Nuno v. Cal. State Univ., Bakersfield

Filed 4/13/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ANTHONY NUÑO,
F077889
Plaintiff and Appellant,
(Super. Ct. No. BCV-17-102507)
v.
CALIFORNIA STATE UNIVERSITY, OPINION
BAKERSFIELD, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
Law Office of Corey Evan Parker and Corey Evan Parker for Plaintiff and
Appellant.
Kronick, Moskovitz, Tiedemann & Girard and David W. Tyra for Defendants and
Respondents.
-ooOoo-
Plaintiff, a college professor who represented himself, sued his employer for
discrimination and retaliation in violation of the California Fair Employment and
Housing Act (FEHA; Gov. Code, § 12900 et seq.). The employer successfully demurred
to the initial complaint and plaintiff was granted leave to amend. When plaintiff failed to
file an amended complaint within the time given, employer submitted an ex parte
application for an order of dismissal with prejudice. The trial court granted the dismissal
with prejudice and subsequently entered a judgment in favor of employer. Plaintiff
appealed.
In Gamet v. Blanchard (2001) 91 Cal.App.4th 1276 (Gamet), the court set forth
the principle that self-represented litigants are not entitled to special exemptions from
California’s procedural rules, but they are “entitled to treatment equal to that of a
represented party.” (Id. at p. 1284.) To provide “fair and equal treatment,” courts should
“make sure that verbal instructions given in court and written notices are clear and
understandable by a layperson.” (Ibid.) Here, the trial court’s statements at a case
management conference about the filing of an amended complaint were not clear and
understandable. As a result, plaintiff was misled into believing he had until the next case
management conference to seek counsel and file an amended complaint and, relying on
this belief, he left the country to attend an educational conference. While plaintiff was
out of the country and a month before the date of the next case management conference,
defendants requested and obtained an ex parte order dismissing the action with prejudice
pursuant to Code of Civil Procedure section 581, subdivision (f)(2). 1 We conclude the
court prejudicially abused its discretion by (1) failing to provide clear and understandable
instructions to plaintiff that the setting of another case management conference did not
extend the deadline for filing an amended complaint and (2) dismissing plaintiff’s action
with prejudice prior to that conference.
As in Gamet, we reverse and remand for further proceedings.
1 All further statutory references are to the Code of Civil Procedure unless
designated otherwise.
2.
FACTS
In September 2002, plaintiff Anthony Nuno was hired by California State
University, Bakersfield (Employer) as an assistant professor. In September 2015,
plaintiff applied for a promotion to full professor.
In June 2016, Employer denied plaintiff’s request for a promotion. On October
28, 2016, plaintiff complained to Employer about harassment, retaliation, exclusion,
marginalization and homophobic actions in the workplace. On October 31, 2016,
plaintiff filed charges of retaliation, harassment and discrimination with the Fresno office
of the United States Equal Employment Opportunity Commission (EEOC).
Plaintiff alleges that on January 27, 2017, Employer’s Provost Jenny Zorn and
Vice Provost David Schecter retaliated against him by issuing a letter prohibiting him
from attending department meetings and from directly communicating by e-mail with
other professors in the department. Plaintiff alleges this action was taken against him for
reporting retaliation, harassment and discrimination in the workplace.
In July 2017, the EEOC issued a “Dismissal and Notice of Rights” to plaintiff.
The document stated the EEOC was closing its file on his charge because it “has adopted
the findings of the state or local fair employment practices agency that investigated this
charge.” The document contains no information about the other agency’s investigation or
the substance of the EEOC’s adopted findings. The document also stated it was the only
notice of plaintiff’s right to sue that the EEOC would send him and informed plaintiff
that any lawsuit based on the charge must be filed within 90 days of his receipt of the
notice.
PROCEEDINGS
In October 2017, plaintiff, representing himself, filed a complaint alleging
Employer and defendant David Schecter 2 violated FEHA by denying plaintiff a
2 Hereafter, “Employer” refers to both defendants—the University and Schecter.
3.
promotion to full professor. Among other things, plaintiff alleged he was qualified for
the position of full professor but was not promoted because he is Mexican-American and
gay, which constituted unlawful discrimination based on race and sexual orientation in
violation of FEHA.
In February 2018, Employer filed a demurrer and supporting papers. Plaintiff did
not file an opposition.
On March 27, 2018, the trial court held a hearing on the demurrer at which
plaintiff and defense counsel were present. Plaintiff stated he did not file an opposition
because he had been in communication with attorneys and, by the time they informed
him they would not take the case, the deadline had passed. The court then stated it was
going to sustain the demurrer for failing to allege facts sufficient to state a cause of action
and for being uncertain, vague, ambiguous and unintelligible. Defense counsel
confirmed the court was granting leave to amend and stated: “We’ll simply wait to see
what [plaintiff] has for us in his amended complaint and respond accordingly.” The court
asked plaintiff if he understood what the court’s concerns were. Plaintiff said: “I’m
sorry, Your Honor. I don’t. What I do have is an extension—or request a motion to—a
motion for extension to seek legal counsel and extend plaintiff’s deadline to file the
opposition to the demurrer and any other motion as of today.” The court stated it would
deny the motion as untimely and “I’m going to give you 20 days to file an amended
complaint.” The court directed defense counsel to prepare an order. The minute order
for the hearing stated the next hearing was a case management conference scheduled for
April 23, 2018.
On April 3, 2018, defense counsel submitted to the trial court a proposed order
along with plaintiff’s objections to the order. Plaintiff’s document stated he objected “to
the Court’s ruling of sustaining the demurrer as the plaintiff will be filing an amended
complaint to support charges of retaliation, harassment, defamation of character,
discrimination and homophobia in the workplace.”
4.
On April 5, 2018, plaintiff filed a request for extension to amend complaint and
seek and retain legal counsel. The document stated: “Plaintiff requests additional 60
days and replace the original 20 day extension on the date of hearing (March 27, 2018).”
Plaintiff also submitted a proposed order. Four days later, the trial court crossed out the
portion of the proposed order granting the 60-day extension, stamped the order
“DENIED,” and filed it.
On April 12, 2018, the trial court signed and filed the order sustaining the
demurrer on the grounds that (1) the complaint failed to allege facts sufficient to state a
cause of action against Employer and (2) the complaint was uncertain, vague and
ambiguous. The order gave plaintiff 20 days leave to amend his complaint. The order
was not immediately served on plaintiff.
On April 23, 2018, the trial court held a case management conference. The court
asked plaintiff the status on getting an amended complaint filed. Plaintiff (1) referred to
the denial of his request for an extension to seek and retain counsel, (2) stated he had
been in contact with defense counsel to submit to the court a recommendation of
management of the case, but his recommendation was not accepted by defense counsel,
and (3) stated he intended to submit his case management statement if the court permitted
it. The court, returning to its question, again asked plaintiff the status of getting an
amended complaint. Plaintiff said: “Your Honor, in seeking counsel, I’m in the process
of doing that.”
Next, the court asked defense counsel if she had anything to add. Counsel
acknowledged no amended complaint had been received and stated: “We’re wondering if
we should either push this statement [sic] conference out or if we should move to dismiss.
We’re just wondering what the Court would prefer to do in terms of waiting for the
amended complaint.” The court replied: “My plan today is to push out the case
management conference. I’m looking at maybe 45 days out, to June 6th, if that[] works
on everybody’s calendar.” Plaintiff stated he was going to be at a conference out of the
5.
country and asked “if the Court could provide for three more weeks after that.” The
parties agreed on June 27th and the court stated: “So we’ll continue this out to June 27th,
2018. That will be at 8:15 a.m. back here in Department 10.”
Defense counsel then asked: “When should we expect an amended complaint at
this point?” The court stated: “I asked twice and I didn’t get an answer, so I’m not sure.
I’ll let—[Defense counsel] you do what you need to do in case the amended complaint is
not filed. [¶] Mr. Nuno, the responsibility is on you to get that filed.” Plaintiff
responded: “Yes, Your Honor. I’m trying.”
Also, on April 23, 2018, Employer filed a notice of entry of order after hearing on
defendants’ demurrer, which stated the written order had been filed on April 12, 2018,
and attached a copy of the order. The notice of entry was served by mail. Employer
contends the service of the order started the 20-day period in which plaintiff was to file
an amended complaint and, because service was by mail, that period was extended by
five days. As a result, Employer calculates the deadline for filing plaintiff’s amended
complaint as May 18, 2018.
On May 20, 2018, plaintiff completed a case management statement on mandatory
Judicial Council form CM-110 for the June 27, 2018 case management conference, which
was filed on May 23, 2018. In item 6.c. of the form, plaintiff wrote: “As stated on April
23, 2018 at the last Settlement Conference, I am not available between May 20, 2018 and
June 6, 2018 as I will be attending an Educational Conference out of the Country.”
Plaintiff’s statement was filed with the court on May 23, 2018. We infer from this
statement that plaintiff left the country on May 20, 2018, and would be returning June 6,
2018.
On May 22, 2018, at 4:37 p.m., defense counsel sent an e-mail to plaintiff’s
personal e-mail addresses stating his intent to make an ex parte application for an order
dismissing plaintiff’s complaint with prejudice. The notice stated the application would
be made on May 25, 2018, at 8:30 a.m. in Department 10.
6.
On May 23, 2018, Employer filed an ex parte application for order to dismiss
plaintiff’s complaint with prejudice. The application was supported by a memorandum
of points and authorities and a declaration of defense counsel. Counsel’s declaration
stated that, as of the filing of the ex parte application, he had not heard back from
plaintiff. As described in defense counsel’s e-mail, the ex parte application was
scheduled to be heard on May 25, 2018 at 8:30 a.m.
On May 25, 2018, the hearing on the ex parte application was held. Plaintiff’s
partner attended the hearing to state plaintiff was unavailable because, in accordance with
earlier statements made to the court, plaintiff was out of the country. The court stated
that because it had granted the demurrer and no amended complaint had been filed, it
would grant the application. The minute order reflects that the case was dismissed with
prejudice, an order was submitted for review and signature, and the case management
conference set for June 27, 2018, was vacated. The court signed and filed the order
stating it “hereby GRANTS the Order to Dismiss Plaintiff’s Complaint with Prejudice.”
On May 31, 2018, a notice of entry of order to dismiss was filed with the court and
served on plaintiff.
On June 7, 2018, the court entered a judgment “in favor of Defendants and against
Plaintiff.” Later that month, plaintiff filed a notice of appeal challenging the judgment
and the underlying order dismissing the action with prejudice.
In August 2018, plaintiff filed a substitution of attorney with this court, which
ended his representation of himself and substituted in an attorney. Plaintiff’s subsequent
filings in this appeal, including the briefs, have been submitted by counsel.
7.
DISCUSSION
I. DISCRETIONARY DISMISSALS
A. Basic Principles
1. Statutory Text
Section 581, subdivision (f) states: “The court may dismiss the complaint as to
that defendant when: [¶] … [¶] (2) Except where Section 597 applies, after a demurrer to
the complaint is sustained with leave to amend, the plaintiff fails to amend it within the
time allowed by the court and either party moves for dismissal.” Section 597 addresses
the handling of certain special defenses and that exception does not apply in this case.
2. Abuse of Discretion
The statutory phrase “may dismiss” unambiguously grants discretionary authority
to trial courts. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329; see In re Marriage of
Hokanson (1998) 68 Cal.App.4th 987, 993 [well-established rule of statutory
construction states “may” connotes discretionary action].) The parties agree that
dismissals under subdivision (f)(2) of section 581 are discretionary and further agree that
the appropriate standard of appellate review is the abuse of discretion standard. These
points of agreement are based on a correct interpretation of the law. 3 Consequently, we
apply the abuse of discretion standard to the trial court’s order dismissing the action.
“The abuse of discretion standard affords considerable deference to the trial court,
provided that the court acted in accordance with the governing rules of law.” (New
3 In contrast, we disapprove of the statement—quoted by Employer—that section
581, “subdivision (f)(2) gives the defendant the right to obtain a court order dismissing
the action .…” (Parsons v. Umansky (1994) 28 Cal.App.4th 867, 870, italics added.)
Dismissal is committed to the trial court’s discretion and, therefore, is not obtained as a
matter of right. (Cf. Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 468 [“neither the
California Constitution nor Penal Code section 2601, subdivision (d) have been
interpreted to require the appointment of counsel for indigent plaintiff litigants as a
matter of right;” instead, appointment of counsel is committed to trial court’s discretion].)
8.
Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422 (Albertsons).)
“An abuse of discretion occurs if, in light of the applicable law and considering all of the
relevant circumstances, the court’s decision exceeds the bounds of reason and results in a
miscarriage of justice.” (Ibid.)
B. Contentions of the Parties
1. Plaintiff’s Contentions
Plaintiff contends the trial court abused its discretion when it granted Employer’s
ex parte application for an order dismissing his complaint with prejudice. Plaintiff asserts
(1) he was actively seeking counsel to represent him; (2) he informed the court of his
search for counsel; (3) the complaint could have been amended to clarify the allegations
and set forth facts sufficient to state a cause of action; (4) there was no adjudication of the
merits of his claims; (5) he advised the court and opposing party that he was going to be
out of the country at a conference; and (6) in response to his statements of unavailability,
the court set the next case management conference for June 27, 2018, rather than June 6,
2018. Plaintiff also refers to the contents of the court’s minute order from the April 23,
2018 hearing, which stated:
“The Court orders as follows:
“Cause continued to 06/27/18 at 8:15 a.m. in Department 10
“Reason for next appearance: Plaintiff to file amended complaint and to
seek legal advice.”
Based on the foregoing circumstances, plaintiff asserts the issue presented on
appeal is “whether the court abused [its] discretion in granting an ex parte application to
dismiss against an in pro per party who was out of the country and who had been told
prior to leaving the country that the matter would be continued until his return and that he
had until that time ‘to file amended complaint and seek legal advice.’” (Fn. omitted.)
The footnote omitted from this quote acknowledges that self-represented parties are not
9.
afforded extraordinary lenience, but asserts plaintiff’s self-represented status is relevant
“because the court and opposing counsel knew he would be out of the country and the
court advised it would accommodate his schedule.”
2. Employer’s Contentions
Employer argues the trial court did not act so arbitrarily and beyond the bounds of
reason that its discretionary dismissal should be disturbed by this court. Employer asserts
the trial court’s March 2018 ruling on the demurrer gave plaintiff 20 days to amend his
complaint and, “on April 23, 2018, as [plaintiff] had still not filed an amended complaint
and claimed that he was still trying to obtain counsel, the trial court continued its Case
Management Conference and granted Appellant additional time to amend his complaint.
[Citation.] Despite the May 18, 2018 deadline, [plaintiff] still failed to file an amended
complaint. [Citation.] As a result, Respondents were well within their rights to file an ex
parte application to dismiss [plaintiff’s] complaint with prejudice pursuant to Code of
Civil Procedure section 581(f)(2) and California Rules of Court, rule 3.120(h) [sic] and
the trial court acted well within its statutory discretion by granting the application.” 4
Employer contends plaintiff failed to demonstrate he was actively seeking counsel
or taking any affirmative steps to correct the deficiencies in this complaint. Employer
contends that, instead, plaintiff acknowledged that he was out of the country when the
action was dismissed, which demonstrates “he was not actively taking steps at the time
his action was dismissed to secure counsel and correct the deficiencies in his complaint.”
4 California Rules of Court, rule 3.1320(h) provides: “A motion to dismiss the
entire action and for entry of judgment after expiration of the time to amend following
the sustaining of a demurrer may be made by ex parte application to the court under Code
of Civil Procedure section 581(f)(2).” California Rules of Court, rules 3.1200 through
3.1207 govern ex parte applications. Subsequent references to a numbered “Rule” are to
the California Rules of Court.
10.
C. Communicating with Self-Represented Litigants
The question of whether a trial court abused its discretion in dismissing a
plaintiff’s action requires the appellate court to consider all of the relevant circumstances
in light of the applicable law. (Albertsons, supra, 168 Cal.App.4th at p. 1422.) Here, one
of the relevant circumstances is that plaintiff was representing himself. Accordingly, we
examine some of the legal principles that apply to a trial court’s handling of a case
involving a self-represented litigant. The legal principles balance the sometime
conflicting public interests in (1) a judiciary that acts with independence, integrity and
impartiality and (2) a judicial system that provides citizens with meaningful access to
justice.
1. A Judge’s Responsibilities
The first three canons of the California Code of Judicial Ethics state that a judge
shall (1) “uphold the integrity and independence of the judiciary;” (2) “avoid impropriety
and the appearance of impropriety” in all activities; and (3) “perform the duties of
judicial office impartially, competently, and diligently.” Impartiality means the absence
of bias or prejudice in favor of, or against, particular parties or classes of parties and the
maintenance of an open mind in considering the issues presented.
Restated in general terms, the Code of Judicial Ethics “requires judges to treat all
litigants fairly.” (Rothman, et al., California Judicial Conduct Handbook (4th ed. 2017)
§ 2:28, p. 96 (Handbook).) The responsibility of treating litigants fairly is explained in
Canon 3(B)(8) of the Code of Judicial Ethics, which provides in full: “A judge shall
dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the
courtroom in a manner that provides all litigants the opportunity to have their matters
fairly adjudicated in accordance with the law.” The advisory comment to this provision
recognizes that promptness and efficiency sometimes conflicts with fairness, stating:
“The obligation of a judge to dispose of matters promptly and efficiently must not take
precedence over the judge’s obligation to dispose of the matters fairly and with patience.
11.
For example, when a litigant is self-represented, a judge has the discretion to take
reasonable steps, appropriate under the circumstances and consistent with the law and the
canons, to enable the litigant to be heard.” (Cal. Code Jud. Ethics, Advisory Com.
commentary foll. Cannon 3(B)(8).)
This appeal, which addresses whether discretion was abused, requires us to
examine the discretion associated with the requirement that all litigants be treated fairly.
In accordance with the commentary to Canon 3(B)(8) of the Code of Judicial Ethics, we
conclude this discretion includes “the discretion to take reasonable steps, appropriate
under the circumstances and consistent with the law and the canons, to enable the [self-
represented] litigant to be heard.” This particular discretionary authority informs our
analysis of whether the trial court abused its discretion when it dismissed plaintiff’s
action pursuant to subdivision (f)(2) of section 581.
2. Access to Justice: General Principles
Access to justice is a broad concept that provides the foundation for a discussion
of what constitutes “fair” treatment of a civil litigant. “Access to justice is a fundamental
and essential right in a democratic society. It is the responsibility of government to
ensure that all people enjoy this right.” 5 The United States Supreme Court has “grounded
the right of access to courts in the Article IV Privileges and Immunities Clause
[citations], the First Amendment Petition Clause [citations], the Fifth Amendment Due
Process Clause [citations], and the Fourteenth Amendment Equal Protection [citation]
and Due Process Clauses [citations].” (Christopher v. Harbury (2002) 536 U.S. 403,
415, fn. 12.) At the state level, the right of access to courts arises from the right to
“petition the government for redress of grievances” contained in article I, section 3,
subdivision (a) of the California Constitution. (Jersey v. John Muir Medical Center
5 California Commission on Access to Justice, The Path To Equal Justice: A Five–
Year Status Report on Access to Justice in California (October 2002) Finding A, page 36.
12.
(2002) 97 Cal.App.4th 814, 821.) Thus, access to courts is “a right guaranteed to all
persons by the federal and state Constitutions.” (Jersey, supra, at p. 821.) Recognizing
the fundamental nature of the right, the California Rules of Court state: “Providing
access to justice for self-represented litigants is a priority for California courts.” (Rule
10.960(b) [effective Jan. 1, 2008].)
California decisional law has generated many principles in response to the
question of what judges should do to treat self-represented litigants fairly while
maintaining their impartiality. For example, judges are not required to act as counsel for
a self-represented party. (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1008.) Indeed,
judges must not assume the role of advocate for any litigant. (Handbook, supra, § 2:20,
pp. 87–88.) Thus, as a general principle, a self-represented litigant who is not indigent
“must expect and receive the same treatment as if represented by an attorney—no
different, no better, no worse.” (Taylor, supra, at p. 1009.) This principle was restated
by our Supreme Court: “[W]e make clear that mere self-representation is not a ground
for exceptionally lenient treatment. Except when a particular rule provides otherwise, the
rules of civil procedure must apply equally to parties represented by counsel and those
who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–
985.) 6
3. Equal Treatment in Communicating with Litigants
The foregoing general principles regarding the treatment of self-represented
litigants establish the context for the specific principles that address proper
6 We note the court used “exceptionally” rather that “any” to modify “lenient
treatment.” Further, the principle that litigants are to be treated “equally” does not end
the inquiry. Where the litigants are not alike, further questions are raised about what
constitutes “equal” treatment of the dissimilar litigants in a given situation. (Cf. Westen,
The Empty Idea of Equality (1982) 95 Harv. L.Rev. 537 with Chemerinsky, In Defense of
Equality: A Reply to Professor Westen (1983) 81 Mich. L.Rev. 575; D’Amato, Is
Equality a Totally Empty Idea? (1983) 81 Mich. L.Rev. 600; Greenawalt, How Empty is
the Idea of Equality? (1983) 83 Colum. L.Rev. 1167.)
13.
communication with self-represented litigants. The Handbook sets forth these specific
principles as follows:
“Duty to ensure clear and understandable communications concerning
proceedings. The lack of knowledge of the legal system by self-represented
persons makes it necessary for judges to ensure clear and understandable
communications, including, among other things, that: (1) the self-
represented litigant is not misled by the court, court staff, or opposing
counsel in communication that takes place before the court and (2) verbal
instructions, orders, and notices given by the court and staff to
unrepresented parties are in clear and understandable language for lay
persons, avoiding, when possible, legal jargon.” (Handbook, supra, § 2:28,
p. 99.)
The authors derived these principles from Gamet, a case in which the Fourth
District characterized the dismissal of the self-represented litigant’s action as a manifest
miscarriage of justice and concluded the denial of the plaintiff’s motion to vacate that
judgment was an abuse of discretion. (Gamet, supra, 91 Cal.App.4th at p. 1285.)
Consequently, the court reversed the denial of the plaintiff’s motion to set aside the
dismissal of her action. (Id. at p. 1287.)
In Gamet, the court acknowledged self-represented litigants are not entitled to
special exemptions from procedural rules and stated “[t]hey are, however, entitled to
treatment equal to that of a represented party.” (Gamet, supra, 91 Cal.App.4th at p.
1284.) The court explained what equal treatment entailed by stating:
“Trial judges must acknowledge that [pro per] litigants often do not have an
attorney’s level of knowledge about the legal system and are more prone to
misunderstanding the court’s requirements. When all parties are
represented, the judge can depend on the adversary system to keep
everyone on the straight and narrow. When one party is represented and
the other is not, the lawyer, in his or her own client’s interests, does not
wish to educate the [pro per]. The judge should monitor to ensure the [pro
per] is not inadvertently misled, either by the represented party or by the
court. While attorneys and judges commonly speak (and often write) in
legal shorthand, when [a pro per] is involved, special care should be used to
make sure that verbal instructions given in court and written notices are
clear and understandable by a layperson. This is the essence of equal and
14.
fair treatment, and it is not only important to serve the ends of justice, but
to maintain public confidence in the judicial system.” (Ibid.)
The court further stated that a judge should “make sure any communication from
the court is clear and understandable, and does not require translation into normal-speak.”
(Gamet, supra, 91 Cal.App.4th at p. 1285.) The court recognized self-represented
litigants may be prone to misunderstanding court requirements and orders and, as a result,
the careless use of legal shorthand or jargon may have the effect of misleading a self-
represented litigant. (Ibid.) In Gamet, the plaintiff received information from the trial
court that was “plainly inaccurate” and the confusing nature of the various orders and
communications the plaintiff received had the effect of misleading the plaintiff. (Id. at
pp. 1283–1285.)
4. Application of Principles Governing Communications
In this case, we consider whether the court adhered to the principles governing
communication with self-represented litigants—that is, whether “the court acted in
accordance with the governing rules of law.” (Albertsons, supra, 168 Cal.App.4th at p.
1422.) If the court abused its discretion by failing to adhere to these principles, we
further consider whether a miscarriage of justice occurred—that is, whether the abuse of
discretion was prejudicial. (See Gamet, supra, 91 Cal.App.4th at p. 1285 [manifest
miscarriage of justice].)
As explained below, we conclude the trial court’s communications with plaintiff at
the April 23, 2018 case management conference were not clear and understandable as to
plaintiff’s deadline for filing an amended complaint. The failure to clearly address the
timing issue misled plaintiff and was a substantial factor in causing the dismissal of his
action. Consequently, the trial court prejudicially abused its discretion in dismissing the
action and entering judgment in favor of Employer.
During the April 23, 2018 case management conference, the trial court twice asked
plaintiff about the status of an amended complaint. In response to the second inquiry,
15.
plaintiff said: “Your Honor, in seeking counsel, I’m in the process of doing that.” The
court then asked defense counsel if she had anything to add and was told: “We’re
wondering if we should either push this statement [sic] conference out or if we should
move to dismiss. We’re just wondering what the Court would prefer to do in terms of
waiting for the amended complaint.” The court replied: “My plan today is to push out
the case management conference. I’m looking at maybe 45 days out, to June 6th, if that[]
works on everybody’s calendar.” Plaintiff stated he was going to be at a conference out
of the country and asked “if the Court could provide for three more weeks after that.”
The parties agreed on June 27th and the court stated: “So we’ll continue this out to June
27th, 2018. That will be at 8:15 a.m. back here in Department 10.”
We consider whether the court’s discussion with the parties misled plaintiff into
thinking that the time for him to file an amended complaint had been pushed out to the
date of the next case management conference. In that discussion, neither the court nor
defense counsel explicitly identified when the deadline was, how it would be calculated,
or what effect, if any, the setting of the date for the case management conference had on
the deadline. The alternate courses of action identified by defense counsel were (1) push
the management conference out or (2) move to dismiss. The court’s response stated its
“plan today is to push the case management conference.” The meaning of this exchange
is far from clear. A layperson could reasonably interpret the court’s response to mean the
court had rejected the alternative of a motion to dismiss and, instead, intended the
deadline for filing an amended complaint to be the date set for the next conference, June
27, 2018.
Furthermore, the discussion after this exchange did not clarify the timeframe in
which the amended complaint had to be filed. Defense counsel asked: “When should we
expect an amended complaint at this point?” This question suggests the deadline is
uncertain. It leaves open the possibility that the amended complaint was due before the
next conference, was due on the day of the next conference, or the deadline would be
16.
reassessed at the next conference if the complaint had not been filed by then. The
ambiguity was not clarified by the court when it stated: “I asked twice and I didn’t get an
answer, so I’m not sure.” 7 This statement leaves open the same three possibilities as
defense counsel’s question. The court then stated: “I’ll let—[Defense counsel,] you do
what you need to do in case the amended complaint is not filed. [¶] Mr. Nuno, the
responsibility is on you to get that filed.” This message to defense counsel, while plain
enough to an experienced attorney, is not clear and understandable to a layperson and the
court did not translate its meaning “into normal-speak.” (Gamet, supra, 91 Cal.App.4th
at p. 1285.) Instead, the court remained silent on the subject of the deadline for filing the
amended complaint. The uncertainty about the deadline could have clarified matters by
the court simply adding the prepositional phrase “by May 18, 2018” to its statement that
“the responsibility is on you to get that filed.” A more expansive clarification about the
deadline and the consequences associated with it could have been provided by stating:
“Based on the service of notice of entry of the order on the demurrer, the amended
complaint must be filed by May 18, 2018, and, if that deadline is missed, defendants can
move to dismiss for failure to amend within the time granted.” Instead, the deadline was
not stated in clear, understandable language and plaintiff was left believing the lawsuit
would continue to go forward at least until the June 27, 2018, case management
conference.
The ambiguity of the oral discussion was not clarified by the minute order
prepared after the case management conference. It stated “[c]ause continued to 6/27/18
at 8:15 a.m. in Department 10” and also stated the reason for the next appearance was
“Plaintiff to file amended complaint and to seek legal advice.” This language does not
7 The obvious implication of plaintiff’s response that he was trying to retain counsel
is that he could not predict when that would happen and, furthermore, could not predict
how long it would take the, yet to be identified, lawyer to draft and file an amended
complaint.
17.
inform a layperson (1) that there was a deadline for filing the amended complaint that
would expire before the case management conference or (2) of the possibility the lawsuit
would be dismissed if the deadline was not met.
In summary, the statements made by the court at the case management conference
lulled plaintiff into a false sense of security about the deadline for filing the complaint.
Having failed to provide oral instructions that were clear and understandable by a
layperson in accordance with the principles set forth in Gamet, the trial court abused its
discretion when it subsequently dismissed the action with prejudice while the self-
represented plaintiff was out of the country attending an education conference.
DISPOSITION
The judgment is reversed. The trial court is directed to vacate its order dismissing
the action with prejudice and to enter a new order denying the application for an order of
dismissal and granting plaintiff leave to file an amended complaint within 14 calendar
days of the order. Plaintiff shall recover his costs on appeal.
FRANSON, J.
WE CONCUR:
LEVY, ACTING P.J.
PEÑA, J.
18.