Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC084579, Jacqueline A. Connor, Judge.
Arnold & Porter, Ronald C. Redcay, Charles C. Cavanagh, James Finsten for Plaintiff and Appellant.
Robie & Matthai, James R. Robie, Steven S. Fleischman for Defendant and Respondent.
BOREN, P.J.
The trial court dismissed a lawsuit for delay in prosecution. (Code Civ. Proc., § 583.410.) This occurred 13 months after the complaint was filed. The dismissal was not authorized: the court may not use the discretionary dismissal statutes to terminate an action pending less than two years. (§ 583.420, subd. (a).)
All further statutory references in this opinion are to the Code of Civil Procedure, unless otherwise indicated.
FACTS
Appellant Anton Boktor, acting in propria persona, filed a complaint on November 14, 2005, against respondent Janice Altemus. The case was immediately calendared for an initial status conference and an order to show cause (OSC) hearing regarding proof of service. Boktor did not appear at the initial hearing on February 22, 2006, and the court issued an OSC regarding sanctions for failure to prosecute and failure to appear.
Boktor filed a purported proof of service showing that copies of the summons and complaint were left at the door of respondent’s home when no one was there. On March 23, 2006, the court continued the matter so that Boktor could show proof of proper service. On April 18, 2006, Boktor represented to the court that he was “[one] hundred percent” sure service was properly effected by mail. The court’s minutes state that “service has been completed, no response filed and he will proceed by way of default judgment.” The court issued a new OSC regarding the default judgment.
In June 2006, the court noted that the “default documents filed on June 16, 2006 are inadequate for entry of default and default judgment.” On August 10, 2006, counsel specially appeared on behalf of Boktor and represented that he would be substituting in “immediately” as counsel of record. The court continued the matter. No substitution of attorney was ever filed.
At a hearing on October 11, 2006, the court stated that the “Request for default judgment is still incomplete. [¶] Plaintiff is Ordered to Show Cause why this matter should not be dismissed for failure to proceed with default judgment . . . .” On October 31, 2006, at yet another OSC hearing, the court found that the “corrected default documents have not [been] re-submitted to the court.”
Finally, at a December 7, 2006, hearing on the OSC regarding dismissal of the action for failure to proceed with a default judgment, the court found that new documents submitted by Boktor in November “are still inadequate for entry of judgment. [¶] On the Court’s own motion the Court orders the case dismissed without prejudice as to the entire action pursuant to 583.410(a) of the Code of Civil Procedure[].” The court denied Boktor’s motion for reconsideration.
DISCUSSION
Appeal is from the trial court’s signed order of dismissal. The dismissal constitutes an appealable judgment. (§ 581d; Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 345, fn. 3.) A dismissal for delay in prosecution is reviewed under an abuse of discretion standard. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698.) State policy favors trial on the merits, not dismissal for delay in prosecution. (§ 583.130.)
The trial court dismissed Boktor’s case pursuant to section 583.410, which states that a “court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” Section 583.410 is limited by the statute that follows it, which prohibits dismissals during the first two years that an action is pending. (§ 583.420, subd. (a)(2)(B).) See also Cal. Rules of Court, former rule 372: “The court on its own motion or on motion of the defendant may dismiss an action under article 4 (§ 583.410 et seq.) . . . of the Code of Civil Procedure for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant. . . .”)
The statutes have been interpreted to mean that the courts lack authority under sections 583.410 and 583.420 to dismiss an action pending for less than two years, based on a delay in prosecution, and that dismissals before the two-year mark are an abuse of discretion. (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 98; Hawks v. Hawks (2006) 141 Cal.App.4th 1435, 1436-1437; Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1698; Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1430-1431.) Boktor’s action was pending for less than two years at the time it was dismissed. In fact, it was pending for only a little more than one year. As a result, the court lacked authority to dismiss Boktor’s case pursuant to section 583.410.
Respondent argues that the court had inherent power to dismiss Boktor’s case. She cites section 583.150: “This chapter does not limit or affect the authority of a court to dismiss an action . . . under inherent authority of the court.” She also cites the Trial Court Delay Reduction Act: “Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes of this article.” (Gov. Code, § 68608.)
With respect to section 583.150, the “[i]nherent authority of the court may not be exercised contrary to statute . . . .” (Cal. Law Revision Com. com., 16 West’s Ann. Code Civ. Proc. (2008 supp.) foll. § 583.150, p. 114.) An “inherent authority” dismissal in this case would contradict a specific statute, section 583.420. Moreover, there is no evidence that the trial court ever considered “less severe sanctions” as required by Government Code section 68608. For example, the court did not impose any monetary penalties before dismissing Boktor’s case. (See Garcia v. McCutchen (1997) 16 Cal.4th 469, 480-481 [listing lesser sanctions than dismissal].) Because the trial court never cited Government Code section 68608 as the basis for its ruling, we cannot presume--after the fact--that the court exercised discretion under that statute or any other statute or court rule. (Bergin v. Portman (1983) 141 Cal.App.3d 23, 27-28.) The trial court relied exclusively upon section 583.410 when it dismissed Boktor’s case. (See Hawks v. Hawks, supra, 141 Cal.App.4th at p. 1437 [where trial court dismissed an action “solely pursuant to section 583.410” the appellate court did not consider whether the trial court exercised any inherent power to dismiss].)
Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, does not assist respondent. There, the court issued an OSC re dismissal citing various sections of the Code of Civil Procedure, local court rules, and Government Code section 68608. (Tliche, at p. 1057.) Although the cited authorities could have permitted a dismissal, there was “no evidence of prior sanctions” being imposed or evidence that the plaintiff was personally responsible for any delays; as a result, the dismissal “was premature and unauthorized.” (Id. at p. 1062.) In the case at bench, the court did not rely on anything other than section 583.410 before dismissing; moreover, as in Tliche, there is no evidence of prior sanctions being imposed, rendering the dismissal premature and unauthorized. The court abused its discretion by dismissing for delay in prosecution pursuant to section 583.410, when Boktor’s case was pending for only 13 months.
DISPOSITION
The judgment is reversed. Respondent to bear all costs on appeal..
We concur: ASHMANN-GERST, J., CHAVEZ, J.