Opinion
F043666.
11-25-2003
ROBERT ABRAHAM, Petitioner, v. SUPERIOR COURT, COUNTY OF STANISLAUS, Respondent; JOHN DOMPELING, Real Party In Interest.
Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Michael D. Ott and David J. Frankenberger , for Petitioner. No appearance for Respondent. Jones, Cochran, Hollenback, Nelson & Zumwalt and John J. Hollenback, for Real Party In Interest.
OPINION
THE COURT
Real party in interest, John Dompeling (RPI), suffered serious injury allegedly due to the negligence of employer Robert Abraham (petitioner). A mandatory settlement conference was scheduled for August 13, 2003.
On July 31, 2003, petitioner filed a settlement conference statement wherein he requested that Carl Bebber, the insurance adjuster for petitioners insurer Essex Insurance Company (Essex) be permitted to attend the settlement conference telephonically. The request was pursuant to Stanislaus County Superior Court local rule 3.13 which provides in pertinent part "Only on good cause prior to the time of the settlement conference may the court allow [persons in full settlement authority] to be available telephonically."
The settlement conference commenced as scheduled. When the court learned that Bebber was not personally present, the court ordered Bebber to appear in accordance with California Rules of Court, rule 222, subdivision (b) and scheduled a continued mandatory settlement conference for Monday, August 18, 2003. The court further ordered that sanctions in the amount of $5,000 be levied against petitioner and Essex if Bebber failed to appear at the continued mandatory settlement conference on August 18, 2003. Additional sanctions were also ordered in the amount of $5,000 per day for each day after August 18, 2003, that Bebber failed to appear.
The instant petition was filed on August 15, 2003. This court stayed the courts order directing sanctions and ordered RPI to file an informal response. After consideration of the response, this court issued an order to show cause.
Upon further consideration, this court has determined that the order to show cause was improvidently granted as the matter is more appropriately handled in a peremptory manner. Therefore, the order to show cause is discharged and the order is vacated.
Peremptory relief is appropriate. The trial court did not abuse its discretion in finding no good cause for the failure of petitioner, trial counsel and Bebber to appear at the mandatory settlement conference on August 13, 2003. The trial court erred, however, when it ordered sanctions imposed on petitioner and Essex if Bebber failed to appear at the continued settlement conference of August 18, 2003.
California Rules of Court, rule 227 provides that the trial court may impose sanctions on a party, a partys attorney or a witness after written notice and an opportunity to be heard, for failure to comply with the rules in Title Two, which includes California Rules of Court, rule 222, unless good cause is shown. The record does not reflect that the petitioner or Essex were provided with an opportunity to be heard before the court imposed the $5,000 per day sanctions on petitioner and Essex if Bebber continued to fail to appear. Moreover, as the insurer is neither a party, counsel, nor a witness, rule 227 does not authorize the imposition of sanctions directly on the insurer.
Petitioner is entitled to appropriate relief. (Code Civ Proc., § 1085; see Whitneys at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266.) A peremptory writ of mandate is proper and should issue. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180-181; Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697.)
Let a peremptory writ of mandate issue directing the trial court to vacate its August 13, 2003, order insofar as the order imposes sanction of $5,000 per day of petitioner and Essex. Thereafter, the trial court should set a new date for settlement conference not less than 15 days from the date of this opinion. If Bebber, or some other person with full authority to settle the case, fails to appear at the rescheduled conference, the court may order petitioner to pay sanctions only after written notice and an opportunity to be heard in accordance with rule 227.
The stay issued by this court on August 15, 2003, shall remain in effect until this opinion is final in all courts in this state, the Supreme Court grants a hearing, or the superior court complies with the directions of this opinion, whichever occurs first. Thereafter, the stay is dissolved. --------------- Notes: California Rules of Court, rule 222, subdivision (b) reads as follows: "[Persons attending] Trial counsel, parties, and persons with full authority to settle the case must personally attend the conference, unless excused by the court for good cause. If any consent to settle is required for any reason, the party with that consensual authority must be personally present at the conference."