Sparrow v. Fremont Auto Sales CA1/2 ( 2022 )

Filed 8/30/22 Sparrow v. Fremont Auto Sales CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
RONALD W. SPARROW et al.,
Plaintiffs and Appellants,
A163536
v.
FREMONT AUTO SALES, INC., (Alameda County
Super. Ct. No. HG19006239)
Defendant and Respondent.
Pro per plaintiffs Ronald and Arlene Sparrow filed a lawsuit seeking
damages from car dealership Fremont Auto Sales, Inc., alleging the
dealership sold them a used car that turned out to be a lemon, with engine
damage beyond repair. The trial court ordered their lawsuit dismissed with
prejudice after they failed to appear at two status conferences that were
conducted remotely.
They now appeal from the order of dismissal, arguing the trial court
erred in dismissing their case, in effect, because they lacked notice and an
opportunity to attend (i.e., log into) the virtual court hearings. No
respondent’s brief has been filed.
We agree, and reverse.
1
BACKGROUND
The case was initiated in February 2019.1 It was ordered dismissed
with prejudice two-and-a-half years later, at an unreported case management
conference held virtually on August 18, 2021, two days before the scheduled
trial date (which the court also ordered vacated). None of the parties
appeared at that terminating case management conference—neither
appellants nor respondent. When it ordered the case dismissed, the court
also imposed $900 in sanctions against the plaintiffs. The stated basis for
both the dismissal with prejudice and the sanctions award was plaintiffs’
failure to appear at the August 18, 2021 hearing and the hearing
immediately preceding it, held a week earlier on August 11, 2021.2
The relevant history begins a bit earlier, on August 6, 2021, when a
settlement conference was held by BlueJeans videoconference in
Department 301 at 2:00 p.m., presided over by Judge Jacobs. All parties
failed to appear at that settlement conference. The record of the August 6
settlement conference consists of a file-endorsed document entitled “Judge’s
Memo To Clerk, Civil Pre-Trial Settlement Conference (PTSC).” The
document indicates that a further case management conference was on
1 The register of actions was omitted from the Clerk’s Transcript but
the superior court transmitted a copy to this court at our request. We deem
the record corrected to include it.
2 In relevant part, the minute order of the August 18 hearing states:
“ORDER re CASE MANAGEMENT [¶] & ORDER DISMISSING ACTION [¶]
The Court has ordered the following at the conclusion of a judicially
supervised Case Management Conference. [¶] OTHER ORDERS [¶] Case
dismissed with prejudice for failure by plaintiffs to appear at the August 11,
2021 mandatory settlement conference and the August 18, 2021 case
management conference and order to show cause hearing.” The minute order
then went on to impose sanctions for both non-appearances.
2
calendar for August 11 at an unspecified time and a trial date was set for
August 20, and on August 6 the settlement conference judge ordered that the
trial date and all future dates were to be maintained. There is no proof of
service attached to that August 6 “memo,” the register of actions reflects no
separate proof of service filed on that date, and the register of actions also
does not reflect the issuance of any separate settlement conference order or
scheduling order issued on August 6. It thus does not appear that notice of
future hearings was given.
Thereafter, at the August 11 case management conference, the parties
again did not appear and the court issued an order to show cause and
continued the matter to August 18, 2021, in Department 514 at 1:30 p.m.3
Then, as noted, the parties again failed to appear at the August 18 case
management conference which is when the court (the Hon. Delbert Gee,
sitting in Department 514) ordered the case dismissed with prejudice and
imposed monetary sanctions. Despite the fact that it was calendared to take
place at 1:30 p.m., the case management conference actually took place at
3 p.m. for reasons the record does not reflect.4
After the court ordered the dismissal, but before any valid judgment of
dismissal was entered (see Discussion, Part I, post), the plaintiffs submitted
3 The record contains only a partial copy of the minute order from the
August 11, 2021 case management conference. The register of actions
reflects that a “Case Management Conference Order Issued” that date, as
well as a “Declaration of Service by Mail.” We therefore presume that the
court validly served notice of the order, including its order to show cause, on
the parties. As discussed post, however, plaintiffs asserted they did not
receive that notice.
4 Plaintiffs do not note this discrepancy, but we do because it reflects
an additional irregularity which bears on the overall conduct of the
proceedings below.
3
two sets of written objections explaining why they had failed to appear at the
three status conferences and asking the court, in effect, to reinstate their
lawsuit and re-set their case for trial. Respondent filed no opposition nor,
indeed, anything in response.
Plaintiffs’ papers recounted, essentially, they had been prevented from
attending the hearings due to a combination of a lack of actual notice and
technical mishap:
On August 6, they explained, the court clerk sent them an electronic
link with instructions to attend the mandatory settlement conference
virtually in Department 302 from 4:00 p.m. to 4:45 p.m. (and a copy was
reproduced in their papers), and when they logged on at 4:00 p.m. they
remained online waiting for the moderator to join the conference, as
instructed, but the moderator never joined the videoconference and they were
automatically logged off forty-five minutes later, at 4:45 p.m. The court’s
records indicate that the case management conference had already taken
place by the time they were directed to log on: two hours earlier, at 2:00 p.m.
that day. And it took place not in Department 302 but Department 301. The
basis for this apparent scheduling mistake is not in the record, apart from a
reference in the BlueJeans email they received stating that “DEPT 302
JACOBS has updated the information for your meeting.”5
Plaintiffs asserted they did not attend the next case management
conference, on August 11, because they never received any notice of it or any
BlueJeans invitation to attend it; and nothing in the record contradicts that
assertion.
5 Our confusion deepens further because, according to the register of
actions, the August 6 settlement conference had been scheduled to take place
at 1:00 p.m., not 2:00 p.m. or 4:00 p.m.
4
Finally, they asserted that they did not attend the August 18 case
management conference because they received the notice “the same day of
the hearing” at some unspecified time but never received an electronic
invitation to log into the hearing.
The court did not take any action on the plaintiffs’ written submissions
objecting to dismissal of the case, and this appeal, filed on
September 14, 2021, followed.
DISCUSSION
I.
Appellate Jurisdiction
Before turning to the merits, we must address our jurisdiction. The
trial court signed two written orders on the same date (August 18, 2021)
purporting to dismiss the plaintiffs’ lawsuit with prejudice, but neither order
bears a file stamp. Code of Civil Procedure section 581d states: “All
dismissals ordered by the court shall be in the form of a written order signed
by the court and filed in the action and those orders when so filed shall
constitute judgments and be effective for all purposes, and the clerk shall
note those judgments in the register of actions in the case.” (Italics added.)
Hence, a signed order dismissing a case is not a final judgment if the order is
not actually filed. (See Katzenstein v. Chabad of Poway (2015)
237 Cal.App.4th 759, 769 [even if unsigned minute order of dismissal that
issued electronically were deemed to have been signed by court electronically,
order is non-appealable because “there is no indication that the Order here
was electronically filed” (italics added)].) Were such a file-endorsed order
procured by the plaintiffs, we would be required to treat the premature
September 14, 2021 notice of appeal as having been filed immediately after
the dismissal order’s entry. (See Davaloo v. State Farm Ins. Co. (2005)
5
135 Cal.App.4th 409, 413, fn. 7; In re Marriage of Rothrock (2008)
159 Cal.App.4th 223, 229, fn. 4; Cal. Rules of Court, rule 8.104(d)(1).) But we
will not dismiss this appeal or direct the parties to procure a final judgment.
The plaintiffs discuss our power to issue writ relief to rectify the harm they
claim to have suffered, and we will exercise our discretion to treat this appeal
as a petition for writ of mandamus. (See Morehart v. County of Santa
Barbara (1994) 7 Cal.4th 725, 745-746.) With the appeal fully briefed6 and
no party urging its dismissal, no point would be served by dismissing it solely
to await the superior court clerk’s filing of the dismissal order and/or to direct
the parties to procure a file-stamped copy of the dismissal order. Treating
the appeal as a de facto writ petition avoids “ ‘ “ ‘unnecessarily dilatory and
circuitous’ ” ’ ” steps in the trial court. (Woody’s Group, Inc. v. City of
Newport Beach (2015) 233 Cal.App.4th 1012, 1020; see also, e.g., Coronado
Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006 [appeal
from nonappealable order treated as writ proceeding where the briefs and
record are sufficient for writ review, and dismissal for lack of appellate
jurisdiction “would not further judicial economy”]; Safaie v. Jacuzzi Whirlpool
Bath, Inc. (2011) 192 Cal.App.4th 1160, 1169 [similar]; Global Protein
Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 365; Fox Johns Lazar Pekin &
Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1217-1218.)
II.
The Court Erred in Declining to Set Aside the Dismissal.
Here, plaintiffs argue the court abused its discretion in ordering their
case dismissed and then taking no action on their subsequent filings, and
6As noted, the briefing consists of the appellant’s opening brief
because respondent has not filed a brief.
6
also violated their due process rights, because dismissal was not warranted
in light of the mistakes they brought to the court’s attention when they filed
objections to the dismissal. We agree.
To begin, terminating sanctions are disfavored. Although trial courts
have inherent authority to dismiss an action, “[t]rial courts should only
exercise this authority in extreme situations, such as when the conduct was
clear and deliberate, where no lesser alternatives would remedy the situation
[citation], the fault lies with the client and not the attorney [citation], and
when the court issues a directive that the party fails to obey.” (Del Junco v.
Hufnagel (2007) 150 Cal.App.4th 789, 800; see generally Lyons v. Wickhorst
(1986) 42 Cal.3d 911 [dismissing lawsuit with prejudice because party
refused to present any evidence in mandatory judicial arbitration exceeded
trial court’s authority]; Code Civ. Proc., § 583.150.) In this case, it is unclear
why lesser sanctions, such as monetary sanctions, would not have sufficed to
hold plaintiffs to account for failing to appear at the various hearings; indeed,
the court did impose monetary sanctions at the same time. Imposing the
sanction of dismissal on top of monetary sanctions was drastic, excessive, and
unnecessary.
The problematic nature of the dismissal is even more pronounced
because of the circumstances. Due process requires that a party be given
notice of potential sanctions “and an opportunity to be heard prior to their
imposition.” (Lee v. An (2008) 168 Cal.App.4th 558, 565-566 [addressing
terminating sanctions imposed for failing to appear at case management
conference]; see also Lyons v. Wickhorst, supra, 42 Cal.3d at pp. 917-918.)
The court’s failure to provide plaintiffs with electronic access to the
August 18 status conference at which terminating sanctions were imposed
7
deprived them of an opportunity to be heard. It was the technological
equivalent of literally closing the courtroom doors to them.
Finally, the relief plaintiffs sought after-the-fact, and the explanations
they gave, also falls squarely within the ambit of Code of Civil Procedure
section 473, a statute they partially quote in their appellate brief, albeit
supported by a somewhat inartful legal citation.7 Subdivision (b) states:
“The court may, upon any terms as may be just, relieve a party . . . from a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.”
The statute must be applied liberally, and “ ‘because the law strongly favors
trial and disposition on the merits, any doubts in applying section 473 must
be resolved in favor of the party seeking relief.’ ” (Grappo v. McMills (2017)
11 Cal.App.5th 996, 1005.) Further, although we review such rulings for
abuse of discretion, “ ‘a trial court order denying relief is scrutinized more
carefully than an order permitting trial on the merits.’ ” (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 980.)
Here, plaintiffs’ factual arguments are somewhat difficult to follow and
for the most part focus on their failure to appear at the August 6 mandatory
settlement conference, which was not the basis for the court’s dismissal. But
they allude to their confusion about the dates for the case management
conferences. And it is abundantly clear from the record that they told the
trial court they failed to appear at the various status conferences due to a
lack of actual notice (on August 11) and also an inability to appear, because
they were not sent electronic links to participate in any of the three
7 Their citation to section 473 is buried within an otherwise inscrutable
legal citation to “CCP. 307-1062-1062.20 473 Good Faith’ Settlement (Code
Civ. Proc. § 877.6(e)).”
8
conferences (on August 6, 11 and 18). Where clerical error deprives a party of
their day in court, it is an abuse of discretion to deny relief under section 473.
(See Rapplyea v. Campbell, supra, 8 Cal.4th at p. 980 [where default
judgment was entered against pro per defendants after their timely answer
was rejected for filing because clerk misadvised them of the filing fee, “[t]here
is little question we would have found an abuse of discretion if relief had been
denied within the six-month period governed by section 473”].) That is the
case here. Having been apprised of the factual mix-ups that led to the
plaintiffs’ confusion and inability to participate in the August 11 and
August 18 status conferences, the trial court should have vacated the
dismissal as requested and reinstated the case for trial. Nothing less was
consistent with our state’s policy of favoring the disposition of cases on their
merits. Indeed, the fact that none of the parties appeared at three
conferences in a row should have alerted the court to a notice or other
problem. Yet the court apparently did not look into whether there was a
potential notice problem, and then when the explanation was provided by
plaintiffs in their objections, it ignored the explanation even though
defendant’s failure to appear corroborated the plaintiffs’ account.
Lest similar mix-ups recur in the future, we end with an observation.
As was recently said in another case where, albeit in different circumstances,
the dismissal of a case at a status conference was reversed: “[R]eviewing
courts are ‘increasingly wary’ of using procedural shortcuts because they
‘circumvent procedural protections provided by the statutory motions or by
trial on the merits; they risk blindsiding the nonmoving party; and, in some
cases, they could infringe a litigant’s right to a jury trial.’ [Citation.] ‘The
purpose of the pretrial [proceeding] is to expedite the proceedings and to
facilitate the correct determination of the issues. The pretrial proceeding
9
should not become a trap for the unwary.’ ” (Dunlap v. Mayer (2021)
63 Cal.App.5th 419, 427.) The conduct of this case runs counter to those
principles.
DISPOSITION
Treating this appeal as a writ petition, let a peremptory writ of
mandate issue, directing the trial court to (1) vacate its orders dismissing this
case with prejudice, and (2) restore this case to the court’s case management
calendar for further proceedings.
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STEWART, Acting P.J.
We concur.
MILLER, J.
MAYFIELD, J. *
Sparrow v. Fremont Auto Sales, Inc. (A163536)
* Judge of the Mendocino Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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