Opinion
B161643.
11-24-2003
JAMES H. PAPEN, Plaintiff and Appellant, v. CALLAHAN, McCUNE & WILLIS et al., Defendants and Respondents.
Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew for Plaintiff and Appellant. Ault, Davis & Schonfeld, Alan H. Schonfeld and Corinne Coleman Bertsche for Defendants and Respondents.
This is the second time this case has been before us.
The first time we reviewed and reversed a grant of summary judgment.
This time we review a judgment of dismissal entered after plaintiff failed to appear at two duly noticed hearings in the superior court following issuance of our remittitur in the first appeal. Plaintiff and his counsel did not appear at those hearings because counsel had failed to comply with the requirement that she formally notify the superior court of her change of address. Consequently, the clerk of the superior court sent notices to counsels prior address. Plaintiffs counsel ultimately learned of the dismissal approximately 19 months after it had been entered. She thereupon moved to vacate the judgment of dismissal on various grounds, including the claim the judgment was void because neither she nor her client received notice from the superior court and the claim the judgment was voidable as being the result of mistake or fraud. Plaintiff never sought relief on the basis of attorney mistake, neglect, or inadvertence. The trial court denied plaintiffs motion. This appeal follows. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In May 1995, plaintiff, represented by Attorney Yvonne M. Renfrew, filed a legal malpractice complaint against defendants.
In November 1998, the trial court granted defendants motion for summary judgment. A month later, the trial court entered judgment on behalf of defendants.
Throughout all of those proceedings—from the filing of the complaint to the entry of judgment—Renfrew gave as her address "1311 Broadway, Santa Monica, California 90404-2797" (hereafter the Santa Monica address). The superior court and defense counsel mailed all pertinent documents to the Santa Monica address.
On February 5, 1999, plaintiff filed a pro. per. notice of appeal. He gave an address in North Carolina.
On July 13, 1999, Renfrew filed in the superior court a designation of the record on appeal. She did so even though she had not yet been formally substituted in as counsel of record on the appeal. The designation of record gave a new address for Renfrew: "692 Moulton Avenue, Studio B, Los Angeles, California 90031-3290" (hereafter the Los Angeles address). As Renfrew explained in a subsequent declaration, she had relocated her offices from Santa Monica to Los Angeles in March 1999.
On August 4, 1999, plaintiff filed a document in this court substituting Renfrew in as his attorney of record. The substitution gave the Los Angeles address for Renfrew. Throughout proceedings in this court, Renfrew utilized the Los Angeles address.
On July 28, 2000, we reversed the summary judgment and remanded the matter to the trial court for further proceedings. (Papen v. Callahan, McCune & Willis et al., B129812.) The remittitur issued on September 29, 2000. The bottom of the remittitur states: "cc: All Counsel."
On October 16, 2000, the trial court, having received our remittitur, set the matter for a November 3, 2000 hearing on a motion for a new trial. Notice was sent to Renfrew at the Santa Monica address because Renfrew had never filed a formal change of address with the superior court.
On November 3, 2000, neither Renfrew nor plaintiff appeared. The court continued the matter and set an order to show cause re dismissal for failure to appear for November 30, 2000. A copy of the courts order was mailed to Renfrew at the Santa Monica address.
On November 30, 2000, neither Renfrew nor plaintiff appeared. After confirming that Renfrew was counsel of record and that notice had been sent to her, the court discharged the order to show cause, took the new trial motion off calendar, and dismissed the case. Notice was sent to Renfrew at the Santa Monica address.
In June 2002, almost two years after the remittitur issued, Renfrew filed a motion to set the action for trial. Noting that the superior court had received our remittitur in October 2000, Renfrew pointed out that Code of Civil Procedure section 583.320, subdivision (a)(3) requires trial to commence within three years of filing of the remittitur when an appellate court reverses a judgment. The motion contained no reference to the fact the trial court had dismissed the case in November 2000. Additionally, although Renfrews attached declaration implicitly conceded she knew the superior court had received and filed the remittitur on October 5, 2000, Renfrew offered no explanation either as to why she had not earlier contacted the superior court to learn the status of the case or as to why she had not filed the trial setting motion in the prior 20 months.
All subsequent undesignated statutory references are to the Code of Civil Procedure.
Renfrews motion used her Los Angeles address but then gave a San Francisco address as the mailing address of record for all service by mail.
The trial court declined to hear Renfrews motion because the case had already been dismissed.
On July 1, 2002, Renfrew filed a motion for an order to vacate the judgment of dismissal. The motion advanced several grounds. At this juncture, we simply summarize those grounds, leaving for later in this opinion a more detailed explanation. The primary ground was that the judgment was void because neither plaintiff nor Renfrew had received any of the orders generated by the superior court after issuance of our remittitur. The motion advanced several theories as to why the superior court erred in sending the orders to Renfrews Santa Monica address and instead should have sent the orders either to Renfrews Los Angeles address or to plaintiffs home address in North Carolina. The motion also contended the judgment was voidable because it was the result of fraud or mistake. Lastly, the motion contended the court had no authority to dismiss the case as a sanction for plaintiffs failure to appear. Notably absent from the motion was any claim for relief predicated upon an assertion of attorney mistake, inadvertence, or neglect. (Compare § 473, subd. (b) [court has mandatory duty to set aside a default or dismissal if within six months an application is made supported by a sworn attorney affidavit of mistake, inadvertence, surprise, or neglect].)
The motion was supported by declarations from Renfrew and plaintiff. Renfrews declaration explained that in March 1999 she had relocated her offices from Santa Monica to Los Angeles; that all documents she filed in the Court of Appeal used her Los Angeles address; that all documents filed by defendants during the appeal were served on her by mail at her Los Angeles address; and that on the day of oral argument in this court (July 21, 2000) she discussed with defendants counsel Susan Hilton her move from the Santa Monica address to the Los Angeles address. Renfrew averred she had not received any of the notices sent to her by the superior court in October and November of 2000 following issuance of the remittitur and that she first learned of the November 2000 dismissal for failure to prosecute on June 24, 2002, when she received a telephone call from a superior court clerk advising her of that fact. The clerk contacted her because they had been discussing calendaring her June 2002 motion to set the matter for trial. Renfrew thereafter obtained copies of all pertinent documents to support her present motion to vacate the dismissal. Significantly, Renfrews declaration disclosed her knowledge of the need to formally apprise the superior court of a change in address because she averred that in April 2002 she had filed a notice of change of address in the trial court indicating that while her office remained at the Los Angeles address, her mailing address was now a post office box in San Francisco. (See fn. 2, supra.)
Renfrew averred that in the course of conversation "my move from my `old Santa Monica offices to my Los Angeles location[] was discussed [as, in fact, Ms. Hilton and I had discussed on several earlier occasions as well]. Ms. Hilton was therefore well aware—even apart from her knowledge of my address of record in the appellate proceedings—that my offices were no longer located in Santa Monica, but rather at 692 Moulton Avenue, Studio B, Los Angeles, California." (Second set of brackets in original.)
Plaintiffs declaration explained that in February 1999 he had filed a pro. per. notice of appeal from the December 1998 summary judgment entered against him; that in August 1999 in the Court of Appeal he formally substituted Renfrew in as counsel of record; and that since August 1999 no documents in regard to either appellate or trial court proceedings had been served upon him. In particular, he never received copies of the post-remittitur minute orders issued by the superior court.
Plaintiffs declaration was misleading to the extent it claimed he had filed a notice in the superior court substituting himself in as counsel. He averred: "At my request, Ms. Renfrew prepared a Notice of Appeal and substitution of attorney form. I filed those documents with the Superior Court on or about February 5, 2002. Those documents showed my address to be 15129 Union School Road, Charlotte, North Carolina 28262." Attached to plaintiffs declaration was a copy of the notice of appeal; however, there was no copy of the substitution of attorney form he claimed to have filed in the superior court. Defendants opposition papers pointed out this omission but plaintiffs reply thereto failed to produce the missing form. This is important because, as will be explained in more detail below, one of plaintiffs arguments was that the superior court should have sent the post-remittitur notices to him in North Carolina because in the trial court he had formally substituted Renfrew out as attorney of record.
Defendants filed opposition to plaintiffs motion to vacate the dismissal. This included a declaration from Susan Hilton who was the primary attorney representing defendants. She averred in part:
"I do not recall discussing with plaintiffs counsel, Yvonne Renfrew, her offices move as stated in Ms. Renfrews declaration filed in support of this motion. I was aware at some point during the case of the fact that she had moved offices, however, was unaware that plaintiffs counsel failed to notify the court through a change of address of her new address, and was further unaware that the court had sent the notices following the remittitur to counsels older address. At that time, I had numerous other matters with numerous other counsel, and did not memorize Ms. Renfrews address. I did not scrutinize and check the certificate of mailing issued by the court sending the notices to plaintiffs counsel, and did not notice what address it referenced for plaintiffs counsel. I was unaware that the notices were sent to counsels older address until learning of this motion."
After conducting a hearing in which counsel presented argument, the trial court denied plaintiffs motion. Its minute order states:
"Based upon judicial notice of official court filings and computerized records, and the parties filed copies, the Court finds that the order to show cause, and order of dismissal, properly were mailed to the then-current address of record for counsel, and that no notice of change of address or substitution of attorney form was filed previously to indicate to the contrary.
"Additionally, the Court finds the motion is untimely, and not filed diligently, to the prejudice of defendants, plus there is no declaration constituting an admission of attorney fault, or basis for equitable relief."
This appeal, in which Renfrew continues to represent plaintiff, follows.
DISCUSSION
A. THE JUDGMENT OF DISMISSAL IS NOT VOID
Plaintiff first contends the November 2000 judgment of dismissal is void because neither he nor Renfrew ever received notice of any of the antecedent hearings. The contention lacks merit because the failure to receive notice was the direct result of Renfrews failure to comply with the requirement that she formally notify the trial court of her change of address.
Rule 385 of the California Rules of Court provides: "A party or attorney whose address changes while an action is pending shall serve on all parties and file written notice of the change of address." This rule means that it was Renfrews obligation to inform the superior court of her change of address from Santa Monica to Los Angeles. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1983) ¶ 9:86.5, p. 9(l)-45 (rev. # 1, 2003) ["If the attorney moves while the action is pending, it is the attorneys duty to file and serve a notice of change of address."].) It is uncontested Renfrew never did so. Renfrew was certainly aware of her obligation to notify the trial court of a change in address because in April 2002 she informed the superior court that her mailing address was no longer in Los Angeles but was then in San Francisco. Renfrews failure to inform the court of her change of address from Santa Monica to Los Angeles was the reason she never received notice of the superior courts post-remittitur orders. Renfrews failure in this regard is directly imputable to plaintiff. (See, in general, State of California ex rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1026 and cases cited therein; 1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 261, pp. 326-327.)
All subsequent rule references are to the California Rules of Court.
Plaintiffs arguments to support a contrary conclusion are not persuasive.
He first argues the notice was ineffective because it did not strictly comply with the requirements of section 1013 governing service by mail. Subdivision (a) of the statute provides, in pertinent part: "In case of service by mail, the notice or other paper shall be deposited [into the United States Mail] in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on the party making service by mail; otherwise at that partys place of residence." (Italics added.) The provision applies to mailings by the superior court clerk. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 508; Triumph Precision Products, Inc. v. Insurance Co. of North America (1979) 91 Cal.App.3d 362, 365.)
Relying on the italicized language, plaintiff raises three different and mutually exclusive arguments.
First, he urges the courts post-remittitur notices should have been sent to his home address in North Carolina because on February 5, 1999, he filed a pro. per. notice of appeal with that address. The argument lacks merit because section 1013 does not govern, let alone address, the issue of who is to be served; instead the statute describes how service by mail is to be done. When a party is represented by counsel, counsel is the person to be served. At the time the trial court sent these notices, Renfrew was still counsel of record. Although plaintiff had filed his notice of appeal in pro. per., he never formally substituted Renfrew out as counsel. Two statutes specifically govern how that substitution is to take place: sections 284 and 285. Section 284 provides, in relevant part, that "[t]he attorney in an action . . . may be changed at any time before or after judgment or final determination . . . [¶] [u]pon the consent of both client and attorney, filed with the clerk or entered upon the minutes." (Italics added.) Section 285 provides: "When an attorney is changed, as provided in [section 284], written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party." It is uncontested that none of the actions required by these statutes occurred. Plaintiffs pro. per. filing of the notice of appeal only rendered his appeal effective; it did not constitute a substitution of counsel. Because Renfrew was thus still attorney of record, there is no merit to plaintiffs argument that the court should have served him with its orders. (See People v. Bouchard (1957) 49 Cal.2d 438, 440 ["[I]t has been held that service can be made upon the attorney of record after entry of judgment in a civil case where there has been no substitution in the manner prescribed by law. [Citations.]"].)
Second, plaintiff argues that if Renfrew were the proper person to be served, the orders should have been mailed to her at her Los Angeles address because that was the "office address as last given by that person [Renfrew] on any document filed in the cause and served on the party making service by mail" (§ 1013, subd. (a)) since Renfrews Los Angeles address appeared on the July 13, 1999 designation of the record on appeal that Renfrew filed in the superior court. Putting aside the fact that plaintiff never raised this argument in the trial court in his prolix motion to vacate the dismissal and therefore should be precluded from raising it for the first time on this appeal, the argument is not persuasive. To accept plaintiffs argument would essentially negate rule 385 which sets forth a specific procedure as to how counsel should notify the trial court of a change of address. Instead of imposing the obligation upon counsel to properly notify the superior court of a change of address, plaintiff would shift the obligation to the already overburdened superior court to canvass the file for the latest document filed and to scrutinize the document to see if it has a new address. Sound policy considerations militate against such a result.
The two cases upon which plaintiff relies to support a contrary conclusion are clearly distinguishable. In the first, Triumph Precision Products, Inc. v. Insurance Co. of North America, supra, 91 Cal.App.3d 362, the trial court sent an incorrectly addressed notice to the law firm representing the plaintiff. The notice was addressed to the plaintiffs attorney at the correct street address but omitted the name of the plaintiffs law firm, a name that appeared on all documents filed with the court. As a result, the notice was returned to the trial court by the Postal Service as undeliverable at the address stated. (Id. at pp. 364-365.) The appellate court reasoned that because "the envelope containing the notice [was] improperly addressed, it is as though notice were never mailed by the [court] clerk." (Id. at p. 365.) This case is clearly distinguishable because here the notices were correctly addressed, albeit to an old address and responsibility for the trial courts use of the old address lay with Renfrew, not the superior court.
In the second case, Lee v. Placer Title Co., supra, 28 Cal.App.4th 503, 508, the plaintiffs filed in January 1991 a notice of change of address for counsel. Thereafter, the superior court clerk sent all notices to that new address. However, for unexplained reasons, in May 1992, the clerk sent notice of dismissal to the old address for plaintiffs attorney and in July 1992 sent a judgment of dismissal to that old address. The Postal Service returned the July 1992 notice to the superior court with the notation it was undeliverable as addressed and the forwarding order had expired. (Id. at p. 509.) The appellate court held the May and July 1992 notices were of no effect because they were not sent to the "office address as last given by that person on any document filed in the cause." (§ 1013, subd. (a).) Lee is clearly distinguishable because there trial counsel had properly discharged its obligation of informing the trial court of its new address but the trial court erred by sending the notices to the old address. In contrast, in this matter Renfrew never properly informed the trial court of her new (Los Angeles) address.
Plaintiff next argues that "[i]f §1013s reference to any `document filed in the cause is read [as plaintiff believes it should be . . .] to include not only documents filed in the Superior Court, but also those filed in the Court of Appeal, then the correct address for service would also have been Renfrews Los Angeles Address —which was that given on each and every document filed on [plaintiffs] behalf in the then-pending appeal." (Bracketed material in original.) We reject the argument, unsupported by any pertinent authority, because its practical ramifications are astounding. Plaintiff would now require superior court personnel to comb the record of appellate proceedings to find counsels most recent address. We cannot countenance such an absurd result.
Plaintiff also references rule 48 governing practice in the appellate courts. Rule 48(b) provides: "Withdrawal or substitution of attorneys may be effected by serving and filing a stipulation in the reviewing court, signed by the party, the retiring attorney and any substituted attorney. In the absence of stipulation, withdrawal or substitution may be effected only by an order made pursuant to a motion in the reviewing court as provided in rules 41 and 42; provided, however, that unless otherwise ordered by the court, service of the motion need be made only on the party and the attorneys directly affected thereby. A notification of any such withdrawal or substitution shall be given by the clerk of the reviewing court to the clerk of the superior court, and substituted counsel shall forthwith give notice thereof to all parties." (Italics added.) Relying upon the italicized language and the fact that on August 4, 1999, a document was filed in this court that formally substituted Renfrew at her Los Angeles address in as counsel of record, plaintiff argues since, pursuant to Evidence Code section 664, "[i]t is presumed that official duty has been regularly performed," it must be presumed the clerk of this court informed the clerk of the superior court both that Renfrew was now counsel of record and that Renfrews address of record was the Los Angeles address. From this, plaintiff argues the superior court had an obligation to send all post-remittitur notices to Renfrews Los Angeles address.
We reject this argument because it misconstrues rule 48. A fair reading of the rule demonstrates that the requirement the reviewing court give notice to the superior court only applies if an order of substitution (or withdrawal) is made after a motion has been filed. Here, there was no such motion. Renfrew never moved for an order of this court that she be substituted in as counsel. Instead, a stipulation signed by her and plaintiff was filed in this court. Accordingly, the clerk of this court had no obligation to inform the superior court of this change.
Lastly, plaintiff argues Renfrew had no obligation to advise the superior court of her change of address from Santa Monica to Los Angeles since when that move occurred in March 1999 she was not representing plaintiff because he had filed a pro. per. notice of appeal and did not formally substitute her in as counsel of record in this court until August 1999. The argument lacks merit. For one thing, it is inconsistent with plaintiffs earlier argument that Renfrew was his attorney when in July 1999 she filed in the superior court the designation of the record on appeal. It is also inconsistent with the fact that no substitution of attorney form had been filed in the superior court relieving Renfrew of status as attorney of record. In any event and more to the point, Renfrew later became attorney of record in this court and, most significantly, was still attorney of record when in September 2000 the remittitur issued to the trial court. Clearly at that point she had an obligation to inform the trial court of her Los Angeles address so that she could receive proper notice of further proceedings. She simply failed to do so.
In regard to all of plaintiffs arguments, we agree with defendants the "trial court should not be required to search the files or second guess who or where it should serve court notices, [so that it] is reasonable in relying on the fact that the parties will comply with their obligations to act in accordance with the rules of court by filing the required substitution of attorney and/or notice of change of address in the trial court." This situation could have easily been avoided had Renfrew taken the simple step of filing a formal change of address with the superior court. She did not do so. Plaintiffs arguments as to why Renfrews omission should not be dispositive do not absolve counsel of the responsibility to formally notify the superior court of a change of address and to instead require clerical personnel in the trial or appellate courts to canvass all documents for potential address changes and to record any such changes.
In sum, the trial court properly sent its post-remittitur notices to Renfrews address of record: the Santa Monica address. Service was complete when the orders were mailed. (§ 1013, subd. (a).) The superior court did not have the burden of proving Renfrew received the notices for the notices to be effective. (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.) Because Renfrews nonreceipt of the notices was directly attributable to her failure to comply with the mandate of rule 385, her nonreceipt does not render the judgment of dismissal void. (See Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 59.) The trial court properly denied plaintiffs motion to vacate the judgment on the basis it was void.
B. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
IN DECLINING TO SET ASIDE THE JUDGMENT
BASED UPON MISTAKE OR FRAUD
Plaintiff next contends that even if the judgment of dismissal is not void, the trial court should have exercised its discretionary power to set aside the judgment based upon mistake or fraud. The contention lacks merit because plaintiff failed to establish he acted diligently and has failed to show the trial court abused its discretion in implicitly rejecting his theories of fraud or mistake. We explain.
A motion to vacate should not be granted where the party requesting equitable relief has been guilty of inexcusable neglect. (In re Marriage of Park (1980) 27 Cal.3d 337, 345.) In this case, plaintiff failed to act diligently. Renfrew had been counsel on appeal and had succeeded in gaining a reversal of the trial courts grant of summary judgment. Although the remittitur issued in September 2000 and Renfrew implicitly conceded she received it in a timely manner, she waited 21 months before she filed a motion in June 2002 in the trial court to set the matter for trial. She surely knew that reversal of the summary judgment would put the matter at issue again in the trial court, requiring further litigation. Nonetheless, she made no inquiries of the superior court as to the status of the case and waited almost two years before she filed a motion to set the matter for trial. Renfrew has offered no explanation for this unreasonable delay. The trial courts finding of lack of diligence is therefore supported by the record. Plaintiffs argument to the contrary misses the mark. The fact Renfrew filed the motion to vacate within a month of learning about the November 2000 dismissal is of no consequence. The critical time frame was the period following the issuance of the remittitur when Renfrew, as counsel of record, had an obligation to diligently prosecute the matter. She failed to do so.
In urging mistake, plaintiff disavows any claim of mistake on his or Renfrews part. Instead, he points to "the `mistake of the trial court or its clerk in failing to correctly ascertain the address to which notice of mail is required by § 1013 of the Code of Civil Procedure to be transmitted . . . and in transmitting purported notice instead to an obsolete address for the firm." As explained above, this mistake was the direct result of Renfrews failure to properly file a change of address with the superior court. Because the mistake is inextricably bound up with fault on the part of Renfrew—fault attributable to plaintiff—and there was no motion under section 473, mistake cannot form the basis of relief. (See Bacon v. Bacon (1907) 150 Cal. 477, 486 [mistake can be a basis to set aside a judgment if the mistake was "not the result of the negligence of the injured party. [Citations.]"].)
Equally unavailing is plaintiffs argument that the trial court should have set aside the judgment based upon extrinsic fraud. The predicate of this claim is the assertion that defendants counsel Susan Hilton knew Renfrew had changed her address and failed to disclose that fact to the trial court. In other words, plaintiff urges defense counsel knowingly let the superior court mail notices to an address she knew was incorrect. Plaintiff claims Hilton had a duty "to apprise the Court of its use of an invalid address in the Courts `notice to Plaintiff of the proceedings leading to the Judgment of Dismissal."
Plaintiffs argument overlooks the fact that Hiltons declaration denied any such knowledge. Her declaration, set forth supra, averred she "was unaware that [Renfrew] failed to notify the court through a change of address of her new address, and was further unaware that the court had sent the notices following the remittitur to counsels older address. . . . I did not scrutinize and check the certificate of mailing issued by the court sending the notices to plaintiffs counsel, and did not notice what address it referenced for plaintiffs counsel. I was unaware that the notices were sent to counsels older address until learning of this motion."
In denying the motion, the trial court implicitly resolved the credibility issue in favor of Hilton and against plaintiff. That ruling was not an abuse of discretion. (See Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 ["The trial court, with declarations and supporting affidavits, was able to assess credibility and resolve any conflicts in the evidence. . . . Even though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict. This is true whether the trial courts ruling is based on oral testimony or declarations."].)
Because the trial courts denial of the motion was not an abuse of discretion for the reasons stated above, there is no need for us to address the following additional ground urged by defendants and found by the trial court: defendants would be prejudiced were the dismissal set aside and the matter set for trial.
C. THE TRIAL COURT HAD AUTHORITY TO DISMISS THE ACTION
Lastly, plaintiff contends the trial court lacked the authority to impose the sanction of dismissal in November 2000 for his failure to appear. We disagree. Under the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.), the trial court possesses broad authority to eliminate delay in the resolution of litigation. (See California Casualty Indemnity Ins. Co. v. Mendoza (1995) 36 Cal.App.4th 678 [finding trial court did not abuse its discretion in dismissing the case after plaintiff failed to appear at the case management conference and an OSC re dismissal].) In addition, section 583.150 recognizes the inherent power of the trial court to dismiss an action. (See also Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 ["In the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice."].)
In this case, after the remittitur had issued, the trial court set the matter for hearing a new trial motion on November 3, 2000. Notice was sent to plaintiffs counsel Renfrew at her address of record. Neither plaintiff nor Renfrew appeared on November 3, 2000. The court then set the matter for a November 30, 2000 order to show cause why the matter should not be dismissed for failure to appear. Notice was again sent to Renfrews address of record. Neither Renfrew nor plaintiff appeared on November 30, 2000. The trial court confirmed Renfrew was plaintiffs counsel and that notice of the hearing had been sent to her before it dismissed the case. Because, as already explained, the clerk of the trial court was reasonable in sending the notices to Renfrews address of record, the trial court had the authority to dismiss the case after implicitly finding plaintiff, through counsel of record, had willfully failed to appear.
Plaintiffs reliance upon Garcia v. McCutchen (1997) 16 Cal.4th 469 to support a contrary conclusion is misplaced. There, the trial court dismissed an action for noncompliance with local court rules implementing the 1990 Trial Court Delay Reduction Act. In that case, trial counsel failed first to comply with local court rules requiring service of the complaint and filing proof of service thereof within 120 days of filing of the complaint. Soon thereafter, counsel failed to comply with the requirement to file an at-issue memorandum. As a result, the court ordered counsel to appear at a status conference. Although counsel informed the court he was in trial out of the county, he made no arrangements to appear by telephone. The court issued a notice of motion to dismiss the action. At the hearing, the court imposed financial sanctions on counsel and continued the hearing on the dismissal motion. Two months later, counsel failed to appear at the hearing re dismissal. The court dismissed the action. Counsel filed a motion for reconsideration in which he offered some explanations for his failures. The court denied the motion, letting the dismissal stand.
Our Supreme Court reversed the dismissal. It relied upon subdivision (b) of section 575.2 which provides: "It is the intent of the Legislature that if a failure to comply with these rules [local rules enacted by the trial courts to expedite and facilitate litigation] is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the partys cause of action or defense thereto." The Supreme Court concluded that section limited the authority granted to the trial court by Government Code section 68608, subdivision (b) (part of the fast track law) to dismiss an action.
That holding does not assist plaintiff. Even assuming the trial courts November 2000 dismissal was based upon violation of a local fast track rule, the predicate for avoiding dismissal is completely absent in this case: a claim that the violation was caused by counsel (Renfrew) as opposed to the party (plaintiff). As set forth above, first in the trial court and now in this court Renfrew has assiduously avoided accepting any responsibility for the fact the post-remittitur notices were sent to her old address. Instead, she has constructed various factual and legal arguments in an attempt to blame the superior court, the Court of Appeal, and defense counsel. Consequently, Garcia v. McCutchen, supra, 16 Cal.4th 469, does not undermine the trial courts authority in this case to dismiss the action based upon a failure to appear. Stated another way, neither at the time of dismissal (November 2000) nor at the time of plaintiffs motion to vacate the dismissal (July 2002) was the trial court ever presented with facts or argument of attorney fault that, under section 575.2, subdivision (b) and Garcia v. McCutchen, supra, would have limited its discretion to dismiss.
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, J. CURRY, J.