Vernon v. Great Western Bank

• Court: California Court of Appeals
• Writing for the Court: MIRIAM A. VOGEL; SPENCER, P.J., and ORTEGA
• Citation: Vernon v. Great Western Bank, 59 Cal.Rptr.2d 350, 51 Cal.App.4th 1007 (Cal. App. 1996)
• Decision Date: 18 December 1996
• Docket Number: No. B091406,B091406
• Parties: , 96 Cal. Daily Op. Serv. 9246, 96 Daily Journal D.A.R. 15,155 Marie A. VERNON, Plaintiff and Appellant, v. GREAT WESTERN BANK, Defendant and Respondent.

Page 350

59 Cal.Rptr.2d 350

51 Cal.App.4th 1007, 96 Cal. Daily Op. Serv. 9246,

96 Daily Journal D.A.R. 15,155

Marie A. VERNON, Plaintiff and Appellant, v. GREAT WESTERN BANK, Defendant and Respondent.

No. B091406.

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

Dec. 18, 1996.

[51 Cal.App.4th 1008] Alvin L. Pittman, Los Angeles, for Plaintiff and Appellant.

Anthony F. Pantoni, La Jolla, for Defendant and Respondent.

MIRIAM A. VOGEL, Associate Justice.

Marie A. Vernon sued Great Western Bank (GWB), alleging three distinct causes of action, two of which were resolved against Vernon on GWB's motion for summary adjudication of issues. Vernon then failed to diligently prosecute her case to completion and it was dismissed. She appeals, contending the dismissal was an abuse of discretion and that the summary adjudication order was erroneous. We affirm the order of dismissal. We also hold that, on appeal from an order dismissing a case for a failure to diligently prosecute, there can be no review of earlier, nonappealable summary adjudication orders that would otherwise be reviewed on an appeal from a final judgment on the merits.

BACKGROUND

In January 1991, Vernon sued GWB for gender and race discrimination and for employment "retaliation." GWB answered and in December 1993, moved for summary adjudication of Vernon's discrimination causes of action. The trial court (Hon. Lois Anderson Smaltz) granted the motion, leaving Vernon with her retaliation claim. Trial was set for March 1, 1994. Vernon's lawyer (Alvin Pittman) appeared on that date and orally moved for a continuance on the ground that he was engaged in another trial. When the motion was denied and the case was assigned out for trial, Vernon filed a peremptory challenge, the case was returned to the civil trailing calendar, and the parties were placed on one-hour call. On March 23, at Vernon's request, the trial court removed the case from the trailing calendar. On April 21 and 27, the parties were called into court but trial was continued both times due to Pittman's continuing trial conflicts. On April 27, the court ordered the parties to appear for trial on May 9, and ordered Pittman not to become engaged in another trial.

On May 9, the case was placed on the trailing calendar. On May 11, the case was assigned for trial (Hon. Charles E. Frisco). The parties and their lawyers appeared before Judge Frisco for two days for the resolution of motions, and everyone was ordered to return on May 17 for jury selection. On May 17, both Vernon and Pittman failed to appear. The trial court issued a bench warrant for Pittman, held it until May 25, ordered Pittman to appear on that date to show cause why the warrant should not issue, again ordered Pittman to keep his calendar clear, and trailed the trial to May 31.

On May 25, Pittman appeared in response to the OSC and explained he would be unable to participate in any hearing or commence trial until early June because of an alleged injury. The trial court ordered Pittman to appear on June 1, directed him to bring with him a report from his physician describing his medical condition, and trailed the trial to June 6. Trial commenced on June 6 but the jury was unable to reach a verdict and a mistrial was declared. In August, the trial court set October 5 as the new trial date. On September 21, Vernon requested a continuance on the grounds that (1) Pittman was distraught over the death of a godson and (2) Vernon was unable to attend her trial due to "stress," supporting the motion with a physician's declaration attesting that Vernon was then unable to attend a trial due to stress and would be unable to attend for at least 30 days. Following a hearing at which an attorney made a "special" appearance for Pittman, the trial court (Hon. Chris R. Conway) denied the motion and ordered the parties to appear for trial on October 5.

On October 5, the case was assigned out for trial (Hon. Daniel Solis Pratt) but neither Vernon nor Pittman appeared. Instead, an attorney made a "special appearance" to advise the court that Pittman was at that moment reporting ready for another trial in Torrance. Judge Pratt and GWB's lawyers and witnesses waited six hours for Pittman to arrive. When Pittman finally appeared that afternoon, he moved for a continuance, stating he was too distraught to try Vernon's case (but was able to proceed to trial in Torrance because that was a "different kind of case" and did not require as much preparation as Vernon's case). The trial court denied Pittman's motion and issued an order to show cause why Vernon's case should not be dismissed, with hearing set for November 18.

On November 18, Pittman again failed to appear. Another lawyer (this was the third one) made another "special appearance" and a hearing was held, after which the trial court (Judge Pratt) found a "pattern of conduct" showing a failure to prosecute the case diligently and a total disregard of the court's orders. Judge Pratt dismissed Vernon's case with prejudice (Code Civ. Proc., § 583.410, subd. (a)) ¹ and, on the same day (November 18, 1994), signed an order of dismissal.

On January 3, 1995, GWB's attorney submitted a "judgment" to Judge Smaltz (who had granted GWB's motion for summary adjudication), which was signed and entered that day. This "judgment" states that the first two causes of action were resolved by summary adjudication and incorrectly states that the "third cause of action" was dismissed on November 18, 1994 (in fact, the entire action was dismissed in November 1994). On March 3, Vernon filed a notice of appeal "from the Judgment signed by the Honorable Lois Anderson Smaltz and entered on January 3, 1995...."

DISCUSSION

Vernon contends the trial court (1) abused its discretion when it dismissed her case, and (2) erred in summarily adjudicating her discrimination causes of action. We will explain why she is wrong about the dismissal and why, as a result, we do not reach the summary adjudication order. ²

I.

We agree with the trial court that this record reflects a pattern and history of delay that "hits you in the face when you go through it," and we therefore reject Vernon's contention that the court abused its discretion when it dismissed her case.

At the pretrial stage, Vernon did little if anything to prosecute her action. Although the case was filed in January 1991, it does not appear that GWB was served until late that year. In September, Vernon filed a first amended complaint. In November, GWB answered. From the record before us, it appears that no action of any kind was initiated by Vernon between November 1991 and mid-1993, and that the only thing she did do was to appear when her deposition was noticed by GWB during the summer of 1992. Two and one-half years after the case was filed (in July 1993), Vernon filed a second amended complaint, which GWB answered, and it was in January 1994 that GWB successfully moved for summary adjudication of two of Vernon's three causes of action. ³

At the trial stage (March to November 1994), the record speaks for itself. Time and time again, Vernon and her lawyer requested continuances and, when they were denied, simply failed to appear. Pittman repeatedly became engaged in other trials, notwithstanding orders that he remain available to try this case, and he then claimed a somewhat amorphous stress condition that was so severe he could not try this case but could become engaged in another trial. In an exercise of its broad discretion, the trial court repeatedly rejected Vernon's and Pittman's excuses, and there is nothing about this record to suggest the trial court was arbitrary or capricious, that it exceeded the bounds of reason, or that it at any time abused its discretion. ⁴ (Denham v. Superior Court (1970) 2 Cal.3d 557, 564-566, 86 Cal.Rptr. 65, 468 P.2d 193.) Simply put, we are satisfied that the court considered the credibility of the explanations provided by Vernon and Pittman and, based upon their prior conduct, determined they were fabricated in order to obtain a delay for Pittman to conclude yet one more trial before attending to this one. (Dubois v. Corroon & Black Corp. (1993) 12 Cal.App.4th 1689, 1695, 16 Cal.Rptr.2d 719.)

We reject Vernon's attempt to salvage her case by focusing solely on the five-month period between the mistrial and the order of dismissal. Although it is true that, all things being equal, a party has two years following a mistrial to bring her case to trial (§ 583.420), all things were not equal here. Vernon and her lawyer both failed to appear on the day the retrial was to begin (October 5), knowing their September 29 request for yet another continuance had been denied. ⁵ The failure to appear at trial was just another variation of Vernon's established theme--a total failure to diligently prosecute her case--and no more was needed to justify the trial court's order of dismissal. (§ 581, subd. (b)(5) [an action may be dismissed when either party fails to appear on the day of trial and the other party appears and asks for dismissal]; Cal. Rules of Court, rule 226; Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1204, 272 Cal.Rptr. 324 [dismissal is proper when the plaintiff is not prepared to proceed on the day of trial].)

Accordingly, whether viewed as a dismissal for failure to diligently prosecute, or as a dismissal for failure to appear on the day of trial, the November 18, 1994, order of dismissal was proper. In short, when Vernon invoked the power of the court to resolve her dispute with GWB, she agreed to abide by rules designed to facilitate the orderly and equitable resolution not only of her dispute, but also of the thousands of other cases pending before the court at the same time. The power of dismissal is the court's means of enforcing those rules, and it exists so the court can manage its own affairs and preserve respect for the integrity of its process. To permit a party to do what Vernon...