Moyal v. Lanphear

• Decision Date: 06 March 1989
• Docket Number: No. D007855,D007855
• Citation: 208 Cal.App.3d 491,256 Cal.Rptr. 296
• Parties: Esther MOYAL, Plaintiff and Appellant, v. Norman L. LANPHEAR, Defendant and Respondent; Nick A. Alden, Objector and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 296

256 Cal.Rptr. 296

208 Cal.App.3d 491

Esther MOYAL, Plaintiff and Appellant, v. Norman L. LANPHEAR, Defendant and Respondent Nick A. Alden, Objector and Appellant.

No. D007855.

Court of Appeal, Fourth District, Division 1, California.

March 6, 1989.

[208 Cal.App.3d 494] Nick A. Alden, Sherman Oaks, for plaintiff and appellant and objector and appellant.

Grace & Neumeyer, Inc. and Jonathan A. Brenner, for defendant and respondent.

OPINION

HUFFMAN, Associate Justice.

The trial court dismissed Esther Moyal's complaint for personal injury and assessed monetary sanctions against her attorney Nick A. Alden for noncompliance with orders made and deadlines set under "fast track" procedures adopted pursuant to the Trial Court Delay Reduction Act. (Gov.Code, § 68600 et seq.) Moyal appeals, contending the trial court abused its discretion by enforcing fast track time limits at the expense of protecting her right to a trial on the merits. Alden also appeals, contending the trial court's imposition of monetary sanctions was improper.

We reverse the order of dismissal while upholding the award of monetary sanctions. We will explain that while judicially declared standards for the trial court's exercise of discretion are necessarily evolving along with changes in statutory law in the trial court delay reduction field, the important objectives of the fast track system can and must be achieved consistent with traditional due process standards.

FACTUAL AND PROCEDURAL BACKGROUND

Several factors have combined to result in a very sparse record on appeal, including an incomplete designation of the record by the parties, the expedited nature of the proceedings below, and the short life of Moyal's action. Our review of the facts and procedural background is supplemented by judicial notice of the superior court file. (Evid.Code, § 452, subd. (d)(1), 459.) Pursuant to California Rules of Court, rules 13 and 18(3), we have disregarded those facts recited in the briefs which are unsupported by the record or judicial notice. ¹ In any case, in the absence of a record showing such facts, we must presume they would support the trial judge's judgment. ² (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645, 183 Cal.Rptr. 508, 646 P.2d 179; Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 468 P.2d 193.)

For background we outline the short history of this case. Alden filed Moyal's complaint for personal injury on July 6, 1987, and had it served August 31, 1987. Although this service was accomplished within the 60-day deadline set by San Diego Superior Court Local Rule section 10.4(a) ³, Alden failed to file proof of service within that period as required by this rule. Consequently, the court ordered Moyal to appear and show cause why sanctions should not be imposed for failure to timely serve and provide proof of service. Alden sought a continuance, offering as his excuse, "As a Los Angeles Attorney, I was not aware of the Administration of Civil Litigation act...." At the continued hearing, after the proof of service was filed, sanctions of $150 were imposed on Alden, payable to the county under Code of Civil Procedure section 177.5. ⁴ No challenge to this initial order is raised here.

Moyal, through her attorney Alden, then failed to file a joint at-issue memorandum as required by local rule section 10.7(a) within 140 days after the defendant, Norman L. Lanphear, answered. Alden also failed to follow the procedures in local rule section 10.7(b)(1)-(4) for obtaining an extension of time in which to file the memorandum or an alternative "Certificate: At Issue Not Filed." ⁵ The court subsequently issued and served on him its order to appear at a hearing March 4, 1988, pursuant to local rule section 10.7(b)(5) which stated as of the time of the order:

"Failure to timely file a joint at-issue memorandum ... will result in the issuance of an order to show cause why any party or counsel shall not be sanctioned for failure to do so." ⁶

Alden failed to appear at the March 4 hearing. The court ordered the case monitored for 20 days and set another hearing date for March 25, 1988. The minute order shows the court stated it would consider dismissing the case if Alden failed to appear at the next hearing, but the file does not show this minute order was served on the parties.

The court then issued and served two orders to appear and show cause on March 25, 1988, citing section 575.2 and 177.5 as grounds for imposition of sanctions. The initial order was directed to Alden, requiring him to appear and show cause why sanctions should not be imposed on him for his failure to appear at the March 4 hearing. The second order required Moyal to appear through her attorney and give any legal reason why the time standards of section 10 were not met. However, neither order specifically gave notice the court was considering dismissal of Moyal's complaint.

Both Lanphear's counsel and Alden appeared at the March 25 hearing. The record contains no reporter's transcript of that hearing and no written response to the orders to appear and show cause as permitted by local rule 10.2(c). The minute order of that hearing merely shows the court dismissed Moyal's complaint and imposed $450 in monetary sanctions on Alden, $300 payable to opposing counsel and $150 to the court.

Alden subsequently filed a notice of appeal on Moyal's behalf, adding himself as an appellant regarding the award of $450 monetary sanctions. The file shows no joint at-issue memorandum or "Certificate: At Issue Not Filed" has ever been filed, nor did Alden ever seek relief under section 473 from dismissal by alleging the orders were made due to his mistake, inadvertence, surprise or excusable neglect.

DISCUSSION

I Attorney's Standing to Appeal

Although Moyal was the only plaintiff at the trial court level, Alden included himself as an additional appellant in the notice of appeal. Generally an appeal may be taken only from a final judgment, from orders after judgment, and from specified appealable orders. ( § 904.1.) Alden, however, had a distinct and separate right to appeal this order imposing sanctions on an attorney as a collateral matter. (Lachkar v. Lachkar (1986) 182 Cal.App.3d 641, 645, fn. 1, 227 Cal.Rptr. 501.)

Although on a collateral appeal it would be the better practice for an attorney to file a separate notice of appeal, since he or she is not a party to the action below, we are directed by California Rules of Court, rule 1(a) to liberally construe the notice of appeal in favor of its sufficiency. The strong public policy in favor of hearing appeals on the merits operates against depriving an aggrieved party or attorney of a right to appeal because of noncompliance with technical requirements. (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853-854, 237 Cal.Rptr. 282; Jarkieh v. Badagliacco (1945) 68 Cal.App.2d 426, 431, 156 P.2d 969.)

II Standard of Review: Calendar Matters and Fast Track

As a threshold matter we recognize a trial court must be accorded wide latitude in the exercise of discretion to control and regulate its own calendar. (Maximum Technology v. Superior Court (1987) 188 Cal.App.3d 935, 937, 233 Cal.Rptr. 733.) The press of cases and a desire to manage and expedite a crowded calendar is of natural concern to the court. (Hernandez v. Superior Court (1985) 169 Cal.App.3d 1169, 1171, 215 Cal.Rptr. 755.) The Trial Court Delay Reduction Act mandates trial courts to resolve matters before them as expeditiously as possible, in recognition that delay reduces the chance that justice will in fact be done and often imposes severe emotional and financial hardship on the litigants. (Gov.Code, § 68601(b).) Government Code section 68601(c) outlines the limitations placed upon the speedy processing of civil matters required by the Act:

"Cases filed in California's trial courts should be resolved as expeditiously as possible, consistent with the obligation of the courts to give full and careful consideration to the issues presented, and consistent with the right of parties to adequately prepare and present their cases to the courts."

Pursuant to the Act, the San Diego Superior Court established its exemplary delay reduction program, otherwise known as fast track, in consultation with the county bar.

Generally, local rules of court and court policies have the force of procedural statutes, so long as they are not contrary to legislative enactments. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 28, 694 P.2d 1134; Estate of Brown (1987) 193 Cal.App.3d 1612, 1619, 239 Cal.Rptr. 147.) However, recent statutory amendment and case law has established that local rules regarding procedural time limits may deviate from statutory language in ways reasonably necessary to carry out the clearly stated and mandatory provisions and goals of the Trial Court Delay Reduction Act. (Gov.Code § 68612, as amended effective September 22, 1988; International Union of Operating Engineers v. Superior Court (1989) 207 Cal.App.3d 340, 254 Cal.Rptr. 782.) Nevertheless, the fact that this is a fast track case does not annul or make inoperative previous statutes or case law. (Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925, 247 Cal.Rptr. 477.)

In administering the fast track system, the trial court must exercise its discretion at each stage of a lawsuit in the process of bringing a case to trial, or alternatively, imposing sanctions such as dismissal. Since trial management is a discretionary area, the proper standard of review for a challenge to trial management orders is abuse of discretion.

Discretion is abused whenever it exceeds the bounds of reason, all of the circumstances before it being considered. (Denham v. Superior Court, supra, 2 Cal.3d at p. 566, 86 Cal.Rptr. 65, 468 P.2d 193; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478, 243 Cal.Rptr. 902, 749 P.2d 339.) In exercising its discretion, the court does not have absolute and...