Opinion
B162765.
11-13-2003
RONALD WEATHERBY, Plaintiff and Appellant, v. CITY OF INGLEWOOD et al., Defendants and Respondents.
Law Offices of Burg & Brock and Arnold W. Gross, for Plaintiff and Appellant. Jones & Mayer, Paul R. Coble, for Defendants and Respondents.
Plaintiff Ronald Weatherby (Weatherby) appeals an order denying his motion to set aside an order dismissing his complaint for failure to prosecute. Weatherbys action, which had been pending less than six months at the time, was dismissed pursuant to Los Angeles Count Superior Court Local Rule 7.7 for failure to serve the summons within 60 days of the filing of the complaint. We reverse because the record fails to demonstrate that this severe sanction was appropriate and that the failure to timely serve the complaint was attributable to Weatherby, rather than counsel.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 3, 2001, Weatherby, who was represented by counsel, filed a complaint against the City of Inglewood (City) and certain individual City police officers (Willard Salmon, Sr., Willard Salmon, Jr., Jose Becerra, Luis Jaramillo, Jeremy Morse, Shaun Jennings, and Ronald C. Banks) for personal injury, assault and battery, false arrest, false imprisonment, and violation of federal civil rights arising out of an arrest of Weatherby on October 3, 2000.
On December 10, 2001, Weatherby filed a substitution of attorneys form substituting Cameron Brock (Brock) in place of Paul Opel (Opel) as his attorney.
On January 9, 2002, Opel was ordered to file within three court days a declaration stating facts showing cause why sanctions, including dismissal, should not be imposed for failure to prosecute pursuant to Local Rule 7.7. He failed to file that declaration.
On February 8, 2002, Weatherby filed a substitution of attorneys form substituting himself in propria persona in place of Brock. On the same day, the matter came before the court on an order to show cause re dismissal for failure to prosecute, as the summons and complaint had not been served within 60 days of filing nor had the proof of service been filed within 90 days of filing as required by Local Rule 7.7, subdivisions (A)(1) and (A)(4). The court imposed sanctions of $250 on Opel for failure to file the previously ordered declaration. The matter was continued to February 27, 2002, and the court ordered Weatherby to file a declaration by February 21, 2002, stating detailed facts showing cause why sanctions should not be imposed for a continuing failure to prosecute. The court ordered Brock to give notice to Weatherby; the court served a copy of the minute order on Opel.
On February 19, 2002, Brock, "specially appearing for plaintiff," served a notice of order to show cause ruling on Opel and Weatherby.
On February 27, 2002, former counsel Opel appeared at the hearing. The court found that the complaint had not yet been served. The minute order stated that "plaintiffs original counsel [Opel] has explained his failure to prosecute by declaration filed February 25, 2002," and vacated the sanctions previously imposed against Opel. The court further noted that Weatherby had failed to file the declaration previously ordered, imposed sanctions of $250, and dismissed the action for continued failure to prosecute.
A copy of this declaration is not in the record.
On July 22, 2002, Weatherby filed a substitution of attorneys form substituting Brock in place of himself as his attorney. On the same date, Weatherby filed an ex parte application to vacate the dismissal of February 27, 2002. Attached to the ex parte application were declarations of Brock and Weatherby, in which Weatherby stated that he had mis-calendared the matter and had been taken into custody shortly after the February 27, 2002 hearing on a matter unrelated to the October 3, 2000 incident. He claimed that ability to retain counsel and effect service upon defendants had been impaired by the circumstances. His declaration stated that "[f]ollowing a communications lapse, I re-substituted the Burg & Brock law firm to prosecute this action on my behalf."
Weatherbys ex parte application was denied on the grounds it was based entirely on conclusory hearsay and should have been presented as a noticed motion.
On July 29, 2002, Weatherby (through counsel Brock) filed a noticed motion pursuant to Code of Civil Procedure section 473 to set aside the order imposing sanctions and dismissing the action. Weatherby argued that under section 583.420, subdivision (a)(2)(A), the action should not be dismissed for failure to prosecute, asserting there was good cause for the delay and that no injustice would result from allowing the action to proceed.
All statutory references herein are to the Code of Civil Procedure unless otherwise noted.
The City opposed his motion, arguing that Weatherby had failed to demonstrate reasonable diligence to serve the summons and complaint, and that granting relief would prejudice the City. Because the rules apply equally to all litigants, those represented by counsel and those in propria persona, the City argued that Weatherby failed to demonstrate why he was unable to serve the City. The City also argued that Weatherby had not been diligent in seeking to set aside the default, waiting five months before filing his improper ex parte application.
After the hearing held August 22, 2002, the court took the matter under submission. In a minute order issued September 3, 2002, the court denied the motion, finding that Weatherby failed to account for the numerous delays in the case, both with respect to service and the motion to vacate. The trial court ruled that the showing made did not demonstrate the required due diligence or good cause, and made no findings with respect to prejudice.
DISCUSSION
THE TRIAL COURT ERRED
IN DISMISSING WEATHERBYS COMPLAINT[]
At the outset we note that the action had been on file for less than two years and did not qualify for dismissal pursuant to Code of Civil Procedure section 583.410.
The Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.), which was added in 1990, provides that delay reduction rules may require the service of a complaint in no less than 60 days after filing. (Gov. Code, § 68616, subd. (a); Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1063.) The Trial Court Delay Reduction Act also gives judges "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." (Gov. Code, § 68608, subd. (b).)
Code of Civil Procedure section 575.1, subdivision (a) provides that trial courts may adopt local rules "designed to expedite and facilitate the business of the court." Trial courts are authorized to sanction the failure to comply with any of the local rules promulgated pursuant to section 575.1, including the sanction of dismissal. (Code Civ. Proc., § 575.2.) Local Rule 7.7, enacted pursuant to Code of Civil Procedure section 575.1, provides that the failure to meet the 60-day deadline for service of the summons and complaint "may result in the issuance of an Order to Show Cause why sanctions should not be imposed, including dismissal for failure to prosecute. (Code of Civil Procedure Section 583.150 and Government Code Section 68608(b) . . .)." (Super. Ct. L.A. County, Local Rules, rule 7.7(c).)
However, section 575.2, subdivision (b), places limitations on this dismissal power, and provides that "[i]t 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 partys cause of action or defense thereto." (Garcia v. McCutchen (1997) 16 Cal.4th 469, 481-482 [a court may not dismiss an action for noncompliance with local rules, if the noncompliance is the responsibility of counsel, not the litigant].)
Applying Garcia and Government Code section § 68608, subd. (b), Tliche discerned two requirements for dismissal: (1) non-compliance with the local rule must not be the fault of counsel, and (2) dismissal is appropriate only if a less severe sanction would be ineffective. (Tliche v. Van Quathem, supra, 66 Cal.App.4th at pp. 1061-1062.) In Tliche, the court reversed the dismissal of an action that had been pending for nine months without service, in violation of local rule 7.7. (Id. at p. 1062.) The Tliche court noted 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.) Because there was no evidence that the party, rather than counsel, was responsible for the delay in service, section 575.2(b) required that the dismissal be reversed. (Id. at pp. 1061-1062.)
On the record before us, there is no evidence that the lack of service was caused by Weatherby, rather than counsel. The complaint was filed on October 3, 2001, and Weatherby was represented during the entire 60-day period, continuing to December 10, 2001. The record contains no explanation why the complaint was not served during that 60-day period. On January 9, 2002, while Weatherby was represented by new counsel Brock, the court issued an order to show cause why sanctions should not be imposed. Brock continued to represent Weatherby, but did not serve the complaint, and nothing further occurred until Weatherby substituted himself in as counsel on February 8, 2002. The record offers no explanation for the failure to serve the complaint during this second period of Weatherbys representation by counsel. It was only during the final three-week period between February 8, 2002, and the dismissal on February 27, 2002, that Weatherby represented himself. Given that counsel was involved for the lions share of the nearly four-month period before dismissal on February 27, 2002, and that no explanation for the lack of service has been offered, there is no basis for the required finding that non-compliance was not the fault of counsel.
Furthermore, there is no basis in the record to support a conclusion that no lesser sanction was appropriate. The only monetary sanction imposed on plaintiff was imposed at the same time as the dismissal. The case had not even been pending for six months when it was dismissed, and the plaintiff was clearly having problems retaining counsel to assist him in serving his complaint. Those problems apparently continued during the period prior to the motion to vacate, which nonetheless was filed within the statutory period of six months. (Code Civ. Proc., § 473, subd. (b).) These facts do not support the terminating sanction imposed.
DISPOSITION
The order of the superior court denying Weatherbys motion to vacate is reversed, and the cause is remanded to the trial court with directions to vacate the order of dismissal. Appellant is to recover costs on appeal.
We concur: PERLUSS, P. J. and JOHNSON, J.