179 Cal.App.4th 672, D053089, Jameson v. Desta

Docket Nº:D053089
Citation:179 Cal.App.4th 672, __ Cal.Rptr.3d__
Opinion Judge:AARON, J.
Party Name:BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.
Attorney:Barry S. Jameson, in pro. per., for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, James J. Wallace II, Lisa Willhelm Cooney and Allison A. Arabian, for Defendant and Respondent.
Judge Panel:Nares, Acting P. J., and Irion, J., concurred.
Case Date:November 23, 2009
Court:California Court of Appeals
 
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Page 672

179 Cal.App.4th 672

__ Cal.Rptr.3d__

BARRY S. JAMESON, Plaintiff and Appellant,

v.

TADDESE DESTA, Defendant and Respondent.

D053089

California Court of Appeal, Fourth District, First Division

November 23, 2009

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from a judgment of the Superior Court of San Diego County, No. GIS9465 William S. Cannon, Judge.

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COUNSEL

Barry S. Jameson, in pro. per., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, James J. Wallace II, Lisa Willhelm Cooney and Allison A. Arabian, for Defendant and Respondent.

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OPINION

AARON, J.

I.

INTRODUCTION

In April 2002, Barry S. Jameson filed a complaint against Dr. Tadesse Desta, alleging numerous claims stemming from Dr. Desta's allegedly negligent medical treatment of Jameson while Jameson was incarcerated at the Richard J. Donovan Correctional Facility. In September 2005, the trial court granted Dr. Desta's motion to dismiss the case for lack of prosecution on the ground that Jameson had not diligently served Dr. Desta with a summons and complaint. In a prior appeal, this court concluded that the trial court erred in dismissing the action for lack of diligent service. (Jameson v. Desta (July 2, 2007, D047284) [nonpub. opn.] opn. mod. July 26, 2007 (Jameson I).)

On remand, the trial court issued an order authorizing Jameson to appear at court hearings by telephone. The trial court later dismissed the action without prejudice on the ground that Jameson failed to appear telephonically at a case management conference and at a subsequent hearing on an order to show cause. On appeal, Jameson contends that the trial court erred in dismissing the action on this ground.1 Jameson also contends that the trial court erred on remand in failing to enter a default judgment against Dr. Desta, setting aside a clerk's default, and granting Dr. Desta leave to file a verified answer to Jameson's complaint. In addition, Jameson claims that the trial judge erred in failing to disqualify himself. Finally, Jameson contends that the trial court erred in denying his request to recover $1,500 for paralegal fees as a cost on appeal stemming from Jameson I.

An indigent prisoner initiating a bona fide civil action has a "right of meaningful access to the courts to prosecute the action." (Wantuch v. Davis

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(1995) 32 Cal.App.4th 786, 792 [39 Cal.Rptr.2d 47] (Wantuch).) Trial courts must therefore "ensure indigent prisoner litigants are afforded meaningful access to the courts...." (Apollo v. Gyaami (2008) 167 Cal.App.4th 1468, 1483 [85 Cal.Rptr.3d 127] (Apollo).) Among the ways in which meaningful access may be secured is by "conduct[ing]... proceedings by telephone." (Ibid.) In this case, we conclude that before a trial court may dismiss an action on the ground that an indigent prisoner has failed to appear telephonically at proceedings in the case, the trial court must find, based on facts in the record, that the prisoner has willfully failed to avail himself of the right to appear telephonically.

In the published portion of this opinion, we conclude that the trial court erred in dismissing the action on the ground that Jameson failed to appear telephonically at a case management conference and at a subsequent hearing on an order to show cause. The record clearly indicates that Jameson notified the trial court on numerous occasions that prison personnel were not allowing him to communicate telephonically with the court, yet the record does not indicate that the trial court made any inquiry into Jameson's contentions. Further, the record does not contain any facts demonstrating that Jameson's failure to appear telephonically at the hearings was willful. On the contrary, the record establishes that Jameson repeatedly made clear his desire to participate in all court proceedings and informed the court that he was not being allowed to do so. Under these circumstances, we conclude that the trial court erred in dismissing the action based on Jameson's failure to appear telephonically.

With respect to the remainder of Jameson's contentions, in the unpublished portions of this opinion, we conclude that the trial court did not err in failing to enter a default judgment against Dr. Desta, setting aside a clerk's default, granting Dr. Desta leave to file a verified answer to Jameson's complaint, or refusing to grant Jameson's request to recover $1,500 for paralegal fees as a cost on appeal stemming from Jameson I. Finally, Jameson's claim that the trial judge erred in failing to disqualify himself is not cognizable on appeal.

Accordingly, we affirm both the trial court's refusal to enter judgment in favor of Jameson, and the trial court's refusal to award Jameson paralegal fees. We reverse the trial court's dismissal of the action, and remand the matter for further proceedings.

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II.

FACTUAL AND PROCEDURAL BACKGROUND2

A. Proceedings prior to Jameson I

In April 2002, Jameson filed a complaint alleging eight causes of action, including breach of fiduciary duty, professional negligence, general negligence, failure to train, battery, violation of civil rights, intentional infliction of emotional distress, and violation of due process against a number of defendants, including Dr. Desta and officials of the California Department of Corrections and Rehabilitation (Department).3 In his complaint, Jameson alleged that Dr. Desta, working on behalf of the Department, negligently prescribed the drug Interferon to Jameson, and that the drug had caused him to suffer serious physical injuries, including irreversible damage to his eyesight.

In August 2005, Dr. Desta filed a motion to dismiss the case based on delay in prosecution. In his brief in support of his motion to dismiss, Dr. Desta argued that Jameson had failed to diligently serve Dr. Desta with the summons and the complaint. In September 2005, the trial court granted Dr. Desta's motion to dismiss on the ground that Jameson had not been diligent in effecting service on Dr. Desta, and entered judgment in favor of Dr. Desta.

B. Jameson I

On appeal in Jameson I, Jameson contended that Dr. Desta's signing of an April 19, 2002 notice and acknowledgement of service established that Dr. Desta was timely served by mail, pursuant to Code of Civil Procedure4 section 415.30, and that the trial court was thus not authorized to dismiss the action for lack of diligent service. This court agreed that Jameson had served Dr. Desta pursuant to section 415.30 and concluded that the trial court erred in dismissing the action for lack of diligent service. (Jameson I, supra, D047824.) We reversed the judgment and remanded the matter to the trial court with directions to deny Dr. Desta's motion to dismiss and to set a time within which Dr. Desta must file a responsive pleading to Jameson's complaint. (Ibid.) We also awarded costs on appeal to Jameson. (Ibid.) On September 26, 2007, the clerk of this court issued the remittitur in Jameson I.

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C. Proceedings on remand

On October 10, Dr. Desta filed an unverified answer to Jameson's complaint. On October 29, the trial court entered an order allowing Dr. Desta until November 13, 2007 to file a responsive pleading to Jameson's complaint.

On or about November 15, Jameson filed a request for entry of default and entry of a court judgment.5 On November 15, the trial court clerk...

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