Opinion
A168240
06-20-2024
FRANCISCO CARRASCAL, Plaintiff and Appellant, v. AVI-BEN ABRAHAM, JR., Defendant and Respondent.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 17CIV02950)
BROWN, P. J.
Francisco Carrascal appeals from the trial court's order dismissing his case under Code of Civil Procedure section 583.310 for failure to bring it to trial within five years. Carrascal contends the trial court was biased and made factual errors about his litigation of the case against Avi-Ben Abraham, Jr. The record does not support Carrascal's arguments, so we will affirm.
Undesignated statutory citations are to the Code of Civil Procedure.
The clerk's transcript Carrascal has provided contains only a case summary reflecting the various filings in the case and copies of the filings from March to August 2023. Our recitation of the background of this case until March 2023 is therefore based solely on the case summary, which does not contain the text of any filings or orders.
Carrascal and two co-plaintiffs filed their original complaint against Abraham on July 3, 2017, and the operative complaint in October 2019.[ In January 2020, the trial court sustained Abraham's demurrer without leave to amend as to one cause of action and otherwise overruled it. The trial court ordered Abraham to file an answer within 20 days.
Carrascal's co-plaintiffs are not parties to this appeal.
In June 2021, Carrascal filed a request for entry of default. The trial court clerk denied the request because Carrascal had not included a proof of service of the operative complaint on Abraham. Abraham filed his answer in March 2022. Carrascal filed a new request for entry of default in April 2022. The trial court clerk denied the request. Following an April 2022 case management conference, the trial court referred the parties to ADR. The parties failed to file a joint stipulation to ADR, so in October 2022 the trial court set a hearing on an order to show cause why they had not done so.
In March 2023, after a hearing on the order to show cause at which Abraham appeared but Carrascal did not, a court commissioner ordered the dismissal of the case for delay in prosecution. Carrascal filed a motion for reconsideration, arguing among other things that he had not consented to have the commissioner decide the case and had failed to appear at the hearing before the commissioner due to confusion about the appropriate courthouse and technical difficulties with the Zoom software. At a hearing in early April 2023, the trial court denied the unopposed motion because Carrascal failed to file a proof of service of the motion on Abraham.
Carrascal filed a second motion for reconsideration, this time with two proofs of service. Both Carrascal and Abraham appeared at the May 2023 hearing on this second motion. On June 12, 2023, the trial court filed an order granting the motion on the grounds that the commissioner had lacked authority to involuntarily dismiss the case. But the order ruled that Carrascal's case still had to be dismissed because Carrascal had not brought the matter to trial within five years.
DISCUSSION
"An action shall be brought to trial within five years after the action is commenced against the defendant." (§ 583.310.) Section 583.360, subdivision (a) states, "An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article." According to section 583.360, subdivision (b), the five-year dismissal requirement is "mandatory and [is] not subject to extension, excuse, or exception except as expressly provided by statute."
Carrascal filed his original complaint on July 3, 2017. The Judicial Council's COVID-19 pandemic emergency rules extended that deadline by six months. (Cal. Rules of Court, Appendix I, Emergency Rule 10(a) ["Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months"].) Carrascal does not argue any extension applies, so he had to bring his case to trial by January 3, 2023. On its face, the trial court's order dismissing the case on June 12, 2023, was therefore correct.
Carrascal offers three reasons why the trial court's order should be reversed, but none has merit.
I. Factual error
First, Carrascal asserts he prosecuted his case from the beginning to the end and Abraham failed to respond during the first five years of the case. Carrascal contends the trial court allowed the case to drag on for over six years by not finding Abraham in default and granting Carrascal a default judgment. But the mandatory dismissal rule in section 583.360 obligates Carrascal, not the trial court, to take all necessary actions to litigate his case. (Tanguilig v. Neiman Marcus Group, Inc. (2018) 22 Cal.App.5th 313, 322 ["Under the press of this statutory requirement [in section 583.360], anyone pursuing an 'action' in the California courts has an affirmative obligation to do what is necessary to move the action forward to trial in timely fashion"].) As the trial court noted, Carrascal first requested entry of default in June 2021, almost four years into the case. When he did so, he failed to provide proof of service of the operative complaint on Abraham. (See § 585, subd. (b) [upon "proof of the service of the summons," the clerk shall enter defendant's default "if the defendant has . . . been served" and has not filed an answer, demurrer, or other motion].) The trial court denied Carrascal's next request for a default in April 2022, presumably because Abraham had filed an answer by that time. Carrascal has not shown these rulings were in error, or pointed to any other requests for entry of default or default judgment that the trial court should have granted.
II. Commissioner's order
Second, Carrascal argues the commissioner dismissed his case at an unreported hearing and for no good reason. Carrascal further contends the trial court should have granted his motion for reconsideration, which it could have construed as a motion for relief under section 473, subdivision (b). But the trial court did grant reconsideration of the commissioner's order of dismissal, agreeing with Carrascal that the commissioner lacked authority to involuntarily dismiss the case. The commissioner's lack of authority made its dismissal order void. (Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1097 [unauthorized act of commissioner was void].) The lack of a court reporter at the commissioner's hearing and the commissioner's dismissal order are therefore immaterial.
III. Bias
Finally, Carrascal argues the trial court was biased against him in violation of his constitutional rights. Carrascal mentions the disqualification statutes and their purpose of ensuring public confidence in the judiciary. (See § 170.1, subd. (a)(6)(A)(iii) [a judge shall be disqualified if a person might reasonably entertain a doubt about the judge's ability to be impartial].) But nothing in Carrascal's briefs or in the record suggests he tried to disqualify the judge in the trial court. As a result, his bias argument necessarily rests only on due process. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 588.) This "sets an exceptionally stringent standard." (Id. at p. 589.) To prevail with such a claim, Carrascal must prove"' "the probability of actual bias on the part of the judge or decisionmaker . . . is too high to be constitutionally tolerable." '" (People v. Freeman (2010) 47 Cal.4th 993, 996.) "It is 'extraordinary' for an appellate court to find judicial bias amounting to a due process violation. [Citation.] The appellate court's role is not to examine whether the trial judge's behavior left something to be desired, or whether some comments would have been better left unsaid, but to determine whether the judge's behavior was so prejudicial it denied the party a fair, as opposed to a perfect, trial.... Numerous and continuous rulings against a party are not grounds for a finding of bias." (Schmidt, at p. 589.)
Carrascal cites the trial court's actions and statements at the hearings in April and May 2023 as evidence of bias. Nothing in the record of these hearings demonstrates the extraordinary or exceptional standard for a due process violation is met here.
At the April 2023 hearing on Carrascal's first motion for reconsideration of the commissioner's order dismissing the case, the trial court noted that no one had called to contest the tentative ruling that the unopposed motion should be denied because Carrascal failed to file a proof of service of it upon Abraham. Carrascal asserts that the trial court was wrong, he had filed a proof of service, and the trial court's error demonstrates bias. However, the copy of Carrascal's first motion for reconsideration in the record does not include a proof of service, and Carrascal has not directed us to anything else in the record showing he filed a proof of service of the first motion for reconsideration before the hearing. And at the hearing, Carrascal told the court his paralegal had told him by email "one minute ago" that the paralegal had served Abraham. This suggests the trial court was correct that Carrascal had not filed a proof of service earlier. Carrascal interprets the trial court's response, "I need to move on," as showing it did not want to listen to him fairly. But the trial court's full statement, "I need to move on now. I'm sorry that I can't help you today," is more courteous and merely reflects a trial court's need to efficiently work through matters on a busy calendar.
At the May 2023 hearing on Carrascal's second motion for reconsideration, Abraham urged the court to dismiss the case and provided a narrative of the factual circumstances behind the case, at one point calling Carrascal and another plaintiff "crooks." At the end of the hearing, Carrascal asked that Abraham apologize, but the trial court said simply, "No. We are ending this session and will be in recess." Carrascal argues that the trial court exhibited bias by allowing Abraham to call Carrascal a thief and a thug and failing to admonish him for doing so.
Even if we accept Carrascal's interpretation that Abraham's use of "crook" meant Carrascal was a thief and a thug, the trial court's reaction to Abraham's remark does not demonstrate bias. The remark was Abraham's, and the trial court did not agree with it or approve it. Carrascal cites Standard 10.20 of the Standards of Judicial Administration in the California Rules of Court, which instructs in its subdivision (b)(1) and (2) that courts and their staff should refrain from and prevent biased conduct. Carrascal offers no reason to think the trial court knew Abraham would call Carrascal a crook, so the trial court cannot be said to have allowed Abraham to make the remark or failed to prevent it. The trial court did reject Carrascal's demand at the end of the hearing that Abraham apologize. But the trial court appears to have reasonably determined that the best solution to the friction between the parties was to end the hearing, the substance of which had already concluded, so the court's denial of Carrascal's request that it order Abraham to apologize does not demonstrate bias.
DISPOSITION
The judgment is affirmed.
WE CONCUR: STREETER, J. GOLDMAN, J.