Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M76041
ELIA, Acting P. J.Plaintiff (appellant), an incarcerated state inmate, commenced an action in propria persona against another incarcerated inmate, Jesse Chava (Chava), on September 16, 2005. Plaintiff sought damages for among other things "pain and suffering" and "emotional distress" allegedly sustained on August 8, 2004. In his complaint, plaintiff alleged that "Chava was incited, coerced, compelled, deceived, and forced by LVN Pulido, C/O's Baez, Tsai, and Zamora, to run into plaintiff's cellroom and hit the plaintiff in plaintiff's face with defendant Chava's fist which caused plaintiff to suffer a possible cheek and/or jaw fracture, head injuries, neck injuries, and psychological injuries."
Plaintiff seeks review of an unsigned minute order of the Monterey County Superior Court dated April 19, 2007, dismissing his action without prejudice, which is not an appealable order. Consequently, plaintiff's attempted appeal is subject to dismissal. (Graski v. Clothier (1969) 273 Cal.App.2d 605; Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 369; Palazzi v. Air Cargo Terminals, Inc. (1966) 244 Cal.App.2d 190, 192.)
Plaintiff argues that the superior court erred when it dismissed his case without stating reasons. Further, the court erred when it failed to notify him that the court had dismissed his case without prejudice.
Background
The record that plaintiff has provided to this court is sparse. We glean from the record, however, that after plaintiff filed his complaint on September 16, 2005, he amended the complaint to allege that Chava was forced by "correctional officers L. Baez, C. Tsai, L. Zamora, and E. Pulido" to run into plaintiff's cell and hit plaintiff. This appears to be the only amendment to the complaint, which was filed with the court on December 12, 2006. The record contains a notice to plaintiff, which was filed September 16, 2005, that he must file a case management statement with the court and serve a copy on all parties no later than January 16, 2006. The record contains a copy of plaintiff's case management statement. However, it was not filed with the court until April 27, 2006. There is nothing to indicate that plaintiff served a copy of the case management statement on Chava. Furthermore, it appears that Chava was not ever served with a copy of the original complaint. However, Chava was served with a copy of the amended complaint and summons, but not until January 10, 2007.
On September 28, 2006, the superior court issued an order setting a case management conference and order to show cause (OSC) why "SANCTIONS, INCLUDING DISMISSAL, SHOULD NOT BE ORDERED for failure to follow Local Court Rules and/or the prior Order of the court, f[a]ilure to effectuate service, appearance, dismissal or default in a timely manner." The matter was set for April 19, 2007. On the same day the court issued the OSC, the clerk of the court mailed a copy to plaintiff at the address plaintiff had supplied the court. The minute order of the April 19, 2007 hearing reflects that plaintiff did not appear for the hearing. Furthermore, there is nothing in the record indicating that plaintiff filed anything with the court before the hearing explaining the reasons for failing to follow court rules and prior orders of the court. The court ordered the case dismissed without prejudice.
Appealability
"A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment. [Citations.]" (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) To put it another way, "a reviewing court is 'without jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own motion. [Citations.]' [Citation.]" (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.)
"All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes . . . ." (Code Civ. Proc, § 581d.) Accordingly, orders of dismissal have the effect of final judgments in terminating an action and are appealable as final judgments only if they are properly entered.
Witkin succinctly explains the situation as follows. "(a) Under former law [orders of dismissal] were normally evidenced by minute entries, and the minute entry was the appealable judgment. [Citations.] [¶] In 1963, C.C.P. 581d was amended to state that all dismissals ordered by the court must be in the form of a written order, signed and filed, and that such orders when filed shall constitute judgments. [Citations.] The amendment makes a minute entry ineffectual and nonappealable; no appeal can be taken except from the order signed and filed. [Citations.]" (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 102, p. 165, italics added.)
The minute order in this case is not "in the form of a written order signed by the court and filed in the action." Under the above quoted language only a signed order of dismissal may be appealed. An unsigned minute order dismissing a complaint is not an appealable order. (Adohr Milk Farms, Inc. v. Love, supra, 255 Cal.App.2d at p. 369; Palazzi v. Air Cargo Terminals, Inc., supra, 244 Cal.App.2d at p. 192.)
Nevertheless, mindful that plaintiff is a prisoner of the state, for the following reasons, we are satisfied that plaintiff would not have prevailed on the merits in his appeal.
Government Code section 68608, subdivision (b), dealing with the Trial Court Delay Reduction Act, provides that: "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. . . ." Code of Civil Procedure section 575.2 provides: "Local rules promulgated [by the Judicial Council] 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 its own motion may . . . dismiss the action or proceeding or any part thereof . . . . 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."
In 2005 when plaintiff filed his complaint, the Superior Court of Monterey County, Local Rules, rule 6.08 provided "c) It is the policy of the Court that all complaints and cross-complaints be filed and served per California Rules of Court, Rule 201.7." Under California Rules of Court, former rule 201.7 (b) A "complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint."
Furthermore, in 2005 when plaintiff was notified that he had to file and serve a case management statement, Superior Court of Monterey County, Local Rules, rule 6.09 provided "a) All parties shall file and serve the Case Management Statement . . . no later than the date set by the clerk on the Case Management Notice."
In dismissing the action on April 19, 2007, it appears the court did not state its reasons. However, it is apparent from the record that plaintiff had failed at least twice to follow court rules. First, he failed to serve the complaint on the defendant within 60 days of filing the complaint with the court. Second, he failed to file the case management statement no later than the date set for the hearing. In propria persona litigants are entitled to the same, but no greater rights than represented litigants and are presumed to know the delay-reduction rules. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 794.)
According to the court reporter designated on the minute order of the April 19, 2007 hearing, she was unable to find any notes from that hearing.
Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792-794, discussed the nature and extent of a prisoner's right to prosecute a civil action while incarcerated. The court held that the trial court abused its discretion in dismissing the action when the incarcerated plaintiff failed to appear at a status conference and the hearing on an order to show cause. The trial court was informed of the plaintiff's incarceration and the plaintiff requested appointment of counsel or transfer so that the prisoner could appear at the hearing. (Id. at pp. 790-791.) Here, however, we are not concerned with plaintiff's failure to appear at the OSC hearing. Rather, we are concerned that plaintiff failed to follow local court rules at least twice before the hearing. Although a court may not dismiss an action for noncompliance with local court rules implementing the Trial Court Reduction Act (Gov. Code, §§ 68600-68620) if noncompliance was the fault of counsel (Garcia v. McCutchen (1997) 16 Cal.4th 469, 470), here plaintiff was in propria persona. Noncompliance was entirely his fault. As a propria persona litigant, plaintiff was required to follow the rules. He failed so to do.
Plaintiff was notified of the OSC hearing. However, he failed to contact the court before the hearing to explain any reasons that he might have had for his noncompliance with the local court rules. Accordingly, the superior court had the discretion to dismiss plaintiff's action.
Disposition
The attempted appeal from the unsigned minute order dismissing plaintiff's case without prejudice is dismissed.
WE CONCUR; BAMATTRE-MANOUKIAN, J., DUFFY, J.