Jameson v. Desta, D053089.

• Decision Date: 23 November 2009
• Docket Number: No. D053089.,D053089.
• Citation: 101 Cal. Rptr. 3d 345,179 Cal.App.4th 672
• Court: California Court of Appeals Court of Appeals
• Parties: BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.

179 Cal.App.4th 672

101 Cal. Rptr. 3d 345

BARRY S. JAMESON, Plaintiff and Appellant, v. TADDESE DESTA, Defendant and Respondent.

No. D053089.

Court of Appeals of California, Fourth District, Division One.

November 23, 2009.

CERTIFIED FOR PARTIAL PUBLICATION^*

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.

OPINION

AARON, J.

I. INTRODUCTION

In April 2002, Barry S. Jameson filed a complaint against Dr. Taddese 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, D047824) [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 (1995) 32 Cal.App.4th 786, 792 (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 (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.

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 California's 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.

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 entered a default. That same day, Jameson filed a motion for judgment on the pleadings.

On January 10, 2008, the court entered an order providing that Jameson would be allowed to appear at court hearings by telephone in view of his imprisonment. On several occasions thereafter, Jameson informed the trial court that prison personnel were not allowing him to communicate telephonically with the court. (See pt. III.A., post.)

On January 17, the trial court entered an order setting aside the November 15 default. In its order, the trial court stated that the default had been entered erroneously, noting that Dr. Desta had filed an answer prior to the court's November 13 deadline. On January 18, the trial court clerk sent Jameson a notice of a mandatory case management conference hearing set for March 10.

On January 25, the trial court granted Jameson's motion for judgment on the pleadings, with leave to amend. The court reasoned that Jameson's complaint was verified, and that Dr. Desta's answer therefore had to be verified. The court granted Dr. Desta 20 days to file a verified answer to Jameson's complaint. On or about February 7, Dr. Desta filed a verified answer to Jameson's complaint.

Jameson did not appear telephonically at the March 10 case management conference. On March 12, the trial court clerk sent Jameson a notice regarding an April 18 hearing to consider whether the case should be dismissed.

On April 18, the trial court dismissed the case without prejudice on the ground that Jameson had not telephonically appeared for the March 10 case management conference and the April 18 order to show cause hearing.

Jameson appeals from the trial court's order dismissing the case.⁶

III. DISCUSSION

A. The trial court erred in dismissing the case without ensuring that Jameson had received meaningful access to the court

Jameson claims that the trial court erred in dismissing the case on the ground that he did not appear telephonically at a case management conference and at a subsequent hearing on an order to show cause as to whether the case should be dismissed. Jameson claims that dismissal was improper because he "repeatedly notified the court" that prison officials were not providing him with the ability to communicate telephonically with the court.

1. Governing law and standard of review

(1) A prisoner has a statutory right to initiate civil actions. (Pen. Code, § 2601, subd. (d).) "In the case of an indigent prisoner initiating a bona fide civil action, this statutory right carries with it a right of meaningful access to the courts to prosecute the action." (Wantuch, supra, 32 Cal.App.4th at p. 792.) There are many ways by which a trial court may ensure that a prisoner has meaningful access to the courts, including "conduct[ing] . . . status and...