Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. MC017270, Alan S. Rosenfield, Judge.
Dukeshane Torres Palk, in pro. per., for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, James M. Humes, Chief Assistant Attorney General, James Schiavenza, Assistant Attorney General, Richard Rojo and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
Plaintiff and appellant Dukeshane Torres Palk is incarcerated in state prison. In pro. per., he filed a personal injury action. The trial court dismissed the lawsuit after plaintiff failed to attend two court hearings. On this record, the dismissal was an abuse of discretion. An indigent prisoner who files a bona fide civil action has a right to meaningful access to the courts. (Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch).) Here, plaintiff apprised the court of his incarcerated status and sought its help in arranging a telephonic appearance. Because the trial court failed to make any effort to implement plaintiff’s right to access, we reverse the order of dismissal and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is incarcerated at Avenal State Prison.
On April 24, 2006, plaintiff filed a personal injury action against several members of the California Department of Corrections and Rehabilitation (defendants). In addition, he filed a “Forma Pauperis Order.” The trial court set a case management conference (CMC) for September 11.
A subsequent minute order issued by the trial court notes “that a fee waiver [was] granted by the clerk at the inception of the case.”
All dates refer to 2006.
On August 28, plaintiff filed a Case Management Statement. In it, plaintiff wrote: “Defendants refuse to meet and confer due to plaintiff being incarcerated.”
Neither party appeared for the September 11 CMC. The trial court issued a minute order setting the matter for an October 16 hearing on an order to show cause re sanctions and dismissal for failure to attend the CMC.
On September 18, plaintiff filed a motion to reschedule the CMC. The motion explained plaintiff’s unsuccessful efforts to coordinate with prison officials his telephonic appearance at the September 11 CMC. The motion requested the trial court to issue an order to Warden A. K. Wong to permit plaintiff to be telephonically present at a rescheduled CMC. Plaintiff relied upon former Rule 298(c)(2) of the California Rules of Court, which gave the trial court the power to allow a telephone appearance at a CMC. The court set plaintiff’s motion for hearing on October 26.
The motion explained: “On 9-8-06 correctional counselor I. Edwards was given notice of plaintiff’s 9-11-06 conference. Edwards called the litigation department’s Diane Chance with the specific courthouse, room, date, time, on Diane Chance’s answering machine. On 9-11-06 neither prison official coordinated the telephone conference. Plaintiff made a ‘good faith attempt’ to be present at the hearing.”
On September 27, plaintiff filed a response to the court’s September 11 order setting the order to show cause re sanctions and dismissal. Plaintiff explained, as he had in his September 18 motion, his unsuccessful efforts to arrange appearance by telephone on September 11. He argued: “In this instance, plaintiff did all he could to be present at the court hearing. All defendants had been properly summon[ed] and had all the information about the hearing including a ‘case management statement’ sent to [defense counsel], likewise to this court[.] Plaintiff is a ward of the state and does not have jurisdiction on decisions of his prison confinement. Therefore rely on the Attorney General, the courts and Warden R. K. Wong of CSP-LAC to coordinate each court date hearing. Sanctions upon plaintiff are not appropriate nor dismissal as the facts stated above do not show a deliberate attempt to ‘evade such hearing, or try to delay such for the purpose of personal gain.’ [Citation.]” (Italics added.)
The motion explained: “On 9-8-06 [plaintiff] notified correctional counselor level one Edwards of plaintiff’s case management conference. Edwards looked over the documents and contacted Diane Chance of the CSP-LAC litigation department and left the specific information about the hearing on her machine. Diane Chance and the litigation department handle all court matters. [¶] On Monday 9-11-06 plaintiff notified floor officer Labay that plaintiff had a court conference at 8:30 a.m. Labay said he would notify plaintiff when he was notified by the litigation department. [¶] At 8:30 a.m. plaintiff was told the litigation department had not contacted Labay. Approximately at 9:30 a.m. Edwards finally showed up in her office and explained to plaintiff she had not been notified about the court hearing. Approximately 1:30 p.m. Edwards located Diane Chance by phone and plaintiff and Mrs. Chance exchanged information about the court conference. . . . Chance explained she was not ordered to coordinate a ‘telephone conference’ nor present plaintiff in person to the courthouse by this court.”
Plaintiff and defendants failed to appear at the October 16 hearing re order to show cause. The court continued the case to October 26. Its minute order recites: “The Court imposes sanctions in the amount of $100.00 against Counsel for Plaintiff for their failure to appear this date and stays the imposition for argument until October 26, 2006.”
Neither party appeared on October 26. The court therefore did not conduct a hearing on any of the pending motions, including plaintiff’s request that the court order prison officials to cooperate in arranging plaintiff’s telephonic participation in the CMC. Instead, the court ruled: “The Court finds previous sanctions ordered and not having been paid and plaintiff’s failure to appear in person or by way of telephone at the last two appearances that pursuant to Government Code Section 68609 the above matter is dismissed without prejudice.”
Plaintiff filed a timely notice of appeal.
DISCUSSION
“A prisoner . . . has a statutory right under Penal Code section 2601, subdivision (e) to initiate civil actions. In the case of an indigent prisoner initiating a bona fide civil action, this statutory right carries with it a right of meaningful access to the courts to prosecute the action. [Citation.] A prisoner may not be deprived, by his or her inmate status, of meaningful access to the civil courts if the prisoner is both indigent and a party to a bona fide civil action threatening his or her personal or property interests. [¶] Meaningful access to the courts is the ‘keystone’ of an indigent prisoner’s right to . . . prosecute bona fide civil actions. [Citations.] Meaningful access to the courts by an indigent prisoner ‘does not necessarily mandate a particular remedy’ to secure access. [Citation.]” (Wantuch, supra, 32 Cal.App.4th at p. 792, fn. omitted.) The trial court can choose from among more than eight remedies to secure the indigent prisoner’s access. (Id. at pp. 792-793.) One recognized remedy is to conduct pretrial proceedings, such as a CMC, by telephone. (Id. at p. 793.)
On the one hand, the trial court has the discretion to determine the appropriate remedy to secure access. (Id. at p. 794.) On the other hand, a trial court should not order a terminating sanction when an indigent prisoner has failed to comply with a court order through no fault of his own. (Id. at p. 795.)
Here, the trial court dismissed the action because plaintiff had failed to appear at the September 11 CMC and the October 16 hearing re the order to show cause. However, the record suggests that those non-appearances were not plaintiff’s fault. According to plaintiff, he attempted to arrange with prison officials a telephonic appearance on September 11. When those efforts failed, he formally moved the trial court to issue an order to the prison warden to allow a telephonic appearance at the next (October 16) hearing. The trial court never ruled upon that request. Instead, it set the motion for hearing on October 26 but when neither party appeared on that date, it declined to consider the motion and simply dismissed the case. On this record, the dismissal was an abuse of discretion. The trial court never formally acknowledged plaintiff’s status as either an incarcerated prisoner (first brought to its attention in plaintiff’s August 28 Case Management Statement) or as an indigent (first brought to its attention in plaintiff’s April 24 “Forma Pauperis Order”). The court (apparently) never considered plaintiff’s unsuccessful efforts to arrange a telephone appearance for the September 11 CMC (efforts explained first in plaintiff’s September 18 motion and reiterated in his September 27 motion). And most significantly, the trial court never ruled upon plaintiff’s request that it order prison officials to assist him in arranging a telephone appearance. Minimally, the trial court had the obligation to ascertain whether Wantuch’s holding applied to this action before it dismissed plaintiff’s lawsuit.
The court also referred to plaintiff’s failure to pay sanctions. But the October 16 order imposed $100 against counsel for plaintiff. Of course, plaintiff was in pro. per. Further, the October 16 order stayed imposition of the financial sanction pending the October 26 hearing. Hence, it is unclear how or why a failure to pay the $100 could warrant a dismissal.
We therefore shall reverse and remand the matter for further proceedings consistent with plaintiff’s right of access to the civil courts. On remand, the trial court must first determine whether plaintiff is, in fact, indigent and, if so, whether his lawsuit is a bona fide civil action. (Id. at p. 796.) If the trial court resolves both of those issues in plaintiff’s favor, it must then exercise its discretion “to determine the appropriate remedy or remedies to effectuate [his] constitutional and statutory rights of meaningful access to the courts to prosecute his complaint.” (Ibid.)
Given the incomplete record furnished on appeal, we express no opinion as to how those issues should be resolved.
DISPOSITION
The judgment (order of dismissal) is reversed and the cause remanded for further proceedings consistent with this opinion. Plaintiff to recover his costs, if any, on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.