VELASQUEZ v. SAKAMOTO (1991)

FACTS AND PROCEEDINGS BELOW

The complaint in this action was filed on August 23, 1988, in the superior court.   On March 9, 1989, the case was ordered transferred to the municipal court.   When the transfer fees had not been paid for over a year the superior court ordered plaintiff's counsel to show cause on April 4, 1990, at 9:00 a.m. why the case should not be dismissed.   On April 3, 1990, the day before the hearing on the order to show cause, plaintiff's counsel gave the transfer fees to an attorneys' service with instructions to take them to department 68 of the superior court, the department in which the show cause order was scheduled to be heard.   The attorneys' service did not deliver the fees to Department 68 until 4:30 p.m. on April 4th.   In the meantime, plaintiff's counsel having failed to appear at the show cause hearing, the court dismissed the case under Code of Civil Procedure section 583.420, subdivision (a)(2)(B).

On May 18, 1990, plaintiff's counsel moved to vacate the dismissal under Code of Civil Procedure section 473.   The trial court denied this motion on June 19, 1990.   On August 16, 1990, plaintiff's counsel filed a notice of appeal from the dismissal order and the order denying relief from the dismissal.¹

DISCUSSION

Code of Civil Procedure section 583.420, subdivision (a)(2)(B) authorizes discretionary dismissal “[t]wo years after the action is commenced against the defendant․”   This action was commenced on August 3, 1988, and dismissed on April 4, 1990.   It is clear on the face of the record this case was not subject to dismissal under section 583.420, subdivision (a)(2)(B).

This conclusion, however, does not end our inquiry because we are reviewing the correctness of the order, not its reasoning.   Therefore, we must determine if some other ground would support dismissal of the action.  (Blue Chip Enterprises, Inc. v. Brentwood Sav. & Loan Assn. (1977) 71 Cal.App.3d 706, 712, 139 Cal.Rptr. 651.)

We look first to Code of Civil Procedure section 399 ² which covers the transfer of actions from the superior court to the municipal court.   That section contains a specific provision on dismissal of the action for failure to pay the transfer fees.   Under section 399, if the transfer fees are not paid within 30 days after service of the order of transfer “the court on a duly noticed motion by any party may dismiss the action․”  Section 399, therefore, does not expressly authorize the dismissal in the present case because the dismissal was on the court's own motion, not the motion of a party.³

 In the absence of express statutory authority, a court may dismiss an action for dilatory prosecution on the basis of its inherent common law power.  (Romero v. Snyder (1914) 167 Cal. 216, 218, 138 P. 1002;  Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915, 231 Cal.Rptr. 738, 727 P.2d 1019;  and see Link v. Wabash R.R. Co. (1961) 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734.)   However, the courts have long recognized their inherent authority to dismiss may not be exercised in a manner contrary to statute.  (Romero v. Snyder, supra, 167 Cal. at p. 219, 138 P. 1002;  Weeks v. Roberts (1968) 68 Cal.2d 802, 805, 69 Cal.Rptr. 305, 442 P.2d 361;  Lyons v. Wickhorst, supra, 42 Cal.3d at p. 915, 231 Cal.Rptr. 738, 727 P.2d 1019.) ⁴ .  If this were not so, and courts could dismiss an action at any time, then statutes setting minimum and maximum time frames for dismissal would be meaningless.  (Holden v. California Emp. Etc. Com. (1950) 101 Cal.App.2d 427, 437–438, 225 P.2d 634.)

Thus, it has been held a court has inherent power to dismiss an action prior to the time at which dismissal would be mandatory (see, e.g., Inderbitzen v. Lane Hospital (1936) 17 Cal.App.2d 103, 106, 61 P.2d 514), but a court may not dismiss an action prior to the time at which dismissal would be discretionary, as established by the Legislature.   For example, in Inderbitzen v. Lane Hospital, supra, the court held the provision of former section 583 of the Code of Civil Procedure, mandating dismissal of an action if it was not brought to trial within three years after filing a remittitur reversing the judgment, did not deprive the trial court of its inherent power to dismiss the action for lack of prosecution for a shorter period.  (17 Cal.App.2d at p. 106, 61 P.2d 514.)   On the other hand, in Romero v. Snyder, supra, the court held the provision of former Code of Civil Procedure section 583, permitting dismissal of an action not brought to trial within two years after the answer was filed, precluded the trial court from dismissing an action not brought to trial in a period less than two years after the answer was filed.  “The [statutory] declaration that the court, in its discretion, may dismiss the case because of such inaction for two years, implies that inaction of that kind for a shorter period will not suffice.”  (167 Cal. at p. 219, 138 P. 1002.) ⁵

 Under the reasoning of Romero and Weeks, supra, the trial court erred in dismissing the present case for delay in bringing the matter to trial because less than two years had elapsed since commencement of the action.  (Code of Civ.Proc., § 583.420, subd. (a)(2)(B).)

 Furthermore, the trial court's inherent power to dismiss an action did not permit the court to dismiss the present case for delay in paying the transfer fees.   As previously noted, Code of Civil Procedure section 399 contains its own dismissal provision which authorizes dismissal “on a duly noticed motion by any party.”   It could be argued that notwithstanding Code of Civil Procedure section 399 the court retains an inherent power to dismiss for failure to pay the transfer fee.   This would be a plausible conclusion were it not for the fact the same statute which added the provision to section 399 authorizing a party's motion to dismiss repealed section 581b of the Code of Civil Procedure which authorized dismissal on the court's own motion.  (Stats.1974, ch. 1369, § 3.5;  and see fn. 4, supra.)

 Where the Legislature repeals a statute specifically authorizing a trial court or a party to move to dismiss an action under certain circumstances and, at the same time, replaces it with a statute authorizing only a party to make such a motion, the Legislature clearly expresses an intent such actions may no longer be dismissed on the court's own motion.   The Legislature's authority to so restrict the court's inherent power to dismiss was recognized in Weeks, Lyons and Salas.  (See fn. 4, supra.)

In the present case, the trial court, on its own motion, dismissed the plaintiff's action after the plaintiff failed for over a year after the transfer order to pay the transfer fees.   If we were to sustain this dismissal under the “inherent power” theory we would, in effect, be reinstating a law, former Code of Civil Procedure section 581b, the Legislature repealed seven years ago.  (See fn. 2, supra, p. 611.)   Not even the most “activist” court could justify such a flat out usurpation of the legislative function.⁶

DISPOSITION

The judgment dismissing the action is reversed.   Appellant is awarded costs on appeal.

I concur in the majority opinion but write separately to again urge the California Supreme Court to reassess its views expressed by the majority of that court in Lyons v. Wickhorst (1986) 42 Cal.3d 911, 231 Cal.Rptr. 738, 727 P.2d 1019.

In Salowitz Organization, Inc. v. Traditional Industries, Inc. (1990) 219 Cal.App.3d 797, 802–806, 268 Cal.Rptr. 493, we were faced with a different but not entirely unrelated situation and held that the trial court lacked inherent power to deny a plaintiff a trial de novo as a sanction under Code of Civil Procedure section 128.5 for failure to participate in judicially mandated arbitration since it was the apparent desire of the Legislature to give the plaintiff an unfettered right to a trial de novo regardless of his conduct in the arbitration proceedings.

In a separate concurring opinion, I urged the Supreme Court and/or the Legislature to extend the inherent power of trial courts to dismiss in the case of egregious circumstances as expressed in the views of Justice Reynoso in his separate concurring opinion in Lyons v. Wickhorst, supra, 42 Cal.3d at pages 926–927, 231 Cal.Rptr. 738, 727 P.2d 1019.

Once again we are faced with an egregious plaintiff who for thirteen months flaunted an order of court to transfer his matter to the municipal court by failing to pay the required transfer fees and by failing to attend a regularly set hearing to show cause why the action should not be dismissed.   Under such circumstances, I am of the opinion that the trial court should have the inherent power to dismiss the action, consonant with an abuse of discretion standard of review, in keeping with Government Code section 68609, subdivision (d) which gives courts the power to dismiss actions to implement the Trial Court Delay Reduction Act.   But until the Supreme Court changes its view in Lyons or the Legislature intervenes by statute to indicate that it meant what it said in Government Code section 68609, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455–456, 20 Cal.Rptr. 321, 369 P.2d 937, I am compelled to concur in the majority opinion.

FOOTNOTES

1.   There being no evidence in the record of proof of service of either of these orders we treat the notice of appeal as timely.  (Cal.Rules of Court, rule 2, subd. (a).)

2.   All statutory references are to Code of Civil Procedure unless otherwise indicated.

3.   Former section 581b of the Code of Civil Procedure would have authorized dismissal of this action.   That section provided an action “which has been ordered transferred to the proper court ․ must be dismissed by the court in which the action or proceeding was originally commenced, on its own motion, or on the motion of any party interested therein ․ where the costs and fees [for transfer] ․ have not been so paid for one year after the entry of the order for transfer.”  (Emphasis added.)   Section 581b was repealed by statutes 1974, chapter 1369, section 5 and replaced by the dismissal provision in Code of Civil Procedure section 399 quoted in the text above.

4.   This rule is now codified in Code of Civil Procedure section 583.150 which provides:  “This chapter does not limit or affect the authority of a court to dismiss an action or impose other sanctions under a rule adopted by the court pursuant to section 575.1 or by the Judicial Council pursuant to statute, or otherwise under inherent authority of the court.”  (See 17 Cal.Law Revision Com.Rep. (1984) 905, 930.)

5.   The court, in Romero, did not base its holding on the ground the statute restricted the power of the court, “but upon the ground that it is a legislative determination of the fact that a delay for two years, or less in bringing the action to trial after answer, is not to be regarded as unreasonable.”  (167 Cal. at p. 220, 138 P. 1002.)   In Weeks, however, the court expressed the view “[t]he two year statute limits the court's independent power to dismiss an action for want of prosecution at any time.”  (68 Cal.2d at p. 805, 69 Cal.Rptr. 305, 442 P.2d 361.)   The court repeated this rationale in Lyons v. Wickhorst, supra, 42 Cal.3d at page 915, 231 Cal.Rptr. 738, 727 P.2d 1019 and Salas v. Sear, Roebuck & Co. (1986) 42 Cal.3d 342, 348, 228 Cal.Rptr. 504, 721 P.2d 590.   The limitation of power rationale was also adopted by the Law Revision Commission in its report on amendments to the dismissal statutes (see fn. 3, supra ), and is consistent with Code of Civil Procedure section 4 which provides:  “The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this Code.   The Code establishes the law of this State respecting the subjects to which it relates, and its provisions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice.”

6.   In this case we need not reach the question, posed in the concurring opinion, whether in a “particularly egregious case” a trial court would have the inherent power to dismiss the action.  (See conc. op. at p. 613;  Lyons v. Wickhorst (1986) 42 Cal.3d 911, 927, 231 Cal.Rptr. 738, 727 P.2d 1019 [Reynoso, J. conc.].)  Unlike the ambiguous legislative staff report in Lyons, the legislative history relevant to this case clearly evidences an intent to preclude dismissal of this action on the court's own motion.   Unless the court's inherent power includes the legislative power to enact statutes or the executive power to veto them, the trial court had no power to dismiss this action on its own motion, no matter how “egregious” the conduct of plaintiff's attorney.Even if the trial court had such power we have no way of knowing whether it would have exercised this discretion to dismiss by making a finding of “egregious” conduct in this case had it known that was the test to be applied.   The attorney's conduct in this case does not appear to have been egregious compared, for example, to the conduct of defendant's attorney in Salowitz Organization, Inc. v. Traditional Industries, Inc. (1990) 219 Cal.App.3d 797, 800–802, 268 Cal.Rptr. 493.  (But see conc. op., infra, at p. 614.)   Rather, the conduct here appears to be the kind of garden-variety neglect which occurs all too often in our trial courts.   But, the fact reasonable minds can differ on what constitutes egregious conduct highlights the danger the exercise of the power to dismiss poses if it can be exercised unfettered and unbridled by procedural limits and guidelines.  (See Bauguess v. Paine (1978) 22 Cal.3d 626, 638–639, 150 Cal.Rptr. 461, 586 P.2d 942).

JOHNSON, Associate Justice.

LILLIE, P.J., concurs.