Filed 10/29/19 Ortiz-Fernandez v. Clinica 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

NORMA ORTIZ-FERNANDEZ,

Plaintiff and Appellant,

v.

LA CLINICA,

Defendant and Respondent.

A151141

(Solano County

Super. Ct. No. FCS039298)

At a pretrial conference 10 days before trial, the trial court acting sua sponte dismissed this personal injury lawsuit with prejudice as a sanction, because the self-represented plaintiff had neglected to file a written pre-trial memorandum that was required by local rule to have been submitted five days earlier. We hold that terminating this case was a disproportionately onerous sanction for the plaintiff’s local rule violation that improperly deprived her of her day in court, and as such it was an abuse of discretion. We therefore reverse.

BACKGROUND

Norma Ortiz-Fernandez filed this personal injury suit in February 2012 against La Clinica, a medical facility in Vallejo, California, alleging she had been severely injured when she fell out of a chair that gave out beneath her. She claims that ever since, she has experienced chronic neck and back pain as well as dizziness and migraine headaches, which have impaired her life, interfered with her ability to pursue her career goals in the criminal justice field and impaired her ability to parent her young daughter.

About seven months into the case, her initial counsel withdrew with court permission, in September 2012 (the record does not reflect the circumstances).

Three years later, in February 2015, and just a month before the scheduled trial date, her second attorney filed an unopposed, ex parte request to continue the trial in order to be relieved as counsel (citing “irreconcilable differences”). With no objection by the defense, the court vacated the March 2015 trial date, and then on March 3, 2015, granted counsel’s request to withdraw. The court continued the case for three months, until June 3, 2015, to enable Ortiz-Fernandez to retain new counsel. Over the next five and a half months, it continued the case three more times (on June 3, August 12 and October 14) as she tried to find a new lawyer. Then on November 24, 2015, approximately eight months after the initial March 2015 trial date, the court set a new trial management conference for September 29, 2016, and a new trial date ten days later in October 2016.

When Ortiz-Fernandez appeared pro per at the September 29, 2016 trial management conference, the court on its own motion ordered her case dismissed with prejudice, without any prior notice or warning. The dismissal resulted from the court’s frustration that she had not complied with a Solano County local rule that required her to submit a trial management conference report five days before the conference. The local rules also warn that “the testimony of witnesses who are not listed in the Trial Management Conference Report, or documents, or other exhibits, portions of depositions, answers to interrogatories or responses to requests for admissions, which are not listed in the Trial Management Conference Report, shall not be admitted at trial.”

The court opened the trial management conference by admonishing Ortiz-Fernandez for not having filed the report and asked for an explanation. She said she couldn’t afford to pay her expert witnesses, whom she had already subpoenaed for trial, and was trying to negotiate with them to get them to attend trial. This led to a colloquy in which the court pressed her repeatedly to explain how she could prove her case without expert witnesses, and frequently interrupted her as she pleaded for some leniency. We quote portions of that hearing at length:

“THE COURT: Where is your trial management conference report, ma’am? [¶] I don’t have it in my file. Have you filed it?

“PLAINTIFF ORTIZ: No, there is a bit of circumstance that I want to let you know.

“THE COURT: Okay. Go ahead.

“PLAINTIFF ORTIZ: So my witnesses, my expert witnesses, have been subpoenaed properly and —

“THE COURT: Well, if they are expert witnesses, it begs the question about why you haven’t provided the Court with the required trial management conference report.

“PLAINTIFF ORTIZ: Yeah, I have been a little bit—with the situation trying to get them to negotiate to see if they could come to court.

“THE COURT: That is a separate issue from complying with the Rules of Court. I’ve been explaining to you the difficulty of representing yourself and also the requirement that you have to be held to the same standard as the attorneys are. [¶] And here we are at trial management conference and you haven’t complied, once again, with the rules.

“PLAINTIFF ORTIZ: But I have good cause.

“THE COURT: Well, tell me your good cause then.

“PLAINTIFF ORTIZ: Yes. Like I said, they are charging me all this money that it’s really hard for me to bring up, especially so close to possibly trial and that puts me in a great disadvantage—

“THE COURT: Well, ma’am, that is part of the problem with litigation. It’s expensive. Expert witnesses cost money. Perhaps that is why, I don’t know, but maybe that’s why you are in pro per because of the cost of the litigation versus the potential for recovering your costs in a judgment are such that no one will stand up for you. [¶] But the fact that expert witnesses cost money, that is no surprise to anybody. People don’t work for free.

“PLAINTIFF ORTIZ: No, I totally understand that.

“THE COURT: But, again, you are not responding to why you haven’t complied with the court rules and provided me with a case management conference report. It is right on the paperwork. It tells you what to do and you haven’t done any of it.

“PLAINTIFF ORTIZ: Can I do it orally?

“THE COURT: No. I wouldn’t let a lawyer do it orally. Here we are, ten days from trial, and you haven’t complied with the most basic requirements. And that is the trial management report.

“PLAINTIFF ORTIZ: I haven’t been feeling well, your Honor.

“THE COURT: Okay. So your excuse is you just haven’t been feeling well and you don’t have the money. [¶] Let me just be blunt. How do you expect to prove your case when you don’t have expert witnesses?

“PLAINTIFF ORTIZ: That is exactly my point. How?

“THE COURT: You can’t.

“PLAINTIFF ORTIZ: And if I go up to trial pretty much my word is not going to stand alone.—

“THE COURT: Well, here is the problem, and you can correct me if I am wrong, it’s almost at trial so you should know what you have to prove, but to prove a case like this you need expert witnesses. And if you don’t have expert witnesses, you simply can’t prove it.

“PLAINTIFF ORTIZ: That is one thing and then that—

“THE COURT: Do you want me to dismiss the case?

“PLAINTIFF ORTIZ: No, no, your Honor. Please don’t.

“THE COURT: Well, how can I possibly have a trial in ten days when you are telling me you don’t have witnesses who can prove your case?

“PLAINTIFF ORTIZ: That doesn’t mean I can’t have—

“THE COURT: Yes, it does mean that. I am not going to call in 60 jurors to give up a day of their life and their business and everything else in a situation where I know you can’t prove your case because you have just told me you don’t have the money to hire experts.

“PLAINTIFF ORTIZ: But there is something. I spoke with this attorney named Christopher Dolan and I am going to meet with him. There is a possibility still for me.

“THE COURT: Well, the only way we can do that is if the other guy agrees to some kind of a continuance. [¶] Let’s hear from the other side. Counsel?

“[DEFENSE COUNSEL]: Your Honor, I think you know we have heard about meetings with attorneys for a long time. Your Honor set this trial date I believe a year ago so this isn’t—this is the first I have heard of a desire for a trial continuance or anything [sic] to that matter. [¶] This case was filed in 2012. It needs to be resolved one way or the other.

“PLAINTIFF ORTIZ: Yes, your Honor—

“THE COURT: Here is the problem, ma’am. You received the same paperwork that everybody else receives and—

“PLAINTIFF ORTIZ: What paperwork?

“THE COURT: It lists 1 through 13, what you are supposed to do for [a] trial management conference report.

“PLAINTIFF ORTIZ: But I wasn’t served properly, your Honor.

“THE COURT: I don’t know anything about not being served properly. Served with what properly?

“PLAINTIFF ORTIZ: I don’t know, the last documents you are referring to.

“THE COURT: Well, okay. The law allows me to sanction people and lawyers and parties who don’t comply with the Rules of Court. And local Rules of Court require at the trial management conference that you submit 5 days prior to that a trial management conference report. [¶] . . . ‘Each party must complete, file and serve a copy of this report on all other parties at least 5 court days before the date set for trial management conference.’ This is in bold print. ‘Failure to timely file or serve this report may result in sanctions.’

“PLAINTIFF ORTIZ: I object to that because I said I wasn’t properly served, your Honor.

“THE COURT: Okay. Well, I am going to sanction you, ma’am. I am going to terminate this litigation.

“PLAINTIFF ORTIZ: Please don’t, your Honor. I object to that.

“THE COURT: I understand today that you are not prepared. You can’t be prepared. They are objecting to the continuance. Your request for [a] continuance is denied.

“PLAINTIFF ORTIZ: Can I object for the record?

“THE COURT: Yes, it’s on the record. But the case is dismissed.

“PLAINTIFF ORTIZ: Like I said—can I finish my argument, please?

“THE COURT: Sure. You go ahead.

“PLAINTIFF ORTIZ: Yes, to me this is like—this case means a lot to me, your Honor. By . . . dismissing it that is going to bring a lot of damages to my life and to my family’s life. [¶] I am asking for a continuance based on the fact that I don’t have the money right now. It doesn’t mean I can’t come forward with it. I will try to see how. To get my witnesses on trial without them and my testimony alone at court, that’s going to be pretty much something called hearsay. And I am not going to be able to prove any of my damages, injuries, which I have a number of documents proving that. [¶] The only situation here is all my doctors, it is not like there is one, there is several doctors, my pain management, my neurologist, my physical therapist, my orthopedic, I even have a document here in writing where he is stating that my injuries are a direct result of that [incident], your Honor. [¶] I just need a last breath of hope from you, please. [¶] Not only that, I am still stuck with bills that I have to pay. And again, I want to have the last opportunity to put my case to trial. I want to be heard, your Honor.

“THE COURT: Okay. Anything else, ma’am?

“PLAINTIFF ORTIZ: Yes.

“THE COURT: You want to tell me something else?

“PLAINTIFF ORTIZ: Yes.

“THE COURT: Go ahead.

“PLAINTIFF ORTIZ: This other attorney early in September, he told me ‘Come with the document that’s pretty much indicating your injuries, orthopedic injuries, and I will give you’—I asked him, ‘Okay. So if I bring that—you saw my papers. So if I bring that what difference is that going to make? I don’t want to waste your time or my time.’ [¶] And he told me ‘I will take your case.’ And I told him ‘Would you give me your word?’ And he said yes. So I left, you know, hoping that that was the case. [¶] So I came back to him and I have his name, his business care, and he said, you know—I said ‘Okay. You remember me? I am here with my paperwork.’ [¶] And he said ‘Remind me of your case.’ [¶] I said remember, this, this, and that, and explained the circumstances of the case. And he told me—and I told him—I told him ‘Remember, you said you would take my case.’ [¶] And he said ‘I go back on my word. I am not taking your case.’ [¶] I am like ‘What? You told me one thing. How is it that you can go back?’ [¶] Really, where is the institution of ethics of attorneys? They just all do that? [¶] He didn’t take my case. I walked out of there with still some hope. Because to me justice is not giving up. [¶] And that is what I have not done since day one, your Honor.” (Italics added.)

She then began an impassioned, emotional plea until the court interrupted, telling her, “I am going to go ahead and explain now why I am going to terminate this litigation in detail.” The court then recited the procedural history of the case, and concluded: “And here we are almost four years later, over four years later, from when you started having problems with the case. I am under an obligation to resolve these cases. And you still don’t have the ability to proceed. You don’t have expert witnesses by your own admission but—don’t interrupt me, don’t interrupt me. [¶] And so therefore you cannot prove your case and so for failing to comply, and you failed to comply with the Court’s rules as relates to trial management conference reports, I am going to sanction you. And the sanction, given the totality of the circumstances, is the litigation is now at an end. The case is dismissed.” The court clarified that the dismissal was with prejudice and directed defense counsel to prepare a written order.

After the hearing, but before entry of an order dismissing the case, Ortiz-Fernandez filed numerous pleadings urging the court to change its ruling and revealing additional facts under penalty of perjury. In a written “objection” supported by a sworn declaration, she elaborated on her claimed good cause for having failed to file the trial management conference report and, citing extensive legal authority, asked the court to impose a less harsh sanction than dismissal. In a motion for “reconsideration” supported by another sworn declaration, noticed for a hearing in early December, she asked for similar relief, invoking Code of Civil Procedure section 1008, the court’s inherent authority to reconsider its own rulings, and the “excusable neglect” prong of Code of Civil Procedure section 473, subdivision (b). Her motion asked for a continuance of the trial management conference and another trial date. It also disclosed that two attorneys had declined her case after the court had ordered it dismissed. In her declaration supporting the motion, she said she had acted in good faith and had tried to learn as much as she could but “wasn’t fully aware” of the trial management conference statement requirement for which the court had sanctioned her.

Her declaration also provided additional details and updated information about her expert witnesses. She said that, for example, at the time of the September 29 hearing, one of her experts was charging $3,000 for a one-day court appearance and another more than $4,000. “As also stated in open court, I needed to have a little more time to come up with the money to pay my experts” and “was undergoing possible negotiations” with some of her experts. But, according to her declaration, after that hearing, six of her witnesses confirmed for her that they would be available for trial. She said that three of her physical therapists “would be available for any future court date if necessary and would only charge me travel expenses”; her rheumatology expert agreed to waive the $3,000 fee and appear in court if required to do so; another physical therapist was “willing to . . . appear in court upon need,” and another provider from Kaiser Permanente indicated the same thing. In addition, her “key” expert witness, a doctor (Santi Rao) who had prepared a lengthy report concluding with the opinion that her injuries were attributed to the accident, had communicated that he would not be available for the scheduled October 11, 2016 trial date due to other commitments (surgeries and other court appearances) but may be available for a future court date. “With the above new information,” she wrote, “the medical experts referenced are willing to support this legal action with their expertise if a new trial date is set, unless otherwise indicated.” (Italics added.)

Thereafter, on October 24, 2016, 13 days after she filed the motion and without ruling on it, the court entered a written order dismissing the case “sua sponte” with prejudice pursuant to Code of Civil Procedure section 575.2, “on the grounds set forth on the record” at the prior hearing. The court found there was no good cause for Ortiz-Fernandez’s failure to submit a trial management conference report pursuant to its local rules.

The record does not contain any notice of entry of this order, and Ortiz-Fernandez thereafter appealed it within 180 days, on April 20, 2017, making this appeal timely. (See Cal. Rules of Court, rule 8.104, subds. (a)(1) & (c)(2).)

DISCUSSION

Although Ortiz-Fernandez’s opening brief is not a model of clarity, we understand her quite clearly to challenge the propriety of the order dismissing her case. In addition, her reply brief brings her arguments into sharper focus where she contends, among other things, that dismissing her case was too harsh a sanction under the circumstances and therefore was an abuse of discretion. Respondent La Clinica contends that dismissal was appropriate under Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1012, 1007 (Vernon).

We agree with Ortiz-Fernandez. The trial court abused its discretion when it dismissed the case with prejudice as a sanction for her violation of the trial court’s local rules’ requirement that she file a trial case management report prior to the trial management conference.

The most recent opinion to address the propriety of sanctions imposed for local rules violations (decided after the respondent’s brief was filed), while not precisely on all fours, bears a striking similarity to this one. In re Harley C. (2019) 37 Cal.App.5th 494 (Harley C.) held that a trial court had gone too far, and erred, by punishing a party who had failed to file a joint pretrial statement that was required by the court’s local rules with the ultimate sanction of excluding all of that party’s evidence at the dispositive, contested hearing. (Id. at pp. 510–511.) Harley C. explained its rationale this way, quoting at length from our Supreme Court:

“The sanction imposed here was disproportionate to the conduct it punished. ‘Although authorized to impose sanctions for violation of local rules (Code Civ. Proc., § 575.2, subd. (a)), courts ordinarily should avoid treating a curable violation of local procedural rules as the basis for crippling a litigant’s ability to present his or her case. As the court declared in Kalivas [v. Barry Controls Corp. (1996)] 49 Cal.App.4th 1152, in the absence of a demonstrated history of litigation abuse, “[a]n order based upon a curable procedural defect [including failure to file a statement required by local rule], which effectively results in a judgment against a party, is an abuse of discretion.” (Id. at p. 1161.)’ (Elkins [v. Superior Court (2007)] 41 Cal.4th [1337,] 1364 [Elkins].) The California Supreme Court found in Elkins that the ‘trial court abused its discretion in sanctioning petitioner by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence. The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits.’ (Id. at pp. 1363-1364.) The Court concluded, ‘In applying the local rule and order mechanically to exclude nearly all of petitioner’s evidence—and proceeding, in the words of the trial court, “quasi by default”—the trial court improperly impaired petitioner’s ability to present his case, thereby prejudicing him and requiring reversal of the judgment.’ (Id. at p. 1365, fn. omitted.)

“The same is true here, where the juvenile court excluded all of Mother’s evidence because her counsel had not filed a joint pretrial statement. The court had options to punish counsel for her error short of denying Mother the ability to present any witnesses at the dispositional hearing. If the joint trial statement was necessary, the court could have resolved the issue by briefly continuing the hearing, permitting Mother to file a joint trial statement, and, if appropriate, scheduling a new hearing directing Mother’s counsel to show cause why sanctions should not be imposed against her. As in Elkins, supra, 41 Cal.4th 1337, the court’s application of its local rule improperly impaired Mother’s ability to present her case, thereby prejudicing her and requiring reversal of the judgment. [¶] ‘Court procedures, however well-intentioned, should not be imposed at the expense of the parties’ basic rights to have their matters fairly adjudicated . . . .’ ” (Harley C., supra, 37 Cal.App.5th at pp. 510–511.)

And the same is true here too. No matter how well-intentioned the trial court was in trying to manage its docket, less drastic and prejudicial sanctions were available short of dismissing Ortiz-Fernandez’s case. She herself offered at the hearing to present her pretrial management information orally, and yet the court refused to allow this. As in Harley C., the court at a minimum might have briefly continued the hearing to allow her to file something in writing and, if appropriate, set a new hearing to consider imposing sanctions against her. But dismissing her case—without even providing the required notice (see footnote 3, ante)—was disproportionate to the infraction. “ ‘ “Rigid rule following is not always consistent with a court’s function to see that justice is done. Cognizant of the strong policy favoring the disposition of cases on their merits [citations], judges usually consider whether to exercise their discretion in applying local court rules and frequently consider documents which have been untimely filed.” ’ ” (Elkins, supra, 41 Cal.4th at p. 1364.) Ortiz-Fernandez did not concede at the hearing that she would be unable to present any expert witnesses at trial, she indicated she was merely in the process of trying to negotiate with them. What is more, by the time the court entered a dismissal Ortiz-Fernandez had made clear that she would have witnesses to present at trial. Imposing a sanction under local rules “in a mechanical fashion without considering alternative measures or a lesser sanction” improperly eviscerated her ability to present her case, which is prejudicial and mandates reversal. (Id. at p. 1365; see also, e.g., Link v. Cater (1998) 60 Cal.App.4th 1315, 1326 [abuse of discretion to dismiss case when plaintiff, who was abroad receiving medical treatment, failed to appear at trial after several prior continuances; “[b]ecause plaintiff had no history of noncompliance and had been prosecuting his case diligently, there is no reason to believe a less severe sanction than termination, such as the imposition of a monetary sanction, would not be effective”]; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795 [abuse of discretion to strike plaintiff’s pleadings and impose terminating sanctions for failure to appear at status conference].)

Vernon v. Great Western Bank, supra, 51 Cal.App.4th 1007, relied on by respondent, is not on point. That decision affirmed a trial court’s dismissal of an employment discrimination case for delay in prosecution pursuant to Code of Civil Procedure section 483.410 when the plaintiff failed to appear on the day of trial. (See Vernon, at pp. 1009–1013.) It does not involve a sanction imposed under Code of Civil Procedure section 575.2 for a local rule violation, which is the issue here.

Nor could we affirm the dismissal of this lawsuit even if delay in prosecution had been the trial court’s stated rationale, as it was in Vernon. To start with, discretionary dismissals on the court’s own motion for delay in prosecution must be properly noticed and set for hearing; unlike in Vernon (see Vernon, supra, 51 Cal.App.5th at p. 1010), this one wasn’t. (See Sakhai v. Zipora (2009) 180 Cal.App.4th 593, 598; Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 213–214 (Franklin); Cal. Rules of Court, rule 3.1340(b) [“If the court intends to dismiss an action on its own motion, the clerk must set a hearing on the dismissal and send notice to all parties at least 20 days before the hearing date”].) Second, “the Legislature has made it clear, and Supreme Court case law has recognized” that such dismissals must be without prejudice (Franklin, at p. 214); thus, even had Ortiz-Fernandez been given proper notice, the trial court would have had no authority to enter a dismissal “with prejudice” for delay in prosecution. Third and finally, the facts of Vernon, which we refrain from restating, are quite different from what went on here. “[T]he delay-reduction rules and the policy of expeditious processing of civil cases do not override, in all situations, the trial court’s obligation to hear cases on the merits. [Citations.] Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective.” (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 795, italics added.) In Vernon, it was obvious that a less severe sanction would not suffice when the plaintiff’s counsel failed to appear on the day of (continued) trial and then offered yet more excuses as to why the case could not go forward as scheduled. The appellate court said that it “agree[d] with the trial court that this record reflects a pattern and history of delay that ‘hits you in the face when you go through it.’ ” (Vernon, at p. 1011, italics added.) Here, by contrast, requests for continuances were duly granted (not denied, as in Vernon), usually without opposition, presumably because they were warranted. And, unlike in Vernon, Ortiz-Fernandez never failed to appear at any court hearing, much less at trial. Nor is there any indication in this record that the court doubted her credibility or believed she was fabricating excuses, as was true in Vernon. Simply put, La Clinica cites no authority permitting a court to dismiss a case sua sponte for delay in prosecution when the plaintiff merely said at a pretrial conference she was having some trouble paying for her experts to attend trial, and then a short time later updates the court in writing that she has worked things out and that her witnesses would be available.

We are not insensitive to the pressures on our trial courts to manage their dockets efficiently. But what has been said many times before, many ways, bears repeating: “That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice.” (Elkins, supra, 41 Cal.4th at p. 1366.)

DISPOSITION

The judgment of dismissal is vacated and the matter is remanded for further proceedings consistent with this opinion.

 

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Ortiz-Fernandez v. La Clinica (A151141)