Filed 6/18/20 Moussavian v. Pine Terrace Apartments CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MICHAEL MOUSSAVIAN,

Plaintiff and Appellant,

v.

PINE TERRACE APARTMENTS et al.,

Defendants and Respondents.

D075161

(Super. Ct. No. 37-2017-00001955- CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Katherine Bacal, Judge. Reversed.

Law Office of Elliott Kanter, Elliot Kanter and Michelle Truong for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Michael Moussavian sued Pine Terrace Apartments and Strat Property Management Inc. for damages on January 17, 2017. Less than two years later, on March 9, 2018, the trial court dismissed Moussavian’s lawsuit without prejudice on the grounds that his attorney failed to file a proof of service of the summons and complaint and to appear at hearings. Moussavian’s counsel, Elliott Kanter, asked the court to set aside the dismissal under Code of Civil Procedure section 473, asserting excusable neglect and mistake. The court denied the motion, noting that Kanter failed to appear at hearings.

Moussavian appeals and contends: (1) the trial court had no authority to dismiss the case less than two years after filing, and (2) the court abused its discretion when it dismissed based solely on counsel error. We agree, and we will reverse.

I.

BACKGROUND AND PROCEDURAL HISTORY

On January 17, 2017, Moussavian filed a civil suit against Pine Terrace Apartments and Strat Property Management Inc. for negligence and premises liability. Moussavian was sentenced to four years in custody in an unrelated criminal case on December 6, 2017. During his incarceration Moussavian was transferred multiple times to different facilities. Moussavian’s frequent, unexpected transfers within the prison system made it difficult for Kanter to contact him, despite many efforts via phone and letters.

On August 11, 2017, the trial court held a civil case management conference. Kanter did not appear at this conference due to a scheduling error; nor did he file a case management statement or a proof of service, as required by the Rules of Court.

As a result, the court set another hearing for December 15, 2017, demanding Kanter show cause as to why sanctions should not be imposed for failure to file a proof of service. Kanter did not appear at the December 15 hearing. The court then ordered sanctions against Kanter in the amount of $250.00, continued the case management conference, and issued an order to show cause as to why the case should not be dismissed.

At the continued hearing on February 9, 2018, Kanter appeared and informed the trial court of the difficulties representing and communicating with Moussavian due to incarceration. The court set a hearing for March 9, 2018 to address two issues: (1) Kanter’s motion to withdraw as counsel, and (2) the order to show cause as to why the case should not be dismissed. As to the request to withdraw as counsel, Kanter failed to file moving papers, resulting in the court taking that issue off calendar. After the court issued Kanter notice vacating this issue, Kanter filed a request to dismiss the case without prejudice on March 6, 2018. However, he neglected to file the appropriate paperwork, so the court did not enter the dismissal.

The issue regarding the order to show cause as to why the case should not be dismissed remained on calendar, scheduled for hearing on March 9, 2018. Kanter did not appear at this hearing, so the court dismissed the matter without prejudice on the same date. The court cited Kanter’s continuous failure to appear at court hearings and lack of compliance with the rules of court as its basis for dismissal.

On August 31, 2018, Kanter electronically filed a Notice of Motion and Motion to Set Aside Dismissal and made a reservation for an ex parte request with a hearing date of September 5, 2018. He did not file the required ex parte paperwork with the court. To the extent counsel was relying on his motion papers, he did not provide the court with a courtesy copy of the electronically filed document as required by local e-filing rules; nor did he inform the court he filed such a motion. In response, the court took the ex parte off calendar.

Kanter then scheduled another ex parte for September 12, 2018. In his supporting declaration, Kanter acknowledged that he had filed paperwork to dismiss the case without prejudice. The court also took this ex parte hearing off calendar because Kanter again failed to provide the court with courtesy copies of the e-filed documents and did not pay the required ex parte fee.

Kanter reserved a third ex parte hearing date, finally heard on September 18, 2018. He sought to set aside the court’s March 9, 2018 dismissal under section 473, subdivision (b) on the ground of excusable neglect and mistake. The court denied the request. It held that the dismissal was not due to Kanter’s excusable inadvertence, neglect, or surprise, but was because Kanter failed to appear at hearings.

Moussavian’s counsel filed timely notice of appeal.

II.

DISCUSSION

The trial court dismissed Moussavian’s cause of action on March 9, 2018, without prejudice because his counsel missed hearings and failed to comply with the rules of court. Moussavian contends this dismissal was an abuse of discretion. We agree.

A. Standard of Review

Trial courts have great discretion in the management of cases. ” ‘ “On appeal, the trial court’s decision will not be reversed unless the appellant demonstrates that the lower court abused its discretion.” ‘ ” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 903.) That discretion, however, is ” ‘ “a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ‘ ” (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.) The scope of discretion lies within the ” ‘ “legal principles governing the subject of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’ ” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773; Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

B. The Trial Court Had No Authority to Dismiss the Case Less Than Two Years After Filing

Section 583.420 prohibits a court from dismissing an action for delay in prosecution unless one of several statutory conditions not applicable here is met. The purpose of the statute governing dismissal for failure to prosecute is to prevent avoidable delay. (General Motors Corp. v. Superior Court of Los Angeles County (1966) 65 Cal.2d 88, 98.) The trial court’s discretion is “tightly circumscribed” because policy favors a decision on the merits rather than on procedural grounds. (Lyons v. Wickhorst (1986) 42 Cal.3d 911, 916 (Lyons).) The statute permitting dismissal if a case is not brought to trial within two years “appears to represent a legislative determination that at least in the typical case a delay of two years is to be deemed unavoidable.” (General Motors, at p. 98.) Thus, a trial court does not have discretion to dismiss the case if it has not been more than two years. (Id. at p. 98; Lyons, at p. 915; Cohen v. Hughes Markets (1995) 36 Cal.App.4th 1693, 1698.)

The trial court abused its discretion when it dismissed Moussavian’s case on the basis that “attorney Kanter failed to appear at hearings” because the court did not have authority to do so. (§ 583.420.) There is nothing in the record to suggest that any of the conditions for dismissal addressed in section 583.420 applied to Moussavian’s counsel. Given the tightly circumscribed nature of the trial court’s discretion, dismissal of Moussavian’s case before the two-year mark was not appropriate. (Lyons, supra, 42 Cal.3d at p. 916.)

Additionally, the trial court’s reason for dismissing the matter runs contrary to the legislative purpose of section 583.420, which is to favor a decision on the merits rather than procedural grounds. (Lyons, supra, 42 Cal.3d at p. 916.)

C. The Court Abused Its Discretion When It Dismissed Based Solely on Counsel Error

Section 575.2, subdivision (a) sets forth exceptions to the general rule against dismissing an action for failure to prosecute within two years. However, trial courts are only authorized to exercise this authority in extreme situations, such as when the defendant clearly and deliberately disrupts the court proceedings and no lesser alternatives would remedy the situation (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 799 (Del Junco), citing Lyons, supra, 42 Cal.3d at p. 917), and the fault lies with the client and not the attorney (cf. Garcia v. McCutchen (1997) 16 Cal.4th 469 (McCutchen)). Section 575.2, subdivision (a) also allows the court to impose other penalties of a lesser nature when a party fails to comply with the court’s local rules. “It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.” (§ 575.2, subd. (b); see McCutchen, at p. 476.)

Moussavian contends that his behavior did not rise to the level of clear and deliberate conduct necessary to warrant a dismissal under section 575.2, subdivision (a). He distinguishes his behavior from that of the defendant’s in Del Junco. In Del Junco, the defendant filed documents in propria persona improperly, did not pay sanctions, and made misrepresentations to the court among many other offenses. (Del Junco, supra, 150 Cal.App.4th at p. 800.) The defendant also failed to comply with an injunction issued by the court, continuing to operate a counterfeit website that was the subject of the litigation. (Ibid.) When the defendant obtained counsel, her counsel did not respond to interrogatories or return phone calls. (Ibid.) The trial court struck the defendant’s answer and entered a default judgement, explaining the defendant’s actions were so outrageous that no lesser alternatives would suffice. (Id. at pp. 799-800.)

On appeal, the court explained that the defendant and her counsel shared responsibility for the clear and deliberate behavior that violated the trial court’s directives. (Del Junco, supra, 150 Cal.App.4th at p. 800.) The appellate court explained defense counsel’s actions, “were part and parcel of [defendant’s] strategy of delaying and throwing darts at others, rather than taking responsibility for her own actions.” (Ibid.) In affirming the default judgement, the appellate court found the actions of the defendant and her counsel were willful and deliberate, caused unnecessary delay, and wasted the trial court’s resources; they were obstructionist. (Ibid.)

Moussavian draws a distinction between his conduct and that of the defendant in Del Junco. (Del Junco, supra, 150 Cal.App.4th at p. 799.) Moussavian contends he “never acted in a clear and deliberate manner in violation of any court order or any rules.” Moussavian was incarcerated and could barely stay in contact with his counsel. This, coupled with the lack of evidence in the record showing disruptive behavior on Moussavian’s part, demonstrates that his conduct could not be classified as obstructionist. The circumstances surrounding Moussavian’s dismissal do not fall within section 575.2, subdivision (a) because Moussavian did not hinder the progression of his case in a willful or deliberate manner.

The trial court issued sanctions against Kanter, payable to the court, but the record is silent as to the court’s contemplation of other measures less drastic than dismissing Moussavian’s case altogether. Section 575.2, subdivision (a) allows the court to impose lesser penalties on a party when he fails to comply with local rules. Moussavian contends the court could have stayed the case pending his release from prison. Pursuant to section 575.2, subdivision (a), it was within the court’s authority to impose this lesser penalty. Staying the case would have avoided some of the court’s understandable frustration surrounding Moussavian’s representation, but the court did not contemplate this measure. Dismissal is only appropriate where no lesser alternatives would remedy the situation. (Del Junco, supra, 150 Cal.App.4th at p. 799.)

Additionally, when the defendant is merely a bystander to the missteps of his counsel, section 575.2, subdivision (b) provides that the penalties imposed on counsel “shall not adversely affect the party’s cause of action or defense thereto.” (§ 575.2, subd. (b).) Applying this rule in McCutchen, the appellate court held that trial courts do not have power to dismiss an action for noncompliance with local rules when noncompliance is the responsibility of counsel and not of the litigant. (McCutchen, supra, 16 Cal.4th 469 at p. 471.) There, plaintiff’s counsel failed to comply with local court rules governing proof of service, filing the issue memorandum and case management declaration, and counsel failed to appear at status hearings and at a hearing on motion to dismiss. (Id. at pp. 471-472.)

Kanter and defense counsel in McCutchen demonstrated lack of compliance with the local rules in a similar manner. Kanter failed to file a proof of service with the court, submit proper moving papers, comply with local e-filing rules, and pay the requisite court fees. The trial court abused its discretion when it based the dismissal on Kanter’s failure to appear at hearings and file court documents. Mistakes made by counsel should not be imputed to the client (§ 575.2, subd. (b)); thus, Moussavian should not be punished for his attorney’s procedural errors. While Kanter missed several hearings and failed to comply with the local rules on multiple occasions, Moussavian’s right to a trial on the merits is independent from his counsel’s mistakes. (Ibid.)

The court abused its discretion when it dismissed the action.

DISPOSITION

The judgment is reversed. We direct the superior court to vacate its March 9, 2018 dismissal and proceed consistent with this opinion.

HUFFMAN, Acting P. J.

WE CONCUR:

O’ROURKE, J.

GUERRERO, J.