Filed 1/22/20 Minner v. Washington Motors, LLC CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PATRICK MINNER,

Plaintiff and Appellant,

v.

WASHINGTON MOTORS, LLC,

Defendant and Respondent.

B277545

(Los Angeles County

Super. Ct. No. BC511769)

APPEAL from a judgment of the Superior Court of Los Angeles County, Debre K. Weintraub, Judge. Reversed.

Patrick Minner, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

_____________________________

INTRODUCTION

Patrick Minner, representing himself, filed this action against Washington Motors, LLC, alleging the car dealership sold him a defective car. Minner appeals from the judgment entered after the trial court dismissed Minner’s complaint for failing to appear at trial several days after he had been released from the hospital. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Minner filed this action on June 17, 2013. He alleged that in June 2011 he bought a used car from Washington Motors, but that within weeks the car experienced mechanical problems. Minner eventually asked Washington Motors to rescind the sales contract and refund his money, but Washington Motors refused.

The trial court initially set the trial for October 7, 2014, but subsequently continued it to July 28, 2015. On June 12, 2015 Minner filed the first of two motions to continue the trial. On the day of the hearing, Minner called and informed the court he was in the hospital and would not be able to attend, and the court continued the hearing. Minner appeared on the new hearing date, and the court granted his motion and continued the trial to January 26, 2016. On December 18, 2015 Minner filed another motion to continue the trial, which the court also granted, continuing the trial to May 24, 2016.

On April 15, 2016 there was a hearing on a motion to quash service of summons on two new individual defendants. Minner called and informed the court he was ill and would not be able to attend the hearing. The court continued the hearing to April 19, 2016. Minner appeared at the new hearing date.

Minner appeared at the final status conference on Wednesday, May 18, 2016, but the trial court continued the final status conference to Friday, May 20, 2016. On that day Minner called and informed the court he was again in the hospital and would not be able to attend the final status conference. The court continued the final status conference to the next Tuesday, May 24, 2016 (the trial date). The court also issued an order requiring Minner to file by Monday, May 23, 2016, “a [d]octor’s note . . . written on [d]octor’s stationary [sic]” or other hospital documentation explaining why Minner did not appear at the final status conference and, in the event Minner could not appear in court on Tuesday, May 24, 2016, proof he was unable to attend. The court ordered counsel for Washington Motors to give notice. Counsel for Washington Motors served Minner with notice of the court’s ruling by regular mail and email that day (Friday, May 20).

On Monday, May 23, 2016 Minner called the court and spoke with the clerk. Minner told the clerk he would not be able to attend court on Tuesday, May 24, 2016 because he was under “doctor’s orders” until Friday, May 27. Minner called again on Tuesday, May 24, 2016 and repeated this information to the courtroom assistant.

When the trial court called the matter on Tuesday, May 24, 2016 for the final status conference and trial, the clerk and the courtroom assistant, at the court’s requests, stated on the record Minner had called the court twice that week. The clerk also stated he had read Minner the court’s May 20, 2016 order. The trial court dismissed Minner’s action without prejudice under Code of Civil Procedure section 581, subdivision (b).

Minner filed a motion for reconsideration. In support of the motion, Minner submitted letters from two doctors at the Department of Veterans Affairs stating Minner was admitted at the VA’s West Los Angeles Medical Center from Wednesday, May 18, 2016 to Friday, May 20, 2016. Both letters also stated Minner “should avoid vigorous exercise” for seven days following his discharge. Minner asked the court to set aside the dismissal and give him four days to prepare for trial.

The trial court granted the motion for reconsideration, but reaffirmed its decision to dismiss the action. The court ruled that Minner’s failure to submit the note from his physician by Monday, May 23, 2016 violated the order the court issued on Friday, May 20. The court ruled that, although the note from Minner’s physician indicated Minner should “avoid vigorous exercise for the next seven days” (which the court calculated ended on May 27, 2016), attending trial did not qualify as rigorous exercise. The court also stated: “As to [Minner’s] argument that he was not given an opportunity to oppose the motion to dismiss and thus deprived of due process, the court observes that a motion to dismiss contemplates that the party will not be present to oppose the motion because they failed to appear at trial.” Minner timely appealed.

DISCUSSION

A. Applicable Law and Standard of Review
B.
Section 581, subdivision (b)(5), provides that “[a]n action may be dismissed . . . [b]y the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.” The policy behind section 581 is to “compel[ ] litigants to prosecute their actions with promptness and diligence” and to “expedit[e] the administration of justice.” (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321 (Link).) A trial court has “broad discretion” under section 581 to dismiss an action when a party fails to appear at trial. (Vernon v. Great Western Bank (1996) 51 Cal.App.4th 1007, 1012-1013 (Vernon); see Link, at p. 1321.)

But that discretion has limits. California has a “strong public policy in favor of deciding cases on the merits when possible . . . .” (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1365; see Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th 1116, 1131 [“The preference for trial on the merits is well established.”]; Carmel Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402 [““‘appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits”’”].) When the policy of resolving cases expeditiously collides “head-on” with the policy of deciding cases on the merits, “the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.” (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395; see id. at p. 1400 [trial court abused its discretion by denying a request for a trial continuance where the party’s attorney had an unexpected scheduling conflict]; cf. § 583.130 [in determining whether to dismiss action for delay in prosecution under sections 583.110 583.430, “the policy favoring trial or other disposition of an action on the merits [is] generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence”].) A trial court may not impose “the ultimate sanction of termination” under section 581 “on diligent litigants who, due to unforeseen circumstances and reasonable excuse, fail to appear.” (Link, supra, 60 Cal.App.4th at p. 1325.)

B. The Trial Court Abused Its Discretion in Dismissing the Action

Minner argues that, “in light of California’s policy which favors trial on the merits, the trial court abused its discretion in dismissing [his] case for failure to appear when [he] had notified the [c]ourt prior to the trial date that he was hospitalized[,] which rendered it impossible for him to attend trial.” Minner says he “has lion heartedly fought this case for four years with a major illness to also contend with, and the disadvantage of being self-represented, yet he has not wavered in his prosecution of this case,” only “for it to be dismissed at the twelfth hour” after he had advised the court he was hospitalized. Minner also argues that, even if “a penalty was warranted, clearly the termination of [his] action was too severe.” Minner contends: “No one can predict when illness will strike, as illness is an unforeseen circumstance,” and the trial court, knowing Minner “was in pro per without a law firm and/or partner to step in and try his case on his behalf in an emergency, chose the most harsh and draconian penalty of all to dispose of his lawsuit.”

We agree the trial court abused its discretion by dismissing the action rather than continuing the trial for a few days to give Minner time to recover from his recent hospitalization. In Link, supra, 60 Cal.App.4th 1315 the trial court had ordered five trial continuances—some because of the court’s calendar and some to accommodate the plaintiff’s health and his attorney’s schedule. (Id. at pp. 1317-1318, 1322-1324.) Shortly before the trial was set to commence, the court on its own motion again continued the trial for two weeks. (Id. at pp. 1318, 1324.) The plaintiff requested another continuance because he was going to be out of the country to receive medical treatment and would not return until the following month. The trial court, however, denied the request. (Id. at p. 1319.) The plaintiff and his attorney failed to appear for trial, and the court continued the trial to a date the plaintiff would still be out of the country. When the plaintiff did not appear on that date, the court dismissed the action. (Id. at pp. 1319-1320.)

The court in Link held the trial court abused its discretion in dismissing the action. The court stated that, “to the extent the dismissal of plaintiff’s case was based on a belief plaintiff had not received or would not be receiving the medical treatment he claimed was necessary, plaintiff has presented documentation on appeal of his medical treatments and presumably would have filed such with the trial court if given a reasonable opportunity to do so upon pain of dismissal.” (Link, supra, 60 Cal.App.4th at p. 1326.) The court in Link also stated the trial court should not have focused solely on plaintiff’s failure to appear at trial. Instead the trial court should have considered the plaintiff’s prior diligence in prosecuting the case, which included conducting discovery, taking multiple depositions, and appearing at several status conferences and settlement conferences. (Id. at pp. 1322 1323.)

Here, the trial court did not give Minner adequate time to submit documentation to show he was in the hospital and explain how his hospitalization affected his ability to prepare for and participate in the trial. After Minner informed the court on Friday, May 20, 2016 he was in the hospital, the court ordered Minner to file proof he was in the hospital and unable to appear for trial by the following Monday; i.e., within one court day. Even if counsel for Washington Motors gave timely notice of the order, the court gave Minner little chance to comply. (See §§ 1010.6, 1013 [service by email, overnight mail, or fax extends by two court days any “duty to do any act or make any response within any period . . . after service”]; Fritts v. County of Kern (1982) 135 Cal.App.3d 303, 308 [provisions of the Code of Civil Procedure extending deadlines when notice is served by mail were enacted “‘to make allowance for the uncertainties of mail delivery by giving recipients of mailed notices or papers longer time to act or exercise their rights’”].) And even assuming Minner received notice of the court’s order the same day the court issued it—an outcome far from guaranteed—it was unreasonable for the court to expect Minner to reach his doctors over the weekend, obtain proof of his hospitalization in the format and on the stationery the court required, and submit it to the court by Monday.

Moreover, like the trial court in Link, the trial court here placed too much emphasis on Minner’s failure to appear in court during and after his hospitalizations and not enough on his diligent efforts to prosecute the action. Although Minner did not appear at two hearings because he was ill or hospitalized (or both), Minner appeared for hearings throughout the pendency of the action, including at hearings on motions by Washington Motors and hearings the court had continued on its own motion. (See Link, supra, 60 Cal.App.4th at p. 1322.) Minner also actively participated in discovery throughout the litigation. (See Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795 [self-represented litigant’s conduct in propounding discovery and filing motions was relevant to his diligence in prosecuting the action]; Pomona Federal Plaza, Ltd. v. Investment Concepts, Inc. (1988) 203 Cal.App.3d 217, 222 [“participation in the discovery process evidences diligence by plaintiffs”]; cf. Cal. Rules of Court, rule 3.1342 [in ruling on a motion to dismiss for failure to prosecute under section 583.430, the court must consider “[t]he diligence of the parties in pursuing discovery or other pretrial proceedings”].) Minner took depositions, filed successful motions to compel witnesses to produce documents, and filed successful motions to compel further responses by Washington Motors to Minner’s requests for production of documents and interrogatories. Minner did a lot to prepare for trial; he unfortunately just happened to be in the hospital a few days before trial was scheduled to commence.

As the trial court recognized, Minner’s treating physicians instructed him to avoid “vigorous exercise” for seven days following his discharge. In declining to set aside the dismissal, however, the trial court found that “attending trial does not constitute vigorous exercise. As such, [Minner] would not be violating the physicians’ orders by attending trial on May 24th, 2016.”

The trial court’s view of how much time, effort, and expense go into trying a case was unrealistic. Participating in a trial, as most trial lawyers can confirm, is exhausting and physically demanding. (See, e.g., People v. Atkins (1988) 203 Cal.App.3d 15, 26 [“[a] jury trial can be a very trying and tiring experience”], disapproved on another ground in People v. Johnson (2002) 28 Cal.4th 240, 243 & fn. 1; Attorney Grievance Com. of Maryland v. Rand (Md. 2015) 128 A.3d 107, 146 (dis. opn. of Adkins, J.) [“trying a case (including preparation) is so intense, all-consuming, and time-sensitive that it demands a lawyer’s full attention”]; see also Commonwealth v. Martin (Pa. 1975) 348 A.2d 391, 407-408 [“[w]e recognize that in our system of adversary proceedings a trial is an arduous affair, demanding the closest attention and the most alert responses that counsel can muster, that it is a drain both on nervous energy and physical stamina”]; Kestler, Questioning Techniques and Tactics (3d ed. 1982 & 2019 supp.) § 1:11 [“Good physical condition is very important to the trial lawyer. One of the more remarkable things that newly initiated advocates discover is just how physically draining trial work can be.”].) That is even more true for self-represented litigants like Minner for whom “attending trial” includes learning local rules governing the procedures for trial and the rules of evidence, examining and cross-examining witnesses, keeping track of exhibits and laying sufficient foundation for their admission, testifying in his case in chief and perhaps on rebuttal, making and responding to evidentiary objections, and presenting an opening statement and closing arguments, all without the assistance of an attorney, paralegal, or anyone else. At a minimum, Minner’s hospitalization interfered with his ability to prepare for trial. If an attorney had requested a short trial continuance because he or she was in the hospital in the days leading up to a trial, any reasonable judicial officer would have granted that attorney a continuance. The trial court’s refusal to extend that same courtesy to Minner was an abuse of discretion.

Yes, Minner was not actually in the hospital on the day of trial, and he might have been able to make his way into the courthouse on the following Monday or Tuesday to present medical documentation that would have satisfied the court. But imposing the “drastic measure” of dismissal was too severe a punishment under the circumstances. (See Link, supra, 60 Cal.App.4th at pp. 1325-1326 [trial court should consider whether less severe sanctions are appropriate when considering whether to dismiss an action for a party’s failure to appear at trial]; cf. Vernon, supra, 51 Cal.App.4th at pp. 1011-1012 [dismissal was not an abuse of discretion where the plaintiff failed to take any action for over a year after filing the complaint other than appearing for his deposition, plaintiff’s counsel requested multiple continuances because of trial conflicts and claimed he was too distraught to try the case, and the plaintiff failed to appear on several occasions after the trial court issued an order to show cause].)

DISPOSITION

The judgment is reversed. Minner is to recover his costs on appeal.

SEGAL, J.

We concur:

ZELON, Acting P. J.

FEUER, J.