the action. Not only is this irrelevant to the appeal, we do not consider acts occurring after the order that is being appealed. (In re Zeth S. (2003) 31 Cal.4th 396, 407-410, 413.)
DISPOSITION
The order is affirmed. Defendants are entitled to costs on appeal.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.