Opinion
C082504
08-02-2018
PETER DALE GRAVES, Plaintiff and Appellant, v. MARK TWAIN ST. JOSEPH'S HOSPITAL et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CV36996)
In 2010, Peter Dale Graves brought a medical malpractice suit against Peter Oliver, M.D. In 2016, Oliver successfully moved to dismiss for failure to bring the suit to trial within five years. (Code Civ. Proc., § 583.310; statutory section references that follow are found in the Code of Civil Procedure unless otherwise set forth.) Graves appeals contending the dismissal was an abuse of discretion because, under section 583.340, it was "impossible, impracticable, or futile" to bring his case to trial. We disagree and affirm the judgment.
FACTS AND PROCEEDINGS
On September 3, 2010, Graves, a prisoner in pro. per., brought suit against Oliver and two others alleging injury from a hernia surgery.
We note that the other two defendants were voluntarily dismissed from the suit on October 30, 2013. They are not party to this appeal.
On July 31, 2012, Graves obtained a default judgment. Six months later, however, Oliver successfully moved to set aside the default. Shortly after that, Graves retained counsel.
On January 29, 2013, Oliver demurred to the complaint. Graves filed an amended complaint, and Oliver in turn asked the court to vacate his demurrer. He then answered the complaint.
The minutes of an April 29, 2013, case management conference indicated "the parties are undertaking discovery." An October 28, 2013, minute order also reflected ongoing discovery.
At a March 24, 2014, trial setting conference, trial was set for September 3, 2014.
On April 16, 2014, Oliver moved for summary judgment. Two months later, Graves filed a response to the motion, and Oliver withdrew his motion for summary judgment.
On July 14, 2014, the parties stipulated to move trial to a date to be set at a September trial setting conference. The September 22, 2014, minute order stated discovery was ongoing and it "[m]ay be too early to set for trial." The minute order also stated, "Plaintiff's counsel may be substituting out very soon." The hearing was continued to December.
At the December 1, 2014, hearing, trial setting was again continued, this time to March. The minute order attached a letter from Graves, writing that his attorney "is trying to force me to sign a substitution of attorney motion." He asked that the court send him a form to oppose the motion.
At the March 16, 2015, hearing, trial was set for October 7, 2015, with a September 11, 2015, settlement conference.
On August 27, 2015, Graves's attorney moved to be relieved as counsel. He wrote that he had been diabetic for nearly a decade and had been hospitalized for five days for kidney failure. He attached a note from his treating physician stating, "The distress related to the upcoming trial [] has contributed to the deterioration in his medical condition." The letter concluded that it was "not medically recommended that he conduct trial work for the foreseeable future."
On September 11, 2015, the trial court granted Graves's attorney's motion to be relieved as counsel. The minute order reflected that Graves's attorney had been unable to contact Graves and had not been able to file a settlement conference statement. After Oliver's counsel confirmed no offer was pending, the court vacated the settlement conference.
That same day, the court received a letter from Graves objecting to his attorney being relieved. Graves also filed an ex parte application for an extension of time to oppose his counsel's request. Twelve days later, Graves filed a notice of stay of proceedings and moved ex parte for an extension to move for reconsideration.
On October 6, 2015, the trial court ruled on Graves's ex parte motion. The court struck the notice of stay for failure to cite an appropriate basis. It denied, as untimely, the request for an extension to move for reconsideration. It then vacated the October 7, 2015, trial date, to allow Graves to obtain new counsel, and set a further case management conference on February 17, 2016.
On February 16, 2016, Oliver moved to dismiss for failure to bring the suit to trial within five years. (§ 583.310.) Six days later, Graves sent the court a letter explaining he had missed three court calls and maintained the telephonic appearance vendor had been denying him access to the courts.
On March 9, 2016, Graves moved to stay proceedings. He averred that before his counsel had "abandon[ed]" him, his counsel had stipulated to continuing trial without notifying him. He also maintained he had not been connected to telephonic court appearance: "The missed court dates monumentally prejudiced plaintiff's case [and] litigation making it impossible, impracticable [and] futile to conduct court calls [and] litigation without staying the proceedings to allow Plaintiff to collaterally litigate against [the telephonic appearance vendor and the prison litigation coordinator] to get my telephonic court hearings reactivated." He added that he was requesting the stay in order to request an order to show cause as to why his court calls were not being connected.
On March 11, 2016, the trial court took the motion to dismiss under submission. That same day, Graves filed a request for an extension of time to answer the motion to dismiss. He wrote: "Plaintiff makes this collateral motion because: Plaintiff wants to use the stay to litigate against [the telephonic appearance vendor and the prison litigation coordinator] which is taking all my time. I don't have the time to work on [the] Motion to Dismiss 'Opposition.' "
On April 29, 2016, the trial court denied Graves's motions to stay proceedings and for an extension to file an opposition to Oliver's motion to dismiss. The court then granted Oliver's motion to dismiss. The court's ruling explained that Graves's motions were essentially based on his claim the telephonic appearance vendor caused his nonappearance. But the trial court noted that the Superior Court of Calaveras County, Local Rules, rule 3.8 requires unrepresented litigants to successfully coordinate with the court's designated telephonic appearance vendor. It noted that "while plaintiff potentially has issues and/or claims with CourtCall, LLC, for this Court's purpose she failed to appear at his referenced hearings and is held accountable for his nonappearance."
As to the motion to dismiss, the court noted that the five-year period to bring the suit to trial expired on January 12, 2016 — accounting for a 126-day tolling period when Graves obtained a default. The court noted that the October 7, 2015, trial date was vacated at plaintiff's request, and found no other basis for tolling or extending the five-year period.
Graves timely appealed.
DISCUSSION
On appeal, Graves contends the trial court erred in dismissing his case. Distilled, his argument is that it was impossible, impracticable, and futile to bring his case to trial within the five years required by section 583.310. Therefore, under section 583.340, an exception to the five-year period applied. He points to three factors as causing the delay: (1) misconduct by his counsel; (2) the trial court allowing his counsel to withdraw; and (3) his denial of meaningful access to the courts by prison staff and the telephonic appearance vendor.
"An action must be brought to trial within five years after it is commenced." (Gaines v. Fidelity Nat. Title Ins. Co. (2016) 62 Cal.4th 1081, 1089-1090 (Gaines); § 583.310.) But in computing the five-year period, any time where it was "impossible, impracticable, or futile" to bring the case to trial is excluded. (Gaines, at p. 1087; § 583.340, subd. (c).) Whether a condition of impossibility, impracticability, or futility exists depends on the timing and nature of the interference, including the parties' acts and conduct. (Gaines, at p. 1101; Tejada v. Blas (1987) 196 Cal.App.3d 1335, 1339-1340.) "The critical factor . . . is whether the plaintiff exercised 'reasonable diligence' in prosecuting his or her case." (Tejada, at pp. 1339-1340.)
The plaintiff bears the burden of proving the circumstances warrant an exception. (Gaines, supra, 62 Cal.4th at p. 1100.) The plaintiff must demonstrate diligence in pursuit of his "duty to expediate [sic] the resolution of the case at all stages of the proceedings." (Tejada, supra, 196 Cal.App.3d at p. 1340.) A plaintiff must use every reasonable effort to bring the matter to trial within the five-year period. (Ibid.)
Whether an exception applies is within discretion of the trial court, which we review for abuse of discretion. (Gaines, supra, 62 Cal.4th at p. 1100.)
Here, Graves did not satisfy his burden of proving the circumstances warranted an exception due to impossibility, impracticability, or futility. Principally, Graves failed to oppose Oliver's motion to dismiss. Graves moved to stay proceedings and moved for an extension to file an opposition but he never filed a response to Oliver's motion to dismiss. Having failed to present the trial court with grounds establishing an exception, the trial court acted well within its discretion in finding no exception applied.
Were we to construe Graves's motion to stay proceedings as an objection to the motion to dismiss, the record would still be insufficient to render the trial court's ruling an abuse of discretion. In his motion to stay, Graves referenced his counsel's stipulation to continue trial, his counsel's motion to withdraw, and his own inability to make telephonic appearances.
Graves's counsel's stipulation to continue trial — apparently due to ongoing discovery — does not establish an exception. (See Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1016 ["delays encountered in discovery are part of the 'normal delays involved in prosecuting lawsuits' and do not excuse failure to bring a case to trial within the five-year limit"].) And to the extent his trial counsel failed to expend reasonable effort to bring the matter to trial within the five-year period, we are constrained in our ability to reverse on that basis. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 895 ["as a general rule an attorney's inexcusable neglect is chargeable to the client"].)
Nor does Graves's counsel's withdrawal render erroneous the finding of no exception. First, on the record before us, the court acted within its discretion in allowing Graves's counsel to withdraw. Graves's attorney represented that he had been hospitalized for kidney failure and provided a doctor's note that continuing with trial was not medically recommended. While Graves challenged the veracity of his attorney's representation, the trial court was not obligated to credit Graves's assertions. Moreover, the record does not offer grounds to conclude granting the request was an abuse of discretion. (See People v. Barnett (1998) 17 Cal.4th 1044, 1183 ["our review on a direct appeal is limited to the appellate record"].)
Indeed, the fact that no transcript was provided for the hearing further constrains our review. "In a judgment roll appeal based on a clerk's transcript, every presumption is in favor of the validity of the judgment and all facts consistent with its validity will be presumed to have existed. The sufficiency of the evidence is not open to review. The trial court's findings of fact and conclusions of law are presumed to be supported by substantial evidence and are binding on the appellate court, unless reversible error appears on the record." (Bond v. Pulsar Video Prods. (1996) 50 Cal.App.4th 918, 924.)
Similarly, the fact that Graves's counsel was relieved shortly before trial does not compel a finding that an exception existed. While counsel was relieved on September 11, 2015 — 26 days before trial, and four months before the end of the five-year period — a minute order from the year prior, September 22, 2014, indicated Graves counsel "may be substituting out very soon." Given that Graves apparently had notice of his counsel's impending departure nearly a year before the motion to be relieved was granted, we cannot conclude his counsel's departure would render the trial court's finding of no exception an abuse of discretion. Indeed, the judgment roll posture requires us to presume evidence supports the finding. (See Bristow v. Morelli (1969) 270 Cal.App.2d 894, 898.)
Finally, the record as to Graves's claims regarding telephonic appearances is insufficient to establish an abuse of discretion. In his brief, Graves maintains prison staff refused to confirm court calls and place calls to the vendor and the court, the vendor refused to connect him to scheduled court appearances, and the trial court clerks mishandled or mismanaged court documents. As to this claim, on this appeal we have only Graves's assertions, which are alone insufficient to render the trial court's finding an abuse of discretion. (See People v. Roberts (1963) 213 Cal.App.2d 387, 394 [an appellate court may not take cognizance of facts not supported in the record].)
Graves also argues the Superior Court of Calaveras County, Local Rules, rule 3.8(e) is unconstitutional. The rule considers an attorney or unrepresented litigant's failure to successfully coordinate with the court telephonic appearance vendor a failure to appear. The gist of this claim, however, is that the trial court never inquired into Graves's complaints of denial of access, and the record did not contain any facts that would support a finding of a willful failure to appear. But being limited to a clerk's transcript, on this judgment roll appeal, the sufficiency of the evidence to support the findings is not open to consideration. (Taylor v. Nu Digital Marketing, Inc. (2016) 245 Cal.App.4th 283, 288 ["Where . . . the appeal is on the judgment roll alone, '[t]he question of the sufficiency of the evidence to support the findings [of the trial court] is not open' "].)
In sum, Graves failed to satisfy his burden below of establishing an exception to the five-year period. We must therefore affirm the judgment.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MURRAY, J. DUARTE, J.