Mace v. City of Long Beach

Filed 11/30/05 Mace v. City of Long Beach CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ANNA MACE, Plaintiff and Appellant, v. CITY OF LONG BEACH, Defendant and Respondent.

B174743 (Los Angeles County Super. Ct. No. NC029768)

APPEAL from an order of the Superior Court of Los Angeles County, James L. Wright, Judge. Reversed.

Anna Mace, in pro. per., for Plaintiff and Appellant.

Robert E. Shannon, City Attorney, and Gary J. Anderson, Deputy City Attorney, for Defendant and Respondent.

_________________

INTRODUCTION

Plaintiff Anna Mace appeals from the order dismissing her action with prejudice for failure to prosecute (Code Civ. Proc., § 583.410). We reverse.

BACKGROUND

On June 21, 2001, plaintiff instituted this action.[1] Later that year, plaintiff’s counsel, George C. Lin, filed a motion to be relieved as counsel. The court granted the motion on December 27, 2001.

At a hearing held on February 9, 2004 on an order to show cause for failure to prosecute, the trial court inquired whether plaintiff had secured an attorney. When plaintiff attempted to explain that she was seeking an attorney, the court interjected, “Mrs. Mace, I’m sorry, this is the eighth time this matter has been set for trial. [¶] I have told you each time you must be prepared to proceed to trial. [¶] I’m not going to continue it any further.”

The court reminded plaintiff that her case had been set for trial on July 14, 2003. At her request, the court had continued the trial to August 25, October 27, October 31, November 10, November 13, 2004, January 5, January 26 and then to February 9, 2005. The court further reminded her that each continuance was granted because she promised she would have an attorney. The court said it could not continue the case forever. When plaintiff asked the court for one more continuance, the court asked her if she had an attorney who was ready to represent her. Plaintiff said she did and that his name was Jason Hsu.

The court asked plaintiff to give Attorney Hsu’s telephone number to his courtroom assistant, who would telephone Attorney Hsu’s office to verify representation. The court stated it would consider plaintiff’s request for a continuance if Attorney Hsu represented her but would dismiss her case if Attorney Hsu did not. The court’s assistant reported that Attorney Hsu did not represent plaintiff.

The court then detailed the proceedings to date: “The record reflects that this case was filed in June of 2001. October through December of 2001 this court entertained issues relative to an attorney being relieved as counsel for Mrs. Mace. That motion was finally granted.

“In May of 2002 the case was on calendar for an OSC for failure to prosecute the case, and a new complaint was filed, a demurrer was filed, the demurrer was sustained. [¶] Finally, a jury trial was set after several other hearings on July the 14th of 2003, and since that time there has been a mandatory settlement conference, two final status conferences and eight jury trial dates set.

“On each of those occasions Mrs. Mace has indicated that she planned to have an attorney here. [¶] Mrs. Mace does not have an attorney here. [¶] This case is not ready to be tried. [¶] There have been no trial documents prepared or submitted to this court by the plaintiff. [¶] The matter is on calendar today for an Order to Show Cause for failure to prosecute the case.”

After detailing the proceedings to date, the court asked plaintiff if she could state a reason it should not dismiss her case. Plaintiff proceeded to detail the difficulties and tragedies she had experienced in her personal life. After noting that this case had nothing to do with these matters, the court stated it was going to dismiss the case with prejudice for failure to prosecute.

At that point, plaintiff stated that she wanted to represent herself. The court replied: “Mrs. Mace, the only point is you have filed no documents with the court to determine what it is you want the court or the jury to resolve. [¶] Because of that, there are simply no issues to be presented to the court at this time. [¶] You failed to comply with the rules. [¶] I have given you every opportunity — again, for the record, I have given you eight continuances for the purpose of getting ready for trial. [¶] You have done nothing except promise to have an attorney here. [¶] You have not done that. [¶] I’m not going to continue it any further. [¶] The matter is dismissed with prejudice.” When plaintiff again stated she wanted to represent herself, the court stated, “The case is dismissed, ma’am.” Thereafter, the court signed its minute order which stated that the case was dismissed pursuant to Code of Civil Procedure section 583.410, subdivision (a), with prejudice.

DISCUSSION

The trial court has discretion to dismiss a case for delay in prosecution on its own motion. (Code Civ. Proc., § 583.410.) An order dismissing an action on the grounds of dilatory prosecution may not be reversed unless plaintiff demonstrates an abuse of discretion. (Lopez v. State of California (1996) 49 Cal.App.4th 1292, 1295; Williams v. Los Angeles Unified School Dist. (1994) 23 Cal.App.4th 84, 91.) A court abuses its discretion when it exceeds the bounds of reason. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698.)

Plaintiff contends her case was not subject to dismissal under the mandatory dismissal statutes (§§ 583.310-583.360). Although this contention completely misses the mark, in that the trial court did not rely upon the mandatory dismissal statutes when it dismissed plaintiff’s action, we nevertheless conclude that the trial court abused its discretion in dismissing plaintiff’s action under the discretionary dismissal statute for failure to prosecute.

After asking for and receiving eight continuances for the purpose of retaining counsel and having been unsuccessful in finding counsel to represent her, plaintiff had no choice but to represent herself or face dismissal of her action. When it became evident that the court was going to dismiss her case because she failed to retain counsel, plaintiff stated in no uncertain terms that she would try her own case, as she was entitled to do.

The court rejected plaintiff’s request, stating there were no issues before it, in that plaintiff had failed to file certain unidentified documents. The case summary, however, reflects that previously on July 3, 2003, the parties attended a status conference and filed numerous documents in anticipation of and in preparation for a jury trial. Specifically, plaintiff filed a witness list, an exhibit list, a trial brief and a request for jury instructions. The plaintiff therefore had filed documents that elucidated the issues to be decided by the jury. Inasmuch as plaintiff had done so and had asserted her right to try her own case without reiterating her request for a continuance, the court should not have dismissed her action without asking her if she then was prepared to proceed to trial. Inasmuch as the court failed to make this critical inquiry, it necessarily abused its discretion in dismissing plaintiff’s action for failure to prosecute.

The order is reversed and the matter is remanded for further proceedings.[2] Plaintiff is to recover her costs on appeal.

NOT TO BE PUBLISHED

SPENCER, P.J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] The subject matter of her case eludes us, in that the complaint is not part of the appellate record.

[2] We do not intend by anything we have stated to preclude the trial court from dismissing this case for failure to prosecute if, on remand, the circumstances that develop warrant dismissal.