Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Susan Bryant-Deason, Judge, No. BC361383
Victor B. Meyen for Plaintiffs and Appellants.
Robert N. Benjamin for Defendants and Respondents.
MANELLA, J.
INTRODUCTION
In an appeal from an order denying its motion to vacate the judgment of dismissal, appellant contends the court erred in dismissing her complaint with prejudice for failing to appear at the final pretrial conference. Appellant contends the statute upon which the court relied did not authorize a dismissal with prejudice in this case, and that the court abused its discretion in rejecting its claim of excusable neglect. We conclude that because the court was not authorized to dismiss appellant’s complaint, it was required to grant appellant’s motion to vacate. We thus reverse with directions to vacate the judgment of dismissal.
BACKGROUND
On November 2, 2006, appellant Brilliant Ones, Inc., filed a complaint against respondent ARC International Corporation in the Los Angeles Superior Court. Respondent thereafter filed an answer and cross-complaint, and both parties filed case management statements. A mediator was assigned, and the matter was scheduled for mediation. However, in July and August 2007, the parties’ attorneys filed motions to be relieved as counsel. Both motions were heard October 4, 2007, and both counsel were relieved at that time. On October 10, 2007, appellant’s former counsel filed a notice of the ruling.
Although appellant refers to the clerk’s transcript in its opening brief, the parties filed separate appendices, and no clerk’s transcript was prepared. Because the appendices do not include the complaint, answer or other documents necessary to an understanding of the full history of this case, we take judicial notice on our own motion of the Superior Court docket, which can be viewed at http://www.lasuperiorcourt.org/civilCaseSummary/index.asp?CaseType=Civil. With the docket, we find the record adequate for review.
Default was entered against respondent/cross-complainant shortly after the cross-complaint was filed. A motion to be relieved of default had been calendared but not yet heard, when the entire action was dismissed.
The final pretrial conference was called for hearing October 22, 2007, but appellant did not appear. On its own motion, the trial court dismissed appellant’s complaint with prejudice in a signed minute order stating that the complaint was dismissed pursuant to Code of Civil Procedure section 581, subdivision (b).
All further statutory references are to the Code of Civil Procedure.
On January 9, 2008, appellant filed a motion to correct and set aside the judgment of dismissal, pursuant to section 473. Appellant submitted the declaration of its president, Mary Tucker, in which she stated that in August 2007, she learned of her attorney’s intent to withdraw, but had been unable to find new counsel. She stated that her search for new counsel was further hampered by injuries she suffered in an automobile accident September 20, 2007, and that she telephoned the court to request a continuance, but was unable to speak to the judge. Tucker claimed that she thought the case could be dismissed for nonappearance only on the date of trial, and, unaware of the October 22 dismissal, she filed a motion to continue the trial in an attempt to avoid dismissal.
The section 473 motion was heard February 5, 2008. Each party was represented by new counsel. The trial court had no record of Tucker’s having contacted the court, and found that her alleged injuries and her claim of having telephoned the court were unbelievable. The trial court found that appellant had notice of the conference, because its counsel had sent Tucker notice of the order relieving him or her as counsel of record. Reading from the notice in its file, the court stated that Tucker’s former attorney informed her that the next court hearing would be October 22, 2007, in Department 52, and that the attorney would not be representing her. The court read the portion of counsel’s notice that stated it was appellant’s “responsibility to comply with all court rules and applicable laws; and if you fail to do so or fail to appear at the hearings, action may be taken against you and you may lose your case.”
The notice does not appear in the record on appeal, and the trial court did not indicate when it had been served on Tucker.
Finding that its order of dismissal had been authorized by section 581 and Los Angeles Superior Court Local Rule 8, the trial court held that appellant had shown no cause under section 473 to vacate the dismissal, and denied the motion. On April 3, 2008, appellant timely filed a notice of appeal from the order denying the section 473 motion.
DISCUSSION
Appellant contends the trial court abused its discretion in rejecting the reasons set forth in the declaration it submitted in an effort to show excusable neglect. Appellant also contends that section 581, the statute upon which the court relied, did not authorize a dismissal with prejudice in this case. We agree with the latter contention.
The court purported to dismiss appellant’s complaint with prejudice pursuant to section 581, subdivision (b), which permits dismissal with prejudice by the court only upon written request of the plaintiff to the clerk or oral or written request to the court at any time before the actual commencement of trial, or upon the written consent of all parties. (§ 581, subd. (b)(1) & (2).) Appellant neither requested nor consented to the dismissal. No other subdivision of section 581 authorizes a pretrial dismissal with prejudice on the court’s own motion, without a request by one or both parties. (See § 581, subds. (d)-(l).
Section 581, subdivision (d) authorizes dismissal with prejudice on the court’s own motion “upon the trial and before the final submission” if the plaintiff abandons the complaint or any cause of action. However, there are no implied abandonments; the plaintiff must voluntarily and expressly abandon its case or cause of action. (Kaufman & Broad Bldg. Co. v. City & Suburban Mortg. Co. (1970) 10 Cal.App.3d 206, 212-213.)
The trial court also cited Los Angeles Superior Court Local Rule 8 to justify the dismissal. Neither party has requested judicial notice of the local rules, and they are not before us. However, respondent claims that the relevant portion of that rule states: “The court may impose appropriate sanctions for the failure or refusal to comply with the rules, including possible dismissal. . . .” Assuming arguendo that the rule reads as respondent contends, no local rule may provide for the imposition of a penalty without prior notice to the affected party, and an opportunity for that party to be heard. (§ 575.2; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 794-795; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 502-503.) Because dismissal is a drastic sanction, “the law disfavors dismissals as a method of enforcing local rules . . . .” (Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1279.) Thus, due process demands prior notice -- such as an order to show cause why the complaint should not be dismissed -- and a meaningful opportunity to be heard. (Moyal v. Lanphear, supra, at pp. 500-501, 503.)
Further, to comport with due process, the required notice must expressly warn of the court’s intent to dismiss the action. (Reid v. Balter (1993) 14 Cal.App.4th 1186, 1193.) A pretrial conference notice stating that sanctions may be imposed, without specifying dismissal as a possible sanction, is insufficient. (Id. at pp. 1193-1194.) The attorney’s notice relied upon by the trial court did not notify appellant that its complaint could be dismissed for failure to appear at the final pretrial conference. It did not summon appellant to court to show cause why the complaint should not be dismissed. In short, the court dismissed appellant’s case without notice or an opportunity to be heard, in violation of appellant’s due process rights.
Respondent contends that a section 473 motion was not the appropriate vehicle to set aside the judgment, and that because appellant did not take an appeal from the judgment, the order denying the motion is not appealable. Respondent is mistaken. The denial of a 473 motion to vacate the judgment is appealable as an order made after judgment. (Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137; § 904.1, subd. (a).)
Respondent also contends that because no appeal was taken from the judgment, this court is limited to reviewing the denial of the motion for abuse of discretion. Because the court had no power to dismiss appellant’s case without proper notice and an opportunity to be heard, it had no discretion to deny the motion. The court was required to vacate the judgment pursuant to appellant’s section 473 motion, regardless of appellant’s showing. (See Reid v. Balter, supra, 14 Cal.App.4th at p. 1194.)
DISPOSITION
The order denying appellant’s section 473 motion is reversed. The matter is remanded to the trial court with directions to vacate the judgment of dismissal and reinstate appellant’s complaint. Appellant shall have costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.