Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. KC055238, Steven D. Blades, Judge.
Angel Escudero, in pro. per., for Plaintiff and Appellant.
Best Best & Krieger, Daniel S. Roberts and Lee Ann Meyer for Defendants and Respondents.
MALLANO, P. J.
Plaintiff Angel Escudero, in propria persona, appeals from an order denying his motion to set aside the dismissal of his complaint against defendants City of Azusa and Azusa Police Department (collectively referred to as the City) for assault and battery, excessive use of force, and violation of civil rights. He contends that the trial court abused its discretion in denying his motion to set aside the dismissal of his action pursuant to Code of Civil Procedure section 473 because he showed excusable neglect in failing to appear for the case management conference, the continued case management conference, and the hearing on the order to show cause re dismissal. Escudero’s claims are not supported by the record, which shows he was handed notice of the case management conference by the clerk and served with notice of the continued case management conference and the order to show cause. We affirm the order of the trial court denying Escudero’s motion to set aside the dismissal of his complaint.
Unless otherwise designated, statutory references are to the Code of Civil Procedure.
BACKGROUND
On March 18, 2009, Escudero filed a complaint against the City for assault and battery, excessive use of force, and violation of civil rights. At the time of filing, the clerk of the court handed Escudero a notice that the case management conference was scheduled for August 5, 2009. Escudero failed to appear at the August 5, 2009 case management conference. The trial court continued the case management conference to September 10, 2009, and issued an order to show cause why the matter should not be dismissed for Escudero’s failure to appear. The hearing on the order to show cause was also scheduled for September 10, 2009. The trial court ordered the City to give notice of the continued case management conference and the order to show cause. On August 6, 2009, the City served notice on Escudero by mail.
On September 10, 2009, Escudero failed to appear at the continued case management conference and the hearing on the order to show cause re dismissal. The trial court noted that Escudero had not contacted the court by telephone and had failed to file a case management statement. The trial court ordered the case dismissed without prejudice pursuant to Code of Civil Procedure section 575.2 and Government Code section 68608.
Section 575.2, subdivision (a) provides: “Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.”
Government Code section 68608, subdivision (b) provides: “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.”
On October 29, 2009, Escudero filed an amended “motion for order setting aside default, vacate entry of dismissal by court [sua sponte], alternatively to reinstate case to active calendar....” In his motion and supporting declaration, Escudero stated that the clerk of the court handed him a notice of case management conference with a scheduled date of August 5, 2009. He declared that when he was handed the notice of case management by the clerk, “being unable to read, write or understand the English language I had inadvertently put the document aside not realizing or knowing that I was suppose [sic] to have marked the date of August 5, 2009 on a calendar.” He also declared that he was a disabled senior citizen and “between the date of my filing and the present date of October 23, 2009, I had been and continue to be under a doctor’s care and constantly sick.” He also declared he “had unfortunately failed to appear at the Case Management Conference of August 5, 2009....” And he claimed to be unfamiliar with judicial proceedings and therefore required assistance from various professionals. In his motion he stated that from March 18, 2009, through September 1, 2009, he was “virtually homeless” and used the address of a paralegal on Azusa Avenue. He also argued in his motion that “Written correspondence delivered to [him] at the Azusa Avenue address were given to [him] but never read unless directed to do so by [him].” He declared that he was not given notice by the clerk or by opposing counsel of the rescheduled date for the case management conference or notice of the hearing on the order to show cause re dismissal. He argued that he was not given 21 days’ notice of the hearing on the order to show cause as required under federal safe harbor rules, citing the Federal Rules of Civil Procedure. He also argued that the trial court should exercise its discretion under section 473 in his favor. He claimed to have discovered his case was dismissed by checking the online case summary section of the civil department for the superior court.
The City opposed the motion, arguing that Escudero had not shown any excusable neglect that caused his failure to appear at the prior hearings. The City argued that Escudero was a proficient English speaker, noting that in a previous case against the City he had conversed in English with the trial court and had testified and cross-examined witnesses in English. The City attached to its opposition excerpts from a deposition transcript in which Escudero testified that he had been an interpreter for a police department. The City also attached excerpts from Escudero’s responses to interrogatories stating that he can read and write English with ease “but [has] trouble understanding.”
The trial court denied Escudero’s motion to set aside the default and vacate entry of dismissal, finding that he “failed to show excusable neglect in failing to appear for the initial CMC, the continued CMC/OSC, nor in failing to provide notice of his current address.”
Escudero appeals from the trial court’s order with a one-paragraph “opening brief” contending that “[t]he denial of this case to go to trial is unfair discrimination due to myself being a disabled senior citizen” and requests this Court to grant him a “conference settlement” with the City. Escudero attaches to his “opening brief” his memorandum of points and authorities in support of his motion for order setting aside default and vacating entry of dismissal.
DISCUSSION
Escudero appears to contend that the trial court abused its discretion in denying his motion to set aside the dismissal of his action. As we explain, his argument that he showed excusable neglect in failing to appear for the case management conference, continued case management conference, and the hearing on the order to show cause re dismissal is not supported by the record. Thus, we conclude that the trial court did not abuse its discretion in denying his motion to set aside the dismissal of his action.
“Section 473 permits a party or the party’s legal representative to be relieved from the consequences of mistake, inadvertence, surprise, or neglect. Two aspects of section 473 achieve this end. First, section 473 provides for discretionary relief. Under this provision, the court ‘may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.’ (§ 473, italics added.) This provision authorizes relief from any action taken in the case. ‘“Anything done from the commencement to the termination is a proceeding.”’ [Citation.] A party seeking such relief must show ‘mistake, inadvertence, surprise or excusable neglect.’ (§ 473.) It is within the trial court’s discretion to grant relief under this provision. (§ 473; [citation].)” (Lorenz v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989.)
“‘The court must generally consider the facts and circumstances of a case to determine whether the party was diligent in seeking relief [citation], and whether the reasons given for the party’s mistake are satisfactory.’ [Citation.]” (Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196, fn. omitted.) “‘[T]o warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances.’” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)
Jackson v. Bank of America (1983) 141 Cal.App.3d 55, cited by the trial court, is instructive. In that case, the appellate court reversed the trial court’s order granting relief from default, determining that the defendant bank’s failure to file an answer because it believed the case was moot was not excusable neglect under section 473. (Id. at p. 58.) The court rejected the bank’s argument that it did not receive notice of default because the declaration of mailing was not addressed to include the floor or suite number of counsel’s office, which was located in a large office building. (Ibid.) In rejecting that argument, the appellate court noted that the mailing address was in substantial compliance with section 1013 and that section 587 provides that lack of receipt of notice does not invalidate a judgment. (Jackson, supra, at pp. 58–59.)
Section 1013, subdivision (a) provides in pertinent part: “In case of service by mail, the notice or other paper shall be deposited in a post office, mailbox, subpost office, substation, or mail chute, or other like facility regularly maintained by the United States Postal Service, in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that party’s place of residence....”
Section 587 provides: “An application by a plaintiff for entry of default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall include an affidavit stating that a copy of the application has been mailed to the defendant’s attorney of record or, if none, to the defendant at his or her last known address and the date on which the copy was mailed. If no such address of the defendant is known to the plaintiff or plaintiff’s attorney, the affidavit shall state that fact. [¶] No default under subdivision (a), (b), or (c) of Section 585 or Section 586 shall be entered, unless the affidavit is filed. The nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgment.”
Escudero likewise has failed to show excusable neglect. Escudero admits that the clerk of the court handed him the case management conference statement advising him that the conference was scheduled for August 5, 2009. His arguments that he did not appear at the August 5, 2009 conference “either because of medical reasons and or because [he] did not actually understand that he was to appear, ” and that he was not able to read, write or understand English and had inadvertently put the document aside are not supported by the record. In his declaration, Escudero merely makes a vague reference to being under the care of a doctor and “constantly sick.” And, as the City points out, the record contains evidence showing that Escudero responded to interrogatories in a previous case against the City by stating that he can read and write English with ease, and that he had testified in deposition that he had previously served as an interpreter for a police department. In his declaration, he makes no pretense at an excuse for his failure to appear at the August 5, 2009 case management conference, simply stating that “[he] had unfortunately failed to appear at the Case Management Conference of August 5, 2009....”
Escudero’s argument that he did not receive notice of the September 10, 2009 continued case management conference and hearing on the order to show cause is also belied by the record. On August 6, 2009, the City gave Escudero written notice of the trial court’s order continuing the case management conference and the hearing on the order to show cause to September 10, 2009. The notice was mailed to Escudero’s address of record in Azusa as reflected on the complaint. Escudero admits in his motion that he used that address from March 18, 2009, to September 1, 2009 and that written correspondence delivered to the Azusa address was not read “unless directed to do so by [him].” His failure to read his own mail does not constitute excusable neglect.
We conclude that the trial court did not abuse its discretion in denying Escudero’s motion to set aside the dismissal of his action.
DISPOSITION
The order of the trial court denying Escudero’s motion to set aside the dismissal of his complaint is affirmed. The City of Azusa and the Azusa Police Department are entitled to costs on appeal.
We concur: ROTHSCHILD, J., CHANEY, J.