Opinion
F078480
09-25-2019
RICKY TYRONE FOSTER, Plaintiff and Appellant, v. MICHAEL SEXTON, as Warden, etc. Defendants and Respondents.
Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18C-0031) OPINION THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Ricky Tyrone Foster, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents.
Before Poochigian, Acting P.J., Franson, J. and Peña, J.
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Appellant Ricky Tyrone Foster is a self-representing prison inmate who has obtained a waiver of fees from this court. In January 2018, Foster filed a petition for writ of mandate in the superior court, alleging prison officials failed to process his inmate grievance. In October 2018, the superior court filed a written order dismissing the petition for failure to prosecute based on the failure to serve the defendants. Three days before the order of dismissal was filed, the sheriff's department filed a proof of service stating the petition had been served on the warden.
As explained below, the order of dismissal is reversed and the matter remanded for further proceedings.
BACKGROUND
In January 2018, Foster filed a petition for writ of mandate alleging (1) he was a state prisoner in the custody of the California Department of Corrections and Rehabilitation (CDCR), (2) defendant Michael Sexton was the warden of the Corcoran State Prison where Foster is held, (3) the warden and staff have a clear ministerial duty to process inmate grievances and administrative appeals in accordance with the regulations set forth in article 8 of title 15 of the California Code of Regulations. Foster alleged he timely filed a CDCR Form 602 relating to an excessive use of force and the defendants have not timely processed the grievance or provided him with notice of exceptional circumstances to justify the delay. Foster seeks the writ of mandate so he can exhaust the administrative procedures for inmate grievances and file a civil action to recover damages for personal injuries, which include seven broken ribs.
Article 8 contains 10 sections, which are designated sections 3084 through 3085. California Code of Regulations, title 15, section 3084.1, labeled "Right to Appeal," states that the "process is intended to provide a remedy for inmates ... with identified grievances" and "appeals shall be processed according to the provisions of Article 8." In this context, "appeal" includes the initial inmate grievance submitted on CDCR Form 602 (Rev. 08/09). (Menefield v. Foreman (2014) 231 Cal.App.4th 211, 215, fn. 2 & 217.)
In February 2018, the superior court filed an order denying Foster's request for issuance of an alternative writ of mandate, stating the court usually requires such petitions to be served and then sets a hearing after a responsive pleading was filed. The order stated the court would not take further action on the petition until it was properly served, and a case management conference was set for tracking purposes.
In April 2018, Foster filed a case management statement on Judicial Council form CM-110 and checked a box stating all parties named in the complaint had been served. Foster's statement of the case asserted officials at Corcoran State Prison were hindering, impeding, obstructing and otherwise denying his constitutional right to pursue a civil action for the injuries from the excessive use of force. He also alleged the official's failure to comply with the time constraints for reviewing CDCR Form 602 meant there were no "available" administrative remedies for him to exhaust. Foster included as an exhibit a memorandum dated March 17, 2018. Its subject line stated: "STAFF COMPLAINT RESPONSE - APPEAL # CSPC-8-17-04927 SECOND LEVEL RESPONSE (AMENDED)."
In May 2018, Foster filed another case management statement for a conference scheduled in June 2018. Again, the form stated all parties named in the complaint had been served.
On September 26, 2018, the superior court held a case management conference at which counsel for the defendant specially appeared and Foster appeared on behalf of himself. The court stated it would dismiss the case for failure to serve the defendants.
On October 3, 2018, the sheriff's department served the petition and its exhibits on defendant Michael Sexton, Warden of Corcoran State Prison. The proof of service was filed on October 9, 2018. Three days later, the superior court filed a written order dismissing the petition for failure to prosecute based on its finding that Foster failed to timely serve the defendants. The court stated it had received no proofs of service from Foster after giving him multiple warnings and opportunities to serve the defendants and file corresponding proofs of service. Foster appealed.
DISCUSSION
I. STATUTES ADDRESSING DELAYS IN PROSECUTION
Chapter 1.5 of title 8 of part 2 of the Code of Civil Procedure addresses dismissal of civil actions for delays in prosecution. It contains provisions making dismissal mandatory in certain circumstances and discretionary in other circumstances.
All unlabeled statutory references are to the Code of Civil Procedure.
First, the Code of Civil Procedure requires trial courts to dismiss actions where the complaint is not served within three years of filing. (§§ 583.210, 583.250.) This provision does not apply to Foster's petition.
Second, the statute grants trial courts the discretion to dismiss an action for "delay in prosecution" (§ 583.410, subd. (a)), when "[s]ervice is not made within two years after the action is commenced against the defendant" (§ 583.420, subd. (a)(1)). Here, a proof of service was filed by the sheriff's department less than nine months after the petition was filed. Therefore, the two-year period had not expired and, as a result, sections 583.410 and 583.420 did not grant the trial court the discretionary authority to dismiss the petition for delay in prosecution. II. TRIAL COURT DELAY REDUCTION ACT
The Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) directed the Judicial Council to adopt standards for the timely disposition of civil and criminal actions. (Gov. Code, § 68603, subd. (a).) The act states "judges shall have the responsibility to eliminate delay in the progress and ultimate resolution of litigation, ... and to compel attorneys and litigants to prepare and resolve all litigation without delay," from commencement to disposition. (Gov. Code, § 68607.) At the same time, courts "must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies." (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398.) "When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency." (Ibid.; see generally, Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1487 [the important principle that "trial courts have a duty in the name of public policy to expeditiously process civil cases ... must yield to the even greater principles of providing in propria persona litigants with meaningful access to the courts and of deciding bona fide civil actions on their merits"]; Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 468-469 [same].)
Under Government Code section 68608, subdivision (b), trial courts "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." The reference to "sanctions authorized by law" includes sanctions set forth in the California Rules of Court.
California Rules of Court, rule 3.110(b), states the plaintiff shall serve all named defendants and file proof of service within 60 days of filing the complaint. The Superior Court of Kings County, Local Rules (Local Rules), rule 202 provides the same. Also, Local Rules, rule 205 (D) addresses serving the notice of case management conference and filing a proof of service. None of these rules expressly authorize a dismissal for the failure to comply. However, California Rules of Court, rule 3.110(f) states "the court may issue an order to show cause why sanctions shall not be imposed" if a party fails to serve pleadings as required by the rule or fails to obtain an extension of time. Similarly, Local Rules, rule 205 (H) states the failure to timely file and serve a case management statement "may result in the imposition of sanctions by the Court." Neither California Rules of Court, rule 3.110(f) nor Local Rules, rule 205 specify the sanctions that might be imposed for a failure to serve.
Reading Government Code section 68608, the California Rules of Court and the local rules together, we conclude they grant trial courts the discretionary authority to dismiss an action for failure to serve process "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." (Gov. Code, § 68608, subd. (b); see Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1060-1061.) Consequently, this appeal presents the question of whether a sanction less severe than dismissal would have been effective.
Here, the appellate record demonstrates the self-represented prison inmate was able to effect service of process through the sheriff's department, a method of service not entirely within his control. The proof of service filed before the written order of dismissal was entered establishes that, assuming a sanction was necessary to incentivize plaintiff to serve the complaint in the first place, a sanction less severe than dismissal would have been effective. (See Tliche v. Van Quathem, supra, 66 Cal.App.4th at pp. 1061-1062; Garcia v. McCutchen (1997) 16 Cal.4th 469, 471.) Consequently, the trial court had no discretionary authority under Government Code section 68608 to dismiss the petition for lack of prosecution based on the failure to serve the pleading. III. INHERENT AUTHORITY
Having decided the appeal on this ground, we need not address other issues raised by Foster. Those issues include (1) whether Foster validly served Warden Sexton by mail on February 28, 2018; April 17, 2018; May 17, 2018; and July 16, 2018; (2) whether the clerk of the superior court acted with bias against Foster in failing to include documents in the certified clerk's transcript; (3) Foster's claims of judicial bias against this court and the superior court; (4) whether the conduct of the superior court and the clerk of the superior court denied Foster's statutory and constitutional rights to meaningful access to the courts; (5) whether the superior court abused its discretion in handling the case management conferences; and (6) what application, if any, the federal Prison Litigation Reform Act of 1995 has in this state court mandamus proceeding. --------
The final source of authority we consider as justification for the dismissal is the trial court's inherent "power to exercise a reasonable control over all proceedings connected with the litigation before it." (Hays v. Superior Court (1940) 16 Cal.2d 260, 264; see Briggs v. Brown (2017) 3 Cal.5th 808, 852.) In Lyons v. Wickhorst (1986) 42 Cal.3d 911 (Lyons), which was issued before the Trial Court Delay Reduction Act was enacted, our Supreme Court stated the two-year statutory period for discretionary dismissal for lack of prosecution "was intended to 'limit[] the court's independent power to dismiss an action for want of prosecution at any time.' Thus, a minimum delay of two years is required before a trial court can exercise its discretionary dismissal powers. (See Hartman v. Gordon H. Ball, Inc. (1969) 269 Cal.App.2d 779 [dismissal was improper under both the five-year and two-year periods and was therefore not justified as an exercise of the trial court's inherent power to dismiss]." (Lyons, supra, at p. 915, italics added.)
Based on these statements about the trial court's independent or inherent power and the subsequent enactment of the Trial Court Delay Reduction Act, we conclude that the trial court's power to dismiss an action for lack of prosecution does not extend beyond the authority set forth in the provisions of the Code of Civil Procedure and the Government Code to the circumstances presented in this case. This interpretation of the statutes is consistent with the policy that seeks to dispose of litigation on the merits. (Lyons, supra, 42 Cal.3d at p. 916; § 583.130; see Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1353 ["the Trial Court Delay Reduction Act did not elevate delay reduction over the right of a litigant to present his or her case to the court, nor was delay reduction favored over deciding cases on the merits"; summary denial of writ petition reversed].) This court has published an extensive discussion of that policy in a case where we reversed dismissal orders based on the lack of prosecution. (Putnam v. Clague (1992) 3 Cal.App.4th 542.)
DISPOSITION
The October 12, 2018, order dismissing the case is reversed. On remand, the trial court is directed to issue an order to show cause or alternative writ allowing the served defendant to address issues relating to the administrative review of Foster's grievance and administrative appeal.
Foster shall recover his costs on appeal (Cal. Rules of Court, rule 8.278) and the $100 filing fee referred to in the Notice of Filing of Notice of Appeal, filed November 29, 2018, shall be vacated, and the $435 filing fee imposed on January 12, 2018, shall be vacated.