Opinion
F070514
02-02-2017
JANO KAMCIYAN, Plaintiff and Appellant, v. CITY OF FRESNO, Defendant and Respondent.
McCormick, Barstow, Sheppard, Wayte & Carruth and James P. Wagoner for Plaintiff and Appellant. Douglas T. Sloan, City Attorney, and Erica M. Camarena, Deputy City Attorney, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 10CECG03562)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver Kapetan, Judge. McCormick, Barstow, Sheppard, Wayte & Carruth and James P. Wagoner for Plaintiff and Appellant. Douglas T. Sloan, City Attorney, and Erica M. Camarena, Deputy City Attorney, for Defendant and Respondent.
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Plaintiff Jano Kamciyan filed this personal injury action against the City of Fresno (City) for injuries suffered on November 2, 2009, while boarding a City bus. In March 2014, City filed a motion to dismiss the action with prejudice, contending plaintiff had failed to prosecute the action within the three-year period prescribed by Code of Civil Procedure section 583.420. The trial court granted City's motion to dismiss with prejudice.
All unlabeled statutory references are to the Code of Civil Procedure.
On appeal, plaintiff contends the trial court erred (1) by dismissing the action despite having a letter from his doctor explaining his physical disability and why he was unable to attend the hearing and (2) by granting the dismissal "with prejudice."
We conclude plaintiff has not affirmatively demonstrated the dismissal for lack of prosecution was the result of an abuse of discretion. In contrast, plaintiff has shown the trial court lacked the authority to dismiss the action with prejudice.
We therefore modify the judgment to state the dismissal is without prejudice and affirm the judgment as modified.
FACTS AND PROCEEDINGS
Plaintiff alleges he was injured on November 2, 2009, while boarding a City bus near the intersection of Blackstone and Nees Avenues. He alleges the driver of the bus accelerated before plaintiff was seated and caused plaintiff's body to hit the back of the seat, causing injury.
On October 7, 2010, plaintiff filed a complaint against City and Doe defendants one through 10 alleging a general negligence cause of action for a personal injury involving a motor vehicle. The complaint requested damages for hospital and medical expenses, general damages, and future medical expenses. The complaint was signed by Attorney Alison E. Wilson of the Wild, Carter & Tipton law firm.
The first delay in this litigation relates to service of the summons and complaint. In August 2011, plaintiff's attorney was sanctioned for failing to appear at an order to show cause hearing and for failing to serve the defendant. In November 2011, a proof of service of the summons and complaint was filed showing personal service on a deputy city clerk. City answered the complaint 10 days later.
In May 2012, a substitution of attorney was filed stating plaintiff would represent himself in the action. Prior to the substitution, no discovery requests had been served on City.
In August 2012, Madhav Suri, M.D., sent a letter to the trial court for the purpose of providing information regarding plaintiff's "medical condition which limits his ability to be available in the County of Fresno for providing requests for materials, communications and court appearances when necessary." The reasons listed included primary diagnoses of spinal cord disorders, spinal cord tumor, and a suspected Klippel-Feil deformity. Other reasons included (1) lumbar spondylosis scoliosis for which plaintiff had spine surgery (which Dr. Suri characterized as successful), (2) congenital scoliosis, (3) headache, (4) common migraine without aura, (5) generalized nonconvulsive seizure, and (6) lumbar radiculopathy.
In October 2012, Attorney David L. Milligan substituted into the case as counsel of record for plaintiff. In the middle of 2013, Milligan filed declarations in support of his motion to be relieved as counsel. Milligan stated a conflict arose concerning the manner in which to proceed, and plaintiff had not returned a substitution of attorney form provided to him. In August 2013, the court granted Milligan's motion to be relieved as counsel. No discovery requests were served on City during Milligan's representation.
In January 2014, City filed a motion to dismiss the action with prejudice. On March 4, 2014, the trial court issued a minute order with its tentative ruling attached. The tentative ruling was to deny the motion without prejudice to bringing a motion that complied with the time limits for service (i.e., at least 45 days before the hearing date) and sought dismissal without prejudice. The court quoted Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187 (Franklin Capital) for the principle "'that dismissals for procedural dereliction ... are to be without prejudice.' (Id. at p. 214.)"
On the day of the minute order, City filed another motion to dismiss the action with prejudice. The motion requested the court, pursuant to its inherent powers, to dismiss the action with prejudice for failure to prosecute and for the failure of the pleading to explicitly identify a specific statute upon which City could be found liable. A declaration of a deputy city attorney filed in support of the motion stated plaintiff had conducted no discovery on City. As to prejudice, the declaration asserted plaintiff's "delay in bringing this matter to trial has caused the City unnecessary costs and fees, prejudicial to the City."
On April 29, 2014, the trial court issued a minute order setting oral argument on the motion to dismiss for May 6, 2014. The tentative ruling attached to the minute order stated the court intended to deny the motion without prejudice. The tentative stated in part:
"It is not possible to lay blame for the delays in this case solely at the feet of plaintiff. The complaint was not served for a year, and counsel filing it substituted out after six more months. Subsequent counsel was in the case for only four months before he sought to withdraw. The City's counsel admits that none of plaintiff's attorneys did any discovery on plaintiff's behalf while they represented him.
"There is also the fact that the file contains a letter from a physician attesting to substantial disabilities on the part of plaintiff and attributes inability to participate in certain activities pertinent to the case to such conditions. The disabled have a constitutional right to access the Court for justice, and state courts may be liable for damages where such access is deterred. Tennessee v. Lane (2004) 541 U.S. 509.
"Such concerns merit denial of defendant's motion at this time, but without prejudice, as defendant is entitled to proceed with its defense as well. It is therefore incumbent on plaintiff to take such actions as may be necessary to prosecute this matter. Plaintiff must appear in person, via Court Call, or through counsel at hearings, and must answer discovery by defendant. If plaintiff is unable to do so, a guardian ad litem may be necessary, and plaintiff need make such a request."
On May 6, 2014, the trial court held a hearing on City's motion to dismiss. Plaintiff was not present. The court's order after hearing repeated the first two of the above-quoted paragraphs and then stated:
"Such concerns merit a continuance of defendant's motion at this time. In order to avoid dismissal, Plaintiff must appear in person, via Court Call, or though counsel on July 15, 2014 at 3:30 p.m. in Department 403 for the continued hearing on this matter. If Plaintiff does not appear, or otherwise contact the court, this case will be dismissed on July 15, 2014."
On July 14, 2014, plaintiff's mother faxed to the court a letter from Christopher P. Ames, M.D., of the UCSF Medical Center stating plaintiff "is currently under my care and is status post spinal surgery. Due to his complex medical condition and treatment schedule, he will not be available for any reason other than his medical appointments through 01/01/2015." The copy of the letter and fax cover sheet contained in the clerk's transcript shows the letter was stamped "PLACE IN FILE," but does not indicate, one way or the other, whether the letter was actually presented to the trial court before or during the next day's hearing.
At the July 15, 2014, hearing, plaintiff did not appear. The court filed an order stating the motion to dismiss was granted with prejudice and instructing counsel for City to submit an order for signature. A signed order dismissing the action with prejudice was filed on July 17, 2014. The order referred to plaintiff's failure to appear at the May 6, 2014, and July 15, 2014, hearings and the fact he did not file any documents with the court requesting an extension. The order did not mention the statute under which the dismissal was granted, did not identify any prejudice experienced by City from the delay in prosecution, and did not state why the dismissal was with prejudice, which was contrary to statements in the prior tentative rulings.
Defendant prepared and served a notice of entry of order. Plaintiff subsequently filed a notice of appeal.
DISCUSSION
I. Dismissal For Dilatory Prosecution
A. Summary of the Law
1. Statutory Provisions Addressing Delays in Prosecuting Civil Action
Code of Civil Procedure, part 2, title 8, chapter 1.5 (chapter 1.5) governs the dismissal of an action for delay in prosecution. (See §§ 583.110-583.430.) This chapter was added to the Code of Civil Procedure in 1984 as a comprehensive revision in the statutes governing dismissal of civil actions for delay in prosecution. (Stats. 1984, ch. 1705, § 5; Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 727-728.) According to legislative history quoted by our Supreme Court:
"'"The major purpose of [chapter 1.5] is to clarify ambiguities in the law, to bring the statutes into conformity with case law interpreting them, and to reconcile discrepancies in statutes and cases. [Chapter 1.5] also makes a number of modest substantive changes to improve operation of the statutes. The effect of the changes is to encourage ... disposition of civil actions on the merits rather than dismissal on procedural technicalities."'" (Bruns, supra, at p. 728.)
Chapter 1.5 contains four articles, the first of which sets forth definitions and general provisions. Article 2 addresses the mandatory time for service of the summons and complaint. (See §§ 583.210-583.250.) Article 3 addresses the mandatory time for bringing an action to trial. (See §§ 583.310-583.360.) Article 4 addresses discretionary dismissals based on delay—the subject of this appeal. (See §§ 583.410, 583.420 & 583.430.)
A general provision states California's policy is "that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition." (§ 583.130.) This policy "is consistent with statements in the cases of the preference for trial on the merits." (Revised Recommendation Relating to Dismissal for Lack of Prosecution (June 1983) 17 Cal. Law Revision Com. Rep. (1984) p. 929.)
2. Article 4 of Chapter 1.5: Discretionary Dismissals
Section 583.410, subdivision (a) sets forth the general principle that a court may dismiss an action for delay in prosecution pursuant to article 4 of chapter 1.5 if dismissal "appears to the court appropriate under the circumstances of the case." The section also states any such dismissal shall comply with the procedures and criteria prescribed by rules adopted by the Judicial Council. (§ 583.410, subd. (b).)
California Rules of Court, rule 3.1342 (rule 3.1342) addresses motions to dismiss for delay in prosecution under article 4 of chapter 1.5.
Using a double negative, section 583.420 provides: "The court may not dismiss an action pursuant to this article for delay in prosecution" except when "[t]he action is not brought to trial within" three years after the action was filed. (§ 583.420, subd. (a)(2)(A).) The three-year requirement provided the statutory grounds for City's motion to dismiss.
Section 583.420 also authorizes dismissals for delay in prosecution when service is not made within two years of filing the action and in certain situations where the delay occurs after a new trial has been granted. (§ 583.420, subd. (a)(1), (3).)
The factors relevant to the trial court's exercise of its discretionary authority to dismiss for delays in prosecution are (1) the file in the case and the declarations and supporting data submitted by the parties; (2) the diligence in serving process; (3) any settlement negotiations or discussions; (4) the diligence of the parties in pursuing discovery or other pretrial proceedings; (5) the nature and complexity of the case; (6) the law applicable to the case; (7) the nature of any extensions of time or other delay attributable to either party; (8) the condition of the court's calendar; (9) whether the interests of justice are best served by dismissal or trial of the case; and (10) any other fact or circumstance relevant to a fair determination of the issue. (Rule 3.1342(e).) In addition, the trial court must be guided by the policies set forth in section 583.130. (Rule 3.1342(e); see fn. 2, ante.)
3. Standard of Review for Discretionary Dismissals
"A reviewing court may not reverse a trial court's order granting dismissal for dilatory prosecution unless the plaintiff meets the burden of establishing manifest abuse of discretion resulting in a miscarriage of justice. [Citations.] An appellate court may not substitute its own discretion for that of the trial court and must uphold the dismissal order if the trial court has not abused its discretion." (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 82-83; see Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 439-440 [abuse of discretion standard applies to dismissals under § 583.410].)
B. Grounds for the Dismissal
1. Legal Error
One way an appellant can establish an abuse of discretion is to show the trial court applied the wrong legal standard. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) A trial court's decision resting on an error of law is an abuse of discretion. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1361.)
The March 2014 tentative ruling demonstrates the trial court was aware of section 583.410, section 583.420 and rule 3.1342—the statutory provisions and rule of court governing discretionary dismissals for delays in prosecution. Therefore, this appeal does not involve a situation where the trial court abused its discretionary authority by relying on the wrong legal standards to guide the exercise of its discretion.
2. Factual Basis for Dismissal
The court's tentative rulings also show the court was aware that (1) more than a year passed before the summons and complaint were served, (2) plaintiff's original attorney withdrew about six months after service, (3) subsequent counsel was in the case only four months before seeking to withdraw, and (4) Dr. Suri submitted an August 2012 letter to the court describing plaintiff's physical condition. The trial court held hearings in May 2014 and July 2014 on the motion to dismiss and, prior to the second hearing, issued an order advising plaintiff that the action would be dismissed if he did not appear or otherwise contact the court. Thus, the court notified plaintiff, in specific terms, of the events that would result in dismissal of his action.
The appellate briefing of the parties disagrees about whether the trial court considered or was allowed to consider the July 14, 2014, letter from Dr. Ames describing plaintiff's physical condition. Plaintiff contends the letter was considered by the trial court because it was brought to the attention of the court clerk before the hearing and was stamped "PLACE IN FILE." City raises six grounds as to why Dr. Ames's letter should be disregarded, including the argument it was never properly made part of the record as it was not filed or lodged with the court.
First, plaintiff contends that, in California cases, a "justifiable excuse for delay has been relied upon to overturn a trial court's dismissal for lack of prosecution." Second, he contends his situation is comparable because the letter from Dr. Ames shows "a justifiable excuse both for Plaintiff's absence from the July 15, 2014, [hearing] as well as his overall failure to prosecute." In particular, plaintiff argues the letter demonstrates his failure to appear at the hearing was due to his complex medical condition and treatment schedule. Thus, the letter provides the primary factual basis for plaintiff's claim of a justifiable excuse.
Based on the record presented, we cannot discern whether Dr. Ames's July 14, 2014, letter, which was faxed to the court by plaintiff's mother, was received and considered by the trial court before it rendered its decision. Accordingly, we will not consider that letter and evaluate whether it established good cause for plaintiff's failure to appear at the July 15, 2014, hearing. In other words, we will evaluate the trial court's decision based on the information that has been shown to have been before the court when it made that decision.
Our review of the record shows the matters before the trial court provide a sufficient factual foundation for the discretionary determination to dismiss the action. The action was filed in October 2010 and was served in November 2011. Therefore, three and three-quarter years had passed since the action was commenced. A discretionary dismissal under sections 583.410 and 583.420 is possible when the action has not been brought to trial within three years after the action was filed. (§ 583.420, subd. (a)(2)(A).) Consequently, plaintiff's action had been pending for the requisite amount of time. In addition, the plaintiff's failure to appear at the hearings in May and July of 2014, the lack of discovery, and other factors provided a sufficient basis for the trial court to determine the action was not being diligently prosecuted, therefore, a dismissal was within its discretionary authority.
In summary, plaintiff has not carried his burden of establishing a manifest abuse of discretion resulting in a miscarriage of justice. The facts established by the record provide adequate grounds for a discretionary dismissal.
C. Dismissals With Prejudice
1. Dismissal Under Sections 583 .410 and 583 .420
The trial court's own tentative rulings show it was aware of the discussion in Franklin Capital stating the Legislature and the California Supreme Court have said that dismissals for lack of prosecution are to be without prejudice. (Franklin Capital, supra, 148 Cal.App.4th at p. 214.) The Legislative pronouncement is contained in section 581, which states: "(b) An action may be dismissed in any of the following instances: [¶] ... [¶] (4) By the court, without prejudice, when dismissal is made pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110)." (Italics added.) The court in Franklin Capital determined the statute and case law forced it to conclude "the trial court had no authority to enter [the] dismissal with prejudice." (Franklin Capital, supra, at p. 215.)
Notwithstanding its awareness of the discussion in Franklin Capital, the trial court decided to dismiss plaintiff's action with prejudice. The reason for this decision is not disclosed in the trial court's minute order or the order of dismissal prepared by counsel for City.
Therefore, to the extent the dismissal was based on the provisions of article 4 of chapter 1.5 governing discretionary dismissal for lack of prosecution, we conclude the trial court lacked the authority to grant the dismissal with prejudice. (§ 581, subd. (b) [dismissal without prejudice].) Accordingly, the dismissal with prejudice cannot be upheld if the dismissal was pursuant to the provisions of article 4 of chapter 1.5.
2. Inherent Authority to Dismiss with Prejudice
City contends the trial court had the inherent power to dismiss and cites Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736 for the principle "California courts have inherent power to dismiss civil cases for unreasonable, inexcusable delay in prosecution." (Id. at p. 758.) This argument implies the authority to dismiss with prejudice is part of the trial court's inherent authority.
The flaw in City's reasoning is its motion and the evidence submitted to support that motion did not address, much less prove, the inexcusability of plaintiff's delay. City's memorandum of points and authorities referred to a "protracted and unexplained delay in prosecution" but made no attempt to address the points raised in the trial court's tentative rulings in describing the bases for the delays occurring up to that point, one of which was plaintiff's physical condition. City simply did not address plaintiff's health and, thus, presented no evidence he was capable of searching for new counsel or undertaking the task of representing himself. In short, City's memorandum of points and authorities referred to the court's inherent authority to dismiss for an inexcusable delay, but did not present facts showing the delay actually was inexcusable. Plaintiff's quotation of the trial court's tentative ruling refutes City's position plaintiff's delay is unexplained because that quotation shows the trial court regarded the delays through the presentation of Dr. Suri's letter as explained. As to the delays subsequent to Dr. Suri's letter, City presented the trial court with no evidence showing that portion of the delay was inexcusable under applicable law.
City is entitled to an implied finding of inexcusable delay only if the record contains substantial evidence supporting such an implied finding. We conclude substantial evidence does not support such an implied finding of inexcusable delay and, therefore, we cannot infer the trial court granted the motion to dismiss on that ground. Based on the conclusion the motion to dismiss was not granted under the trial court's inherent authority, we do not address whether that inherent authority extended to a dismissal with prejudice.
The intendments and presumptions indulged by the appellate court to support the trial court's order include inferring the trial court made implied findings of fact, provided the findings are (1) consistent with the trial court's order and (2) supported by substantial evidence. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143 [order under review was subject to abuse of discretion standard].)
D. Prejudice to City
Based on the foregoing analysis and conclusions, we do not discuss in detail the question, briefed by the parties, whether City experienced any prejudice from plaintiff's delay. A moving party need not establish prejudice to obtain a discretionary dismissal for failure to prosecute. (See § 583.420; rule 3.1342.) Therefore, plaintiff's claim of an absence of prejudice to City does not identify a legal ground upon which a discretionary dismissal for delay in prosecution under chapter 1.5 can be reversed.
We note the trial court's May 2014 tentative ruling correctly stated "[t]he fact that the City has to spend money defending itself is not 'prejudice.'" This was the only type of prejudice referred to in the deputy city attorney's March 2014 declaration in support of the motion to dismiss.
II. Failure to Plead Specific Code Section
City contends the dismissal of the action was warranted because the complaint failed to identify a specific statute upon which City can be found liable as required by Government Code section 815. Government Code section 815 provides: "Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person." City cites no authority for the principle a dismissal on this ground may be with prejudice.
We note City chose to file an answer to plaintiff's complaint rather than a demurrer on the ground the complaint, by omitting a reference to a specific statute, failed to allege facts sufficient to state a cause of action. The failure to demur and the relative frequency with which public entities are sued for injuries involving motor vehicles suggests counsel and City were not confused about the statutory basis for the negligence claim—namely, Government Code sections 815.2 and 820, which overlap with Vehicle Code section 17001.
Government Code section 815.2, subdivision (a) sets forth the vicarious liability of a public entity such as City by stating: "A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative." The general rule for public employee liability is codified in Government Code section 820, subdivision (a): "Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person." Vehicle Code section 17001 states in full: "A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment." (See Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 883-885 [relationship between Gov. Code, § 815.2 and Veh. Code, § 17001].) --------
We conclude the purported omission of an essential fact from the pleading should be raised by demurrer or a motion for judgment on the pleadings, not a motion to dismiss. Therefore, we do not uphold the dismissal on the ground the pleading omitted a specific statutory basis for City's liability for the negligence of its employee.
Moreover, the omission would not have justified dismissing the complaint with prejudice because plaintiff has shown an ability to cure the omission. When a demurrer is sustained for failing to state a cause of action and leave to amend is denied, an abuse of discretion will be established if the plaintiff shows there is a reasonable possibility the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The requisite demonstration of a reasonable possibility of curing the defect by amendment may be made by the plaintiff for the first time on appeal. (§ 472c, subd. (a); City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746-747.) Here, plaintiff's appellate brief references Vehicle Code section 17001 and demonstrates an ability to amend his pleading had he been asked or directed to do so.
Therefore, the dismissal with prejudice cannot be justified on the ground plaintiff failed to specifically identify the Government Code sections and related Vehicle Code section that provide for City's vicarious liability.
DISPOSITION
The judgment of dismissal is modified to state the dismissal is without prejudice. The judgment, as modified, is affirmed. Plaintiff shall recover his costs on appeal.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
SMITH, J.