GARCIA v. McCUTCHEN

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Court of Appeal, Fifth District, California.

Danny GARCIA, Plaintiff and Appellant, v. Charles McCUTCHEN et al., Defendants and Respondents.

No. F022172.

Decided: March 06, 1996

Tomas Nunez and Henry D. Nunez, Fresno, for Plaintiff and Appellant. Borton, Petrini & Conron and Gary C. Harvey, Fresno, for Defendants and Respondents. No appearance for Respondent Charles McCutchen.

OPINION

Plaintiff, Danny Garcia, appeals from a judgment of dismissal resulting from his counsel's failure to comply with local fast track rules and court orders.   He also appeals from the order denying his motion for reconsideration.   He claims the trial court abused its discretion.

Procedural Background

On April 23, 1993, plaintiff filed a complaint alleging causes of action for personal injury, general negligence, premises liability and intentional tort.   The complaint named seven defendants and included a doe allegation for ten unnamed codefendants who allegedly were involved in a barroom brawl which resulted in plaintiff's injuries.   On June 28, 1993, the clerk's office of the Fresno County Superior Court notified plaintiff's counsel he had failed to file a proof of service on all named defendants within the time period prescribed by local rule 5.4A.1

On November 1, 1993, counsel was notified of his failure to file an at issue memorandum within 180 days of filing the complaint in compliance with rule 5.6A.   He was ordered to appear in person at a status hearing January 19, 1994, pursuant to rule 5.6B, or to make arrangements at least 14 days before the hearing to appear by telephone.   He was also ordered, within five days before the status hearing, to file and serve a declaration pursuant to rule 5.7 containing various information necessary for case management, including:

1.  A statement that he had complied with the time limits of rule 5.4 regarding service of process, or a detailed explanation why such time limits had not been met, including all efforts to comply with the time limits;

2.  A detailed explanation of any reason why an at issue memorandum had not been filed within 180 days after the complaint was filed.

Counsel did not make arrangements to appear by telephone, did not file a declaration pursuant to rule 5.7 and failed to appear as ordered on January 19, 1994, at the status hearing before Judge Kerkorian.   Counsel was sanctioned $50 for not appearing and $50 for not filing a declaration.   The matter was continued to April 19, 1994, for a hearing on the court's motion to dismiss pursuant to rule 5.10 as a sanction for failure to comply with the time limits of rule 5 and the court's orders.   The minute order setting the motion to dismiss advised that counsel's appearance was not required if the at issue memorandum was filed, dismissal was entered or judgment was entered and a conformed copy provided to the department hearing the motion.

Prior to the April 19th hearing, service was accomplished on two defendants, a first amended complaint was filed, defendants' demurrer was sustained with leave to amend and a second amended complaint was filed.

Counsel appeared at the April 19th hearing before Judge Kerkorian, but failed to file a timely declaration, failed to file an at issue memorandum and failed to explain the reasons for failing to comply with rule 5 and the court's previous orders.   Counsel was sanctioned $325.   The court continued the motion to dismiss until June 21, 1994, and advised counsel:

“․ if this case isn't at issue by the date that I set this matter on June 21st—and that will be heard in Department One at 9:00 a.m. incidentally ․ you're going to have to show Judge Keyes very good cause why he shouldn't dismiss it.”

Prior to the June 21st hearing, several more defendants were served and a demurrer was filed to the second amended complaint.   The hearing on the demurrer was before Judge Austin.   The demurrer was sustained in favor of one defendant without leave to amend and in favor of two others with leave to amend by July 20th.

Counsel failed to appear at the June 21st hearing on the motion to dismiss before Judge Keyes.   He failed to file a declaration explaining why an at issue memorandum had not been filed and why he had not complied with the time standards of rule 5.   The case was dismissed without prejudice.

In a motion for reconsideration pursuant to Code of Civil Procedure section 1008, filed July 6, 1994, counsel claimed the case was dismissed because he failed to serve the remaining defendants with the second amended complaint.   In a declaration attached to the motion he explained four defendants had been served personally and the remaining defendants were served by publication June 24, 1994, three days after the case was dismissed.   He also advised the court he had been granted leave to file a third amended complaint by July 20th and had filed the complaint June 30th.   He claimed it was “quite clear that one department of this Court does not realize the orders of other departments of this Court and therefore inadvertently dismissed this action.”

At the hearing on the motion for reconsideration counsel told the court he did not appear at the June 21st hearing because he thought the order on the demurrer “obviated” the hearing on the motion to dismiss.   He also claimed the court could not dismiss the complaint on its own motion until a period of two years had elapsed from the date the complaint had been filed.

The court denied plaintiff's motion for reconsideration.

Discussion

 The standard of review for a challenge to trial management orders is abuse of discretion.  (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498, 256 Cal.Rptr. 296.)

“Discretion is abused whenever it exceeds the bounds of reason, all of the circumstances before it being considered.  [Citations.]  In exercising its discretion, the court does not have absolute and unlimited power;  it must act with an impartial discretion guided and controlled in its exercise by fixed legal principles.  [Citations.]  As a reviewing court, we will not disturb this exercise of the trial court's discretion unless it appears that its order was a clear abuse or a miscarriage of justice.  [Citation.]”  (Ibid.)

 This court is guided by two competing policies in reviewing the dismissal:  (1) the reduction of delay in litigation and the timely, expeditious resolution of cases, and (2) the resolution of cases on their merits rather than dismissal on procedural grounds.  (Youngworth v. Stark (1991) 232 Cal.App.3d 395, 401, 283 Cal.Rptr. 668.)

 Plaintiff contends the order granting leave to file a third amended complaint tolled the time within which he was required to file an at issue memorandum and rendered the court's order to appear and file declarations pursuant to rule 5.7 “inapplicable” and “unnecessary.”

Plaintiff cites no authority to support these contentions, nor do his arguments excuse his failure to respond and appear at the hearing on the court's motion to dismiss.   Plaintiff manifests a basic misperception of counsel's role vis a vis the trial court to the extent he suggests counsel's independent belief about the necessity, manner and time of compliance with local rules of court and specific court orders justifies his noncompliance with court orders.

Plaintiff claims counsel's failure to appear at the hearing on the court's motion to dismiss was the result of “confusion created by the procedural posture of the case and the court's directives.”   Any “confusion” in this case was the result of counsel's failure to apprise the court of the status of the case pursuant to rule 5.7 as specifically ordered by the court.   Counsel's failure to attend hearings and to communicate with the court obstructed case management.   His attempt to fault the court for his predicament is audacious, if not contemptuous.

 Plaintiff claims Code of Civil Procedure, section 583.420 2 prohibits dismissal of an action for delayed prosecution until after two years from the date the action is commenced.   He claims the trial court exceeded its authority because less than two years had gone by when the court dismissed this action.   He misperceives the nature of the court's actions.   His complaint was dismissed as a sanction for noncompliance with several local rules and specific orders directing his compliance and attendance at hearings.   The action was not dismissed for delayed prosecution, and, hence, section 583.420 is irrelevant.

Although plaintiff's various explanations and excuses for not complying with local rules do not demonstrate an abuse of discretion by the court, we are nevertheless faced with the dismissal of an action when there is no evidence the plaintiff was responsible for noncompliance or for counsel's dereliction.   Plaintiff contends it was an abuse of discretion to punish him with the severe sanction of dismissal because his attorney failed to comply with local rules.

Local rule 5 of the Fresno County Superior Court regarding “Administration of General Civil Litigation” was promulgated in 1988 pursuant to section 575.1 which generally authorizes courts to adopt local rules “designed to expedite and facilitate the business of the court.”  (See rule 5.1.)   Pursuant to this statutory authority, the court is empowered to adopt penalties for noncompliance with local rules, including dismissal, with the following limitation:

“[I]f a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.”  (§ 575.2, subd. (b).)

 When counsel is responsible for noncompliance with local rules, sanctions may be imposed only upon counsel.  (State of California ex rel. Public Works Bd. v. Bragg (1986) 183 Cal.App.3d 1018, 1024, 228 Cal.Rptr. 576;  Cooks v. Superior Court (1990) 224 Cal.App.3d 723, 726, 274 Cal.Rptr. 113;  Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 502, 256 Cal.Rptr. 296.)   When the record does not reveal the client is the cause of counsel's failure to comply with local rules, it is an abuse of discretion to impose the drastic sanction of dismissal.  (Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 503, 256 Cal.Rptr. 296.)

 Defendants claim the sanction of dismissal is authorized pursuant to Government Code section 68608, subdivision (b), which provides:

“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.   Judges are encouraged to impose sanctions to achieve the purposes of this article.”

Government Code section 68608 is part of the Trial Court Delay Reduction Act (TCDRA).   According to defendants, the propriety of the imposition of sanctions for the failure to comply with Fresno County's local fast track rules is determined by reference to Government Code, section 68608, subdivision (b), not section 575.2, subdivision (b).   Plaintiff, on the other hand, contends section 575.2, subdivision (b) controls.

When the fast track rules were adopted in 1988, Fresno was identified as a voluntary delay reduction county.   Unlike the nine counties which were mandated to participate in an experimental delay reduction program and subject to the Judicial Council's uniform delay reduction rules, Fresno was one of seven counties which were allowed to adopt their own rules for delay reduction.  (See Youngworth v. Stark, supra, 232 Cal.App.3d at p. 402, 283 Cal.Rptr. 668.)   However, commencing July 1, 1992, all superior courts were required to adopt delay reduction rules to apply to all civil actions and proceedings in superior courts, except juvenile, probate or domestic relations cases.  (Gov.Code, §§ 68605.5, 68608, subd. (a).)  Because plaintiff's case does not fall within one of the three noted exceptions, the TCDRA, and specifically Government Code, section 68608, subdivision (b) applies.

The question is whether the Legislature, in enacting Government Code, section 68608, subdivision (b), intended to override the limitation on the sanction of dismissal in section 575.2, subdivision (b).

 First, we review the rules of statutory interpretation.

“We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.   [Citations.]  ‘In determining intent, we look first to the language of the statute, giving effect to its “plain meaning.” ’  [Citations.]  Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature.  [Citation.]  Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.”  (Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672.)

 Section 575.2, entitled, “Noncompliance with local rules;  effects” provides:

“(a) Local rules promulgated pursuant to Section 575.1 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 motion of a party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or impose other penalties of a lesser nature as otherwise provided by law, and may order that party or his or her counsel to pay to the moving party the reasonable expenses in making the motion, including reasonable attorney fees.

“(b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party's cause of action or defense thereto.”  (Italics added.)

The italicized portion makes clear the legislative intent that a party's cause of action should not be impaired or destroyed by his or her attorney's procedural mistakes.

Government Code, section 68608, entitled “Assignments and Powers of Judges” provides in part:

“(b) 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.   Judges are encouraged to impose sanctions to achieve the purposes of this article.”  (Italics added.)

Nothing in the language of Government Code section 68608 reflects a change of intent from that expressed in section 575.2, subdivision (b).   Indeed, the reference to “sanctions authorized by law” is a clear reference to the general authority granted to the courts by section 575.2, subdivision (a) to impose sanctions, including the sanction of dismissal.   The limitation on that authority, as reflected in section 575.2, subdivision (b), that parties not be punished for counsel's noncompliance with local rules, is not affected by any contrary expression of intent in Government Code, section 68608, subdivision (b).

In Moyal v. Lanphear, supra, 208 Cal.App.3d 491, 256 Cal.Rptr. 296 the court reached the same conclusion:

“As discussed earlier, although section 575.2(a) permits the court to dismiss an action where a party or counsel fails to comply with any requirements of the local rules, section 575.2(b) provides a limitation on this power.   The Legislature has made clear its intent a party's cause of action should not be impaired or destroyed by his or her attorney's procedural mistakes.  (State of California ex rel. Public Works Bd. v. Bragg, supra, 183 Cal.App.3d at p. 1026[, 228 Cal.Rptr. 576].)   Further, the court is required to invoke section 575.2(b) on its own motion when appropriate to guarantee the protection of an innocent party's right of action.  (Id., at pp. 1028–1029[, 228 Cal.Rptr. 576].)  [¶] Government Code section 68609(d), [now § 68608(b) ] ․ confirms the intent of the Legislature that a dismissal sanction should be imposed only if it appears less severe sanctions would not be effective, taking into account the effect of previous sanctions or previous lack of compliance with court orders or deadlines in the case.   This legislative approach is consistent with long-standing judicial policy, ․ that cases should be resolved on their merits rather than on procedural grounds wherever possible.”  (Id. at p. 502, 256 Cal.Rptr. 296.)

Cooks v. Superior Court, supra, 224 Cal.App.3d 723, 274 Cal.Rptr. 113 dealt with the issue in a somewhat different context.   There dismissal was not the sanction imposed by the trial court;  instead the court denied plaintiff a jury trial because his attorney failed to submit proposed jury instructions within the time required by the fast track rules.   Defendant/real party contended the trial court did not violate section 575.2, subdivision (b) because “the denial of a jury trial does not ‘adversely affect the party's cause of action or defense thereto’ within the meaning of that statute.”   (Cooks v. Superior Court, supra, 224 Cal.App.3d at p. 727, 274 Cal.Rptr. 113.)

The court of appeal rejected that reasoning.   It cited with agreement Moyal v. Lanphear, supra, 208 Cal.App.3d at p. 491, 256 Cal.Rptr. 296, and stated:

“[W]e have construed section 575.2, subdivision (b), to proscribe any sanction against an innocent party for local rule violations of counsel and to proscribe sanctions against counsel that adversely affect the party's cause of action or defense thereto.”  (Ibid., at p. 727, 274 Cal.Rptr. 113.)

Nevertheless, in Intel Corp. v. USAIR, Inc. (1991) 228 Cal.App.3d 1559, 279 Cal.Rptr. 569, the court came to a contrary conclusion:

“Since these statutes overlap in their treatment of the availability of sanctions for the enforcement of local rules, they should be construed together and harmonized to the extent that it is possible to do so.  [Citation.]  To the extent they are inconsistent, however, we turn to the rule of construction that a special statute dealing expressly with a particular subject takes precedence over a conflicting general statute on the same subject.  [Citation.]  We determine which is the more specific of the two statutes by comparing their goals and subject matter.  [Citation.]  While the Code of Civil Procedure provision is concerned with penalties for violation of any local rules, the Government Code provision addresses imposition of sanctions for violation of local delay reduction rules.   The Government Code provision is clearly more narrowly circumscribed and specific than the Code of Civil Procedure provision, and is therefore controlling.  [¶] An additional maxim of construction leads to the same result, since the Trial Court Delay Reduction Act, of which the Government Code provision is a part, is the last enacted statute.   [Citation.]”  (Id. at pp. 1564–1565, 279 Cal.Rptr. 569.)

We go the path of Moyal and Cooks for two reasons:  First, although the Intel court noted its obligation to attempt to harmonize the two provisions, it began its analysis by assuming their inconsistency.

“Although ordinarily specific provisions relating to a particular subject will govern with respect to that subject as against general provisions [Citations], this principle of statutory construction is entitled to little weight when the specific statute expressly requires compliance with other laws and when there is no direct conflict between the various laws.   Rather the statutes and codes should be harmonized to effectuate all insofar as possible․”  (People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 487–488, 204 Cal.Rptr. 897, 683 P.2d 1150.)

Second, rather than look to the words of the two statutes themselves to determine legislative intent, the Intel court turned immediately to rules of statutory construction as “extrinsic aids.”   As reflected in the rules cited by that court, the maxim that a specific statute takes precedence over a general statute assumes the two statutes conflict.   The language of section 575.2 is clear and unambiguous, and we see no conflicting language or inconsistent intent reflected in Government Code, section 68608, subdivision (b).

Defendants rely upon Youngworth v. Stark, supra, 232 Cal.App.3d at p. 395, 283 Cal.Rptr. 668, which held section 575.2 did not restrict the authority of the court to dismiss an action in a voluntary “fast track” county when counsel failed to comply with local rules.

“All the published cases considering the issue of the propriety of sanctions in fast track cases are from mandatory delay reduction counties.   The instant case is distinguishable in that it comes from a voluntary delay reduction county.   Therefore, we need not decide whether section 68609, subdivision (d) supersedes Code of Civil Procedure section 575.2, subdivision (b) with respect to mandatory delay reduction counties.   As we previously stated, section 68618.5 provides that, ‘[n]otwithstanding any other provision of law[,]’ the Humboldt County Superior Court may adopt its own local delay reduction rules.   The clear implication of this section is that voluntary delay reduction counties are not subject to the requirements of Code of Civil Procedure section 575.2, subdivision (b) unless they adopt local delay reduction rules that specifically so provide.   Humboldt County's local delay reduction rules do not so provide.   Consequently, imposition of sanctions in the instant case is not subject to Code of Civil Procedure section 575.2.”

Youngworth concluded the Legislature intended that the authority of voluntary counties would be unrestricted with regard to the imposition of dismissal as a sanction for counsel's noncompliance with local “fast track” rules, regardless of the client's culpability.   Even accepting Youngworth's conclusion, because compliance with TCDRA is now mandatory in all counties, Youngworth's analysis is no longer germane.

We conclude, as did Moyal and Cooks, that Government Code section 68608 merely “confirms the intent of the Legislature that a dismissal sanction should be imposed only if it appears less severe sanctions would not be effective, taking into account the effect of previous sanctions or previous lack of compliance with court orders or deadlines in the case.”  (Moyal, supra, 208 Cal.App.3d at p. 502, 256 Cal.Rptr. 296.)   It does not expand the court's authority to permit the severe sanction of dismissal when there is no evidence that the client was responsible for noncompliance.3

It was an abuse of discretion to dismiss plaintiff's action since there is no evidence he was responsible for not complying with local rules or for counsel's failure to comply with court orders.

DISPOSITION

The judgment is reversed.   On remand the trial court may impose sanctions upon plaintiff's trial counsel for violation of the court orders which led to the dismissal which we have found to be in error.

Costs on appeal to plaintiff.

FOOTNOTES

1.   All further rule references are to the Fresno County Superior Court local rules unless otherwise indicated.   Rule 5.4A provides:“Within 60 days of filing of the complaint, the complaint shall be served on all named defendants and a proof of service filed with the Court.”

2.   All further statutory references are to the Code of Civil Procedure unless otherwise indicated.  Section 583.420 provides in pertinent part:“(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:“(1) Service is not made within two years after the action is commenced against the defendant.“(2) The action is not brought to trial within the following times:“(A) Three years after the action is commenced against the defendant unless otherwise prescribed by rule under subparagraph (B).“(B) Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.”

3.   We recognize this conclusion renders the sanction of dismissal unavailable in many instances, since the failure of a party to comply with fast track rules is almost always attributable to derelict counsel, and not to the party's actions.   If the Legislature intends otherwise, it can easily reword Government Code, section 68608, subdivision (b).

STONE (Wm. A.), Acting Presiding Justice.

THAXTER and BUCKLEY, JJ., concur.

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