Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC211671, Joanne O’Donnell, Judge. Judgment affirmed and order to show cause re sanctions discharged.
Aaron Stites, in pro. per., for Plaintiff and Appellant.
Bryan Cave, Jonathan Solish, Glenn J. Plattner and Shelly Gopaul for Defendants and Respondents.
ZELON, J.
Aaron Stites’s lawsuit against Promus Hotel Corporation and other businesses (collectively, Promus) was dismissed when he failed to appear for trial during jury selection. Stites appeals the dismissal order, the court’s subsequent denial of his motion to vacate the dismissal, and the court’s order awarding costs against him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Early Litigation
Stites filed a lawsuit in 1999 alleging that two Doubletree Inns had denied him accommodations on the basis of physical disability. Stites claimed that the hotels violated Civil Code sections 51 and 54 and intentionally inflicted emotional distress. The case was stayed while federal court proceedings took place; that stay was lifted in July 2004.
Stites amended his complaint in April 2006 to include a larger number of defendants and to add claims for breach of contract, intentional misrepresentation, negligent misrepresentation, and negligent infliction of emotional distress. Stites’s amended complaint made clear that the gravamen of his claim was that the defendants refused accommodations to him because of his use of a service dog or by requiring a deposit because of the dog.
Stites, a law school graduate who at the time was not admitted to the bar, represented himself. On March 9, 2007, the trial court set a trial date of May 30, 2007.
B. May 30, 2007: Date Set for Trial
On May 30, the parties addressed pretrial matters, many of which had to be put off until the following day because Stites represented that he needed to research or prepare to address them. At approximately 3:00, Stites, who was representing himself, complained about the amount of work being asked of him. He said, “Your Honor, I need to bring up one issue, which is that I have a serious disability. I wear braces on my legs. I frequently fall. I have enormous problems with my hands. [¶] And what we are doing is a huge amount of work. Whenever I start working hard, I experience increased pain from using my hands, and now I’m in a situation where I am going to be working all night and back here tomorrow and getting worn down.” He referred to pending matters before the court, and said, “I can’t get that all done by tomorrow, Your Honor. [¶] If I do, I come here and I can’t function. Things start going downhill for me. [¶] . . . I don’t have the stamina of an able[]-bodied person[]. I’m doing the best I can, but it’s very upsetting. [¶] I’m trying to control my emotions in it—in this case, and I’ll do so with the court. I don’t mean to be emotional.” The court went over the schedule with Stites, observed, “There’s a lot of work to be done,” and offered to accommodate Stites as appropriate provided that Stites made known his needs. The court suggested that Stites consider whether to opt for a bench trial or settlement, and warned, “[I]f you want to go to trial and you want a jury trial, we are going to be working really, really hard. [¶] We all do. That’s what happens in trial.”
The court asked Stites if he was asking for a recess, and Stites responded, “If the court wants to keep going, I do not feel comfortable continuing to argue things where I feel tired and I wasn’t expecting these issues. [¶] I’m starting to get worn down. Yes, Your Honor, I would appreciate it if we could break for the day.” He contended that if he were forced to come back and argue after a break, “[T]omorrow I’m going to be worn out. [¶] I could stay in bed for a day or two. . . .”
C. May 31, 2007: More Pretrial Matters
The following day, May 31, 2007, Stites did not appear on time and did not contact the court. Two attorneys who were assisting Stites were present in court. One, Kevin Gerry, told the court he had not heard from Stites that morning but announced that “we are prepared to go” and entered his appearance on behalf of Stites. The court asked whether Gerry had filed notice of his association, and Gerry acknowledged he had not. The court responded that the association needed to be filed for Gerry and any other counsel who would be present, and that “[Y]ou need to be prepared and Mr. Stites needs to be prepared to proceed on occasions when he is unable to or simply doesn’t show up or whatever.” Defense counsel agreed to proceed on the representation that the association would be filed that day, and court proceedings continued with Gerry representing the absent Stites.
Gerry consented to the dismissal of a potential juror; this matter was revisited when Stites arrived because Stites disavowed representation by Gerry.
Stites entered the courtroom 15 minutes late. The court informed Stites that it had ordered Gerry to associate in as counsel and described the court’s schedule. Stites described his disability in detail and denied that Gerry was his attorney, calling him instead “a scribe.” He began to discuss accommodations he was granted in his academic studies, and the court asked what accommodations Stites was requesting now. Stites told the court that for a trial he could “go three days in a row from 9:30 to 4:30. I then need a break of two to three days to rest. [¶] This is a serious matter, Your Honor. I get worn down, and I can fall and seriously hurt myself. I’ve dislocated my knee before even with the leg braces on.”
The court asked Stites whether his estimate of a 20-day trial had included a three-day week—“In other words, can we give you the accommodation you want and still meet the 20-day estimate we’ve given the jury, which all counsel stipulated to?” Stites told the court he “would prefer to think about it before responding to that question,” which prompted the court to respond, “No. You have to just answer the question. [¶] You gave us a 20-day estimate. You did not say that includes two days off a week. [¶] So what you are asking me to do is, either to tell the jury that they get to go home two days a week—and I won’t explain it in any way that is unfair to you or impairs your case in any way, either that or we have to extend the 20-day estimate, and we don’t have jurors who are prepared to go longer than 20 days.” Stites continued to tell the court he wanted to think about that issue, but the court said, “You should have thought about all these things before. [¶] You can’t be coming in here the day after trial is set to begin and demand a whole new schedule based on your disability. [¶] You’ve had this disability for a long time, I presume. You have already indicated it’s been accommodated in other settings. [¶] Your request is untimely, and since you have assistants in the court, the court is going to insist that you use them, because once we have a jury impaneled, Mr. Stites, I have more than you to accommodate. [¶] I’ve got . . . 15 citizens who are devoting their lives to your case for the next 20 days, and I must accommodate them. [¶] I’m not going to take the risk of a mistrial due to jury attrition because I overweighed my need to accommodate you. [¶] You have never mentioned this before—the need to have two days before, never, and the court is not going to honor it.”
Stites then complained that motions were being heard on the eve of trial and requested that the briefing and hearing on a sanctions motion filed by the defense be postponed until trial was over. The trial court pointed out that the defense motion requested evidentiary sanctions and could not therefore be delayed. Stites responded, “Your Honor, I cannot—if this court is going to insist that I do it, I’ll do the best I can, and I’ll look for relief at the Court of Appeal.” Stites asked for assurances that he would not have to work over the weekend: “I need to spend the weekends resting. I cannot spend the weekends work[ing] on briefs. [¶] Last night I tried my best to address all the issues that this court had, and I couldn’t do it, Your Honor.” The court then itemized the pending pretrial matters in the case: the parties’ designations of deposition testimony and objections, the statement of the case, six motions in limine, and the motion for relief from the jury waiver. Stites immediately protested, “I’m not able to cover all of that stuff today.”
Stites asked the court to reconsider its order that Gerry associate in as counsel. The court declined to do so, commenting, “[I]n light of your very clear statement of your need to have downtime in the course of the trial, the court considers the presence here of two lawyers—as I understand it, two licensed practitioners in the State of California to be a part of the accommodation you require. The court sees no reason whatsoever to go dark two days a week when we have people who can help you.”
The court proceeded to consider pretrial matters. Stites reported that he had been unable to prepare to address the first motion in limine. As the hearing continued, Stites contended that based on the court’s rulings on the motions in limine he would need several weeks of additional time to prepare to counter evidence the trial court was inclined to admit. He said, “I’m being broadsided when I don’t have anything in my exhibit book. I haven’t been speaking with witnesses. [¶] I would need at least two weeks, probably more like three weeks, to prepare. It drastically changes the trial and my presentation.” The court advised, “These were motions in limine. They were heard . . . shortly before trial was set to begin. They do not—rulings on motions in limine do not alter the status of the case. You need to be prepared for them to go either way.”
Stites told the court that he “want[ed] to consider seeking an extraordinary writ” on the motion in limine and that he wanted time to prepare. He told the court, “I have a serious disability. I cannot work—unlike the defendants who have an 800-attorney law firm and unlimited resources, I cannot match them on resources, financial or any other resources. And this is really unfair to me, Your Honor. [¶] I can work—I brought up earlier. I can work at most an 11-hour day. Yesterday just really drained me. I am having real problems today. I began having pain in my hands. It causes me physical pain, Your Honor.” The court answered, “I’m really sorry, Mr. Stites. [¶] I didn’t ask to have a jury trial. I didn’t make a 20-day estimate that now looks more like 30, if we do what you are asking for. [¶] This is all your—your difficulties are entirely of your own making, as the court sees it.”
The court refused to engage in any further discussion of the matter, and returned to the outstanding pretrial issues: “I think we’ve done everything we can do today, and we are ready to begin with the jury tomorrow at 1:30; however, I want you to meet and confer, as I said, on these designations of deposition testimony. [¶] Are you going to be able to do that today?” Stites answered, “No, Your Honor.” The court answered, “You can’t do it today, and yet you are going to want to refer to this deposition testimony in your opening statements, is that true?” Stites did not answer the question, stating, “Your Honor, I do not have the ability—I have requested reasonable accommodations by the court.” The court told Stites that he could use his assistants in this process; it informed him that the court was not planning to rule on the objections until the parties had met and conferred about them; and it made clear that no party could use the challenged statements in opening statements unless the parties had met and conferred. The court observed that it did not believe that a jury would be impaneled before the end of day on the following Monday (this hearing took place on a Thursday), so the parties had time to meet and confer. The court advised Stites, “[Y]ou are going to have to figure out how to manage your time and the resources available to you to help you with this.” Stites complained that the court was placing him a position of not being adequately prepared.
Defense counsel offered to meet and confer that day, the following morning (Friday, June 1) while the court was dark, or Sunday, June 3. Stites answered, “Your Honor, I have to spend the weekends resting. [¶] My hope is that I can press forward, and I don’t want to have to slow down the trial and do these things, but I’ve explained to the court a few times now, and I think it’s important for the record to go into further issues. [¶] I will collapse a week from now if you continue to press me at the rate you are now.”
The trial court told Stites that it was sorry, but he should have considered and raised these limitations before making a 20-day jury trial estimate on the basis of which the jury panel was summoned. It continued, “You have completely dropped the ball on this, Mr. Stites, and now you are going to have to use the resources that you have enlisted to help you try the case, and we are finished with that issue.” The court advised the parties that the courtroom would be dark the following morning, that jury selection would begin at 1:30 the following afternoon, and that the parties had until Monday, June 4 to meet and confer about the admissibility of deposition excerpts. Stites inquired whether the trial would proceed if he filed a writ petition and was informed that trial would proceed nonetheless.
Also on this date, Stites apparently experienced some difficulty controlling the dog, Duke, that accompanied him to court in the capacity of a service dog. The court admonished Stites, “The dog has to sit down and stay in one place. He cannot wander around the courtroom.” When Stites protested, the court reiterated, “He has to sit down and behave himself so you can pay attention to what we are doing here.” Soon thereafter, the record includes Stites giving commands to Duke as the court said, “Duke needs to sit down.” Duke apparently became active again somewhat later in court proceedings, as Stites interrupted his argument to the court to say, “Hey, down.” Still later in the day, the court broke off from its discussion of motions in limine to say, “Duke has to sit down.” Stites apologized and said, “Duke is a puppy.” The court responded, “He needs to sit down,” and then noted, “Okay. We just took almost a minute dealing with Duke again.”
D. June 1, 2007: Jury Selection, Day 1
The following day, Friday, June 1, 2007, the parties assembled at 1:30 p.m. Stites had submitted and served a request for accommodations for his disability based on a former California Rule of Court. The court denied the request because it was untimely and declined to waive the timeliness requirement for the reasons it had relied on the day before in refusing Stites’s requests. The court also noted that with neither request had Stites provided any medical support for his claim of disability or for the reasonableness of the accommodations sought. Stites asked the court to clearly state that it was not providing him any accommodations, and the court answered that it was simply denying the request that he made. Stites announced that he had a serious disability; told the court that he “didn’t appreciate” the court’s comment the day before that Stites’s dog was acting like a typical dog; and told the court that he cannot walk without his braces. The court said, “Look, I’m not doing anything, Mr. Stites, but denying your request because it is untimely and not adequately supported.” The court told Stites to seek his writ if he wished but that the court was proceeding to jury selection.
Stites asked the court to have “no adverse reactions” to Duke. He complained that the court “routinely asked Duke to get down whenever he stands up,” and claimed that this would be prejudicial if done before the jury. The court responded, “I will do that if he does it again, if he is disruptive. [¶] And a dog that size when he stands up and walks around the courtroom is disruptive. It is the court’s obligation to maintain order here. [¶] We are not going to have a dog who weighs 90 pounds walking around the courtroom because you are paying attention to what you are doing and not paying attention to him. [¶] What I say to you almost every time, I think, is, ‘Mr. Stites, Duke has to sit down.’ [¶] Now, I will do it in front of the jury. That’s really where it needs to happen. Some jurors are going to be upset that there’s a dog in the courtroom.”
Jury selection took place for the rest of the day. At one point during voir dire, the court advised Stites, “Duke has to sit down.”
E. June 4, 2007: Jury Selection, Day 2
On Monday, June 4, 2007, Stites filed another request for accommodations. The court denied the request to have a 10:00 to 4:00 court schedule and a four-day work week on the basis that these requests would impact the number of days spent in trial. The court also denied Stites’s request that the court make no reference to Stites’s dog’s conduct in the courtroom, an issue that had previously been discussed by the court. The court agreed to extend the morning and afternoon recesses from 15 minutes to 20 minutes. Stites again made a statement that “after two days” he is “worn out; three days, I’m on the verge of collapsing; four days, I don’t think I will be able to continue day after day. I will try, though, perhaps I will.” He asserted that his condition was worsening. The court observed that there was still nothing submitted from a doctor and that Stites had made no showing as to his disability or his needs as a result of that disability.
The day was spent on jury selection. Stites asked the panel during voir dire whether anyone was afraid of Duke. No jurors responded. Not long thereafter, however, the dog interrupted Stites’s voir dire. The court made the following record to describe what happened: “Mr. Stites was questioning the jurors, and Duke had apparently moved around to the side where Mr. Stites—where he was near the jurors, and he stood up. [¶] It says on the record—the record does say that the court instructed Mr. Stites that, ‘Duke needed to sit down right now,’ and Mr. Stites said, ‘Duke, what are you doing?’ [¶] I told him to move Duke around to the other side of him, and at that point Duke stood up and approached [prospective juror] Ms. Farooq. [¶] The court couldn’t tell from this angle whether it was a threatening approach or not. I’m only guessing that Duke’s weight is about 120 pounds, and when he is standing up, he is at direct eye level of the jurors sitting in the front level. [¶] I would have been intimidated had he approached me that way, and I have three big dogs. [¶] Ms. Farooq jumped up and scurried into the corner near the jury room, and when she sat down, she started to cry. [¶] At the break the staff let her go into the jury room to collect herself. A few minutes later they went to check on her, and she was still in there crying, and she explained that she had felt that Duke was attacking her. [¶] I rather doubt that was true, but, as I said, it was not an unreasonable perception given the circumstances. [¶] Duke is going to stay on your left side, Mr. Stites, for the remainder of the trial. If he ever, ever does anything approaching that again, he will be banned from the courtroom, and I am not limiting that warning to that. [¶] His behavior had—needs to be better. He is a large intimidating dog. [¶] Whether he is a service dog or not, licensed or not, he cannot be permitted to rule the courtroom because he is a large intimidating dog, and he is not going to be permitted.”
When jury selection resumed 25 minutes later, Stites asked the prospective jurors to raise their hands if they were “alarmed by Duke standing up and what occurred in the courtroom approximately 30 minutes ago.” At least three prospective jurors raised their hands and made such statements as, “I think that Duke is big and strong, and I think that he doesn’t follow your command all the time, which I’ve witnessed, and I think that’s a problem,” “I think he is stronger than you,” “[A]bout the dog . . . I just feel you can’t control him,” and “Duke is not listening to your commands, and I was alarmed when I saw Ms. Farooq—you know, she became uncomfortable. [¶] I didn’t know whether he lunged at her and then she started crying. I was alarmed by that.”
F. June 5, 2007: Stites Fails to Appear
On the morning of Tuesday, June 5, 2007, Stites did not appear. Gerry, describing himself as Stites’s assistant, told the court that Stites’s brother had called this morning to tell him that Stites had collapsed and fallen, suffering a head injury. Gerry had no information as to when Stites would be ready to proceed. Defense counsel expressed strong doubts that Stites had suffered any injury and contended that Stites was taking the day off and attempting to force a mistrial. The court observed, “It certainly is an unusual coincidence he would ask for a day off in trial and then fail to show up and fail to provide anything other than Mr. Gerry’s third-hand account of what happened. [¶] Mr. Gerry is an officer of the court, and the court has no reason to disbelieve that he believes what he is saying, but there isn’t any—there isn’t sufficient basis for it.”
After discussions with Gerry and defense counsel, the trial court decided to send the jury home and to set an “order to show cause re dismissal for failure to prosecute” for the following morning. The court ordered that “[a]ny showing of good cause by Mr. Stites must include a declaration under penalty of perjury from his treating physician, which would also include any orders for medications or further treatment and a prognosis. If somebody doesn’t show up with that, the case is going to be dismissed. [¶] The court is highly skeptical that something has happened but is willing to be persuaded by evidence, as always.”
The court proceeded to consider deposition objections, relying on Gerry as counsel for Stites. The court rejected Gerry’s assertion that he lacked authority to represent Stites on this matter in light of the fact that Gerry was authorized by Stites to do all the pre-hearing meeting and conferring on the issues. The court said, Gerry “is saying he is not authorized, and under the circumstances, where he was plainly authorized to meet and confer, it appears to the court that Mr. Stites is simply playing games with the court, not, the court believes, for the first time. [¶] And the court is disinclined at this point, Mr. Gerry, to honor your representation that you don’t have authority. I think you probably do have authority, and whether you do or not, we are going to proceed. [¶] Mr. Stites’s credibility is falling in major chunks every day, and this is just the latest in an effort to delay and obfuscate things for the court.”
G. June 6, 2007: Hearing on the Order to Show Cause
Gerry appeared again at the hearing on the order to show cause on June 6, 2007. He told the court that he had spoken only with Stites’s brother, who electronically mailed him a copy of a medical discharge sheet for the court. Gerry said that he had not been able to speak to any medical personnel or to obtain the documentation the court ordered. The trial court found that the document “does not in any way comply with the court’s order to show cause as of yesterday.” The document lacked a physician’s signature or any description by a physician of what happened to Stites. What appeared to be Stites’s statement, “I cannot come to court,” was wholly insufficient to establish good cause for a continuance. The court dismissed the case, stating that the dismissal was for “failure to prosecute.” The court ordered defense counsel to prepare a written order of dismissal.
H. Post-Dismissal Proceedings
On June 8, 2007, Promus submitted a proposed dismissal order and also served a notice of ruling to which Stites objected. On June 13, 2007, the trial court denied Stites’s ex parte motion to stay all proceedings in the case for 45 days, observing in its minute order that because the matter had been dismissed, there were no proceedings to stay. Stites filed a notice of appeal from the dismissal on June 18, 2007.
On June 25, 2007, the trial court rejected Promus’s proposed order of dismissal, overruled Stites’s objections to the notice of ruling, and concluded in a minute order, “The Court’s order of 6/6/07 that Defendants prepare an order of dismissal is vacated. The action was dismissed on the record in open court and no further order is necessary.”
On August 22, 2007, Stites filed a motion to vacate the dismissal. Defense counsel moved ex parte to strike the motion on the ground that the notice of appeal divested the trial court of authority to proceed with the motion to vacate the dismissal. The trial court granted the motion to strike on August 27, 2007. The following day, the trial court signed an order nunc pro tunc adding its signature to the June 6, 2007 dismissal order. Stites appeals the trial court’s decision on the motion to strike.
Promus filed a memorandum of costs in the amount of $422,487.04. Stites filed a motion to strike, or, alternatively, to tax costs. The court denied his motion and awarded Promus costs in the requested amount of $422,487.04. Stites appeals this order as well.
DISCUSSION
I. Dismissal of the Action
Code of Civil Procedure section 581, subdivision (b)(5) provides that the court may dismiss an action “when either party fails to appear on the trial and the other party appears and asks for dismissal.” Section 581, subdivision (l) is to the same effect. We review a dismissal for an abuse of discretion. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Link v. Cater (1998) 60 Cal.App.4th 1315, 1321 (Link).) An abuse of discretion is shown when, considering all the circumstances, the trial court’s ruling is arbitrary, capricious, exceeds the bounds of reason or prevents a fair hearing. (Link, at p. 1321.) Stites has the burden to make a clear showing of such abuse and a resulting miscarriage of justice. (Denham, at p. 566.)
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
Here, Stites failed to appear for trial on Monday, June 5, 2007. Rather than dismissing the action on the spot, as the court could have done, the court instead directed the lawyer who assisted and at times apparently appeared for Stites without formally associating in as counsel to advise Stites that the case would be dismissed unless he provided good cause for his absence or a continuance by the following morning. Stites again did not appear, and he did not provide any admissible evidence of an injury precluding him from appearing in court. When the defendants requested a dismissal, the court granted it. The showing made by the attorney Stites refused to authorize to appear for him was minimal and the court reasonably could have concluded that Stites provided no satisfactory explanation for his failure to appear. Particularly in light of Stites’s repeated efforts to slow the pace of the final pretrial events and the trial itself, we cannot say that the trial court abused its discretion when it dismissed the action. (Link, supra, 60 Cal.App.4th at p. 1322 [diligence of plaintiff in prosecuting case is considered in evaluating whether dismissal for failure to appear was an abuse of discretion].)
Stites argues that the dismissal of the action was a miscarriage of justice for numerous reasons. Specifically, he complains that the June 6, 2007 show cause hearing was set with such short notice that it afforded him no opportunity to oppose the dismissal; that the court should have ordered lesser sanctions if it imposed sanctions at all; and that the court lacked the inherent power to dismiss the action. He contends that the court failed to comply with California Rules of Court, rules 3.1342(e) and 3.1340(b) and failed to afford him due process. He argues that he was never permitted to address the court about his injury, that it was improper to dismiss the action for lack of prosecution, and that dismissal was clear error.
None of Stites’s arguments demonstrate that the court abused its discretion. The trial court was not obligated to afford Stites any opportunity to be heard before dismissing the action—his failure to appear at trial was grounds enough for dismissal under section 581, subdivisions (b)(5) and (l). That the court delayed dismissing the case for one day to permit Stites to demonstrate a medical emergency if one existed was an opportunity extended to Stites in the exercise of court’s discretion, not a deprivation of an opportunity to be heard. Similarly, the court had no obligation to impose lesser sanctions when Stites failed to appear for trial. Moreover, Stites has made no showing that a lesser sanction would have been appropriate. (See Link, supra, 60 Cal.App.4th at pp. 1325-1326 [sanctions less than dismissal are appropriate where plaintiff had diligently prosecuted the case and had no history of noncompliance].) In light of Stites’s extensive efforts to delay the trial without providing any factual evidence to demonstrate that such delays were necessary due to his medical conditions, the facts before us certainly justified the trial court’s conclusion that Stites engaged in delaying tactics and that he was not merely a “diligent litigant[] who, due to unforeseen circumstances and reasonable excuse, fail[ed] to appear when ordered to do so.” (Id. at p. 1326.) Finally, Stites’s contention that the court lacked the power to dismiss the action is simply incorrect. (§ 581, subds. (b)(5), (l), (m).)
Stites’s assertion that the court failed to apply with the California Rules of Court is also incorrect, for the rules upon which he relies, rules 3.1342(e) and 3.1340(b), do not apply here. Rule 3.1342 concerns a party’s motion for dismissal for a delay in prosecution of at least two years, and rule 3.1340 concerns discretionary dismissals pursuant to sections 583.410 through 583.430 made on the basis that a case has not been conditionally settled or brought to trial within two years after commencement. The trial court did not specify a statute on which it relied for the dismissal order here, but there is no indication that the trial court intended to proceed under these provisions, which concern the time elapsed between filing and service and/or trial. (§ 583.420, subd. (a).) The trial court did not discuss when the matter was filed or address the time elapsed between filing and trial, nor did it make findings that prosecution had been delayed, which would be the expected subjects of discussion if the trial court intended to dismiss the case for delay in prosecution under sections 583.410 or 583.420. Rather, the concern of the court was that the plaintiff was not present in court for trial either personally or by counsel authorized to appear for him.
Although the trial court did refer to the dismissal as being for the failure to prosecute, the court did not at the hearing or in its order designate a statutory provision under which it was proceeding. The record demonstrates, however, that the actual problem was that Stites had failed to appear to prosecute the case. Accordingly, we perceive this to be a dismissal for failure to appear, and understand the trial court’s characterization of the default as a failure to prosecute as denoting the plaintiff’s failure to appear at trial to try his case. As the court explained in Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007—a case dismissed on the basis of a failure to prosecute when the plaintiff failed to appear—such a dismissal may also be upheld on the basis of failing to appear. The court stated, “whether viewed as a dismissal for failure to diligently prosecute or as a dismissal for failure to appear on the day of trial, the . . . order of dismissal was proper. In short, when Vernon invoked the power of the court to resolve her dispute with GWB, she agreed to abide by rules designed to facilitate the orderly and equitable resolution not only of her dispute, but also of the thousands of other cases pending before the court at the same time. The power of dismissal is the court’s means of enforcing those rules, and it exists so the court can manage its own affairs and preserve respect for the integrity of its process. To permit a party to do what Vernon did in this case would eviscerate that power. That we refuse to do.” (Id. at p. 1013.)
Stites was not denied the opportunity to address the court about his injury; he was given the chance to make a showing of his inability to appear, and he had counsel who could have made that showing for him if he had obtained admissible evidence and authorized counsel to appear for him. Stites failed to make a showing by admissible evidence that there was good cause for his failure to appear. Stites has not established any error or deprivation of due process in dismissing the case when Stites neither appeared for trial nor produced evidence of good cause for his failure to appear.
II. Striking of the Motion to Vacate the Dismissal
Stites contends that it was error for the trial court to strike his motion to vacate the dismissal under section 473 on the basis that Stites’s notice of appeal had divested the trial court of jurisdiction. We agree with Stites that the court did err in striking the motion papers on August 27, 2007, but conclude that the error was harmless because the trial court would have lacked jurisdiction to hear the motion at its scheduled hearing date.
When the trial court considered the ex parte motion to strike Stites’s section 473 motion papers on August 27, 2007, it believed that it had properly dismissed the case more than two months before. Not only had the court dismissed the case in court on June 6, but it had then demonstrated its belief that the case was dismissed when it rejected Stites’s motion to stay the proceedings on June 13, and it further made clear that it believed the case had been dismissed when it issued a minute order on June 25 that stated, “The Court’s order of 6/6/07 that Defendants prepare an order of dismissal is vacated. The action was dismissed on the record in open court and no further order is necessary.” Accordingly, as of August 27, 2007, the trial court struck Stites’ section 473 motion on the grounds that it no longer had jurisdiction over the matter in light of Stites’s filing of a notice of appeal.
This was error. Contrary to the court’s understanding, the court was required to dismiss the case by means of a signed order of dismissal. (§ 581d.) As of August 27, when it heard the ex parte application to strike Stites’s section 473 motion, the court had not yet issued a signed order dismissing the action. Therefore, the court erred in striking the motion papers on the grounds that Stites’s notice of appeal had divested it of jurisdiction.
We conclude, however, that the error was harmless in light of the trial court’s actions of the following day. On August 28, 2007, the trial court entered the following order: “No written order of dismissal signed by the court having been filed in this action, the court comes now and orders the minute order dated June 6, 2007 corrected nunc pro tunc as of June 6, 2007 by adding the following: [¶] ‘Accordingly, the case is ordered dismissed for failure to prosecute.’ [¶] ‘Dated: June 6, 2007 [signature].”
No matter how this order is understood, it clearly had the effect of depriving the trial court of jurisdiction to hear the section 473 order on its scheduled hearing date of September 14, 2007. Nunc pro tunc orders are used to remedy the failure to sign a dismissal entered by the court. (Coe v. City of Los Angeles (1994) 24 Cal.App.4th 88, 91, fn. 3 [ordering trial court to make nunc pro tunc entry of signed judgment where matter was dismissed but no signed order of dismissal entered]; Donohue v. State of California (1986) 178 Cal.App.3d 795, 800 [same]; see also Brehm v. 21st Century Ins. Co. (2008) 166 Cal.App.4th 1225, 1234 [where question existed as to whether minute order with stamped signature was a dismissal compliant with section 581d, nunc pro tunc order effective as of the date of the original minute order “eliminates any question whether there is an appealable final order in this case”].) Even if we were to disregard the retroactive intent of the order and consider it effective as of the date it was made, the August 28, 2007 dismissal order divested the court of jurisdiction on that date. (Cal. Rules of Court, rule 8.104(e)(1) [notice of appeal filed after judgment is rendered but before it is rendered is valid and is treated as filed immediately after entry of judgment].) Under either view of the order’s effective date, therefore, the court had lost jurisdiction to hear the section 473 motion well before it was set to have been heard by the trial court. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 197-198 [filing of a notice of appeal divests the court of jurisdiction over the subject matter on appeal]; Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308, 1317 [trial court is without power to hear motion to vacate a judgment after a notice of appeal has been filed]; Copley v. Copley (1981) 126 Cal.App.3d 248, 298 [trial court lacks jurisdiction to hear section 473 motion concerning judgment from which appeal has been taken].) While the court should not have stricken the motion papers on August 27, 2008 prior to its issuance of a written dismissal, the error was harmless because the court would have been without jurisdiction to hear the motion on its scheduled hearing date.
Stites’s position at oral argument appeared to be that the trial court used the dismissal order as a method of avoiding a hearing on his section 473 motion. But Stites, not the trial court, is the party that chose to take the matter to the Court of Appeal rather than to seek relief from the trial court. When the trial court dismissed the case in June 2007, Stites had two options: to attempt to persuade the trial court to reconsider the dismissal through a section 473 motion, or to pursue an appeal. Stites made a clear and prompt choice to invoke appellate jurisdiction, filing his notice of appeal within two weeks of the dismissal order. But then, after approximately two months, Stites then filed his section 473 motion, seeking further action by the trial court. If Stites had wanted to change course and to proceed in the trial court, he could have dismissed his premature appeal and then filed his section 473 motion. But Stites did not withdraw his notice of appeal before proceeding with the section 473 motion—instead, he left the appeal pending and filed his trial court motion to take advantage of the court’s failure to complete the dismissal with a signed order. The trial court properly rebuffed Stites’s efforts when it refused to take further proceedings in a matter that was already on appeal. The very next day, the court recognized that it had failed to take the step of signing a dismissal order and had thereby rendered Stites’s appeal premature, and it promptly remedied the problem that it had inadvertently created, perfecting Stites’s appeal. The trial court cannot be faulted for Stites’s decisions to appeal and to leave his appeal pending while he attempted to obtain section 473 relief.
III. Asserted Errors in Costs Award
The trial court awarded Promus costs in the amount of $422,487.04. Stites raises three arguments against the costs award.
A. Dismissal
Stites argues that no costs should be awarded because the dismissal was an erroneous order. As we affirm the dismissal, there is no basis to overturn the costs award on the basis of error.
B. Charges
Stites’s second argument is that an unspecified amount of the costs should not have been awarded because they were incurred due to Promus’s alleged discovery abuses and failure to comply with court orders. Specifically, Stites objects to awards for a deposition transcript and another deposition; some or all of the award of $116,549.08 for the costs of a litigation support firm used for the production of documents during discovery; and “a significant portion” of the discovery referee’s charges.
1. Depositions of Exposito and Dent
Stites contends that the trial court should not have awarded Promus $1,084.80 for the deposition transcript of Jill Exposito or fees and costs for the deposition of John Dent because in both instances the trial court had made orders that those costs be borne by Promus. Deposition costs are typically allowable as costs under section 1032. (§ 1033.5, subd. (a)(3).) “If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.)
In this argument, however, Stites does not provide any citation to the voluminous record that would demonstrate that he objected to Promus’s request for these costs in the trial court. “In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.] ‘The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.’ [Citations.] Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources ‘to address purported errors which could have been rectified in the trial court had an objection been made.’ [Citation.] In addition, it is inappropriate to allow any party to ‘trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.’ [Citation.] [¶] ‘The party also must cite to the record showing exactly where the objection was made.’ [Citations.] When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 406-407.)
2. Litigation Support Firm and Referee Charges
In this section of his brief, Stites argues that the trial court abused its discretion when it awarded costs that he claims are attributable to Promus’s failure to comply with court orders. Stites first objects to the award of $116,549.08 for the costs of a litigation support firm used for the production of documents during discovery. He argues that the expenses for document searches resulted directly from Promus’s failure to conduct discovery in good faith. Here again, Stites has failed to demonstrate that he objected to this cost item in the trial court, and this argument, like the argument concerning deposition costs above, is forfeited. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.)
Next, Stites asserts that a “significant portion” of the discovery referee’s charged fees of $198,128.32 resulted from the trial court’s orders and cannot be recovered by Promus. But Stites has not presented an adequate argument on appeal here, for at least three reasons: He has not identified what portion of the referee’s fees he claims to be attributable to these orders and therefore improperly awarded as a cost; he has not identified any evidence that would demonstrate what portion of the referee’s fees was nonrecoverable; and he has not identified any objection in the trial court to the inclusion of this amount in the cost bill. Stites has failed to properly raise this issue on appeal. (Givens v. Southern Pac. Co. (1961) 194 Cal.App.2d 39, 47-48 [counsel’s responsibility, not the court’s, to identify and explain alleged errors by the trial court]; Levin v. Ligon (2006) 140 Cal.App.4th 1456, 1486 [“It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the specific pages where the evidence can be found”]; In re S.C., supra, 138 Cal.App.4th at p. 406 [appellant must object in the trial court to preserve issue for appeal, and must identify that objection for the court of appeal].)
C. Fundamental Error Argument
Stites’s final argument is that the court made “a fundamental error” in awarding costs in that it did not sort out which costs were recoverable and which were nonrecoverable because they were incurred due to Promus’s discovery violations. Stites asks us to declare that a “party [cannot] recover as costs payments made because of sanction orders imposed against that party for violating court orders,” and then to “remand to the trial court the question of reviewing the costs and determining which costs are related to discovery abuses and Respondents’ violation of court orders.”
Because he wants the trial court to be tasked with reviewing whether each item of costs was awarded in error, Stites does not identify with particularity which costs he thinks were improperly awarded. He contends that “it would be too tedious and the briefs too long for this appellate court to go through every cost item.” Tedious and lengthy though it might have been, Stites should have specified the costs he believed were improperly awarded if he wished this court to so rule. This court rules on specific claims of error: It does not declare general themes of law, then vacate judgments and remand because errors might have been made. By offering a broad general argument without specifically enumerating the allegedly improper costs awarded to Promus, Stites has failed to meet his burden on appeal of demonstrating which specific portions of the costs award he claims to have been erroneously awarded. “[I]t is the appellant’s responsibility to affirmatively demonstrate error, and our review is limited to issues that have been raised and briefed adequately.” (Teachers’ Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1028.)
Even Stites’s most specific arguments in this portion of the brief—his assertion that a claim for $319,789 was “for the most part” nonrecoverable and that another item in the amount of $198,128 was “for the most part” based on discovery abuses—are simply insufficient to demonstrate error. Even were we convinced that Stites was accurate in his declarations that these items were “for the most part” nonrecoverable, his inadequate showing would leave us without the ability to determine what portion of these two items was permissible: we could not declare, for example, that the costs award is “for the most part” reversed.
Stites’s explanation for why he has not identified the particular elements of the award he believes to have been erroneous is reminiscent of an explanation given more than 50 years ago by a similarly unsuccessful litigant. In Fox v. Erickson (1950) 99 Cal.App.2d 740 at page 742, the appellant explained that he did not describe the alleged errors because it “‘would amount to a very great number of references’ and would be ‘burdensome and cumbersome.’” The court explained, “Such fact does not excuse a litigant from the performance of his duty to the court and does not impose upon a reviewing court the burden of searching through a transcript for a possible error. The fact that it would be burdensome and cumbersome to appellant’s counsel who are familiar with the record is a sufficient reason for their assistance to the court.” (Ibid.)
Finally, to the extent that Stites intends this section to constitute an argument that the entire costs award is invalid because the trial court failed to consider whether the otherwise allowable costs should be taxed in light of alleged discovery abuses and noncompliance with court orders, he has forfeited this argument due to inadequate briefing. Here again, Stites has failed to identify where in the record he objected to specific costs as being nonrecoverable as sanctions and costs resulting from discovery abuse. (Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th at p. 774; In re S.C., supra, 138 Cal.App.4th at pp. 406-407.)
IV. Costs and Fees on Appeal
Stites requests that this court award his attorney fees and costs on appeal pursuant to California Rules of Court, rule 8.278 and Civil Code sections 52, subdivision (a) and 54.3, subdivision (a). As Stites has not prevailed on appeal, he is not entitled to costs or fees.
V. Order to Show Cause Concerning Sanctions
After reviewing the brief originally filed by Promus, we ordered the brief stricken on the basis of repeated violations of California Rules of Court, rule 8.1115. We further ordered respondents to show cause in writing why sanctions should not be assessed pursuant to California Rules of Court, rule 8.276. Respondents filed a new brief that comported with the rules concerning the citation of unpublished cases and submitted a response and declaration of respondents’ counsel apologizing for the violation of the California Rules of Court.
We note that respondents attempted to justify their citation to unpublished cases on several grounds. First, respondents argued that the unpublished cases were not offered as precedent. While we question how these cases, included for the purpose of showing this court that many other courts have done exactly what respondents urged us to do here and described by respondents in their brief as “demonstrat[ing] the proper and routine application of the statute,” were somehow not used as precedent merely because their unpublished status and not binding nature was noted, this argument misses the mark because California Rules of Court, rule 8.1115 speaks to the impropriety of citation or reliance upon decisions that are not certified for publication. Rule 8.1115 nowhere says that unpublished decisions may be used so long as they are not offered as precedent: it states that except for specific exceptions not applicable here, “an opinion of a California Court of Appeal . . . that is not certified for publication or ordered published must not be cited or relied upon by a court or a party in any other action.” (Cal. Rules of Court, rule 8.1115(a).) Clearly these cases were cited by a party in this action, and as such, respondents’ citation of the unpublished decisions violated California Rules of Court, rule 8.1115.
Next, respondents argue that the unpublished decisions were included to show “frequency” but were not relied upon. Here they rely on the decisions in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, Conrad v. Ball Corp. (1994) 24 Cal.App.4th 439 (Conrad), and Mangini v. J.G. Durand International (1994) 31 Cal.App.4th 214 (Mangini). In Cynthia D., the California Supreme Court noted that it had adopted its analysis from a concurring opinion it had earlier depublished. (Cynthia D., at p. 254, fn. 9.) We are at a loss to understand how the Supreme Court’s acknowledgement in a footnote that it drew its analysis from an opinion it had previously depublished could possibly be considered a sub silentio overruling of California Rules of Court, rule 8.1115, or a signal to litigants that they may freely disregard that rule.
The court in Conrad, supra, 24 Cal.App.4th 439, considered in another footnote whether the appellate court may refer to a depublished opinion “to discuss the effect of the depublication order vis-à-vis the order denying publication of” another case. (Conrad, at p. 444, fn. 2.) Not only does this decision say nothing about the obligation of litigants to conform to California Rules of Court, rule 8.1115, but clearly the very specific use of a depublished opinion in Conrad to compare it to a decision the Supreme Court elected not to depublish bears no resemblance to the very direct use of the unpublished decisions here as examples of the course the respondents wished this court to take. The language relied upon by respondents—the Court of Appeal’s comment that it believed that the Supreme Court seemed to convey the message that “unpublished cases may be cited if they are not ‘relied upon’” (ibid.)—is, if accurate, clearly (1) directed to the courts and not to parties; and (2) not applicable here, where the cases cited were clearly relied upon to support the respondents’ argument that courts have applied the relevant statute in the manner respondents urged us to employ.
Last, in Mangini, 31 Cal.App.4th at pages 219-220, the Court of Appeal discussed the fact that two of its prior decisions on a subject had been depublished and that the recurring issue presented therein remained unresolved. This reference to an open issue of law has bears no relationship to respondents’ use of approximately ten unpublished cases to illustrate what they claimed to be a settled state of the law, and it furnishes no ground for litigants to disregard California Rules of Court, rule 8.1115.
Respondents’ attempts to justify their citation of and reliance upon decisions that were not certified for publication are not availing, and we trust that respondents understand that their citation of these opinions was, in their own words, “misguided” and “ill considered.” We acknowledge that respondents were not attempting to mislead the court as to the status of these decisions, as respondents openly stated that the decisions had not been published.
While we remain troubled by respondents’ simultaneous acknowledgment of fault for citing unpublished decisions and their tenuous argument that it was permissible to cite these cases despite the clear language of California Rules of Court, rule 8.1115, we conclude that the striking of the brief and proceedings on the order to show cause are sufficient to address the unreasonable violation of rule 8.1115 and that no further sanctions are required. We express our expectation that respondents will adhere carefully to this rule in the future.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal except for those associated with the order to show cause, which shall not be recovered. The order to show cause is discharged.
We concur: PERLUSS, P. J., JACKSON, J.