Opinion
B331107
11-14-2024
WILLIAM RENO GERBER, Plaintiff and Appellant, v. FRED GERBER, Defendant and Respondent.
William Reno Gerber, in pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21LBCV00429 Michael P. Vicencia, Judge. Affirmed in part and reversed in part.
William Reno Gerber, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
WILEY, J.
The trial court dismissed William Gerber's civil case against Fred Gerber because William Gerber did not appear for trial. He appeals from the dismissal and the denial of his motion for reconsideration. We affirm all but the trial court's ruling ordering him to pay sanctions of $100. Unspecified citations are to the Code of Civil Procedure.
I
William Gerber sued Connie Waters and Fred Gerber in 2021. He alleged they conspired to steal from him and misused the processes of the prison where he is incarcerated. Further references to "Gerber" are to William Gerber unless otherwise stated.
On June 10, 2022, the trial court set the final status conference for January 27, 2023 and the trial for February 6, 2023. Gerber received notice of these dates.
The trial court dismissed Connie Waters from the case on August 29, 2022.
Fred Gerber had defaulted, but obtained relief from default on January 3, 2023 and filed an answer to the complaint on the same day. Gerber knowingly chose not to oppose this result.
Gerber failed to appear at the final status conference. The court continued the status conference to the following week and set with it a motion to sanction Gerber for failure to appear. The clerk mailed notice of this hearing to Gerber, but he did not receive it.
On the continued final status conference date, Gerber did not appear and was sanctioned in the amount of $100. On the trial date, which had never been changed, Gerber failed to appear. The trial court dismissed the case against Fred Gerber, who was then the only remaining defendant.
About a week later, on February 15, 2023, Gerber filed a "Motion for Reconsideration (C.C.P., Section 1008) of Order Dismissing Case with Prejudice; Motion for Recusal with Declaration of Prejudice Pursuant to (C.C.P., Section 170.1, et seq.); and for Special Considerations Pursuant to Smith v. Ogbuehi (2019) 38 Cal.App.5th 453." Fred Gerber filed a response on May 23, 2023 and Gerber filed a reply on June 1, 2023.
The trial court heard the motion on June 6, 2023. Gerber appeared remotely. The court made findings concerning each of Gerber's contentions and denied the motion.
Gerber appeals from the trial court's order of dismissal and its order denying his motion for reconsideration.
II
A
The trial court did not abuse its discretion by dismissing the case. On the date of the trial, Gerber did not appear. The trial date was set more than seven months before, and the date was not changed. Gerber had ample notice of the trial date and opportunity to arrange either to appear in person or by remote means, or to send counsel to represent him. Though Gerber objects to the dismissal, he gives us no legal authority showing the trial court's order was improper.
Gerber argues that, as an inmate representing himself, he was not given proper access to the courts during almost his entire case. He points to the following cases, which hold a trial court must carefully consider whether the inmate is indigent and whether the underlying cause is bona fide: Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-793 (Wantuch); Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483 (Apollo) [citing Wantuch]; Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 467 (Smith) [citing Apollo &Wantuch]. If the court so finds, it must employ additional measures to ensure the "indigent prisoner litigant[ is] afforded meaningful access to the courts." (Smith, supra, 38 Cal.App.5th at p. 467.)
Gerber does not claim to be indigent. He has never requested appointment of counsel. He has attorneys who help him with other matters. These same attorneys or their staff attended some hearings in this case and helped Gerber throughout. One of these attorneys was present at the hearing on June 10, 2022 when final status conference and trial dates were set. Gerber's attorneys assisted him with pleading preparation and service for this appeal.
Gerber evades this issue by describing himself, not as indigent, but as a litigant in "pro per." He is nonetheless held to the same standards as a party with counsel.
The trial court did not abuse its discretion in dismissing the case or in refusing Gerber's requests for reconsideration or other relief. (See Wantuch, supra, 32 Cal.App.4th at p. 795; Robbins v. Los Angeles Unified School District (1992) 3 Cal.App.4th 313, 318 (Robbins).)
B
Gerber argues he received insufficient notice of the court's motion to sanction him for failing to appear at the final status conference.
Gerber had no good reason for failing to appear at the original final status conference. His counsel was present at the hearing when the trial court set the final status conference and trial dates, and these dates were never changed. There is no indication that, had he appeared to argue the sanction, Gerber could have given the trial court an acceptable reason not to sanction him.
However, when a trial court orders sanctions under section 177.5, it must provide the party to be sanctioned with notice and opportunity to be heard. Only six days elapsed between the original and continued final status conference dates, which was not enough time for Gerber to receive mailed notice and arrange to appear or have someone appear on his behalf to argue the sanction. (See People v. Hundal (2008) 168 Cal.App.4th 965, 970.) We therefore reverse this portion of the trial court's order.
C
The trial court was also well within its discretion to deny Gerber's motion for reconsideration. As the trial court noted in the related minute order, Gerber's moving papers presented no new law or facts that he could not have discovered. The court was right to deny his motion for reconsideration. (§ 1008; see Robbins, supra, 3 Cal.App.4th at p. 317.) Gerber argued only that he thought the trial would be continued. The trial court correctly stated that, if this was his argument, Gerber could have made a motion based on § 473, subsection (b) - excusable mistake. A motion under § 1008 was not appropriate.
As to Gerber's request that the trial judge recuse pursuant to § 170.6, the trial court correctly ruled the request was untimely. (See § 170.6, subd. (a)(2) ["If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 15 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 15 days after the appearance"].)
Gerber's motion for reconsideration also claimed that he is entitled to special considerations, which is incorrect as explained above.
D
Gerber argues in his briefing to us that the entire action had been dismissed when the court dismissed Connie Waters from the case. Though Waters did move the court to dismiss the entire case, the trial court did not do so; rather, it dismissed Waters only. The case remained open as to Fred Gerber at that time. Waters's exit from the case did not automatically vacate later court dates. Gerber provides no authority supporting such an illogical claim.
Gerber spends more than half of his appellate briefing disputing the dismissal of Connie Waters from the case. He did not take this appeal from any of the trial court's rulings concerning that dismissal, but only from the trial court's rulings concerning dismissing the case against Fred Gerber. We do not address Gerber's arguments related to Connie Waters.
Additionally, we do not consider the responsive brief filed by Connie Waters. Gerber did not appeal from Waters's dismissal under this case number. We addressed Gerber's appeal of Waters's dismissal in our nonpublished opinion in Gerber v. Waters et al. (August 7, 2024, B324668). Fred Gerber did not file a brief.
DISPOSITION
We reverse the order that Gerber pay a sanction of $100 and affirm all other orders. We award no costs.
We concur: GRIMES, Acting P. J. VIRAMONTES, J.