Filed 11/25/19 McGoldrick v. Department of Motor Vehicles CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

JOHN MCGOLDRICK,

Plaintiff and Appellant,

v.

DEPARTMENT OF MOTOR VEHICLES et al.,

Defendants and Respondents.

C088392

(Super. Ct. No. 34-2013-80001371-CU-WM-GDS)

Plaintiff John McGoldrick, representing himself in propria persona, appeals from an order dismissing a petition for writ of mandate with prejudice for failure to prosecute the petition within five years. Although his briefing lacks focus, McGoldrick appears to argue on appeal that the trial court erred in dismissing his petition and failed to afford him an opportunity for a hearing. Finding no merit to his contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 23, 2013, McGoldrick filed a petition for a writ of mandamus seeking review of the actions of defendant Department of Motor Vehicles (DMV). While difficult to decipher, the petition appears to challenge the DMV’s suspension of McGoldrick’s driver’s license based on a purportedly erroneous conviction that had been entered on his record. The petition demanded that the DMV be ordered to correct its records and issue him a driver’s license.

Two months later, in March 2013, McGoldrick sought a temporary restraining order against the DMV. Although a copy of the application is not in the record, the record does contain the court’s tentative ruling denying a temporary restraining order. The tentative ruling expressly explained the court’s tentative ruling procedures, and stated that the ruling would become final unless a party requested a hearing by a specified time. McGoldrick did not request a hearing, and the court’s tentative ruling became the final ruling of the court.

On June 3, 2013, McGoldrick filed a motion to recuse Judge Balonon, the judge who denied his temporary restraining order request, because the judge purportedly delegated his jurisdiction to the court clerk. The motion indicated that McGoldrick had scheduled the hearing on his petition for writ of mandate on June 7, 2013.

On June 5, 2013, the court issued an order denying McGoldrick’s motion to recuse Judge Balonon. The court also vacated the hearing date on the petition for writ of mandate because McGoldrick had failed to file points and authorities to support the petition. The order stated that McGoldrick could contact the court clerk to reschedule the hearing date if he desired to pursue his petition. Nothing in the record shows McGoldrick contacted the court to arrange another hearing date on the petition.

More than five and a half years after the petition was filed, on August 27, 2018, the court ordered McGoldrick to show cause why the petition for writ of mandate should not be dismissed for a delay in prosecution. In response, McGoldrick filed a “Response to Judicial Notice,” which is not included in the record on appeal. The court contacted McGoldrick and afforded him the right to a hearing on the order to show cause, but McGoldrick declined the court’s offer for a hearing.

On October 19, 2018, the trial court entered a minute order on the “order to show cause re: dismissal” stating that it could not conclude McGoldrick diligently prosecuted the proceeding based on the response to judicial notice. The court dismissed the proceeding in its entirety with prejudice, and ordered the DMV to prepare an order and judgment of dismissal. On November 8, 2018, the court signed the formal order dismissing the petition for writ of mandate with prejudice and entering judgment in favor of DMV. McGoldrick timely appealed.

DISCUSSION

Without citing to the record, or to relevant authority, McGoldrick contends the trial court erred in dismissing his petition for writ of mandate. We disagree.

An administrative mandamus proceeding may be dismissed for failure to prosecute. (Binyon v. State of California (1993) 17 Cal.App.4th 952, 956, 957 [an “[a]ppellant cannot file a petition for a writ of administrative mandamus, then sit back for years without taking the slightest action to have it determined until it suits his convenience, and then expect that the court must hear his petition on the merits despite his lack of diligence”].) Under Code of Civil Procedure section 583.310, a party must bring an action to trial within five years of commencing the action. If a party fails to prosecute the action within the five-year period, the court must dismiss the action; the deadline is mandatory and not subject to extension, excuse, or exception except as expressly provided by statute. (§ 583.360.)

While a writ of administrative mandamus is a special proceeding and not an action (§ 1063 et seq.), the statutes governing writs of mandate incorporate by reference the above dismissal statutes. Section 1109 provides: “Except as otherwise provided in this title, the provisions of part two of this code are applicable to and constitute the rules of practice in the proceedings mentioned in this title.” Notably, section 583.310 and section 583.360 are contained in part 2 of the Code of Civil Procedure. (See also Binyon v. State of California, supra, 17 Cal.App.4th at p. 955 [“The fact that a petition for administrative mandamus involves a special proceeding does not, however, place it beyond the reach of dismissal for delay in prosecution. . . . It is well settled that the trial courts have inherent authority to dismiss for delay in prosecution”].) Thus, the court had a mandatory duty to dismiss the petition for writ of mandate once the five-year period expired.

Here, the record shows that McGoldrick filed the petition on January 23, 2013. Although a hearing date was originally scheduled in June 2013, the court vacated the hearing date because McGoldrick failed to file points and authorities to support the petition. McGoldrick never responded to the court’s direction to contact the clerk of the court to reschedule the hearing date if he desired to pursue the petition. More than five years later, McGoldrick failed to properly respond to the court’s order to show cause why the petition should not be dismissed for failure to prosecute. Under these circumstances, the court was required to dismiss the petition for dilatory prosecution.

To the extent McGoldrick argues that the trial court failed to afford him an opportunity for a hearing, the record belies his argument. The record shows the court initially alerted McGoldrick that he needed to contact the clerk to reschedule a hearing on the petition for writ of mandate and later contacted him to afford him the right to a hearing on the order to show cause regarding the dismissal. According to the court’s minute order on the order to show cause, McGoldrick “declined a hearing.”

Although McGoldrick represented himself pro se, he was required to bring his petition for writ of mandate to a hearing within five years of commencing the proceeding. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 434 [“it is a plaintiff’s duty, rather than the trial court’s, to keep track of critical dates”]; Cannon v. City of Novato (1985) 167 Cal.App.3d 216, 222 [“ ‘The burden is upon the plaintiff to call to the attention of the court the necessity for setting the trial for a time within the period fixed by [section 583]’ ”]; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [“Pro. per. litigants are held to the same standards as attorneys”].) His failure to do so mandated dismissal. The court therefore properly dismissed the petition for administrative mandate with prejudice.

DISPOSITION

The judgment is affirmed. Defendant DMV is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

KRAUSE , J.

We concur:

MURRAY , Acting P. J.

HOCH , J.