Opinion
F060704 Super. Ct. No. 09CECG02317
11-02-2011
BARRY S. JAMESON, Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; JAMES A. YATES, Real Party in Interest.
Barry S. Jameson, in pro. per., for Petitioner. No appearance for Respondent. No appearance for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
ORIGINAL PROCEEDINGS in mandate. Jeff Y. Hamilton, Jr., Judge.
Barry S. Jameson, in pro. per., for Petitioner.
No appearance for Respondent.
No appearance for Real Party in Interest.
This is an appeal from the trial court's denial of a motion to vacate an order dismissing a prisoner's petition for a writ of mandate. The court dismissed the petition because the prisoner, petitioner Barry S. Jameson, failed to appear at the hearing set for consideration of it. Jameson's motion for reconsideration and his motion to vacate were denied after he also failed to appear at hearings set for those motions. In his motion papers, Jameson stated that he arranged to appear telephonically at all the hearings, but prison staff did not allow him access to a telephone at the appointed times.
In Jameson v. Desta (2009) 179 Cal.App.4th 672, another case involving Jameson, which Jameson cited to the trial court in this case, the Fourth District Court of Appeal held: "[W]e conclude that before a trial court may dismiss an action on the ground that an indigent prisoner has failed to appear telephonically at proceedings in the case, the trial court must find, based on facts in the record, that the prisoner had willfully failed to avail himself of the right to appear telephonically." (Id. at p. 675.)
The appellate record, which includes the trial court's orders, does not include a finding that Jameson "willfully failed to avail himself of the right to appear telephonically," and no facts upon which this finding could be based. As a result, we conclude the trial court abused its discretion when it failed to grant Jameson relief from its dismissal order.
For reasons we will explain, we construe Jameson's appeal to be a petition for a writ of mandate requesting that the trial court vacate its dismissal order. We grant the petition.
FACTUAL AND PROCEDURAL HISTORIES
Jameson was an inmate at Pleasant Valley State Prison. On June 30, 2009, he filed a petition for a writ of mandate in the superior court. The petition alleged that Jameson had habeas petitions pending in federal and state courts and civil litigation pending in state court. It further alleged that Caucasian prisoners at the prison, including Jameson, had been under lockdown since August 2, 2008, and that he had been denied access to the prison law library since then. Prison staff had taken and stored his legal files on November 17, 2008, and never returned them. He also alleged he was prevented from making photocopies, mailing legal documents, and serving documents on attorneys representing prison employees. The petition argued that the prison's actions deprived him of access to the courts in violation of prison regulations and the federal Constitution. The state did not file a response to the petition.
On April 11, 2011, after the events set forth in this appeal, Jameson filed a notice of change of address reflecting a transfer to Richard J. Donovan Correctional Facility in San Diego, California.
The court set a hearing for September 4, 2009. Neither side appeared; the court dismissed the petition without prejudice. Although the minute order stated no grounds for the dismissal, we presume the reason was that the petitioner failed to appear.
Jameson later filed a motion for reconsideration of the dismissal. The motion stated that he had "no physical access to the Court and no telephone" because he was in prison, and therefore believed the only way he could appear was in writing. No opposition to the motion was filed.
The court set a hearing on this motion for December 4, 2009. Neither side appeared at the hearing. The motion was denied, again with no explanation in the minute order, but presumably because of Jameson's failure to appear.
On December 11, 2009, Jameson filed a "notice of his being denied access to the court for hearing ... and request for rescheduling of hearing." In this document, Jameson explained that prison staff had instructed him to contact CourtCall, LLC (CourtCall), to arrange for his telephonic appearance at the December 4 hearing. An inmate appeal form included in the record indicates that Jameson felt he should not be required to contact CourtCall himself. In any event, however, he did so and received a confirmation letter from CourtCall showing that the call had been scheduled. When the time for the hearing arrived, Jameson alleged that "prison staff still refused to allow him to access the Court via telephone."
Jameson also cited the opinion in Jameson v. Desta, supra, 179 Cal.App.4th 672, contending that it presented the same issue as this case.
The court apparently took no action in response to this filing. The docket shows no activity until Jameson's next filing, on January 11, 2010. This filing was a motion to vacate the court's dismissal order of September 4, 2009. The motion cited Code of Civil Procedure section 473, which allows a party to apply for relief from a dismissal resulting from a party's "mistake, inadvertence, surprise, or excusable neglect." (Code Civ. Proc., § 473, subd. (b).)
Jameson again described the steps he took to schedule the telephonic appearance through CourtCall, and stated that "a prison guard gave him what is called a 'ducat' notifying him he had a hearing by telephone," but prison "officials refused to allow [him] to appear" when the time for the call came. Jameson again cited Jameson v. Desta, supra, 179 Cal.App.4th 672. He argued that "[t]he Court of Appeal ... held it was an abuse of discretion for the Superior Court Judge to dismiss the case when being notified that prison officials were refusing to allow Jameson to appear telephonically." Jameson attached a sworn declaration detailing his account of the facts. The court set a hearing on the motion to vacate for March 5, 2010.
Neither side appeared at this hearing, and the court denied the motion. The minute order said, "Plaintiff not present on Court Call. No good cause for failure to appear as to Plaintiff." Jameson's appellate brief states that he set up a telephonic appearance through CourtCall for the March 5 hearing as well, but prison staff again refused to let him use the telephone at the time of the hearing.
Jameson filed a notice of appeal from the order of March 5, 2010, denying the motion to vacate.
DISCUSSION
Jameson argues that, under Jameson v. Desta, supra, 179 Cal.App.4th 672, the superior court could not dismiss his petition without finding his failure to appear to be willful. Since the court did not do so, Jameson contends the court should have granted his motion for relief from the dismissal.
I. Failure to grant relief from dismissal order
In Jameson v. Desta, supra, 179 Cal.App.4th at page 674, Jameson sued a prison doctor for medical malpractice. Jameson filed a request that he be allowed to participate telephonically in all hearings. The court granted the request. (Id. at p. 680.) Shortly thereafter, Jameson failed to appear at a motion hearing. He sent the court a letter stating that the prison's litigation coordinator did not allow him to use the telephone. The coordinator gave him a notice asserting that the prison was not required to allow Jameson to participate in private litigation. (Id. at p. 681.)
In a case-management statement and other filings, Jameson repeated that prison staff were not allowing him to use the telephone for court hearings. (Jameson v. Desta, supra, 179 Cal.App.4th at p. 681.) When the case-management conference was held, Jameson did not appear by telephone. The court issued an order to show cause why the case should not be dismissed. (Id. at pp. 681-682.) Jameson responded with filings in which he stated that prison staff were continuing to deny him access to the telephone for court proceedings. (Id. at p. 682.) The court held a hearing on the order to show cause, at which Jameson did not appear telephonically. It dismissed the case without prejudice, stating that Jameson had repeatedly failed to appear via CourtCall, even though he had been advised of his right to do so. (Ibid.)
The Court of Appeal observed (Jameson v. Desta, supra, 179 Cal.App.4th at p. 678) that a prisoner has the right to initiate civil litigation (Pen. Code, § 2601, subd. (d)) and the right to meaningful access to the courts to prosecute the litigation (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 792). It cited Wantuch, in which the Court of Appeal reversed a judgment entered against a prisoner for failing to appear at a status conference and a hearing on an order to show cause for failure to prosecute. The prisoner had filed documents in which he explained that he was incarcerated and requested that the court take some action to allow him to appear, such as appointing counsel or having him transported to court. Wantuch reversed and remanded, stating that the prisoner's failure to appear was not willful and the trial court had an obligation to "'determine the appropriate remedy or remedies to effectuate Wantuch's constitutional and statutory rights of meaningful access to the courts ...." (Jameson v. Desta, supra, at p. 679.)
Jameson v. Desta also relied on Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, in which the trial court granted summary judgment against a prisoner plaintiff because, when a prison staff member appeared by telephone and said the prisoner was on the way from his housing unit with his documentation, the court did not want to wait. "'"We are going to proceed,"'" the trial court said. "'"It is now 9 minutes after 10:00. And if he is late, it is not our fault."'" (Jameson v. Desta, supra, 179 Cal.App.4th at p. 679.) The Court of Appeal in Apollo reversed, holding that the trial court abused its discretion by entering judgment without "'first ensuring that appellant's right to meaningful court access'" was being protected. (Jameson v. Desta, supra, at p. 680.)
Applying these precedents, Jameson v. Desta held that the trial court abused its discretion in dismissing the action. It observed that "[t]he record does not indicate that the trial court inquired into any of Jameson's numerous complaints" about being denied access to hearings. It stated that, before dismissing the case, "the trial court did not make any finding that Jameson's failure to telephonically appear at the [hearings] was willful, and the record contains no facts that would support such a finding." (Jameson v. Desta, supra, 179 Cal.App.4th at pp. 682-683.) It concluded:
"[T]he trial court abused its discretion by choosing the 'drastic measure' of dismissal [citation], without first determining that Jameson had been afforded meaningful access to the courts and that his failure to appear at required hearings was willful. [Citation.] On remand, the trial court is directed to ensure that Jameson is provided meaningful access to the courts. While the trial court may exercise its discretion in determining the appropriate manner by which such access is provided, the trial court must make sure that whatever method is utilized actually provides meaningful access. For example, to the extent that the trial court elects to rely on telephone hearings to provide such access, the court may wish to communicate itself, telephonically and/or by letter, with prison personnel to determine what logistical arrangements are necessary to enable Jameson to appear telephonically, and make sure that both court staff and prison personnel
make those arrangements." (Jameson v. Desta, supra, 179 Cal.App.4th at p. 684, fns. omitted.)
The court added in a footnote: "[I]t appears that Jameson is indigent and that his complaint raises a bona fide claim. However, on remand, the trial court must definitively determine these issues." (Jameson v. Desta, supra, 179 Cal.App.4th at p. 684, fn. 9.) In another footnote, the court stated that Jameson had appeared telephonically at oral argument in the Court of Appeal and had said that he believed "the prison's litigation coordinator is the appropriate person with whom court officials should communicate in making administrative arrangements to enable [him] to make telephonic court appearances." (Id. at p. 684, fn. 10.)
In this case, Jameson has been granted fee waivers based on indigency, and the claims in his petition involve alleged denial of legally guaranteed access to the means necessary to prosecute other litigation, litigation apparently involving Jameson's interests in liberty and property. Facially, then, he would appear to satisfy the indigency and bona-fide-claim requirements. As in Jameson v. Desta, supra, 179 Cal.App.4th 672, however, the determination of whether he does in fact satisfy these requirements is a matter for the trial court.
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Jameson v. Desta is directly on point. In a situation like this, the trial court must take steps to determine whether an indigent prisoner's failure to appear is willful before terminating the litigation based on that failure. Otherwise, prison staff could deny telephone access indefinitely and there would be no avenue of relief for the prisoner.
By the time the trial court decided Jameson's last motion to revisit the dismissal order, the record included Jameson's several assertions, including a sworn declaration, that his failure to appear was caused by prison staff's unwillingness to let him use a telephone, not by any lack of diligence on his part. In addition, he presented evidence that, in one instance, he had made arrangements with CourtCall to appear, but was prevented from making the call when the time for the hearing came.
The court also had before it Jameson's citation to Jameson v. Desta, which, as we have said, held that a court should not dismiss an indigent prisoner's action for failure to appear without first determining and finding on the record that the failure was willful. The court stated that no good cause was shown for Jameson's failure to appear, but it did not affirmatively find that the failure to appear was willful. To the contrary, there was evidence in the record that Jameson did have good cause—prison staff were denying him access to the telephone—and no evidence to the contrary. Consequently, the court abused its discretion and the denial of the motion to vacate is reversed.
II. Appeal deemed to be a petition for writ of mandate
Jameson appealed from the denial of a Code of Civil Procedure section 473 motion to vacate the minute order dismissing his writ petition. "'[I]n cases where the law makes express provision for a motion to vacate such as under Code of Civil Procedure section 473, an order denying such a motion is regarded as a special order made after final judgment and is appealable under Code of Civil Procedure section 904.1, subdivision (b) [see now § 904.1, subd. (a)(2)].' [Citation.]" (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.)
The underlying judgment or order, however, must also be final and appealable. Here, the underlying order is the court's order of dismissal without prejudice. An order of dismissal has the effect of a final judgment if it is properly entered (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 144, p. 218), even if the dismissal is without prejudice (Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455). To be entered properly, a dismissal order must be written, signed, and filed. (Code Civ. Proc., § 581d.)
We have inspected the record and found no signed dismissal order. The unsigned minute order dismissing the appeal is not appealable. As a result, the order denying the motion to vacate also is not appealable.
Under unusual circumstances, we have authority to treat a premature appeal as a petition for a writ of mandate. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 2:7.1, p. 2-3.) We can do this where the consequences of dismissing the appeal would be "'"unnecessarily dilatory and circuitous."'" (Olson v. Cory (1983) 35 Cal.3d 390, 401.)
If we were to dismiss the appeal, Jameson's recourse would be to file a request in the trial court for a signed order of dismissal. He could then file a new appeal from that order. To require this would be "'"unnecessarily dilatory and circuitous"'" (Olson v. Cory, supra, 35 Cal.3d at p. 401) as it would delay the possibility of relief without protecting any legitimate interests of the opposing party.
The record and Jameson's brief "include in substance the elements necessary to a proceeding for writ of mandate." (Olson v. Cory, supra, 35 Cal.3d at p. 401.) The record includes a clerk's transcript and a supplemental clerk's transcript, which show all the proceedings in the trial court. The Department of Corrections and Rehabilitation has chosen not to file a response in these proceedings or the proceedings before the trial court.
We conclude that writ relief is appropriate and exercise our discretion to treat the appeal as a petition for a writ of mandate. The petition is granted.
DISPOSITION
The appeal is deemed a petition for a writ of mandate. Let a writ of mandate issue directing the superior court to grant Jameson's motion to vacate the order dismissing his petition. The parties will bear their own costs on appeal.