Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08398823
Bruiniers, J.
On July 17, 2008, appellant Victor Linares (Linares) filed suit in Alameda Superior Court against Richard Green, as an individual and as trustee of the Richard D. Green Trust, and Medical Visions, Inc. (collectively defendants). On April 7, 2009, the trial court dismissed Linares’s action with prejudice for failure to prosecute. Linares contends this was error. We agree and reverse the judgment.
I. Factual and Procedural Background
The events in this lawsuit occurred largely at unreported case management conferences. As a result, we rely on the orders entered after such conferences and other documents contained within the Clerk’s Transcript.
On July 17, 2008, Linares, represented by counsel, filed a complaint against defendants that sought specific performance and/or damages for breach of a settlement agreement. Linares alleged that he and defendants entered into the settlement agreement pursuant to which defendants had agreed to sell him certain real property. According to Linares, defendants refused to perform and prevented Linares from performing “by listing The Property for sale and monopolizing all MLS listings and websites, thereby preventing [Linares’s] ability to perform by sale or refinance of The Property....”
On October 6, 2008, defendants responded by filing a motion seeking sanctions under Code of Civil Procedure section 128.7. Defendants argued that: (1) Linares’s complaint was filed for an improper purpose; (2) Linares’s complaint consists of claims not warranted by existing law; and (3) Linares’s complaint contains allegations without evidentiary support. Specifically, defendants maintained that Linares’s complaint “alleged that the defendants prevented plaintiff Linares from selling the subject property.... However, there is no provision in the Settlement Agreement that gives plaintiff Linares the right to sell the property or to have the defendants assist in the sale of the property; only to purchase the property.” Defendants sought dismissal of the complaint with prejudice and sanctions, including reasonable attorney fees. The declarations of Richard Green and defendants’ counsel supported the motion. Linares filed opposition.
All further code references are to the Code of Civil Procedure unless otherwise indicated. Section 128.7, subdivision (b) provides: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. [¶] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. [¶] (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.”
Following a hearing on November 5, 2008, Judge Barbara J. Miller denied defendants’ motion. The court’s order reflected that “[m]oving [p]arty Richard D[.] Green appeared by counsel....” The court further stated: “The Court has reviewed the July 17, 2008 Complaint, which was verified by Plaintiff Linares, the supporting Declarations and Exhibits, including the Settlement Agreement dated May 14, 2008. The Court cannot agree with Defendants’ assertion that the Settlement Agreement can only be read to provide that Defendants’ only obligation was to transfer title to the Oakland property upon the payment of $275,000. The Court therefore concludes that the factual allegations do have some evidentiary support....”
On December 2, 2008, Judge Miller issued a case management order that set the matter for a case management conference on February 3, 2009. On February 3, 2009, Judge John M. True III called the matter and was apparently made aware that defendants had not formally been served with process. The record provided to us does not reflect what appearances were made by counsel on that date, but Linares’s counsel did file a Case Management Statement on February 3, 2009. The postconference order provides: “COURT ORDERS THE PLAINTIFF TO EFFECT SERVICE ON THE DEFENDANT WITH THE COMPLAINT BY 4/7/09. FAILURE TO COMPLY MAY RESULT IN THE DISMISSAL OF THE CASE.” A further case management conference was scheduled for April 7, 2009.
At the April 7, 2009 case management conference, Judge True entered an order dismissing Linares’s complaint with prejudice, noting that the case was “[d]ismissed for want of prosecution.” Appearances by counsel are again not reflected in the record provided, but on the same day, an order expunging lis pendens was signed and filed, suggesting that defendants’ counsel may have been present. Substituted service on Richard Green, as an individual defendant, was eventually effected on April 13, 2009. On April 27, 2009, proof of service was filed with the trial court. Linares filed a timely notice of appeal from the order of dismissal.
Section 581d provides: “A written dismissal of an action shall be entered in the clerk’s register and is effective for all purposes when so entered. [¶] All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes....” The trial court’s “facsimile” signature appears on the order of dismissal, but the order is not file-stamped. However, the register of actions shows that the dismissal order was filed on April 7, 2009. Linares’s appeal is taken from a final judgment. (§§ 581d, 904.1, subd. (a)(1).)
II. Discussion
We note at the outset that what could have been a straightforward appeal has been unduly complicated by several factors. First, neither party’s briefs adequately frame the issues or relevant authority. Second, the order of dismissal does not specify any rule or code section as authority for the dismissal. The order states only: “Dismissed for want of prosecution.” Furthermore, because the dismissal order was entered after an unreported case management conference, presumably no other record of the proceedings before Judge True exists. However, “[w]hen reviewing a discretionary dismissal..., [we] must presume that the decision of the trial court is correct. ‘ “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” ’ [Citation.]... The burden is on the party challenging the trial court’s decision to show that the court abused its discretion. [Citation.] Thus, even if there is no indication of the trial court’s rationale for dismissing an action, the court’s decision will be upheld on appeal if reasonable justification for it can be found.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
Linares argues on appeal that the trial court erred by dismissing his complaint because: (1) service was waived when defendants consented, in the settlement agreement, to the Superior Court of Alameda’s exercise of personal jurisdiction; (2) service was waived by defendants’ general appearance in the action; and (3) the time frame for service had not lapsed. Linares also argues that any dismissal of the action should have been without prejudice. We conclude that Linares’s second argument has merit. We further conclude that imposition of terminating sanctions was an abuse of discretion under the circumstances presented here. Accordingly, we must reverse.
We address Linares’s first argument briefly to demonstrate its patent lack of merit. Linares relies on the “Remedies” provision of the settlement agreement, which provides, in relevant part: “In the event of a breach or threatened breach by any of the Parties of its obligations under this Settlement Agreement, each Party acknowledges that the other Parties may not have an adequate remedy at law and shall be entitled to seek specific performance of this Settlement Agreement and such preliminary, permanent and mandatory equitable and injunctive relief as may be available to restrain the any [sic] other Party from any actual or threatened violation of the provisions hereof. Accordingly, each Party may apply to any court situate [sic] in Alameda County or Los Angeles County (‘Court’) to obtain any of the foregoing, or other, relief in connection with any dispute, controversy or claim arising out of or relating to this Settlement Agreement. The Parties hereby consent to the personal jurisdiction of the Court for the purposes of hearing and deciding such application.” (Italics added.) This provision says nothing about service of process. The argument is specious.
1. Standard of Review
“The ‘imposition of sanctions, monetary or otherwise, is within the discretion of the trial court. That discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind and must be guided by existing legal standards as adapted to current circumstances.’ [Citations.] ‘When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (In re Woodham (2001) 95 Cal.App.4th 438, 443, first & last brackets added.)
2. General Appearance
First, we consider whether the service requirement was excused by defendants’ participation in the litigation before entry of the dismissal order. When a defendant makes a “general appearance” in litigation, actual service of process is unnecessary. (§ 410.50, subd. (a) [general appearance equivalent to personal service of summons]; § 417.30 [proof of service of summons shall be filed unless defendant previously made general appearance]; Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147 (Hamilton).)
Section 1014 provides in relevant part: “A defendant appears in an action when the defendant answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.” This list of acts constituting a general appearance is not exclusive. (Hamilton, supra, 22 Cal.4th at p. 1147.)
A general appearance is made whenever a defendant, through participation in the litigation, “invokes the authority of the court on his behalf, or affirmatively seeks relief, ” such as by propounding discovery or making a motion for summary judgment. (Roy v. Superior Court (2005) 127 Cal.App.4th 337, 341.) A general appearance requires participation in the litigation that “ ‘recognizes the authority of the court to proceed.’ [Citation.]” (Hamilton, supra, 22 Cal.4th at p. 1147; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52 (Dial 800); Mansour v. Superior Court (1995) 38 Cal.App.4th 1750, 1756.) “ ‘[I]f a defendant by his appearance insists only upon the objection that he is not in court for want of jurisdiction over his person and confines his appearance for that purpose only, then he has made a special appearance, but if he raises any other question, or asks any relief which can only be granted upon the hypothesis that the court had jurisdiction of his person, then he... made a general appearance.’ [Citation.]” (Bank of America v. Harrah (1952) 113 Cal.App.2d 639, 641; accord, Greener v. Workers’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036–1037.) “ ‘What is determinative is whether defendant takes a part in the particular action which in some manner recognizes the authority of the court to proceed.’ [Citation.] ‘The appearance will be considered “general” in nature if the defendant acts in a manner, “showing... a ‘purpose of obtaining any ruling or order of the court going to the merits of the case.’ ” ’ [Citation.]” (Nam Tai Electronics, Inc. v. Titzer (2001) 93 Cal.App.4th 1301, 1307, disapproved on another point in Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 278, fn. 8.) We are “thus required to analyze the defendant’s papers to determine if any affirmative relief could be granted on the merits, which is a general appearance.” (Dial 800, supra, 118 Cal.App.4th at p. 54.)
Defendants’ pursuit of the motion for sanctions pursuant to section 128.7 constituted a general appearance. In their motion, defendants noted that they had not yet been served with Linares’s complaint. However, defendants did not question the court’s jurisdiction. Rather, defendants addressed the merits of the litigation, provided declarations that countered certain factual allegations in the complaint, and, in fact, affirmatively sought both dismissal of the complaint on the merits and an award of attorney fees. In making their motion, defendants recognized the authority of the court to make a determination regarding the merits of the case. One need only read the court’s order denying defendants’ motion to see that adjudication of the motion necessitated an analysis of the merits of the case to determine if the affirmative relief requested could be granted. Accordingly, defendants’ participation was sufficient to relieve Linares from the requirement for service of process. (See Dial 800, supra, 118 Cal.App.4th at p. 54 [“attorney fees motion premised on the theory [defendants] were the prevailing parties on a contract was an affirmative request for relief”]; Wilson v. Barry (1951) 102 Cal.App.2d 778, 781 [“the filing of an affidavit, other than for the purpose of presenting matters bearing on the court’s jurisdiction, constitutes a general appearance”].)
Defendants seem to concede as much. They respond to Linares’s general appearance argument by saying only: “The trial court never found that the [section] 128.7 motion relieved [Linares] from his duty to serve [Green].” At oral argument, defendants argued only that Linares did not preserve his general appearance argument because he failed to present it to the trial court. Even if that were true, we may exercise our discretion to address this question of law. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.)
3. If Service Was Not Excused, Was Imposition of a Terminating Sanction Appropriate?
Even if service was not excused by defendants’ general appearance, we would nonetheless conclude that the trial court erred in dismissing Linares’s action with prejudice. Linares’s complaint had been on file for slightly more than nine months at the time of the dismissal, and thus the mandatory dismissal provisions under sections 583.210 and 583.250 for failure to serve within three years of filing were inapplicable. The two-year discretionary dismissal provisions of sections 583.410 and 583.420 likewise did not apply. (Hawks v. Hawks (2006) 141 Cal.App.4th 1435, 1437.) Thus, we must look for another basis to support the trial court’s order of dismissal.
Section 583.210 provides: “(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed. [¶] (b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” Section 583.250 provides: “(a) If service is not made in an action within the time prescribed in this article: [¶] (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. [¶] (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.”
Section 583.410 provides: “(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. [¶] (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.” Section 583.420 immediately follows section 583.410, and provides, in relevant 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.” (§ 583.420, subd. (a)(1).)
Defendants argue that section 575.2 “provides that the court may dismiss an action for violation of local fast track rules. The local rules were violated as service did not take place for nine months....” However, defendants fail to direct our attention to any local rule of the Alameda Superior Court that was violated. We presume that defendants mean to refer to local rules promulgated pursuant to the Trial Court Delay Reduction Act (the Act) (Gov. Code, § 68600 et seq.). Defendants fail to recognize that the various local rules promulgated pursuant to the Act, which prescribed time for service, were replaced by California Rules of Court, former rule 201.7 in 2002. The 2002 Drafter’s Notes to former rule 201.7 state: “New rule 201.7 prescribes the time for service of pleadings in civil cases. This rule will replace the various local rules on this subject.” (Drafter’s Note, Deering’s Ann. Codes (2004 ed.) foll. rule 201.7, p. 21.)
Section 575.2 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. No penalty may be imposed under this section without prior notice to, and an opportunity to be heard by, the party against whom the penalty is sought to be imposed. [¶] (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.)
All subsequent rule references are to the California Rules of Court unless otherwise noted. Rule 201.7 was subsequently renumbered and now appears as rule 3.110.
Renumbered rule 3.110(b), provides in relevant part: “The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint.” Under rule 3.110(f), “[i]f a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed.”
The only order advising Linares and his counsel of potential sanctions for failure to complete service is Judge True’s order of February 3, 2009. This is not an order to show cause in compliance with rule 3.110(f).
If service was required, Linares clearly failed to comply with rule 3.110 because his complaint was not served on all named defendants within 60 days of July 17, 2008. However, dismissal is not always an appropriate sanction for violation of rules implemented under the Act. (See § 575.2, subd. (b); Garcia v. McCutchen (1997) 16 Cal.4th 469 (Garcia); Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054 (Tliche).)
In Garcia, the Supreme Court affirmed the reversal of a dismissal for noncompliance with local rules implementing the Act. (Garcia, supra, 16 Cal.4th at pp. 471, 474, 482.) The court held that a trial court’s power to dismiss under Government Code section 68608, subdivision (b), is subject to the limitations of section 575.2, subdivision (b), which prohibits dismissal when noncompliance with local court rules is the responsibility of counsel. (Id. at p. 475–477.) The court recognized the competing policy considerations at issue, noting: “ ‘Cases filed in California’s trial courts should be resolved as expeditiously as possible, consistent with the obligation of the courts to give full and careful consideration to the issues presented, and consistent with the right of parties to adequately prepare and present their cases to the courts.’ [Citation.] Thus, in establishing delay reduction programs, the Legislature recognized competing public policy considerations and ‘attempt[ed] to balance the need for expeditious processing of civil matters with the rights of individual litigants.’ [Citation.]” (Id. at pp. 479–480, first & last brackets added.) The court held that, “under the governing statutes, a court may not impose [the dismissal] sanction if noncompliance is the responsibility of counsel, not of the litigant.” (Id. at p. 471.)
Government Code section 68608, subdivision (b), 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.”
In Tliche, the Second District Court of Appeal considered whether a trial court erred in dismissing a complaint when the plaintiff failed to serve defendant within 60 days of filing, as required by a local delay reduction rule. (Tliche, supra, 66 Cal.App.4th at p. 1056.) The court stated: “[T]here are at least two limitations or restrictions on the trial court’s power to dismiss an action for noncompliance with local rules: (1) dismissal is inappropriate if the noncompliance was the responsibility of counsel alone, rather than the party (Code Civ. Proc., § 575.2, subd. (b)); Garcia v. McCutchen, supra, 16 Cal.4th at p. 481); and (2) dismissal is appropriate only if less severe sanctions would be ineffective (Gov. Code, § 68608, subd. (b)).” (Tliche, supra, 66 Cal.App.4th at pp. 1061–1062.) The court observed that “[t]he act of service of the complaint when a party is represented by counsel is usually an act peculiarly within the control of counsel, and not the party.” (Id. at p. 1062.) However, the court also noted that “[t]he court might, in certain cases, infer client culpability where a previous sanction order or orders have not brought about compliance with the court’s local rules.” (Ibid.) Reversal of the dismissal was required because there was no evidence in the record that the litigant, rather than counsel, was responsible for the delay in service, nor was there evidence of any prior sanctions. (Ibid.)
Although section 575.2, Garcia, and Tliche involved violations of local fast track rules, we see no reason why the same rationale would not apply to a violation of a nonlocal court rule similarly implemented as part of the Act. (See rule 2.30(b) [“[i]f a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party’s cause of action or defense thereto”].)
Even if defendants had not generally appeared, we would reverse a terminating sanction of dismissal with prejudice if based on rule 3.110. Assuming Linares’s counsel was present before the court on February 3, 2009 and failed to comply with a direct order made by the court on that date, that failure may have provided a basis for imposition of sanctions, and does suggest that lesser sanctions may have proven ineffective. However, there is no evidence that Linares was personally aware of the February 3 order or that he was responsible for his counsel’s failure to timely serve the complaint. In fact, defendants do not even suggest that Linares, rather than his counsel, was responsible for the delay in service. Accordingly, if the trial court imposed the terminating sanction of dismissal with prejudice for Linares’s counsel’s violation of rule 3.110, it abused its discretion.
4. Inherent Authority to Dismiss for Failure to Prosecute or Failure to Comply with a Court Order
Defendants also contend that the trial court could properly have invoked its inherent discretionary authority to dismiss the case. Defendants cite 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.”
California courts have the inherent authority to dismiss an action. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 761 (Stephen Slesinger); Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799 (Del Junco).) However, it has been said that “[t]rial courts should only exercise this authority in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation [citation], the fault lies with the client and not the attorney [citation], and when the court issues a directive that the party fails to obey. [Citation.]” (Del Junco, supra, 150 Cal.App.4th at p. 799, italics added [upholding trial court’s striking of answer when party acting in propria persona filed documents not in proper form and without serving them, failed to comply with injunction, and did not comply with prior sanctions order]; accord, Stephen Slesinger, supra, 155 Cal.App.4th 736 [upholding dismissal based on inherent authority when no other order could properly address harm from party’s review of opposing party’s confidential documents obtained via concealed trespasses].)
In Lyons v. Wickhorst (1986) 42 Cal.3d 911, the Supreme Court reversed the dismissal of an action with prejudice for the plaintiff’s repeated refusal to obey court orders to participate in mandatory judicial arbitration proceedings. The court reasoned that dismissal for such a reason was too drastic when dismissal was not provided for by statute and “in light of the fact that arbitration was not intended to supplant traditional trial proceedings, but to expedite the resolution of small civil claims.” (Id. at pp. 913–914, 919.) However, the court recognized: “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. [Citation.] However, this power has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the complaint has been shown to be ‘fictitious or sham’ such that the plaintiff has no valid cause of action [citation]. [¶] The discretion to dismiss an action for lack of prosecution has recently been recodified in section 583.410.... [¶] [T]his two-year statutory period was intended to ‘limit the court’s independent power to dismiss an action for want of prosecution at any time.’ Thus, a minimum delay of two years is required before a trial court can exercise its discretionary dismissal powers. [Citations.]” (Lyons v. Wickhorst, supra, at pp. 915–916, fn. omitted.)
The trial court did not confront extreme circumstances similar to those present in Stephen Slesinger or Del Junco. Even if defendants’ general appearance did not moot the service requirement, there is no evidence that Linares, as opposed to his counsel, was responsible for the delay in service. Accordingly, while a trial court is not without authority to deal with an attorney’s apparent disregard of its direct orders, the court here abused its discretion to the extent it exercised its inherent authority to dismiss Linares’s complaint with prejudice.
III. Disposition
The order of dismissal is reversed and the matter is remanded to the trial court for further proceedings. In the interests of justice, the parties are to bear their own costs on appeal. (Rule 8.278(a)(5).)
We concur: Simons, Acting P. J., Needham, J.
Linares also argues that defendants made general appearances by appearing at all case management conferences and by moving to expunge the lis pendens. However, the appellate record contains no transcripts from the case management conferences, or other indication of the appearances of counsel.