Opinion
G055332
12-12-2018
MASECO S.A., Plaintiff and Appellant, v. ROBERT J. HERBERT, Defendant and Respondent; GARY E. PRIMM, as Trustee, etc., Intervener and Respondent.
Macias Counsel, Inc., and Sean E. Macias for Plaintiff and Appellant. Thomas Whitelaw & Kolegraff, Joseph E. Thomas, William S. Sanderson and Christina L. Trinh for Defendant and Respondent. No appearance by Intervener and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2016-00872019) OPINION Appeal from an order of the Superior Court of Orange County, Gregory H. Lewis, Judge. Reversed and remanded with directions. Macias Counsel, Inc., and Sean E. Macias for Plaintiff and Appellant. Thomas Whitelaw & Kolegraff, Joseph E. Thomas, William S. Sanderson and Christina L. Trinh for Defendant and Respondent. No appearance by Intervener and Respondent.
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Plaintiff Maseco S.A. (Maseco) appeals from the trial court's order dismissing the action with prejudice after Maseco failed to appear at trial. Maseco argues the court erred because Maseco's counsel was present at trial. In the alternative, Maseco argues the court should have dismissed the action without prejudice. We agree the court erred in dismissing with prejudice and remand the matter to the court with directions to enter an order dismissing the action without prejudice. The court also may consider imposing monetary sanctions in addition to the dismissal without prejudice.
I
FACTS
In August 2016, Maseco filed a complaint against defendant Robert J. Herbert for breach of contract. In February 2017, the trial court granted Herbert's motion to compel the deposition of a person most knowledgeable of Maseco and waived the discovery cut-off date. Herbert noticed the deposition for April 6, 2017, but Maseco did not produce a witness for the deposition. On April 10, 2017, the court granted Herbert's motion requesting an undertaking and ordered Maseco to post the undertaking by April 20, 2017. Maseco never posted the undertaking. On April 13, 2017, the court held a mandatory settlement conference. Maseco did not appear, and the court issued a minute order setting an "Order to Show Cause re: Failure to Appear" for the first day of trial. The minute order did not indicate who was ordered to show cause but indicated Maseco's "[f]ailure to appear may necessitate the implementation of sanctions."
On April 24, 2017, Maseco's counsel appeared for trial and requested a continuance because he was unable to reach his client and did not have any other witnesses to proceed. Counsel for Gary E. Primm, an intervening party, indicated the parties had anticipated this issue at the mandatory settlement conference and requested judgment in favor of both Primm and Herbert. Herbert's counsel agreed with Primm's counsel. The court then asked Maseco's counsel to confirm Maseco had not appeared for the deposition or mandatory settlement conference. The court also stated: "[T]he court is given to understand that [Maseco] will not come forward for the purpose of prosecuting this case; Is that correct?" Maseco's counsel responded: "Correct." The court indicated it was "striking the complaint under the circumstances." The court also agreed to "entertain entering a judgment in favor of" Herbert and Primm.
On the same day, the court issued a minute order stating: "Counsel for [Maseco] informs the court that he is unable to reach his client. [¶] The Court orders the entire action dismissed without prejudice. [¶] . . . [¶] Clerk to give notice." The court did not direct any party to prepare a subsequent order, but Primm's counsel filed a proposed order dismissing the action. Although the proposed order is not included in the record on appeal, it appears the court entered the order. The court thereafter entered a subsequent "Order of Dismissal with Prejudice" in May 2017. The order stated:
"[C]ounsel for [Maseco] informed the Court that his client was not present and that he was unable to proceed. The Court inquired of [Maseco's] counsel . . . if it was accurate that [Maseco] failed to attend the Court ordered deposition; failed to attend the Mandatory Settlement Conference; and failed to post the Court ordered undertaking. . . . On the basis that [Maseco] had disobeyed each of the aforementioned court orders and moreover failed to appear for trial, the Court ordered the . . . Complaint to be stricken and the entire action dismissed with prejudice. . . . [¶] GOOD CAUSE APPEARING, it is hereby ordered: [¶] The Complaint is stricken and the entire action is dismissed with prejudice."
Although the order suggests the trial court asked about the undertaking during the first day of trial, this is not reflected in the hearing transcript.
II
DISCUSSION
A. Dismissal for Failure to Appear at Trial
Maseco contends the trial court could not have dismissed the action with or without prejudice because Maseco's counsel appeared at trial. We disagree.
Dismissal for failure to appear at trial is discretionary. (Code Civ. Proc., § 581, subds. (b)(5), (l).) "Thus, a trial court's decision to dismiss . . . will be overturned only upon a showing of a manifest abuse of discretion. [Citation.] Discretion is abused when the . . . ruling is arbitrary, capricious, exceeds the bounds of reason or prevents a fair hearing from being held." (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.)
All further statutory references are to the Code of Civil Procedure. --------
Here, the trial court initially dismissed the action without prejudice in part because Maseco did not appear for trial and Maseco's counsel indicated he could not reach his client. This is clear from the minute order, which stated: "Counsel for [Maseco] informs the court that he is unable to reach his client. [¶] The Court orders the entire action dismissed without prejudice." Although the court did not identify any statutory authority supporting the dismissal, we find the court's dismissal was warranted under section 581, subdivision (b)(5). Section 581, subdivision (b)(5) provides: "An action may be dismissed . . . : [¶] . . . [¶] By the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal." (See § 581, subd. (l) ["The court may dismiss, without prejudice, the complaint in whole, or as to that defendant when either party fails to appear at the trial and the other party appears and asks for the dismissal"].) There is no dispute Maseco failed to appear at trial, and Herbert's counsel asked for dismissal by requesting judgment in Herbert's favor. Maseco's counsel did not provide any assurance that Maseco would appear and instead suggested Maseco would "not come forward for the purpose of prosecuting th[e] case." Maseco's counsel also indicated he could not proceed with the trial because he had no other witnesses other than Maseco. Given these circumstances, we find the court did not abuse its discretion in dismissing the action without prejudice as indicated in the initial minute order.
Relying on Cohen v. Hughes Markets, Inc. (1995) 36 Cal.App.4th 1693 (Cohen), Maseco argues dismissal was improper because its attorney made an appearance at trial. While dismissal under section 581, subdivision (b)(5) is generally improper if a party appears through counsel, we do not find this to be the case where counsel is unable to proceed with the trial, provides no explanation for the party's absence, and gives no assurance the party will appear in the future. In Cohen, the plaintiff's attorney appeared for trial and defended his client's absence. (Cohen, at p. 1700.) He indicated the plaintiff "was en route [from Israel] and would be arriving that evening" for trial. (Ibid.) The plaintiff's absence did not preclude the matter from proceeding because a jury had to be selected and the plaintiff "would have arrived by the time his presence as a witness was required." (Ibid.) The plaintiff's attorney also did not request a continuance or "assert he was not ready to proceed with trial." (Ibid.) Based on these facts, the Cohen court found the trial court erred in dismissing the action pursuant to section 581, subdivision (b)(5). (Ibid.)
Unlike the plaintiff's attorney in Cohen, Maseco's counsel did not provide any explanation for Maseco's absence or assure the court Maseco would appear for trial. Instead, Maseco's counsel suggested Maseco would not prosecute the case. Because Maseco's counsel had no other witnesses other than Maseco, the trial could not proceed. Maseco's counsel also did not file either a noticed motion for continuance or an ex parte application with a showing of good cause. (See Cal. Rules of Court, rules 3.1332(b) ["A party seeking a continuance of the date set for trial . . . must make the request for a continuance by a noticed motion or an ex parte application . . . with supporting declarations"]; 3.1332(c) ["The court may grant a continuance only on an affirmative showing of good cause requiring the continuance"].) Thus, the instant case bears little resemblance to Cohen.
In the alternative, Maseco argues section 581, subdivision (b)(5) only allows for dismissals without prejudice so the trial court erred in issuing a second order dismissing the action with prejudice. Herbert contends the court could dismiss with prejudice because section 581, subdivision (b)(5) "provides that an action 'may' be dismissed" without prejudice. Because the statute says the court "may" dismiss without prejudice, Herbert suggests the court had discretion to dismiss with prejudice. Herbert also claims the court could dismiss with prejudice because section 581, subdivision (m) indicates "[t]he provisions of this section shall not be deemed to be an exclusive enumeration of the court's power to dismiss an action or dismiss a complaint as to a defendant." We do not find Herbert's arguments persuasive.
Section 581, subdivision (b)(5) provides: "An action may be dismissed . . . . [¶] . . . [¶] [b]y the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal." Unlike other provisions of section 581, which clearly allow dismissals with or without prejudice, subdivision (b)(5) is limited to dismissals without prejudice. (Compare § 581, subd. (b)(1) ["An action may be dismissed . . . : [¶] With or without prejudice, upon written request of the plaintiff . . . ."] and § 581, subd. (b)(2) ["An action may be dismissed . . . : [¶] . . . [¶] With or without prejudice, by any party upon the written consent of all other parties"] with § 581, subd. (b)(5) ["An action may be dismissed . . : [¶] . . . [¶] By the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal"].) Subdivision (b)(5) accordingly suggests a dismissal for failure to appear at trial is not a judgment on the merits and should not bar a subsequent action. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 11:280.7, p. 11-100 ["[T]he entry of dismissal in such cases is not res judicata to plaintiff's claims. [I]f the statute of limitations has not run, plaintiff may file a new lawsuit on the same claims"].)
Herbert also argues the trial court could issue the order dismissing the action with prejudice because the "court had discretion to amend its [minute] order." We are unpersuaded by Herbert's assertion. In the minute order, the court dismissed the action without prejudice. After the court issued the minute order, Primm's counsel filed a proposed order dismissing the action. Although the proposed order is not included in the record on appeal, it appears the court entered the proposed order dismissing the action with prejudice. However, no reasons are provided for the court's decision to change the dismissal to one with prejudice. As explained above, section 581, subdivision (b)(5) only allows dismissals without prejudice so the court erred in dismissing with prejudice. We accordingly conclude the court erred in dismissing the action with prejudice. Thus, we remand for the court to enter an order dismissing the action without prejudice. B. Other Grounds for Dismissal
In addition to section 581, subdivision (b)(5), Herbert argues other legal authority supports the trial court's dismissal with prejudice. We disagree.
Citing section 581, subdivision (b)(1), Herbert claims "[s]ection 581 expressly authorizes the dismissal of an action by the [c]ourt '[w]ith or without prejudice, . . . by oral or written request to the court at any time before the actual commencement of trial . . . .'" However, Herbert omits the full language of this provision. Section 581, subdivision (b)(1) states: "An action may be dismissed . . . : [¶] With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any." Based on a plain reading of the statute, we find section 581, subdivision (b)(1) authorizes a party's voluntary dismissal. (See Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1105 ["A plaintiff or cross-complainant has, of course, the right to voluntarily dismiss a cause of action without prejudice prior to trial. (§ 581, subds. (b)(1), (c).)"]; Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 190 ["By its terms, section 581, subdivision (b)(1) confers on plaintiffs the right to dismiss anytime prior to the 'commencement of trial'"].) Herbert cites no authority suggesting this provision authorizes an involuntary dismissal of a plaintiff's case upon the oral or written request of a defendant. Because Maseco did not voluntarily dismiss its case, we reject Herbert's claim that section 581, subdivision (b)(1) supports the court's dismissal.
Herbert also argues "the trial court properly imposed a terminating sanction for Maseco's willful violation of the trial court's discovery order . . . ." We disagree because discovery sanctions may not be ordered without notice. While "[a] trial court may impose sanctions, including terminating sanctions, for a party's misuse of the discovery process, which includes disobedience of a court order[,]" "[t]he statute authorizing sanctions for abuse or misuse of discovery requires notice[.]" (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 207; see § 2023.030 ["[T]he court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . sanctions against anyone engaging in conduct that is a misuse of the discovery process"].) Here, Maseco did not receive any notice the trial court might impose a terminating sanction as a result of any discovery abuses. The only notice given was a general statement that "[f]ailure to appear [at the Order to Show Cause re: Failure to Appear at the Mandatory Settlement Conference] may necessitate the implementation of sanctions." Because Maseco did not receive the necessary notice for imposing a discovery sanction, we find the court's dismissal with prejudice was not warranted as a discovery sanction.
Herbert next contends dismissal was proper under section 1030. Section 1030, subdivision (d) provides: "The plaintiff shall file the [required] undertaking not later than 30 days after service of the court's order requiring it or within a greater time allowed by the court. If the plaintiff fails to file the undertaking within the time allowed, the plaintiff's action or special proceeding shall be dismissed as to the defendant in whose favor the order requiring the undertaking was made." Although the statute allows a plaintiff to file an undertaking 30 days after the order, the trial court required Maseco to post the undertaking within 10 days. Some courts have upheld dismissals for failure to post an undertaking in less than 30 days where good cause is shown, but Herbert has not pointed to anything in the record showing good cause for the shortened time. (See Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 915 ["There is no statutory prohibition against the court shortening the time for compliance on a showing of good cause, as was the case here"].) We therefore reject Herbert's argument that dismissal was appropriate under section 1030, subdivision (d).
Finally, Herbert claims the trial court could dismiss the action with prejudice pursuant to its inherent authority. As our Supreme Court has explained, a court's inherent "power [to dismiss with prejudice] has . . . been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the complaint has been shown to be 'fictitious or a sham' such that the plaintiff has no valid cause of action [citation]." (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, fn. omitted.) In exercising this discretionary power, courts must discern whether: (1) "the plaintiff's pattern of conduct was so 'severe [and] deliberate' as to constitute extreme circumstances"; and (2) "alternatives less severe than dismissal are available." (Id. at p. 917.) In Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, the Court of Appeal also found dismissal is proper if a party engages in "deliberate and egregious" litigation misconduct "render[ing] any sanction short of dismissal inadequate to protect the fairness of the trial." (Id. at p. 762.)
Here, we recognize Maseco failed to post an undertaking or attend its deposition, the mandatory settlement conference, and trial. However, these violations occurred over a short period of time from April 6, 2017 to April 24, 2017. Given this time frame, we are not convinced there was a pattern of deliberate and egregious litigation misconduct warranting a dismissal with prejudice. To justify a dismissal with prejudice, there also must be no alternatives less severe than dismissal. (Lyons v. Wickhorst, supra, 42 Cal.3d at p. 917.) Even if there were a sufficient pattern of litigation misconduct, the trial court failed to consider or apply less severe sanctions, including monetary sanctions. Instead, the court dismissed with prejudice without first considering lesser sanctions. We therefore disagree with Herbert's assertion that the trial court could dismiss with prejudice pursuant to its inherent authority.
III
DISPOSITION
The order is reversed and the case remanded to the trial court with directions to enter an order dismissing the action without prejudice. The court also may consider imposing monetary sanctions in addition to the dismissal without prejudice. Maseco is entitled to its costs incurred on appeal.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.