Opinion
B152751.
11-25-2003
RED ROCK RANCH, LTD., Plaintiff and Appellant, v. WILLIAM P. DRISCOLL et al., Defendants and Respondents.
Molloy and Inoue and C. Terrence Molloy for Plaintiff and Appellant. Hollins & Field, Byron S. Hollins and Howard M. Fields for Defendants and Respondents.
* * * * * *
Red Rock Ranch, Ltd. (Red Rock), a California limited partnership, appeals from a judgment of dismissal of its legal malpractice action, entered on grounds that Red Rock failed to comply with discovery orders and for lack of prosecution. Red Rock challenges both grounds for dismissal. We affirm.
This is the second appeal in this action. In December 1999, this division reversed a demurrer against Red Rock on the ground that the trial court had abused its discretion in failing to allow Red Rock an opportunity to amend the complaint and to retain counsel. We affirmed a summary judgment against Harold Spinner individually. Red Rock asserts that Spinner is its principal. Respondents are two individuals, William P. Driscoll and Nicholas W. Hornberger, and two law firms, Driscoll & Driscoll and Hornberger & Criswell.
The clerks transcript contains an order of dismissal filed June 29, 2001, a notice of entry of order of dismissal dated July 11, 2001, a notice of appeal dated August 23, 2001, and a designation of record on appeal dated September 7, 2001. The augmented reporters transcript contains transcripts of hearings held on May 8 and 10 and June 13 and 18, 2001.
The reporters transcript shows that on May 8, 2001, hearings were scheduled on four motions filed by the respondents: two motions to compel production of documents, a motion for dismissal or other sanction for violation of discovery rules, and a motion for appointment of a discovery referee. Red Rock had failed to file opposition to the latter two motions, and Spinner was not present. Counsel stipulated at the hearing that discovery would be provided by personal service on or before May 15, 2001. The discovery items to be provided included responses to six sets of form interrogatories, contention interrogatories, and requests for production. Counsel for Red Rock, Ronald Grigg, stated that he would provide Spinner with a notice of ruling and a copy of his motion to withdraw as counsel. Counsel noted that Spinner had previously failed to attend a scheduled mediation session.
With respect to the motions to dismiss and to appoint a discovery referee, the court stated, "I am going to deny the motion to dismiss at this time with the understanding that if the plaintiff again fails to comply with discovery orders, it will be viewed by this court as an invitation by the plaintiff to dismiss the action." The court continued the motion to appoint a discovery referee and noted that the motion to dismiss had "addresse[d] a history of discovery." The court stated, "I am going to deny sanctions with the understanding that is being done to attempt to encourage . . . cooperation, but it should not be viewed as the courts view that discovery has gone well in this case."
The motion papers are not included in the record on appeal.
On May 10, 2001, the trial court heard Griggs motion to be relieved as counsel of record. Spinner had filed an opposition. Spinner orally urged that Grigg had failed to provide him with any information about the present action and had failed to provide a retainer agreement. Spinner later stated that he had received a proposed retainer agreement, but had refused to sign it. The trial court stated, "I am looking at what is before me, and what is before me, if there is fault, Mr. Spinner, I think the fault is with you." It found a breakdown in the relationship between attorney and client, and granted the motion. The court directed Grigg to return Red Rocks files.
The motion papers, including the opposition, are not included in the record on appeal.
Spinner requested a 60-day stay to seek counsel. The trial court denied the request, noting that trial was set for August 7, 2001. The court stated, "[S]ince Mr. Spinner cannot represent the limited partnership, I am going to put it on for order to show cause why the case should not be dismissed for failure to prosecute. [¶] If you do not have a lawyer that will be ready to prosecute this case, the case will be dismissed." The order to show cause was set for hearing on June 18, 2001.
Defendants motion to dismiss the action for failure to comply with the courts discovery orders was scheduled to be heard on June 13, 2001. Red Rock did not appear, and opposing counsel said that he had received no communication from it. The trial court stated that it was inclined to grant the motion, but continued the matter for a hearing on the order to show cause regarding failure to prosecute.
At the hearing on June 18, 2001, there was no appearance for Red Rock. Opposing counsel stated that he had had no contact with Spinner or any counsel for Red Rock. The court stated that Spinner had filed a declaration in connection with the order to show cause which the court read and considered. Spinner had requested additional time to obtain counsel.
The motion papers, including the declaration, are not included in the record on appeal.
The trial court granted the motion to dismiss for failure to make discovery. The trial court remarked, "The problem lies with Mr. Spinner and not with his previous counsel." The court also stated that Spinner had been given "more than sufficient opportunity to obtain counsel." The court dismissed the action on both grounds. This appeal followed.
DISCUSSION
I. Standard of review
As both parties agree, we review the trial courts order dismissing the action for abuse of discretion. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244 [discovery sanction]; American Western Banker v. Price Waterhouse (1993) 12 Cal.App.4th 39, 46 (American Western) [failure to prosecute].) The burden is on appellant to show that the trial courts order exceeds the bounds of reason. (See American Western, supra, at p. 46.)
Red Rock has entirely failed to meet its burden. The appellate record contains none of the papers upon which the trial court based its decision. Red Rock failed to designate as a part of the appellate record: the motion papers for the terminating sanctions which the trial court heard in May and June 2001; the motion papers for Griggs motion to be relieved as counsel; the motion papers for the discovery motions that led to the discovery orders issued; and the discovery orders with which Red Rock failed to comply. Red Rock had the burden of providing an adequate record. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) It failed to carry its burden.
II. Discovery sanction
Red Rocks contention that since terminating sanctions should be used as a last resort, the trial court abused its discretion in issuing a terminating sanction in the present case lacks merit. Red Rock has failed to provide this court with documents chronicling discovery in the present case. We must therefore assume true the findings of the trial court that Red Rock had a history of failing to comply with discovery and that the failings were the fault of Red Rock, not of its counsel. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533.)
Red Rock urges that the failure to comply with the discovery order was inevitable because it was given only days in which to comply with the discovery orders at a time when counsel had been relieved. We note, however, that Red Rock apparently made no effort to comply with the discovery orders or to obtain counsel up until the dismissal. Moreover, the courts ruling was based not only upon Red Rocks failure to meet the May 15, 2001 deadline, but also upon the cases discovery history. We find no abuse of discretion.
III. Failure to prosecute
Red Rock contends the trial court abused its discretion in dismissing its action for failure to prosecute, urging that the trial court failed to correctly weigh the factors for and against dismissal, and that the court failed to comply with statutory standards. We disagree. As noted above, Red Rock has failed to provide an adequate record to allow this court to evaluate its substantial evidence argument: that dismissal was inappropriate where counsel failed to keep Red Rock informed about the progress of the action and to turn over case files, and where Red Rock had no assets with which to retain new counsel.
Red Rocks position that the dismissal was improper under section 583.420 of the Code of Civil Procedure also lacks merit. Section 583.420 of the Code of Civil Procedure provides in relevant part: "(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred: [¶] . . . [¶] (2) The action is not brought to trial within the following times: [¶] (A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B). [¶] (B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice." Rule 372 of the California Rules of Court, adopted January 1, 1990, to "reduce unnecessary delay in the resolution of litigation and to improve the administration of justice" (Cal. Rules of Court, rule 372(b)) provides: "(a) The court on its own motion . . . may dismiss an action under [§ 583.410 et seq.] for delay in prosecution if the action has not been brought to trial . . . within two years after the action was commenced against the defendant. If the court intends to dismiss an action on its own motion, the clerk shall set a hearing on the dismissal and mail notice to all parties at least 20 days before the hearing date."
The present case was approximately 48 months old when it was dismissed. For approximately 20 months of that time, the matter was on appeal. Thus, for purposes of the dismissal statute, the case was in excess of two years old. (Code Civ. Proc., §§ 583.340, 583.420, subd. (b).) The trial court announced its order to show cause re dismissal for failure to prosecute on May 10, 2001, and set the hearing date for June 18, 2001. In the absence of an adequate record, we will presume that the clerk mailed notice to the appropriate parties at least 20 days before the hearing date. (Null v. City of Los Angeles, supra, 206 Cal.App.3d at pp. 1532-1533.)
The action was commenced on June 24, 1997. Notice of appeal was filed on July 9, 1998, and remittitur issued on February 29, 2000.
DISPOSITION
The judgment appealed from is affirmed. Appellant shall pay respondents costs of appeal.
We concur: BOREN, P.J., ASHMANN-GERST, J.