Filed 2/18/20 Fishback v. County of Ventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

WAYNE FISHBACK et al.,

Plaintiffs, Cross-complainants and Appellants,

v.

COUNTY OF VENTURA,

Defendant, Cross-defendant and Respondent.

2d Civ. No. B292947

(Super. Ct. No. CIV244304)

(Ventura County)

Plaintiffs Wayne Fishback and Carol Fishback appeal an order dismissing their complaint and cross-complaint for alleged federal civil rights violations (42 U.S.C. § 1983) against defendant County of Ventura (County). We conclude, among other things, that the trial court did not abuse its discretion in dismissing these actions because of the Fishbacks’ long delay in prosecuting these cases and their failure to bring them to trial. (Code Civ. Proc., §§ 583.410, 583.420, subd. (a)(2)(B).) We affirm.

FACTS

Historical Background

The Fishbacks own 120 acres of hillside property and operate a “solid waste facility” without a permit. They brought in over 100,000 cubic yards of “unpermitted fill” on their property with “a wide variety of solid waste” material. They brought in 8,000 truckloads of debris and 3,000 to 4,000 loads of “fill” and solid waste without a grading permit or a solid waste permit. This was done without an engineering plan. Their solid waste material operation placed downstream property owners at a serious risk of injury or death from “debris flows.”

On May 11, 2006, the Ventura County Environmental Health Department, through its “local enforcement agency” (LEA), issued a cease and desist order (CDO) concerning the continuing solid waste operations. The Fishbacks challenged that CDO at a hearing before a County hearing officer. The hearing officer upheld the CDO and ruled the Fishbacks must obtain a solid waste disposal permit from the LEA.

On October 19, 2006, the Fishbacks filed a petition for writ of mandate (§ 1094.5) and complaint for damages and injunctive relief against the County. They alleged the hearing officer erred, the CDO must be vacated, and the County be enjoined from issuing environmental violation notices based on the false claim that they were operating “an illegal solid waste facility.”

The Fishbacks also appealed the hearing officer’s decision to the California Integrated Waste Management Board (CIWMB). On January 22, 2007, the CIWMB board affirmed the hearing officer’s decision. It upheld the CDO and ordered the Fishbacks to comply with it.

On February 20, 2007, the Fishbacks filed a petition for writ of mandate (§ 1094.5) against the CIWMB. On April 23, 2008, they dismissed their petition for writ of mandate against the CIWMB.

On November 14, 2008, the Fishbacks filed a first amended complaint for damages and declaratory relief alleging violations of the federal Civil Rights Act (42 U.S.C. § 1983) by the County. This had the effect of dismissing their section 1094.5 petition to review the hearing officer’s decision. In their new section 1983 action, they alleged County environmental enforcement officials violated their right to due process from May 2005 to November 2006 by subjecting them to unlawful environmental enforcement actions, violation notices, and CDO’s by falsely claiming they had stored solid wastes in violation of state law. They also alleged that from March 2007 to July 2008 the County environmental officials had conspired to harass them.

The County filed a complaint for injunctive relief and statutory damages against the Fishbacks alleging they did not comply with the CDO’s to remove solid waste and they violated the Public Resources Code. In October 2009, the Fishbacks filed a cross-complaint alleging the County’s environmental enforcement actions violated their rights under the federal Civil Rights Act (42 U.S.C. § 1983).

The County filed a motion for summary judgment alleging that the Fishbacks’ dismissals of their section 1094.5 mandamus petitions barred their section 1983 civil rights causes of action under the res judicata doctrine. The trial court granted the motion and entered judgment against the Fishbacks. TheFishbacks appealed. We reversed in part and held their section 1983 claims challenging the County officials’ environmental enforcement actions that arose prior to February 20, 2007, were barred by the res judicata doctrine, but the allegations regarding later actions by County officials were not so barred.

The County’s lawsuit against the Fishbacks went to trial in 2014. On December 12, 2014, the Fishbacks did not appear for trial. The trial judge ruled they had not provided a valid excuse for their non-appearance at trial. The case proceeded without them.

On January 21, 2015, the trial court entered judgment against the Fishbacks for a mandatory injunction requiring them to remove the solid waste, comply with the CDO’s, and for statutory damages under Public Resources Code section 45023, subdivisions (a) and (b) in the amount of $21,710,000. That section provides, in relevant part, “A civil penalty of not more than ten thousand dollars ($10,000) may be imposed upon a person who for each day the violation or operation occurs: [¶] (a) Owns or operates a solid waste facility or disposal site . . . ; [¶] (b) Operates a solid waste facility without a solid waste facilities permit.” (Ibid.)

The trial court found, among other things, that: 1) the Fishbacks’ actions had harmed the environment and drastically changed watersheds; 2) as a result of their actions and their “solid waste facility,” a “debris flow of tens of thousands of cubic yards of material could come sliding down the canyon at speeds of 20 m.p.h. or more”; 3) the “fill” work on the Fishbacks’ property was performed by “a laborer who was not a licensed contractor”; 4) the worker had “no experience grading land”; 5) “no engineer directed” that work; 5) the “fill” on the property “is failing”; 6) the Fishbacks “jeopardized the safety of the public”; 7) the Fishbacks “filed frivolous lawsuits based on false allegations against persons who attempted to stop their wrongful conduct”; and 8) a maximum statutory damages award at the $10,000 a day level “is appropriate” because of the Fishbacks’ “outrageous conduct.”

The trial court elected not to award the civil penalty for the entire period the Fishbacks operated a solid waste facility without a permit. It limited the civil penalty to cover only the period “from January 1, 2009, through and including November 12, 2014.”

The Fishbacks filed an appeal from the judgment. The appeal was dismissed because they did not file an opening brief. The remittitur issued on March 18, 2016.

The County’s Motion to Dismiss

On May 25, 2018, the County filed a motion to dismiss the Fishbacks’ section 1983 complaint that was filed in 2008 and their cross-complaint that was filed in 2009 for failure of prosecution. It noted that the Fishbacks had not brought these cases to trial, and there was no litigation activity on these cases for three-and-one-half years since the trial on the County’s lawsuit.

The County noted that the Fishbacks’ two section 1983 civil rights actions were to be tried separately from the County’s action against the Fishbacks. The County’s case for a mandatory injunction went to trial by a judge sitting without a jury in 2014 and a mandatory injunction was issued against the Fishbacks. The Fishbacks had requested a jury trial. In April 2014, the court ordered the County’s and the Fishbacks’ cases bifurcated for separate trials with expected trial dates for the Fishbacks’ cases to occur in 2014 or 2015.

The County claimed the Fishbacks thereafter failed to prosecute their cases and it was now “extremely prejudiced” because of the three-and-one-half-year delay. The County noted: 1) it would now have problems locating witnesses, 2) some witnesses would have “faded memories,” and 3) the trial exhibits in its case against the Fishbacks “have been destroyed.” The County also noted that the trial court in its (the County’s) case against the Fishbacks had reviewed the allegations in the Fishbacks’ section 1983 complaint and made the following observations based on the evidence received in the County’s action: “[T]he Fishbacks’ allegations in the 2008 [first amended complaint] are unsupported by evidence. The Court finds and concludes the Fishbacks filed that lawsuit to harass and intimidate the County and its employees.”

Mr. Fishback filed a declaration setting forth his reasons for not bringing his cases to trial earlier. His counsel also filed a declaration.

The trial court held two hearings on the motion to dismiss. It granted the motion on August 27, 2018, and found the Fishbacks did not show valid grounds to excuse their failure to prosecute these cases. The Fishbacks appeal the dismissal.

DISCUSSION

Abuse of Discretion

The Fishbacks contend the trial court erred in granting the County’s motion to dismiss their complaint and cross-complaint for failure of prosecution.

The Standard of Review

The Fishbacks claim a de novo standard of review applies on an appeal of an order dismissing cases for failure of prosecution. We disagree.

The standard of review is abuse of discretion. (Terzian v. County of Ventura (1994) 24 Cal.App.4th 78, 83.) “An appellate court may not substitute its own discretion for that of the trial court and must uphold the dismissal order if the trial court has not abused its discretion.” (Ibid.)

“When reviewing a discretionary dismissal or a denial of a motion to specially set on discretionary grounds, an appellate court must presume that the decision of the trial court is correct.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) “The burden is on the party challenging the trial court’s decision to show that the court abused its discretion.” (Ibid.) “ ‘We uphold judgments if they are correct for any reason, “regardless of the correctness of the grounds upon which the court reached its conclusion.” ’ ” (Ibid.)

The Merits

On the defendant’s motion, or on its own motion, a trial court may “dismiss an action for delay in prosecution.” (§ 583.410, subd. (a).) The court has discretion to dismiss an action if it “is not brought to trial” within “[t]wo years after the action is commenced against the defendant . . . .” (§ 583.420, subd. (a)(2)(B).)

On November 14, 2008, the Fishbacks filed their first amended complaint alleging their civil rights cause of action against the County. In October 2009, after the County filed its injunctive relief action against the Fishbacks, the Fishbacks filed a civil rights cross-complaint against the County. The County’s case went to trial in 2014 and the court rendered judgment against the Fishbacks. The County noted that after that trial, a date for the Fishbacks’ cases against the County could have been scheduled and held. But the Fishbacks left court before the end of trial on the County’s case.

In its motion to dismiss, the County noted that: 1) the Fishbacks did not take any litigation action on their cases for a period of three-and-one-half years after the trial court rendered the judgment on the County’s case; 2) on April 18, 2018, the Fishbacks filed an ex parte request for a case management/trial setting conference; 3) the court denied the request and instructed the Fishbacks to file a noticed motion; 4) the Fishbacks did not promptly comply; and 5) five weeks later, after no action was taken, it filed its motion to dismiss.

The trial court considered the age of the Fishbacks’ cases. Their initial section 1983 lawsuit (the first amended complaint) had been pending for almost a decade. The period between their initial 2006 lawsuit against the County and the dismissal order was almost 12 years. The extended age of these cases is relevant. California courts have “inherent power to dismiss civil cases for unreasonable, inexcusable delay in prosecution.” (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758.) Plaintiffs have a duty to prosecute their cases “with reasonable diligence.” (Karras v. Western Title Ins. Co. (1969) 270 Cal.App.2d 753, 757-758 [inherent authority to dismiss where there was a three-year delay in bringing case to trial].) In dismissing the civil rights causes of action, the trial court found, among other things, that the Fishbacks “failed to present evidence or sufficient explanation as to why [they] failed” to take their cases to trial.

If a case is not brought to trial within two years, the court may dismiss it. (§ 583.420, subd. (a)(2)(B).) Here the delay was much longer; consequently, the Fishbacks were required “to show excusable delay” in the trial court. (Terzian v. County of Ventura, supra, 24 Cal.App.4th at p. 83.) In deciding the motion, the trial court determines “the credibility of the explanation given by plaintiff and must consider whether it is the true, rather than a fabricated, reason for the delay.” (Dubois v. Corroon & Black Corp. (1993) 12 Cal.App.4th 1689, 1695.) “If the court is not satisfied that the plaintiff has successfully fulfilled his burden in this regard, then the trial court may dismiss the case and do so without any consideration of whether the defendant was prejudiced by the delay.” (Ibid.)

Prejudice to the Defendant

Prejudice to the defendant may be a relevant factor in deciding whether to grant a motion to dismiss. Prejudice may be inferred from a plaintiff’s unreasonable, unexplained delay in prosecution. (Trailmobile, Inc. v. Superior Court (1989) 210 Cal.App.3d 1451, 1457.) Here the County made a strong affirmative showing of prejudice because of the long delay. Numerous exhibits the County introduced in evidence in its case against the Fishbacks in 2014 “were destroyed” by the court on March 27, 2017. (People v. Cowan (2010) 50 Cal.4th 401, 430.) Those exhibits could have been used as a defense to the Fishbacks’ lawsuits. The Fishbacks have failed to address the showing of prejudice the County made in its motion.

The Fishbacks’ Reasons for Delay

In his declaration in opposition to dismissal, Mr. Fishback claimed a reason for the delay was that the trial court and court personnel misled him. He declared, “On January 12, 2015, I [went to the court] to begin what I thought would be my side of the case. However, the judge was engaged in another trial, and refused to speak with me directly. I spoke to the judge through the courtroom clerk, who informed me that the judge did not believe that I had any right to trial left, let alone a right to a jury trial. I was told my case was over.” He said, “Had the Court not told me I no longer had any rights to a trial in this action, I would have pursued my rights much earlier.”

In its response, the County claimed Mr. Fishback’s statements that he believed the case was over, and had relied on the clerk’s comments which misled him, were “untrue.” It noted that Fishback had sent a letter to the Governor on March 23, 2015, where he stated that “he was preparing for ‘the bifurcated trial for violations of constitutional rights/1983 claims.’ ” The County said, “[W]hy would Fishback be preparing for trial in March 2015 if the Court’s clerk told him in January 2015 that his case was over? The answer is simple: the conversation with the clerk never occurred as Mr. Fishback claims. Fishback is, once again, fabricating evidence.” The County also referred the court to a pleading in a federal case where Fishback’s lawyer stated on July 29, 2015, “that Fishback’s Complaint was ‘awaiting trial.’ ” It also questioned why Fishback would allegedly come to court for a trial on his civil rights cause of action on January 12, 2015, when the clerk’s record showed this trial date was vacated on November 20, 2014.

Here there was conflicting evidence. The trial court resolved this factual dispute against the Fishbacks. It said Mr. Fishback was on notice on January 12, 2015, that his trial date “was vacated.” The court said he failed to re-set that trial date. It also said it had checked the record and found no evidence about Fishback coming to court on January 12, 2015. The court found Fishback “just walked out” of trial and “never communicated back.” These findings show that the trial court rejected Fishback’s factual assertions. We do not resolve evidentiary disputes or decide the credibility of the parties. Those are matters exclusively resolved by the trial court. (In re Marriage of Hill & Dittmer (2011) 202 Cal.App.4th 1046, 1051-1052.) Moreover, the register of actions does not show an entry for any activity on January 12, 2015, and the trial court was certainly in the best position to determine whether it had allegedly misled a party. (Walling v. Kimball (1941) 17 Cal.2d 364, 369.) The court said it did not deprive the Fishbacks of the “opportunity to have a trial.”

The Fishbacks note that some of the trial court’s remarks show that it had forgotten that it had bifurcated the cases in 2014. They claim these remarks undermine the dismissal order and show “the learned court itself was confused as to the status of the case.” But a trial court’s remarks that it makes before its final ruling “may never be used to impeach the order” the court eventually issues. (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 591.) A court’s reference to one remark that may not support its order is not a ground for reversal where there are other grounds to support it. “ ‘We uphold judgments if they are correct for any reason, “regardless of the correctness of the grounds upon which the court reached its conclusions.” ’ ” (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at p. 443.) In addition, as the County notes, the Fishbacks’ claims about the court’s remarks do not excuse their failure to prosecute their cases. It is not the court’s responsibility to bring the Fishbacks’ cases to trial for them and make sure they proceed within the time periods of the dismissal statutes. “ ‘ “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].” ’ ” (Howard, at p. 434.) It is the plaintiff’s burden to keep track of the relevant dates and “timely prosecute their cases.” (Ibid.)

A Prior Appeal

The Fishbacks claimed that an appeal had justified their delay in prosecuting their cases. In Mr. Fishback’s declaration, he claimed that on March 27, 2015, he appealed the judgment the trial court rendered in favor of the County. He said it was not an appealable judgment. He suggested that because it was not appealable, the order dismissing that appeal was not final, it had no impact, and the County’s judgment remained open for further litigation without time limitations. But these claims were incorrect.

Because the judgment was for an injunction, it was appealable as a final judgment. (§ 904.1, subd. (a)(6), (11), (12); Fish v. Fish (1932) 216 Cal. 14, 16; Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010, 1015-1016; Canaan Taiwanese Christian Church v. All World Mission Ministries (2012) 211 Cal.App.4th 1115, 1118, fn. 1; Mateo-Woodburn v. Fresno Community Hospital & Medical Center (1990) 221 Cal.App.3d 1169, 1174-1175, fn. 2; Ezer v. Fuchsloch (1979) 99 Cal.App.3d 849, 856.) “Orders requiring the payment of money by the party complaining, or the doing of an act by or against him, are usually regarded as final as against such party and may be appealed from by him.” (Fish, at p. 16, italics added.) This is an “ ‘exception to the one final judgment rule.’ ” (Apex LLC, at p. 1016; Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645 [state law provides “an exception to the one final judgment rule for injunctions”].) Our dismissal of that appeal constituted an affirmance of that judgment which is final and binding on the Fishbacks. (Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc. (2005) 132 Cal.App.4th 666, 677; County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1005.)

But even if Mr. Fishback’s claims about filing a premature appeal of the County’s judgment had been correct, the result would not change. The Fishbacks’ section 1983 complaint and cross-complaint were ordered bifurcated from the County’s case and were to be tried separately. The Fishbacks had the independent duty to diligently prosecute their section 1983 cases, which could be dismissed for failure of prosecution regardless of what happened in the County’s case against them. (Wilson, McCall & Daoro v. American Qualified Plans, Inc. (1999) 70 Cal.App.4th 1030, 1036 [a cross-complaint is “an independent cause of action”]; see also Perez v. Grajales (2008) 169 Cal.App.4th 580, 594-596; Minasian v. Sapse (1978) 80 Cal.App.3d 823, 825; Hershman v. Bernard Homes, Inc. (1969) 1 Cal.App.3d 651, 655.)

Mr. Fishback declared that the Court of Appeal “dismissed [his] appeal and sent it back down to the Superior Court for further proceedings.” (Italics added.) But our order did not remand “for further proceedings” on the County’s judgment. In the dismissal order dated January 12, 2016, we said, “[T]he appeal filed March 27, 2015, is dismissed.” The remittitur dated March 18, 2016, provided, in relevant part, “[A]ttached is a true and correct copy of the original order, opinion or decision entered in the above-entitled cause on January 12, 2016 and that this order, opinion or decision has now become final.” (Italics added.) But even had we remanded for further proceedings on the County’s case, that would not excuse the Fishbacks’ duty to diligently prosecute their section 1983 cases. (Perez v. Grajales, supra, 169 Cal.App.4th at p. 594; Wilson, McCall & Daoro v. American Qualified Plans, Inc., supra, 70 Cal.App.4th at p. 1036.)

Moreover, that appeal was dismissed because the Fishbacks failed to prosecute that appeal. They moved to reinstate the appeal, but that motion was denied on February 3, 2016. Mr. Fishback declared that he did not receive notice of the dismissal and claimed this excused his delay. But the trial court found this portion of Fishback’s declaration was not credible. It said, “Fishback’s claim that he did not receive notice of the dismissal is not well taken given that those filings include the Court of Appeal’s refusal to reinstate the appeal on Fishback’s motion.”

Ability to Find Counsel and Pro. Per. Status

Mr. Fishback declared that he was not able to find a lawyer to represent him on his civil rights case. He claimed he lacked the financial ability to hire attorneys. He suggested that this prevented him from pursuing this litigation. But the County presented evidence to contest these claims. It attached a copy of a section 1983 civil rights lawsuit Fishback’s lawyer filed on his behalf against the County of Los Angeles in 2015. This was similar to the much older section 1983 lawsuit the Fishbacks filed against Ventura County. The attorney who represented Fishback on the Los Angeles case also represented Fishback in opposing the County’s motion to dismiss in this case. The County claimed Fishback “made a conscious decision” not to litigate “his Ventura case so that he could pursue litigation involving his [property] a short distance away in Los Angeles County.” It also contended Fishback’s claim about his inability to obtain counsel was contradicted by substitution of attorney documents showing he had retained counsel for the appeal of the County’s judgment on December 22, 2015.

Consequently, there was conflicting evidence from Fishback and the County that led to a credibility issue. (Dubois v. Corroon & Black Corp., supra, 12 Cal.App.4th at p. 1695.) The trial court was in the exclusive position to determine whether the multiple reasons Fishback gave for delay in his declarations were credible. (Ibid.; In re Marriage of Hill & Dittmer, supra, 202 Cal.App.4th at pp. 1051-1052.) Its findings show that it rejected Fishback’s factual claims. The opposition declarations also relied on a series of conclusory assertions without a factual foundation. (Longshore v. Pine (1986) 176 Cal.App.3d 731, 737.) Consequently, the trial court could reasonably infer the Fishbacks’ declarations did not meet the burden to show excusable delay. (Ibid.; Dubois, at p. 1695; Terzian v. County of Ventura, supra, 24 Cal.App.4th at p. 83.)

The Fishbacks’ status as pro. per. litigants on the County’s case did not excuse their duty to timely prosecute their civil rights cases. (Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 619, fn. 4; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [“A pro. per. litigant is held to the same restrictive procedural rules as an attorney”].) “There is no authority which ‘gives even lip service to the concept that lack of economic resources is sufficient excuse for failure to prosecute with diligence.’ ” (Oskooi v. Fountain Valley Regional Hospital (1996) 42 Cal.App.4th 233, 241.) Moreover, the Fishbacks were represented by counsel at various stages of this case, including on their 2012 appeal of the summary judgment and their opposition to the trial court motion to dismiss. The declaration of the Fishbacks’ counsel shows that he was retained by them when the County initiated collection activity on its judgment. This was six months before the County filed its motion to dismiss. The Fishbacks were represented by counsel on the two trial court hearings on the motion to dismiss and on this appeal. (See the Fishbacks’ 2019 opposition to the County’s motion to dismiss this appeal.)

Evidence of the Fishbacks’ Litigation Efforts and Activities

Mr. Fishback’s declaration did not set forth any trial preparation activities over the history of his cases. That is a major omission for a case that had been pending for almost 10 years. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699.) The absence of litigation activity for such a long period is a factor that supports a trial court’s decision to dismiss for failure of prosecution. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 332; Stephen Slesinger, Inc. v. Walt Disney Co., supra, 155 Cal.App.4th at p. 758; Dubois v. Corroon & Black Corp., supra, 12 Cal.App.4th at p. 1695; Farrar v. McCormick (1972) 25 Cal.App.3d 701, 704; Karras v. Western Title Ins. Co., supra, 270 Cal.App.2d at pp. 754-757; McKenzie v. Albaeck (1963) 219 Cal.App.2d 97, 99.)

In Landry, the court held a trial court did not abuse its discretion by dismissing a case where there was no litigation activity by the plaintiffs for a period of 18-and-one-half months. (Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at p. 699.) In Dubois, there was no abuse of discretion in dismissing the case where there was a period of two years seven months of inactivity. (Dubois v. Corroon & Black Corp., supra, 12 Cal.App.4th at p. 1695; see also Farrar v. McCormick, supra, 25 Cal.App.3d at p. 704 [declaration did not explain a 13-month period of inactivity on the case]; Lopez v. Larson (1979) 91 Cal.App.3d 383, 399-400 [dismissal was appropriate where there was a two-year six-month delay in taking steps to prosecute the case]; McKenzie v. Albaeck, supra, 219 Cal.App.2d at p. 99 [“plaintiff’s delay of 16 months in moving to have the case reset for trial”].)

Here the period of inactivity was more than three-and-one-half years, much longer than the inactivity periods in the above-cited cases. (See also Blank v. Kirwan, supra, 39 Cal.3d at p. 332 [Supreme Court upheld a dismissal because of “a period of almost three and one-half years [where] plaintiff did virtually nothing to prosecute this action”].) Moreover, the Fishbanks’ cases had not gone to trial in almost a decade. (Stephen Slesinger, Inc. v. Walt Disney Co., supra, 155 Cal.App.4th at p. 758; Karras v. Western Title Ins. Co., supra, 270 Cal.App.2d at pp. 757-758.) The Fishbacks did not make an adequate showing in the trial court to justify these long delays. (Terzian v. County of Ventura, supra, 24 Cal.App.4th at p. 83.) The delay here was also more aggravated than the 18-and-one-half-month period in Landry, the 16-month inactivity period in McKenzie, and the 13-month period in Farrar, because the Fishbacks’ cases are older and the County made an affirmative and substantial showing of prejudice because of the destruction of its trial exhibits in 2017.

Abandonment of Causes of Action

The County contends the trial court could also find the Fishbacks deliberately abandoned their causes of action. It states that on December 12, 2014, Mr. Fishback “inexplicitly walked out of the middle of trial on the County’s complaint for mandatory injunction while being examined as an adverse witness” and “took no action on his civil rights claims until three and a half years later . . . .” A court may find a party has abandoned his or her case by not attending trial. (Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1012-1013.) Such a finding may support a dismissal order. (Ibid.)

The Fishbacks claim they had good cause not to attend court on that trial day. But they do not cite to any testimony or statements under oath in the record to support this claim. Instead, they cite to a minute order which indicates that Mr. Fishback called the court clerk that morning and said that “there was some debris on [his] property” and he should be at court “by mid-day today.” The trial court noted the Fishbacks failed to attend the morning session of trial. But it continued trial to 1:30 in the afternoon. The trial judge told the clerk to instruct the Fishbacks to be in court at that time. But they failed to appear when trial resumed that afternoon, and the case proceeded without them. The court found they did not have “a reasonable excuse for failing to come to court.” It could properly determine whether the unsworn statements Mr. Fishback made over the phone to the clerk were credible. It found they had no excuse for not taking the opportunity to present their evidence at trial.

The trial court rejected the Fishbacks’ factual justifications for delay presented in their opposition to the motion to dismiss. The Fishbacks have not shown why it could not also reasonably infer that their conduct showed an abandonment of their claims for three-and-one-half years that justified a dismissal. (Vernon v. Great Western Bank, supra, 51 Cal.App.4th at pp. 1012-1013; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at p. 699; Dubois v. Corroon & Black Corp., supra, 12 Cal.App.4th at p. 1698; Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1204.)

Challenge to the Statutory Damages in the 2015 Judgment

The Fishbacks contend the Public Resources Code statutory damages the trial court awarded in the 2015 judgment were excessive. But that issue cannot be raised in this appeal. The 2015 judgment that contained those damages was appealed by the Fishbacks in a prior appeal. That appeal was dismissed more than three-and-one-half years ago, and that dismissal affirmed the judgment containing the statutory damages which is now final. (Property Owners of Whispering Palms, Inc. v. Newport Pacific, Inc., supra, 132 Cal.App.4th at p. 677; County of Fresno v. Shelton, supra, 66 Cal.App.4th at p. 1005.) The Fishbacks contend they are entitled to make a second appeal of that prior 2015 judgment. This claim is without merit. (Property Owners of Whispering Palms, Inc., at p. 677.) The current appeal only involves a challenge to the order dismissing the Fishbacks’ civil rights causes of action.

DISPOSITION

The order is affirmed. Costs on appeal are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.

Kent M. Kellegrew, Judge

Superior Court County of Ventura

______________________________

Barton Wayne Fishback, in pro. per., Carol Fishback, in pro. per., for Plaintiffs, Cross-complainants and Appellants.

Richards, Watson & Gershon, Robert C. Ceccon, and Saskia T. Asamura for Defendant, Cross-defendant and Respondent.