Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, William M. Monroe, Judge, Super. Ct. No. 04CC04411.
Anthony Aulisio, Jr., in pro. per., for Plaintiff and Appellant.
Herbert N. Niermann for Defendant and Respondent.
OPINION
O'LEARY, J.
The trial court dismissed without prejudice Anthony Aulisio, Jr.’s, breach of contract action filed against Sidney Serafini. Aulisio alleges the court abused its discretion because (1) he did not receive notice the court was considering dismissal, and (2) he had good cause to delay prosecution because he was waiting for the bankruptcy court to consider the same issue. We find both contentions lack merit and affirm the judgment of dismissal.
Facts
On April 1, 2004, Aulisio filed a lawsuit against Serafini. The exact nature of the dispute is unknown because the complaint was not included in the appellate record. Aulisio waited three months before serving the complaint on July 29. Serafini timely answered. He claims the defense of his bankruptcy discharge was raised, but this assertion cannot be confirmed because the answer was also not included in the appellate record. The trial was scheduled for March 14, 2005.
Aulisio maintains he filed a trial brief on the day of trial, explaining Serafini failed to name him as a debtor in Serafini’s bankruptcy proceedings. In his opening brief, Aulisio claims he advised the trial court the matter should be stayed because he had moved to reopen the bankruptcy. The clerk’s transcript contains a “register of actions report,” which shows a trial brief was filed, but once again the document was not included in our record. The court’s March 14 minute order simply noted Aulisio made a “motion []to continue due to a pending bankruptcy.”
The court continued the trial to April 25, 2005, and then again to June 6 “in order for the hearing regarding dischargebility to be [heard] in [f]ederal [c]ourt on 5/18/05.” The June 6 minute order stated trial was taken off calendar because “[c]ounsel informs court that bankruptcy has not been concluded.” The court set the case for a bankruptcy review and order to show cause (OSC), regarding a dismissal hearing (for failure to prosecute), for September 20, 2005.
The matter was continued several more times (September 20 to November 9, February 8, April 11, June 5, and then to July 11, 2006). At the July hearing, Aulisio’s attorney was substituted out and Aulisio proceeded in propria persona. The minute order reflected Serafini made an oral motion to dismiss the case, which the court considered, but denied. However, it granted Serafini’s request to prepare a written motion for dismissal and set an August 15 hearing date. The hearing was twice continued during the month of August, and finally taken off calendar in September 2006. Next, the court set a case management conference for November 1, 2006. On that day, the court ordered the conference off calendar and set an OSC regarding dismissal for lack of prosecution to be heard on November 15. There were no appearances at this hearing, and the court clerk was ordered to give notice of the next scheduled hearing.
The minute order and reporter’s transcript relating to the November 15 hearing show the court instructed counsel to find out the date of the next bankruptcy hearing. The reporter’s transcript reflects the parties knew the bankruptcy court had scheduled a status conference for early December, but they were not sure of the exact date. The court indicated it would continue the hearing to the day after the bankruptcy review and asked the parties to step out into the hallway to confirm the date and inform the court clerk. The minute order stated, “The [c]ourt having not heard any response from counsel hereby continued” the OSC regarding dismissal for lack of prosecution to December 14, 2006, and ordered the court clerk to give notice.
On December 14 the court asked Aulisio what was happening with his efforts in the bankruptcy court. Aulisio stated the matter had been ordered to mediation, depositions were scheduled for December 20, and the next status conference was scheduled for April 7, 2007. Serafini’s counsel argued “the problem here is that I think . . . Aulisio is litigating this case by proxy.” He explained the superior court trial scheduled for March 2005 was continued based on Aulisio’s representation he was going to reopen Serafini’s bankruptcy case. Serafini asserted Aulisio had not been actively pursuing his claim in federal court because he waited until May 2005 to reopen the case, and then did not file his bankruptcy complaint until April 2006. Serafini alleged the state and federal complaints were identical and urged the court to dismiss the action without prejudice so it could be refiled depending on what happened in the bankruptcy court. Serafini argued the automatic stay was dissolved when he received a discharge of his debts and that discharge had not yet been revoked.
The court ordered the case dismissed without prejudice. Aulisio asked the court to clarify if the dismissal was based on Serafini’s prior motions to dismiss or based on what was argued at the hearing. The court replied his ruling was “based on the representations made by [Serafini’s counsel] right now.” The minute order generated after this hearing stated the notice of the OSC regarding dismissal was mailed to counsel on November 1, 2006, and “the [c]ourt now orders all named and DOE defendants not served . . . dismissed.” It had been two years and eight months since the complaint was first filed.
Discussion
“At the outset, we acknowledge the general rule that an appellant appearing in propria persona is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. [Citations.]” (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal.App.3d 941, 944.) Aulisio has submitted briefing and a record lacking in several significant respects. It contains a brief summary of the factual procedural history, but without adequate references to the record, and sometimes discusses documents not included in the appellate record. (See California Rules of Court, rules 8.120 [contents of clerk’s transcript] and 8.204(a)(1)(C) [contents of briefs].) As will be discussed below, Aulisio has also raised some arguments without providing argument or citations to relevant authorities and references to the record. We appreciate the difficulties in propria persona litigants face, but Aulisio’s status does not excuse his noncompliance with the rules. (Ibid.)
Aulisio argues he was denied due process because Serafini made a “‘speaking motion’” to dismiss on December 14 without providing Aulisio with the appropriate notice or an opportunity to respond. Aulisio claims he believed the December 14 hearing was simply going to be a review hearing. He maintains this amounted to a due process violation because he was precluded from providing any meaningful opposition or facts for the court to consider.
The record does not support Aulisio’s claim Serafini made a “‘speaking motion,’” a term once used when a party makes an oral motion for summary judgment. However, “so-called ‘speaking motions,’ have been superseded by the procedures governing motions for summary judgment contained in Code of Civil Procedure section 437c. [Citation.] A speaking motion to dismiss is treated as a motion for summary judgment in order to preserve the safeguards provided by [Code of Civil Procedure section] 437c.” (McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 793.) Serafini has never sought summary judgment in this case. In July 2006, he orally requested dismissal of the case for lack of prosecution, but it was denied. And after reading the reporter’s transcript, we conclude Serafini did not make a “speaking” summary judgment motion at the December 14 hearing, he merely presented an argument in response to the court’s scheduled OSC regarding dismissal.
We also found nothing in the record to support Aulisio’s claim he reasonably believed the December 14th hearing was for a status conference. Thankfully, Serafini augmented the record with copies of all the court’s minute orders which Aulisio had failed to designate in the clerk’s transcript. The November 1 minute order clearly stated the court scheduled an OSC regarding dismissal due to lack of prosecution for November 15. Aulisio apparently received the clerk’s notice of this hearing because he made an appearance and argued against dismissal. Both the reporter’s transcript and the corresponding minute order reflected that the court decided on November 15 to continue the OSC regarding dismissal. The November 15 minute order made no mention of a status conference being scheduled for the continued hearing date, December 14. And finally, at the December 14 hearing, Aulisio did not express any confusion about the purpose of the hearing, or seek a continuance to better prepare for the OSC.
Aulisio also claims he received inadequate notice of the hearing. Citing the summary judgment statute, Code of Civil Procedure section 437c, Aulisio asserts he was entitled to a minimum of 28 days notice. He is wrong. At the time, former California Rules of Court, rule 372 governed dismissal motions and provided: “If the court intends to dismiss an action on its own motion, the clerk must set a hearing on the dismissal and mail notice to the parties at least 20 days before the hearing date.” (On January 1, 2007, Cal. Rules of Court, rule 372 was amended and renumbered as rule 3.1340, providing still for 20 days notice.)
The record shows the court gave notice on November 1 for a hearing on its motion to dismiss scheduled for November 15, which obviously does not satisfy the 20-day requirement. However, a party who appears at the hearing on a motion and contests the motion on the merits without objecting to a defect or irregularity in the notice of motion ordinarily is deemed to waive the defect or irregularity, including the failure to serve a notice of motion within the prescribed number of days before the hearing. (See Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) Aulisio appeared and argued against dismissal at the November 15 hearing, and at the subsequent December 15 hearing, and never objected to the inadequate notice. He cannot be heard to complain now about inadequate notice.
Finally, Aulisio argues the court abused its discretion in dismissing the lawsuit because there was evidence he was diligently prosecuting his claims. He asserts, “Even though Aulisio is not an attorney, any reasonable attorney in [his] position would defer prosecution of this action until [the issue of whether the debt was discharged had] been decided by the bankruptcy court, rather than ‘throw caution to the winds’ and proceed in the face of penalties in the bankruptcy action should he be wrong. Aulisio at all times offered to the court this excuse, which is a legally sufficient excuse for his delay. [Serafini] offered no evidence of prejudice.”
Aulisio’s supporting authority for the above contention is Yao v. Anaheim Eye Medical Group, Inc. (1992) 10 Cal.App.4th 1024, and Putnam v. Clague (1992) 3 Cal.App.4th 542. He claims those cases held an order of dismissal must be reversed if the plaintiff has presented any reasonable and credible reason for delay and if there is not evidence the defendant was prejudiced by the delay. We conclude this argument exceeds the holdings of both Yao and Putnam. Moreover, those two cases have generated a substantial debate from other appellate courts, which Aulisio has completely ignored. Some courts have disapproved of Yao and Putnam as articulating an unnecessary test to be used by trial courts exercising their discretion to dismiss. (See Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 94-96.)
In any event, even if the test used in Yao and Putnam is accepted for the sake of argument, there is nothing in those opinions that compels reversal of the dismissal order. Neither case held a plaintiff can allow two identical claims to languish in both superior court and bankruptcy court. Aulisio presented no evidence he has actively pursued his claim in either forum. Our record shows he has only sought repeated continuances of his own superior court case. Neither on appeal, nor below, did Aulisio argue he was making every effort to hasten the resolution of his bankruptcy complaint.
It is well settled, “A plaintiff has a duty to exercise diligence at every stage of the proceeding to expedite his case to a final determination.” (King v. State of California (1970) 11 Cal.App.3d 307, 310.) This case was approaching the three year mark with virtually no forward movement. “As the time passes from two years nearer and nearer to five, the showing required to justify a failure to bring a case to trial grows greater and greater.” (Membrila v. Vonett Sales Co. (1967) 250 Cal.App.2d 299, 300.)
Furthermore, Aulisio presented no authority or reasoned argument as to why reopening a bankruptcy case would be a reasonable or credible basis to delay prosecution of his civil action. We find very telling that civil claims are not automatically stayed when a bankruptcy is reopened. Only the filing of a bankruptcy petition creates an automatic stay of all court proceedings to “promote the effective rehabilitation of the bankrupt debtor and the equitable distribution of his assets among his creditors.” (Allison v. C. I. R. (1991) 97 T.C. 544, 545 (Allison); 11 U.S.C. § 362(a)(1) & (6).) The stay is not permanent and expires on the date the debtor is granted or denied a discharge, the case is dismissed, or the case is closed. (11 U.S.C. § 362(c)(2).) The reopening of a bankruptcy case does not automatically revive the automatic stay. (See Allison, supra, 97 T.C. at p. 548.)
For all the reasons discussed above, we conclude Aulisio did not meet his burden of proof. “When reviewing a discretionary dismissal . . . an appellate court must presume that the decision of the trial court is correct.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) A plaintiff must demonstrate on appeal that the trial court decision was a clear abuse of discretion: “[A]n appellate court in passing upon a discretionary dismissal motion must recognize that even if it disagrees with the trial court’s exercise of discretion, if there was no abuse of discretion, the dismissal order must be upheld.” (Ladd v. Dart Equipment Corp. (1991) 230 Cal.App.3d 1088, 1100.) It cannot be said the court’s decision to dismiss the case without prejudice after over two and one-half years of inactivity was an abuse of discretion.
Disposition
The judgment is affirmed. Appellant’s request for judicial notice of bankruptcy filings and orders is granted. (Evid. Code, § 452.) Respondent shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.