Opinion
D073446
06-27-2018
EUGENE H. MARZETTE et al., Plaintiffs and Appellants, v. LOMA LINDA UNIVERSITY MEDICAL CENTER et al., Defendants and Respondents.
Lozoya & Lozoya and Frank J. Lozoya IV, for Plaintiffs and Appellants. Schilt & Heinrich and E. Nathan Schilt for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1415983) APPEAL from a judgment of the Superior Court of San Bernardino County, John M. Pacheco, Judge. Reversed. Lozoya & Lozoya and Frank J. Lozoya IV, for Plaintiffs and Appellants. Schilt & Heinrich and E. Nathan Schilt for Defendants and Respondents.
The trial court dismissed a complaint for failure to prosecute, little more than a year and a half after the complaint was filed. The trial court erred because it has no discretionary power to dismiss a case before two years have passed since the filing of the action. (General Motors Corp. v. Superior Court (1966) 65 Cal.2d 88, 98 (General Motors); Code of Civ. Proc., § 583.420, subd. (a)(2)(B).) Even if the court had such discretion under its inherent authority, we hold that it abused its discretion. Such discretion has been "tightly circumscribed" because of the express policy favoring a decision on the merits rather than on procedural grounds. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916 (Lyons); Code Civ. Proc., § 583.130.)
"[T]he policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action." (Code Civ. Proc., § 583.130.)
Further statutory references are to the Code of Civil Procedure unless otherwise specified.
Plaintiffs filed the case in propria persona and moved it forward for a year. Realizing they were in over their heads, plaintiffs found an attorney willing to represent them. The attorney signed a substitution of attorney but never filed it. The attorney actively worked on the case for a month or so, then fell ill and effectively abandoned the clients. Plaintiffs, defendants, and the court did not learn of this failure to act for six months. At that point, the trial court gave plaintiffs a few short continuances in which to find a new attorney committed to proceeding with trial within four months. The court stated that all discovery was cut off, leaving plaintiffs with no viable case. The court granted no more continuances and called the case for trial. When plaintiffs were unable to proceed, the court dismissed the case with prejudice for failure to prosecute. As we explain, even if the court had the authority to dismiss this case, the court abused its discretion because it did not act in conformity with the policies of the law or with the aim of furthering substantial justice.
BACKGROUND
Plaintiffs Eugene Marzette ("Marzette") and his wife Erevetta Marzette ("Erevetta") filed a complaint for medical malpractice against Loma Linda University Medical Center and Dr. Chelsea Cosand (collectively, "Loma Linda"). The complaint and amended complaint alleged that defendants had injured Erevetta by inadequate care provided in Loma Linda's emergency room on the evening of July 30 through July 31, 2013. Erevetta was alleged to be in a permanent vegetative state as a result.
No disrespect is intended in identifying Erevetta Marzette by her first name to distinguish her from Eugene Marzette. These parties are referred to collectively as "the Marzettes."
Marzette prepared the complaint himself and filed it on October 27, 2014. Marzette responded to a motion to strike, had himself designated the guardian ad litem for Erevetta, filed an amended complaint, requested discovery, and submitted an affidavit from Erevetta's treating physician in support of their claims.
In October 2015, with trial set for December, Marzette determined that he needed an attorney. An attorney appeared "on behalf of Eugene Marzette" on October 27, 2015, said that he had "subbed in today" and that he had a substitution ready. The minute order states that the attorney specially appeared for Marzette and informed the court that he would be submitting a substitution of attorney. The attorney signed a substitution of attorney on October 27, 2015, but never filed it.
According to Marzette, the attorney started to work on the case on behalf of the Marzettes. The attorney traveled to San Diego and interviewed Erevetta's treating physician, consulted with another attorney, and prepared an affidavit for the physician. Marzette was aware on November 13, 2015, that the substitution had not been filed because Marzette signed a stipulation that day to continue the trial setting date. The stipulation recited that an attorney had informed the court that he would be substituting in. It stated, "Both sides anticipate that having legal counsel representing the plaintiffs will result in significantly improved utilization of resources for all concerned." The attorney never filed a substitution of attorney, and after performing the initial work described by Marzette, took no further action on this case. There was no expert designation and no discovery on behalf of the Marzettes.
The next court appearance was on May 5, 2016. The attorney specially appeared for the Marzettes. Marzette was not present due to a serious family health issue. The attorney told the court and counsel for Loma Linda that he had not substituted in, and would not, because he had had a heart attack in December and another in April. He had intended to try the case, but his health now precluded that. There was no prior notice of the attorney's de facto withdrawal. Marzette later said that he, also, did not know that the attorney was failing to represent him before May 5. He said, "So all the whole time, I felt and knew I was represented."
The trial court granted a one-month continuance and ordered Marzette to show cause why the case should not be dismissed for failure to prosecute. The trial court said, "I am going to grant a continuance until June 2nd for readiness and June 6th for trial and also set an order to show cause on June 2nd for a dismissal for failure to prosecute unless plaintiff personally appears on the matter and is prepared to proceed or give good cause why it should not be dismissed." Neither the court's oral order nor the written notice of that order gave any indication that a further continuance would be granted to a new attorney. The order to show cause was issued one year and six months after the complaint had been filed, several months short of the two years given by statute for a discretionary dismissal of an action for failure to prosecute. (See §§ 583.410, 583.420; Cal. Rule of Court, rule 3.1340(a).)
Sections 583.410 and 583.420 authorize discretionary dismissals for delay in prosecution if the case is not brought to trial within three years, or within two years if the Judicial Council so prescribes. (§§ 583.410, subd. (a), 583.420, subds. (a)(2)(A), (B).)
All further rule references are to the California Rules of Court.
The Judicial Council adopted rule 3.1340(a), permitting discretionary dismissals for failure to prosecute within two years after commencement in all actions. (Rule 3.1340(a).)
Marzette appeared at the next conference on June 2, 2016, and said that he had talked with three or four attorneys about representing him. One of the attorneys had been reviewing the case and said he was interested in representing the Marzettes. The trial court stated, incorrectly, that Marzette had had two years since the filing of the complaint in which to obtain an attorney. It said, "Well, this case is about two years old. [¶] . . . [¶] Now, we are at the time of trial, that's two years you've had to obtain an attorney." It is true that the Marzettes were never formally represented by counsel, but they reasonably thought that the first attorney was representing them from late October 2015 to the beginning of May 2016. Respondents acknowledge that Marzette had "ostensible counsel" during that time. And as noted, two years had not yet elapsed. The court continued the case for one week, impressing on Marzette the need to have an attorney in court at the next appearance.
An attorney specially appeared at the June 9 hearing and asked for 120 days in which to fully evaluate the case before deciding whether to accept it. The court said it was inclined to grant a continuance, but only if the attorney committed to accepting the case. The court would not continue the case for the attorney to assess the case. The court said that discovery had been cutoff and a new attorney would not be able to conduct any more discovery. The court expected an attorney to step in, try the case as it was, and "do the best you can with it." It said, "[T]rial skills are trial skills. They're not necessarily preparation skills. And in this case[,] there's no preparation necessary other than to familiarize yourself with the case and get ready to try it as best you can." The trial court continued the readiness hearing for two more weeks, until June 23, 2016, with the trial set for the following week, on June 27, 2016. The court requested that any substitution of attorney be filed within one week of June 9. The minute order said that "No further continuances will be granted."
On June 23, Marzette appeared without counsel. He said that his former attorney had contacted several attorneys, but all needed four to six months to get ready. The court said it would not continue the matter that long. The court denied a further continuance but said that if Marzette had an attorney appear who agreed to substitute in if allowed enough time to prepare the case, the court would consider that request.
The case was called for trial on June 27, 2016, before a different judge. Marzette appeared without an attorney. With the permission of the parties, the judge called the attorney who was interested to ask if he needed 120 days to prepare the case for trial, or 120 days to evaluate whether to take the case. A partner clarified that the firm had no formal attorney-client relationship with the Marzettes. The attorney needed 120 days to evaluate whether to represent the plaintiffs. The attorney would not be ready to try the case in 120 days.
Marzette said he was not qualified to conduct the trial, compounded by serious health concerns. He was especially concerned about his lack of qualification to represent Erevetta. The trial court asserted that Marzette, as guardian ad litem, would be representing Erevetta at trial, as well as himself.
The trial court said it would grant no further continuances, based on the order of the prior judge. It said, "And the Court is bound to the minutes or orders that have been made, and that is no more continuances." The court continued the matter until the next day. Marzette contacted other attorneys, but no attorney would commit to representing him without a chance to review the case. Marzette stated he was unable to proceed with trial. He asked again for a continuance of 120 days. The trial court dismissed the case on June 28, 2016, with prejudice, based on the previous order of no further continuances, and on Marzette's inability to proceed with trial. Judgment was entered on July 20, 2016.
Marzette filed a notice of appeal on July 11, 2016, before judgment was entered. Division II of this court deemed the premature appeal to have been filed immediately following entry of judgment. The case was transferred to this division.
DISCUSSION
1. The Trial Court Had No Authority to Dismiss the Case Less Than Two Years After Filing
Trial courts have great discretion in the management of cases. " ' "On appeal, the trial court's decision will not be reversed unless the appellant demonstrates that the lower court abused its discretion." ' " (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 903-904.) That discretion, however, is " ' "a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice." ' " (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 (Carroll).) The scope of discretion lies within the " 'legal principles governing the subject of [the] action.' ". . . ." 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773, citations omitted; Williams v. Superior Court (2017) 3 Cal. 5th 531, 540 (Williams).)
The Legislature has given trial courts statutory discretion to dismiss an action for failure to bring a case to trial within two years after its initiation, when appropriate under the circumstances of the case. (§§ 583.410, subd. (a), 583.420, subd. (a)(2)(B) ; rule 3.1340(a).) The trial court has no discretionary power "to dismiss an action until two years after it has been filed." (General Motors, supra, 65 Cal.2d at p. 98; Lyons, supra, 42 Cal.3d at p. 915; Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693, 1698 (Cohen).) The purpose of the statutes governing dismissal for failure to prosecute is to prevent avoidable delay. (General Motors, at p. 98.) The statute permitting dismissal if a case is not brought to trial within two years "appears to represent a legislative determination that at least in the typical case a delay of two years is to be deemed unavoidable." (Ibid.)
Section 583.410, subdivision (a) states: "The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case."
Section 583.420 states: "(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:
[¶] . . . [¶]
(2) The action is not brought to trial within the following times:
(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).
(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice."
Rule 3.1340, subdivision (a) states: "(a) Discretionary dismissal two years after filing
The court on its own motion or on motion of the defendant may dismiss an action under . . . sections 583.410583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant."
Section 583.150 states that trial courts have inherent authority to dismiss for failure to prosecute under the governing statutes. This section states: "This chapter does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to Section 575.1 [local rules] or by the Judicial Council pursuant to statute or otherwise under inherent authority of the court." The Law Revision Commission Comments note, however, that the court's inherent authority may not be exercised contrary to statute. (Cal. Law Revision Com. com., 15C West's Ann. Civ. Proc. Code (2011 ed.) foll. § 583.150, p. 315.)
Nor did the Trial Court Delay Reduction Act ("Act"), commonly known as the fast track rules, permit dismissal here. (See § 575.2 ; Gov. Code, § 68600 et seq.) The trial court set the order to show cause regarding dismissal after Loma Linda made an oral motion for dismissal. The court never specified the basis for dismissal. But under the Act, dismissal may not be granted until other, less severe sanctions have been tried and failed. (Gov. Code, § 68608, subd. (b).) The trial court never imposed lesser sanctions here. Further, sanctions may not affect a party's cause of action if the failure to comply with local rules " 'is the responsibility of counsel and not of the party.' " (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476, quoting Gov. Code, § 68608, subd. (b).) The Marzettes reasonably relied on the attorney who agreed to represent them to pursue litigation on their behalf, even though the attorney did not formally substitute into the case. (See Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 74 (Fleming) [client relied on attorney who told client he would represent him, even though attorney did not file substitution of attorney]; Orange Empire Nat. Bank v. Kirk (1968) 259 Cal.App.2d 347, 353 (Orange Empire) [client relieved of inaction of "nominal" counsel who failed to represent him].)
Section 575.2 provides:
"(a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed.
"(b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto."
Government Code section 68608, subdivision (b), provides: "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 article." --------
The Marzettes filed this case on October 27, 2014. It was dismissed with prejudice on June 28, 2016. We reverse the order of dismissal because the trial court had no authority to dismiss the case before October 27, 2016. (General Motors, supra, 65 Cal.2d at p. 98.) 2. If the Court Had Authority to Dismiss, It Abused Its Discretion
Even if the trial court has inherent authority to dismiss this action less than two years from filing, we would reverse the trial court's order. (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799 (Del Junco) [courts have inherent authority to dismiss]; Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 207 (Seacall) [same]; see § 583.150 ["This chapter does not limit or affect the authority of a court to dismiss an action . . . under [the] inherent authority of the court"].) The trial court should dismiss an action in its discretion only "in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation [citation], the fault lies with the client and not the attorney [citation], and when the court issues a directive that the party fails to obey. [Citation.]" (Del Junco, at p. 799.) None of these types of extreme situations existed here.
The court's inherent power to dismiss is "tightly circumscribed" because of the policy favoring litigation on the merits (Lyons, supra, 42 Cal.3d at p. 916), and because a court's discretion in exercising its inherent authority is more narrow than the scope of its statutorily-given power. (Orange Empire, supra, 259 Cal.App.2d at p. 353, citation omitted.) "To the extent that the court's equity power to grant relief differs from its statutory power . . ., the equity power must be considered narrower, not wider." (Ibid.)
Plaintiffs are expected to prosecute their actions with reasonable diligence, but "the policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution." (§ 583.130.) The interest of justice is a relevant factor to be considered, along with the diligence of the parties in prosecuting the action and the nature and complexity of the case. (Rule 3.1342(e)(4), (5), (9).) The trial court acted precipitously in setting this case for dismissal only a year and a half after the action was commenced. Marzette acted with reasonable diligence during the first year, in which he prosecuted the case in propria persona. He responded to a motion to strike, had himself appointed guardian ad litem for his wife, filed an amended complaint and commenced discovery.
Realizing his limitations at that point, Marzette obtained an attorney who agreed to represent the Marzettes. The attorney had signed a substitution of attorney. Marzette reasonably relied on the attorney to file the substitution and to prosecute the case. (Fleming, supra, 23 Cal.App.4th at p. 74 [attorneys' neglect should not be imputed to client under discretionary dismissal statutes when they "expressly and impliedly promised they would prosecute her lawsuit while they took no action whatsoever"].) The attorney, however, effectively abandoned the Marzettes, due to health problems. The attorney's inaction for that six-month period, from the end of October to the beginning of May, should not be imputed to the Marzettes because of the attorney's failure to represent the Marzettes in any way. (Id. at pp. 72-75.)
Further, once the trial court set the hearing for the dismissal, it greatly limited Marzette's options for finding new counsel by proclaiming all discovery cut off and imposing arbitrary limitations on the availability and length of continuances. The court's discretion to dismiss the case was narrow, because the discretion was not statutorily granted. (Orange Empire, supra, 259 Cal.App.2d at p. 353.) The dismissal was outside the general principles of law and policy favoring trial on the merits over speedy litigation. (Lyons, supra, 42 Cal.3d at p. 916; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 390.) The court failed to consider Marzette's diligence in prosecuting the case from October 2014 through October 2015, Marzette's reasonable reliance on his attorney and his attorney's failure to represent him from October 2015 through May 2016, Marzette's diligent efforts to obtain counsel after learning of the abandonment by his attorney, and the inability of Marzette to represent Erevetta at trial. For all these reasons and because justice prevails over expediency (see Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 (Hernandez) [abuse of discretion not to permit reopening of discovery]), we find that the trial court abused any discretion it had in dismissing the case.
We need not decide the Marzettes' contention that the dismissal with prejudice was unauthorized in light of our disposition of this case.
We grant Loma Linda's request to strike Section II of Marzette's opening brief because the brief did not comply with rule 8.204(a)(1)(C), which requires the parties to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." Adding the citations in the reply brief does not excuse the error in the opening brief. We note, however, that the information in Section II was available to the court by reviewing the clerk's transcript. We read the documents in the clerk's transcript as preliminary allegations, and not as facts, that describe the Marzettes' claims. These allegations had no bearing on our finding that the trial court abused its discretion. The failings of the trial court were to dismiss the case less than two years after filing and to fail to exercise its discretion in conformance with the public policies of the state.
DISPOSITION
The judgment of dismissal is reversed and the case is remanded to the trial court for further litigation of this case. Plaintiffs are awarded their costs on appeal.
BENKE, Acting P. J. WE CONCUR: AARON, J. DATO, J.