Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
APPEAL from a judgment of the Superior Court of Imperial County No. L00641, Christopher W. Yeager, Judge.
McDONALD, J.
Plaintiff David W. Lanier appeals the judgment dismissing without prejudice his action against defendant Wells Fargo Bank, N.A. (Bank). The court dismissed the action because Lanier did not comply with rules adopted under Government Code section 68600 et seq. Lanier timely appealed.
Lanier also purports to appeal an order, entered two and one-half years earlier, granting Bank's petition to compel arbitration under a contractual arbitration clause. However, Lanier cites no authority that the order is an appealable order. To the contrary, that order is not appealable but instead may be reviewed only on an appeal from a judgment entered confirming the arbitrator's award. (Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1453-1454.) Because the case was dismissed for reasons unrelated to an arbitration award, we do not further consider Lanier's purported appeal attacking the interlocutory order granting Bank's motion to compel arbitration. At oral argument, counsel for Bank took the position that dismissal of this action does not affect the order compelling arbitration and the dispute is still subject to arbitration.
We are required to view the facts most favorably to the judgment. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203.) Lanier's brief contains a one-sided recitation of the facts supporting his position, without stating the facts that support the ruling. This would permit us to deem any claim of insufficient evidence waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Moreover, because the vast bulk of Lanier's "facts" are unsupported by any citation to the record, we could grant Bank's motions to strike Lanier's opening and reply briefs in their entirety (Cal. Rules of Court, rule 8.204, subd. (e)(2)) and rely solely on Bank's brief. We deny Bank's motion to strike and elect to examine the issue on the merits, disregarding all factual recitations contained in Lanier's brief that lack appropriate record citations.
In March 2001 Lanier, acting in propria persona, filed this action against his nephew, Robert Thomas Mills II and Bank, alleging they were liable to Lanier because Mills withdrew deposits, allegedly belonging to Lanier, held by Bank and placed in a deposit account. Each defendant twice demurred, and the court sustained the second set of demurrers without leave to amend and dismissed the action. However, this court subsequently reversed that ruling, and ordered the trial court to vacate its prior order and enter new orders overruling the demurrers. (Lanier v. Mills (Apr. 27, 2004, D041677) [nonpub. opn.] at p. 23.) In August 2004 the court on remand vacated its prior order and entered a new order overruling Bank's demurrer.
In early October 2004, Bank served Lanier with a written demand to submit the dispute to arbitration under the documents governing the deposit account. When Lanier ignored Bank's demand, Bank petitioned for an order to compel arbitration. Lanier, appearing at the November 15, 2004, hearing through the court call appearance system, opposed Bank's petition. The court stated it would grant the petition and directed Bank to submit a proposed order. Two days later, Bank provided a proposed order to Lanier for his approval, but Lanier ignored it. On December 7, 2004, the court entered the order granting Bank's petition to compel arbitration.
Lanier subsequently attempted to have the court reconsider the order granting the petition to compel arbitration but was apparently unsuccessful. Accordingly, in July 2005, Bank served Lanier with a Notice of Entry of Order granting Bank's petition to compel arbitration.
In February 2006, 14 months after the court entered its order requiring Lanier to proceed to arbitration and eight months after Bank served the order compelling arbitration on Lanier, there had been no progress toward arbitration of the dispute. Accordingly, the court issued an Order to Show Cause (OSC) regarding dismissal for Lanier's failure to comply with the applicable delay reduction rules. In Lanier's written response, he asserted he had made efforts to pursue the case outside of the court-ordered arbitration (as well as to overturn the court's order requiring arbitration), but did not show he had taken any steps to comply with the order by pursuing the mandated arbitration. At the April 2006 hearing on the first OSC regarding dismissal, Lanier again appeared through the court call appearance system to oppose the OSC. Bank pointed out that nothing had been done to move the arbitration forward in the 15 months since the court entered its order compelling arbitration, Lanier had made no effort to obtain appellate relief from the order compelling arbitration, and Lanier's in propria persona status should not excuse his inaction because Lanier was a former judge. The court, recognizing that Lanier claimed he was pursuing appellate relief from the order compelling arbitration, urged Lanier to pursue his appellate avenues and took the OSC off calendar.
Bank sent Lanier a May 23, 2006, letter reminding Lanier the court had entered an order 18 months earlier compelling binding arbitration and demanding Lanier comply with his obligations to pursue binding arbitration. Lanier responded by filing a motion (set for hearing on July 3, 2006) seeking an order to submit the case to a judicial mediation. Lanier failed to appear at the July 3, 2006, hearing. The court ordered Lanier's motion be taken off calendar, and instead set a case management conference for September 12, 2006.
Lanier failed to appear, either by an attorney or personally through the court call appearance system, at the September 12, 2006, case management conference. Accordingly, the court issued an OSC regarding dismissal or other sanctions for failure to appear at the September 12, 2006, case management conference and for failure to pursue the arbitration. Lanier responded to the OSC in writing, asserting he was unaware of the court's scheduling of the case management conference.
At the October 12, 2006, hearing on the OSC regarding dismissal, Lanier again failed to appear (either by an attorney or personally through the court call appearance system), despite receiving notice of the hearing and despite Lanier's familiarity with the methods for appearing through conference call or the court call system. Bank asserted Lanier's repeated refusals to comply with the order to pursue arbitration, and his repeated failure to participate in the hearings in the matter or to comply with the court's rules and orders, demonstrated Lanier had no interest in pursuing the case and Bank should not be required to continue expending its time and resources on a matter that had been pending for over five years. The court, noting the history of Lanier's pursuit of the case is "not a positive history in terms of [his] conduct," ordered the action dismissed without prejudice.
The order dismissed the entire action, including Lanier's claims against defendant Robert Mills. Although Mills has not filed a brief on appeal, Lanier's appellate brief does not raise any separate argument for reversing the order of dismissal as to Mills, and we therefore do not separately evaluate the order insofar as it applies to Lanier's claims against Mills.
ANALYSIS
A Legal Framework
In 1986 the Legislature adopted the Trial Court Delay Reduction Act (Gov. Code, § 68600 (Act)), and in 1990 the original Act was repealed and the current, revised Act, with statewide application effective July 1, 1992, was adopted. Under the Act, the California Judicial Council (the Council), as the policy and rulemaking body for the courts, was directed by the Legislature to promulgate "standards of timely disposition" of civil and criminal actions. (Gov. Code, § 68603, subd. (a).) In establishing these standards the Council was to be "guided by the principles that litigation, from commencement to resolution, should require only that time reasonably necessary for pleadings, discovery, preparation, and court events, and that any additional elapsed time is delay and should be eliminated." (Ibid.)
The Council followed this mandate by promulgating standards for the time in which cases should be concluded. (Cal. Stds. Jud. Admin., § 2.1 et seq.) The standards provide that general limited civil cases (other than a small claims or unlawful detainer case) are to be resolved as follows:
"(A) 90 percent are disposed of within 12 months;
"(B) 98 percent are disposed of within 18 months;
"(C) 100 percent are disposed of within 24 months." (Cal. Stds. Jud. Admin., § 2.2(f)(2).)
The Act charges judges with the responsibility "to eliminate delay in the progress and ultimate resolution of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition of the action." (Gov. Code, § 68607.) The legislative mandate to manage cases was accompanied by an express legislative grant that authorized courts to impose sanctions for noncompliance with rules adopted to implement the Act. These sanctions include the power to dismiss actions. (Id. at § 68608, subd. (b).) In deciding whether to impose the ultimate sanction of dismissal, judges are required to consider the history of the conduct of the case: "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 [Act]." (Ibid.)
The courts have construed and harmonized the provisions of the Act with the provisions of Code of Civil Procedure section 575.2, subdivision (a), (which permits a court's local rules to prescribe sanctions, including dismissal of an action for noncompliance with those rules) by concluding there are two limitations on the trial court's power to dismiss an action for noncompliance with local rules. First, the noncompliance must be attributable to the party rather than to the party's counsel alone (see Garcia v. McCutchen (1997) 16 Cal.4th 469, 481), and second, dismissal is appropriate only if less severe sanctions would be ineffective. (See Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1062.)
A trial court may enter terminating sanctions, even against a litigant who proceeded in propria persona (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799-800), because pro per litigants "are entitled to the same, but no greater, rights than represented litigants and are presumed to know the delay-reduction rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
B. Evaluation
The court's decision to enter terminating sanctions against Lanier was not an abuse of its discretion. The court had previously scheduled an OSC regarding dismissal when, nearly 14 months after ordering him to proceed to arbitration, Lanier had done nothing to comply with the order. Lanier avoided dismissal at that time, apparently because the court accepted his claim that he was pursuing appellate relief from the order compelling arbitration. However, after several more months elapsed, during which time Lanier ignored Bank's demand to proceed to arbitration and thereafter failed to appear at a motion he brought, the court again scheduled a case management conference and Lanier again failed to appear. The court again scheduled an OSC regarding dismissal, with a hearing date nearly two years after Lanier had been ordered to pursue his claim through arbitration, but Lanier again failed to appear and the court was again informed that Lanier had done nothing to pursue the arbitration.
By the time the order dismissing Lanier's complaint was entered, the case had languished well beyond the time limits contemplated by the Act and the Judicial Standards promulgated thereunder. Moreover, the court was aware that Lanier was not an uninformed, self-represented litigant, but was instead a former judge capable of understanding and complying with his obligations. Finally, the court's order was not based on the single failure to appear at the September 2006 case management conference, but was instead expressly made in recognition of the entire history of Lanier's conduct during the litigation. On these facts, we conclude the decision to impose the dismissal sanction was not an abuse of the court's discretion.
By the time of the final hearing, over five and one-half years had elapsed since Lanier had filed his complaint against Bank, which may have implicated the mandatory dismissal provisions of Code of Civil Procedure section 583.310 et seq.
DISPOSITION
The judgment is affirmed. Bank is entitled to costs on appeal.
WE CONCUR: HALLER, Acting P. J, AARON, J.