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Court of Appeal, Fourth District, Division 1, California.

Harold COURTNEY, Plaintiff and Appellant, v. COUNTY OF SAN DIEGO et al., Defendants and Respondents.

No. D010145.

Decided: June 25, 1990

Robert Hoad and Julia Haus, San Diego, for plaintiff and appellant. Lloyd M. Harmon, Jr., County Counsel, Daniel J. Wallace, Chief Deputy, Thomas S. Palmer and Richard A. Milligan, Deputies, for defendants and respondents.

Harold Courtney appeals a judgment dismissing his complaint seeking damages for personal injuries allegedly sustained while he was in the custody of the San Diego County Sheriff.   The court dismissed Courtney's complaint after his attorney failed to file a joint at-issue memorandum within the time limits established by the court pursuant to its participation in the Trial Court Delay Reduction Act (Gov.Code, § 68609 et seq.);   repeatedly ignored orders to appear to explain this noncompliance;  and failed to pay monetary sanctions finally imposed.   Each of the several printed notices to appear which were served only on Courtney's counsel contained the admonition that “sanctions pursuant to C.C.P. 177.5 and 575.2 will be before the court and ruled upon at that time.”

Although the County's motion to dismiss cites Government Code section 68609, subdivision (d) which authorizes dismissal sanctions for failure to comply with local rules promulgated to implement “fast track” procedures, it acknowledges that section requires the court to refrain from dismissing actions where lesser sanctions would be effective.   That section also states the court's powers to issue sanctions are limited to imposing “sanctions authorized by law.”

The existing law regarding the court's power to impose sanctions is contained in part in Code of Civil Procedure 1 section 575.2.   The County recognizes this statute creates an exception to the general rule that negligence of an attorney is imputed to the client (see discussion in State of California ex rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1026, 228 Cal.Rptr. 576) in subdivision (b) declaring that when only counsel and not the party is responsible for failing to comply with local rules, the court is limited to imposing penalties upon counsel and may not impose sanctions which adversely affect the party's cause of action or defense.

In this case, the eventual dismissal followed a noticed motion filed by the County referring to the failure of Courtney's counsel to make several ordered appearances or comply with the local rules.   The County did not serve this motion on Courtney personally, nor were any of the court's orders imposing monetary sanctions or noting counsel's nonappearances served on him.   Further, the entire proceeding from the time of filing the complaint to dismissal is 14 months, not a lengthy hiatus which would necessarily alert a client to personally inspect court records to determine if something is procedurally amiss.   Certainly, it is unrealistic to expect clients to be familiar with fast track rules and the expedited time limitations which, at this juncture, have been adopted only in certain California counties.

In Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 256 Cal.Rptr. 296, we addressed a case in which, unlike here, the trial court actually served a plaintiff with an order to appear through her attorney after her attorney failed to file an at-issue memorandum and disregarded earlier orders to appear.   Even so, we recognized the spirit of section 575.2 requires the court to evaluate a layperson/client's culpability for failure to comply with technical judicial procedures by a standard commensurate with that person's lack of legal knowledge.   In Moyal, for instance, we found it impermissible to presume a client would understand that a notice referring only to potential sanctions pursuant to designated code sections, would include the drastic measure of dismissal.  (Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 503, 256 Cal.Rptr. 296.)   Thus, a dismissal without a showing the court had explicitly advised the client of the possibility of dismissal was a violation of procedural due process.

The County does not argue that Courtney actually received notice of any proceeding—a preliminary to the dismissal of his complaint, but relies on the general presumption a client is charged with knowledge in the possession of the attorney.  (Citing Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 50, 244 P.2d 1, and Wittenbrock v. Parker (1894) 102 Cal. 93, 101, 36 P. 374.)   Further, the County suggests Courtney has not attempted to show he personally was free of neglect and had acted reasonably under the circumstances.  (Citing the discussion in Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 738, 216 Cal.Rptr. 300.)   However, in Aldrich, the court clearly recognized clients are not required to act as “hawklike inquisitor[s]” of their counsel nor incessantly check on them and, in any event, where the agrieved client diligently seeks relief after discovery of the facts no default or dismissal should be granted absent a strong showing of prejudice.  (Id. at p. 740, 216 Cal.Rptr. 300.)   The County does not even attempt to make such a showing here and we reject its implication the burden of showing a lack of negligence in cases of apparent attorney abandonment should be on an unnoticed client.

Moreover, the general rules and discussion in Aldrich aside, we believe the dispositive analysis in cases involving section 575.2 applicable to local rules is that contained in State of California ex rel. Public Works Bd. v. Bragg, supra, 183 Cal.App.3d 1018, 228 Cal.Rptr. 576.   There, the court analyzed the legislative intent behind section 575.2, subdivision (b) to determine how trial courts should implement the statutory mandate that “any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.”   It concluded the section compels court action on its own motion to protect innocent parties whose negligent counsel do not do so.  (State of California ex rel. Public Works Bd. v. Bragg, supra, 183 Cal.App.3d at pp. 1028–1029, 228 Cal.Rptr. 576.)   We agree adherance to this decisional rule is the only means by which innocent clients can avoid being forced to go through ancillary proceedings to resuscitate actions already dismissed without notice to them or an opportunity for pre-dismissal hearing.   While such post-dismissal remedies may be available, it may be years later before the client is ever alerted the judgment had been dismissed (a three-year lapse in Aldrich ) and always involve cumbersome, time-consuming and unnecessarily expensive peripheral litigation.

 Before determining what sanctions may be appropriate, the trial court should hold a hearing, after actual notice to the party, to fix responsibility.   If that hearing establishes dismissal is appropriate because the client, not solely the attorney, has engaged in conduct for which lesser sanctions could not be effective, the court may exercise its sanction discretion accordingly.   At minimum, however, the proper implementation of section 575.2, subdivision (b) requires the client receive actual notice of such a hearing and an opportunity to personally appear and meaningfully defend.2  We assume in those rare cases such as Aldrich and here where counsel simply disappears from the scene without notice, if sanctions against the client are warranted at all, personal notice of a threat of monetary sanctions would be sufficient to impel serious litigants to obtain new counsel or otherwise see to the welfare of their actions.   In fact, Courtney did obtain new counsel within a matter of months after dismissal and could not be said to lack diligence in pursuing his litigation.

Although the County states we must affirm the trial court's dismissal because we cannot know from this record whether failure to comply with the fast track rules or oppose the motion to dismiss was the fault of counsel or of the party or of both, that begs the question.   The record is silent because the court made no inquiry and took no steps as required in State of California ex rel. Public Works Bd. v. Bragg, supra, 183 Cal.App.3d 1018, 228 Cal.Rptr. 576, to protect Courtney even when faced with evidence counsel had completely abandoned Courtney's interest.

Judgment reversed.


FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified..  FN1. All statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   We recognize the address at which clients may receive actual notice, other than through their attorneys, may not be part of the court records.   It may be prudent to require such information to be recorded with the original pleadings to avoid the notice deficiencies present in this case.

WORK, Associate Justice.

WIENER, Acting P.J., and HUFFMAN, J., concur.

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