Gilbertson v. Osman

• Decision Date: 05 September 1986
• Citation: 185 Cal.App.3d 308,229 Cal.Rptr. 627
• Court: California Court of Appeals Court of Appeals
• Parties: Jerrie GILBERTSON, et al., Plaintiffs and Appellants, v. M.F. OSMAN, et al., Defendants and Respondents. E002039.

Page 627

229 Cal.Rptr. 627

185 Cal.App.3d 308

Jerrie GILBERTSON, et al., Plaintiffs and Appellants, v. M.F. OSMAN, et al., Defendants and Respondents.

E002039.

Court of Appeal, Fourth District, Division 2, California.

Sept. 5, 1986.

Joseph Posner, Inc. and Joseph Posner, Encino, for plaintiffs and appellants.

Thompson & Colegate and Sharon J. Waters, Riverside, for defendant and respondent M.F. Osman.

Fidler & Bell and Thomas S. Hudspeth, Riverside, for defendant and respondent Indio Community Hosp RICKLES, Associate Justice.

Plaintiffs Jerrie Gilbertson and Donald Gilbertson, husband and wife, brought this action for damages against defendant M.F. Osman, M.D., and Indio Community Hospital. Jerrie Gilbertson has alleged a cause of action for medical malpractice and Donald Gilbertson a cause of action for loss of consortium. Defendants brought a motion for summary judgment on statute of limitations grounds. The motion was granted and the court also purported to dismiss on its own motion for failure to prosecute. Plaintiffs have appealed from the resulting judgments.

The issues on appeal are whether the court erred in dismissing the action for failure to prosecute, whether the granting of summary judgment was warranted as a sanction for plaintiffs' failure to submit a statement of disputed and undisputed facts, and whether the record supports the granting of summary judgment on statute of limitations grounds.

FACTS

Jerrie Gilbertson was admitted to Indio Community Hospital under the care of Dr. Osman on April 12, 1979. On the following day Dr. Osman performed a hysterectomy on Jerrie Gilbertson. A week after the operation, on April 20, 1979, Jerrie Gilbertson noted vaginal leaking of urine and called Dr. Osman's office. She became upset when Dr. Osman did not return her call and she continued to call his office but was not able to speak to him on that day. Her husband, Donald Gilbertson, called Dr. Osman's office on her behalf on the following day. He became upset at the difficulty in reaching Dr. Osman.

Jerrie Gilbertson was examined by Dr. Osman on April 24, 1979, and subsequently was referred to Indio Community Hospital.

On April 30, 1979, Jerrie Gilbertson was in the office of Dr. Mark F. Kaufman when she overheard a conversation between Dr. Kaufman and his nurse during which it was said that her surgical incision was gangrenous, her bladder had been "cut," and the area in question was sutured. Dr. Kaufman told Jerrie Gilbertson there was a hole in her bladder which was not normal with the type of operation Dr. Osman had performed.

On April 14, 1980, plaintiffs served defendants with a 90-day Notice of Intent to Commence Action. The instant action was filed on July 24, 1980.

Trial of this action was scheduled to begin on February 25, 1985. Defendant Osman filed a motion for summary judgment on January 8, 1985, in which defendant Indio Community Hospital later joined. In support of the motion defendants submitted a request for admissions together with a notice that the facts stated therein were deemed admitted. Defendants also submitted brief excerpts from the deposition of each plaintiff.

The points and authorities in support of the motion included this statement: "Although not part of this formal motion, the court may well wish to address, sua sponte, the provisions of California Code of Civil Procedure Section 583(a) and dismiss the action for failure to prosecute in a timely fashion. Since the time of filing the action on July 24, 1980, almost four and one-half years have passed and the action is still not at trial."

In opposition to the summary judgment motion plaintiffs submitted points and authorities but did not offer any evidence nor did they provide the court with a statement of disputed and undisputed facts. The two-page memorandum of points and authorities responded to the statute of limitations issue but it did not discuss plaintiffs' diligence in prosecuting the action.

The motion for summary judgment was argued on February 15, 1985. The argument centered mainly on the issue of the statute of limitations. Defense counsel referred briefly to plaintiffs' alleged lack of diligence in prosecuting the action and also remarked on plaintiffs' failure to submit a statement of disputed and undisputed facts. Plaintiffs' counsel did not respond to these arguments and the court did not refer to them.

On February 21, 1985, just four days before the scheduled trial date, the court issued its ruling by minute order, stating: "The motion for Summary Judgment is granted pursuant to Sections 364 and 356 Code of Civil Procedure. The one year and ninety days ran before the filing. The action is also dismissed for failure to prosecute in a timely fashion (Code of Civil Procedure 583(a) ). Motion for Relief from Admissions is moot."

An "Order of Summary Judgment" was signed and filed on February 28, 1985. It stated in relevant part: "It is Ordered, Adjudged and Decreed that plaintiffs Jerrie and Donald Gilbertson take nothing by their complaint...." This document was entered in the judgment book.

On March 6, 1985, the court signed an "Order and Judgment of Dismissal" providing that the motion for summary judgment "is granted" and the action "is thereby dismissed, in its entirety and with prejudice." This document was filed and entered in the judgment book on March 8, 1985. ¹

Plaintiffs' notice of appeal, filed on April 25, 1985, states that plaintiffs appeal from "the judgment rendered against them on March 8, 1985."

I

If an action is not brought to trial within three years, the court may in its discretion dismiss the action for delay in prosecution. (Code Civ.Proc., §§ 583.410, 583.420.) This action may be taken either on the court's own motion or on motion of the defendant. (Code Civ.Proc., § 583.410.)

A defendant seeking to dismiss an action under the discretionary dismissal provisions must serve and file a notice of motion "at least 45 days before the date set for hearing of the motion." (Cal.Rules of Court, rule 373(a).) If the plaintiff moves to specially set the case for trial, however, the court may dismiss on its own motion without any prior notice because the motions to advance and dismiss "encompass the same considerations." (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 561, 194 Cal.Rptr. 773, 669 P.2d 9.) In other settings, the court is required to give notice to the plaintiff before taking the drastic action of dismissing on its motion: "Obviously, where the court itself initiates a motion to dismiss, due process demands notice to the plaintiff adequate to defend against the charge of procrastination." (Id., at p. 561, fn. 7, 194 Cal.Rptr. 773, 669 P.2d 9.)

Here plaintiffs did not bring a motion to specially set (a trial date had already been set and was imminent) and the issues raised by defendants' motion for summary judgment were entirely distinct from the issues presented by a motion to dismiss for failure to prosecute. Accordingly, the trial court could not dismiss on its own motion without affording plaintiffs the notice demanded by due process.

Defendant Osman argues that plaintiffs had sufficient notice of the possibility of a dismissal for failure to prosecute because he had suggested this course of action to the court in his memorandum of points and authorities in support of the motion for summary judgment.

The argument is not persuasive. If the court is initiating a motion to dismiss, the court must itself give notice of this fact to the plaintiff by an order to show cause (see Tate v. Superior Court (1975) 45 Cal.App.3d 925, 927-928, 119 Cal.Rptr. 835) or similar means. To allow a mere suggestion by a defendant to trigger a plaintiff's duty to respond would place an unnecessary burden on plaintiffs in cases where the court had no intention of initiating the motion. Moreover, it would allow a defendant's suggestion to substitute for an act of judicial discretion in deciding whether to initiate the motion.

In the present case the court never gave any notice, either before or at the hearing on the motion for summary judgment, that it was initiating a motion to dismiss. No hearing on such a motion was ever noticed, announced, or held. Accordingly, the court could not dismiss the action for failure to prosecute.

II

Section 437c of the Code of Civil Procedure was amended, effective January 1, 1984, to include a requirement that a party moving for summary judgment submit "a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed." Each statement of material undisputed fact must be "followed by a reference to the supporting evidence" and failure to comply with these requirements "may in the court's discretion constitute a sufficient ground for denial of the motion." (Code Civ.Proc., § 437c, subd. (b).)

The responding party is required to submit "a separate statement which responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed." The statement must include "any other material facts which the opposing party contends are disputed." References to supporting evidence must also be included and a failure to comply with these requirements "may constitute a sufficient ground, in the court's discretion, for granting the motion." (Code Civ.Proc., § 437c, subd. (b).)

In the present case the moving papers of defendant Osman included a statement of assertedly undisputed facts with references to supporting evidence. Plaintiffs' opposing papers did not include a separate statement identifying disputed and undisputed facts. Defendants now contend that this failure by plaintiffs provides an adequate ground for upholding the judgment in their favor.

As the statute plainly states, the sanction of dismissal is discretionary. The exercise of this discretion should not be presumed but...