Wisniewski v. Clary

• Citation: 120 Cal.Rptr. 176,46 Cal.App.3d 499
• Court: California Court of Appeals
• Decision Date: 26 March 1975
• Parties: William F. WISNIEWSKI et al., Plaintiffs and Appellants, v. James H. CLARY, Defendant and Respondent. Civ. 44129.

Page 176

120 Cal.Rptr. 176

46 Cal.App.3d 499

William F. WISNIEWSKI et al., Plaintiffs and Appellants, v. James H. CLARY, Defendant and Respondent.

Civ. 44129.

Court of Appeal, Second District, Division 3, California.

March 26, 1975.

Ted Sullivan and James E. Sutherland, Lakewood, for plaintiffs and appellants.

Sikora, Price & Livingston, Inc., and Donald R. Price, Newport Beach, for defendant and respondent.

John H. Larson, County Counsel, and John P. Farrell, Deputy County Counsel, Los Angeles, for amicus curiae Superior Court.

COBEY, Acting Presiding Justice.

Plaintiffs, William F. and William M. Wisniewski, appeal from a minute order, made and filed on November 7, 1973, directing them to pay fees of the attorneys for defendant, James H. Clary, ¹ in the sum of $300 as sanctions for the failure of plaintiffs to attend personally a mandatory settlement conference on October 4, 1973, as allegedly required by written local policy on pain of the dismissal otherwise of their action. Plaintiffs paid the $300 and then appealed the order on the grounds that the policy and the order pursuant thereto exceeded the powers of the court and under the circumstances constituted an abuse of discretion.

The threshold question posed is whether the challenged order is appealable under the foregoing circumstances. It is not an order made expressly appealable by Code of Civil Procedure, section 904.1. ² But it is a final order on a collateral matter directing the payment of money within 30 days and, as such, it is appealable (see Title Ins. & Trust Co. v. Calif., etc., Co., 159 Cal. 484, 491, 114 P. 838; Stockton v. Rattner, 22 Cal.App.3d 965, 968, 99 Cal.Rptr. 787) unless the claimed voluntary nature of plaintiffs' payment to defendant of the sum required by the order robbed the order of appealability. We do not think that plaintiffs' payment had this legal effect because it was involuntary since it was made under the coercion of the dismissal otherwise of their action. Compulsory payment of a judgment by an appellant under execution or other coercion does not destroy his right to appeal from that judgment. (Reitano v. Yankwich, 38 Cal.2d 1, 3, 237 P.2d 6.) Furthermore, even voluntary payment of a judgment by an appellant does not have this effect unless the payment is by way of compromise or accompanied by an agreement not to take or prosecute an appeal. (Estate of Merrill, 29 Cal.2d 520, 524, 175 P.2d 819.) We hold that this appeal lies.

The next question to decide is whether the policy enforced was within the power of the court making it. Long prior to the mandatory settlement conference counsel for plaintiffs and for defendant had received from the clerk of the court, by mail, a written statement of the applicable Los Angeles County Superior Court policy, reading as follows: 'If at the time of the scheduled settlement conference, plaintiff or those parties seeking affirmative relief fail to appear, the judge shall order the trial date vacated, and order the parties to show cause at 10:30 a.m., in Department 1, on a date to be set by the court why the case should not be dismissed for lack of prosecution. Written notice thereof (is) to be mailed to all parties or their counsel of record. If the defendant or other responding party fails to appear and good cause is not shown, the court may impose sanctions by way of costs, actual expenses, counsel fees or any or all thereof arising therefrom and order the case to proceed to trial on the date assigned.'

This policy of the local superior court was adopted pursuant to division I, section 9, subdivision (d) of the Standards of Judicial Administration recommended by the Judicial Council, which, in pertinent part, as adopted on January 1, 1972, read: 'Require settlement conferences to be held in all ready cases, . . .. At settlement conferences the superior courts should require the attendance of all parties, their trial attorneys and, when a party is insured, a representative of the insurance company, . . .'

The Judicial Council is expressly authorized by article VI, section 6 of our Constitution to make recommendations to the courts to improve the administration of justice. One such improvement is the mandatory settlement conference because through this device many cases are disposed of without trial and delay in the trials of the remaining cases is thereby reduced. The requirement that the parties themselves be present at the mandatory settlement conference undoubtedly enhances the chances for settlement because the parties may then become active participants in the settlement negotiations. An attorney with full and unlimited power to settle is no substitute for his client being there personally as an agent never feels as free to act for a principal as the principal does for himself.

Plaintiffs contend that this policy of compelling the attendance of themselves at the mandatory settlement conference in this case was unenforceable because it took the form of a local policy rather than a local rule and because a party in a civil case may not be required to be personally present at any stage of the litigation. ³ (See Silvagni v. Superior Court, 157 Cal.App.2d 287, 291--292, 321 P.2d 15; Taylor v. Bell,21 Cal.App.3d 1002, 1008, 98 Cal.Rptr. 855, cert. denied 408 U.S. 923, 92 S.Ct. 2493, 33 L.Ed.2d 334.) Section 128, subdivisions (3) and (4), which codify at least partially the inherent powers of a court, states in effect that every court is empowered to provide for the orderly conduct of the proceedings before it and to compel obedience to its judgments, orders and process. Section 187, which likewise codifies an inherent power of a court, authorizes a court to take all the means necessary to carry its jurisdiction into effect and, where the Code of Civil Procedure or a statute does not specify a mode of proceeding, to adopt any suitable process or mode of proceeding that may appear most comformable to the spirit of the Code. Finally, according to Hays v. Superior Court, 16 Cal.2d 260, 264, 105 P.2d 975, 978, 'a trial court has the (inherent) power to exercise a reasonable control over all proceedings connected with the litigation before it.'

Government Code section 68070 provides that 'Every court of record may make rules for its own government . . . not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.' This statute, though, contains no express authorization for the making of policies as opposed to rules and amendments thereto, but Rule 981, subdivision (d), of the California Rules of Court, makes the filing and availability for public inspection requirements of the succeeding section (Gov.Code, § 68071) expressly applicable to the policies of local courts of record as well as to their rules.

We regard the rule-making power of superior courts, enunciated in the aforementioned Government Code section 68070, as merely a statutory confirmation of an inherent power of these courts rather than as a grant from the Legislature of this power to them. Furthermore, it seems clear to us that courts which may make local rules may also make local policies--a lower and less permanent form of specification of the practices to be followed in the particular court. ⁴ So long as those to be governed by the local policies of these courts are fully and fairly informed of their requirements in advance and particularly of the fact (when such is the fact) that these policies represent requirements rather than mere guidelines, we regard them as being as fully enforceable generally as court rules. These have been held to have the legal effect of procedural statutes, so long as they are not contrary to higher law. ⁵ (See Cantillon v. Superior Court, 150 Cal.App.2d 184, 187--188, 309 P.2d 890; 1 Witkin, Cal.Procedure (2d ed. 1970) Courts, § 130, p. 400.)

We believe that the trial court in this case possessed the inherent power to require by policy that plaintiffs be physically present at the mandatory settlement conference. A court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable. The fact that it may not force a party to be personally present at the trial of a civil action (see 1 Witkin, op. cit., Jurisdiction, § 123, pp. 652--653) does not mean that it may not command his attendance in person at a mandatory settlement conference. A civil trial may proceed expeditiously without the presence of a party, but, as noted earlier, the presence of all parties personally at settlement negotiations enhances their chances of success. For this reason we regard the inconsistent language found in Silvagni, supra, and repeated in Taylor, supra, as being overly broad.

We turn now to the particular sanction imposed--the award of attorneys fees to defendant in the amount of $300 on pain of the action being otherwise dismissed. ⁶ The...