Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara Zel Canter, Judge
Pollard Mavredakis Cranert Crawford & Stevens and Stephen D. Enerle for Defendant and Appellant.
James R. Murphy, Jr., & Tana L. Coates, for Plaintiff and Respondent.
GILBERT, P.J.
The defendant in a personal injury action appeals an order imposing monetary sanctions for failing to have an insurance adjuster present at court-ordered mediation and for failure to appear at a mandatory settlement conference. We conclude the court properly imposed sanctions for failure to have an adjuster at the mediation. Under the circumstances here, however, we conclude the trial court erred in imposing sanctions for failure to appear at the mandatory settlement conference.
FACTS
This case arises from a rollover accident. Diana Edberg alleged the vehicle she purchased from Team Infiniti, LLC (Infiniti) was defective.
In July of 2006 the court ordered the case to mediation under the local rules of court. The parties agreed to mediation on December 12, 2006. Notice sent by the mediator stated that under the mediation program a person with full settlement authority must be present.
The mediation was rescheduled for January 9, 2007, because Infiniti's insurance adjuster was not available. On January 4, 2007, the mediator notified Edberg that Infiniti's adjuster may not be available in person. The parties agreed that the adjuster would be available by telephone. The mediation failed to result in a settlement.
The mandatory settlement conference (MSC) was set for February 14, 2007. The court advanced the date for the MSC to February 5, 2007. The minute order reflects the court gave Edberg notice by telephone and mail. Edberg gave Infiniti notice of the change by mail on January 9, 2007. Infiniti's counsel received notice but inadvertently misfiled it. No one from Infiniti appeared at the MSC.
Edberg made a noticed motion for sanctions. She requested that the court strike Infiniti's answer, impose monetary sanctions in the amount of $15,640, or both.
At the hearing, the trial court sanctioned Infiniti for failure to have an adjuster present at the mediation and for failure to appear at the MSC. The court found Edberg had no practical alternative but to agree the adjuster could be available at the mediation by telephone. The court accepted counsel's explanation that the notice advancing the MSC on calendar had been misfiled and that he would not intentionally fail to appear. The court allowed Edberg to add a fraud cause of action and imposed a monetary sanction of $7,440. That amount represented the time spent by Edberg's counsel attending the mediation and MSC.
Thereafter, the underlying case settled. Infiniti appeals only the monetary sanction.
DISCUSSION
Infiniti contends the trial court abused its discretion in imposing monetary sanctions.
Code of Civil Procedure section 575.2 authorizes the imposition of sanctions for failure to comply with a local rule of court where the local rules so provide. Santa Barbara County Superior Court Rules, rule 102, provides for sanctions for failure to comply with a local rule or order of the court. California Rules of Court, rule 2.30 authorizes the court to impose monetary sanctions "for failure without good cause to comply with the applicable rules." An order imposing sanctions is reviewed for an abuse of discretion. (See Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364; Cooks v. Superior Court (1990) 224 Cal.App.3d 723.)
Infiniti does not dispute that the rules of court require it to have its insurance adjuster physically present at the court-ordered mediation. Nor does it dispute that the rules require it to appear at the MSC.
As to the mediation, Infiniti offers no reason why the adjuster was not physically present. It asserts only that Edberg agreed to proceed with the adjuster being available by telephone. But Edberg only agreed after she was informed within days of the mediation that the adjuster would not be present. The mediation had been postponed once before because the adjuster was not available. Edberg was not required to postpone the mediation again, in the hope that the adjuster might decide to appear. Availability by telephone was apparently the best that Edberg was going to get. Sanctions are clearly appropriate.
Code of Civil Procedure section section 473, subdivision (b), cannot save Infiniti from sanctions. That subdivision allows the trial court to relieve a party from a "judgment, dismissal, order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect." (Ibid.) Infiniti has failed to show that the absence of its adjuster was caused by mistake, inadvertence, surprise or excusable neglect.
The failure to appear at the MSC is another matter. The trial court advanced the conference from February 14, 2007, to February 5, 2007. The minute order shows that plaintiff's counsel received a telephone call, as well as notice by mail. The only notice Infiniti's counsel received was by mail. Infiniti's counsel explained that the notice had been misfiled. Counsel stated he would not deliberately fail to appear. The court agreed.
Infiniti's failure to appear at the MSC was through pure inadvertence, under circumstances where such inadvertence is understandable and excusable. This is not a case where counsel's disorganization has caused him to miss multiple court appearances. This is a single instance of a misfiled notice. The practice of law is difficult enough without imposing sanctions for every inadvertent misstep. Sanctions for failure to appear at the MSC are not warranted.
Edberg spends much effort in an attempt to show us that Infiniti engaged in dilatory tactics out of court during the litigation. With equal vigor, Infiniti attempts to show us in its reply brief that it engaged in no such dilatory tactics. Suffice it to say, the trial court made no finding that Infiniti engaged in dilatory tactics. The court based its sanction order only on the failure to have an adjuster present at the mediation and the failure to appear at the MSC.
Although sanctions for failure to have an adjuster at mediation were proper, sanctions for failure to appear at the MSC are an abuse of discretion.
The order is reversed and the matter remanded to the trial court to determine the amount of sanctions consistent with this opinion. The parties are to bear their own costs.
We concur: COFFEE, J. PERREN, J.