Sparrow v. Fremont Auto Sales, Inc.

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RONALD W. SPARROW et al., Plaintiffs and Appellants, v. FREMONT AUTO SALES, INC., Defendant and Respondent.

A163536

California Court of Appeals, First District, Second Division

August 30, 2022

NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. HG19006239)

STEWART, Acting P.J.

Pro per plaintiffs Ronald and Arlene Sparrow filed a lawsuit seeking damages from car dealership Fremont Auto Sales, Inc. alleging the dealership sold them a used car that turned out to be a lemon, with engine damage beyond repair. The trial court ordered their lawsuit dismissed with prejudice after they failed to appear at two status conferences that were conducted remotely.

They now appeal from the order of dismissal, arguing the trial court erred in dismissing their case, in effect, because they lacked notice and an opportunity to attend (i.e., log into) the virtual court hearings. No respondent's brief has been filed.

We agree, and reverse.

BACKGROUND

The case was initiated in February 2019.^[1] It was ordered dismissed with prejudice two-and-a-half years later, at an unreported case management conference held virtually on August 18, 2021 two days before the scheduled trial date (which the court also ordered vacated). None of the parties appeared at that terminating case management conference-neither appellants nor respondent. When it ordered the case dismissed the court also imposed $900 in sanctions against the plaintiffs. The stated basis for both the dismissal with prejudice and the sanctions award was plaintiffs' failure to appear at the August 18, 2021 hearing and the hearing immediately preceding it, held a week earlier on August 11, 2021.^[2]

The relevant history begins a bit earlier, on August 6, 2021, when a settlement conference was held by BlueJeans videoconference in Department 301 at 2:00 p.m., presided over by Judge Jacobs. All parties failed to appear at that settlement conference. The record of the August 6 settlement conference consists of a file-endorsed document entitled "Judge's Memo To Clerk, Civil Pre-Trial Settlement Conference (PTSC)." The document indicates that a further case management conference was on calendar for August 11 at an unspecified time and a trial date was set for August 20, and on August 6 the settlement conference judge ordered that the trial date and all future dates were to be maintained. There is no proof of service attached to that August 6 "memo," the register of actions reflects no separate proof of service filed on that date, and the register of actions also does not reflect the issuance of any separate settlement conference order or scheduling order issued on August 6. It thus does not appear that notice of future hearings was given.

Thereafter, at the August 11 case management conference, the parties again did not appear and the court issued an order to show cause and continued the matter to August 18, 2021, in Department 514 at 1:30 p.m.^[3]

Then, as noted, the parties again failed to appear at the August 18 case management conference which is when the court (the Hon. Delbert Gee, sitting in Department 514) ordered the case dismissed with prejudice and imposed monetary sanctions. Despite the fact that it was calendared to take place at 1:30 p.m., the case management conference actually took place at 3 p.m. for reasons the record does not reflect.^[4]

After the court ordered the dismissal, but before any valid judgment of dismissal was entered (see Discussion, Part I, post), the plaintiffs submitted two sets of written objections explaining why they had failed to appear at the three status conferences and asking the court, in effect, to reinstate their lawsuit and re-set their case for trial. Respondent filed no opposition nor, indeed, anything in response.

Plaintiffs' papers recounted, essentially, they had been prevented from attending the hearings due to a combination of a lack of actual notice and technical mishap:

On August 6, they explained, the court clerk sent them an electronic link with instructions to attend the mandatory settlement conference virtually in Department 302 from 4:00 p.m. to 4:45 p.m. (and a copy was reproduced in their papers), and when they logged on at 4:00 p.m. they remained online waiting for the moderator to join the conference, as instructed, but the moderator never joined the videoconference and they were automatically logged off forty-five minutes later, at 4:45 p.m. The court's records indicate that the case management conference had already taken place by the time they were directed to log on: two hours earlier, at 2:00 p.m. that day. And it took place not in Department 302 but Department 301. The basis for this apparent scheduling mistake is not in the record, apart from a reference in the BlueJeans email they received stating that "DEPT 302 JACOBS has updated the information for your meeting."^[5]

Plaintiffs asserted they did not attend the next case management conference, on August 11, because they never received any notice of it or any BlueJeans invitation to attend it; and nothing in the record contradicts that assertion.

Finally, they asserted that they did not attend the August 18 case management conference because they received the notice "the same day of the hearing" at some unspecified time but never received an electronic invitation to log into the hearing.

The court did not take any action on the plaintiffs' written submissions objecting to dismissal of the case, and this appeal, filed on September 14, 2021, followed.

DISCUSSION

I. Appellate Jurisdiction

Before turning to the merits, we must address our jurisdiction. The trial court signed two written orders on the same date (August 18, 2021) purporting to dismiss the plaintiffs' lawsuit with prejudice, but neither order bears a file stamp. Code of Civil Procedure section 581d states: "All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case." (Italics added.) Hence, a signed order dismissing a case is not a final judgment if the order is not actually filed. (See Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 769 [even if unsigned minute order of dismissal that issued electronically were deemed to have been signed by court electronically, order is non-appealable because "there is no indication that the Order here was electronically filed" (italics added)].) Were such a file-endorsed order procured by the plaintiffs, we would be required to treat the premature September 14, 2021 notice of appeal as having been filed immediately after the dismissal order's entry. (See Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 413, fn. 7; In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 229, fn. 4; Cal. Rules of Court, rule 8.104(d)(1).)

But we will not dismiss this appeal or direct the parties to procure a final judgment. The plaintiffs discuss our power to issue writ relief to rectify the harm they claim to have suffered, and we will exercise our discretion to treat this appeal as a petition for writ of mandamus. (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745-746.) With the appeal fully briefed^[6] and no party urging its dismissal, no point would be served by dismissing it solely to await the superior court clerk's filing of the dismissal order and/or to direct the parties to procure a file-stamped copy of the dismissal order. Treating the appeal as a de facto writ petition avoids" '" 'unnecessarily dilatory and circuitous'" '" steps in the trial court. (Woody's Group, Inc. v. City of Newport Beach (2015) 233 Cal.App.4th 1012, 1020; see also, e.g., Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006 [appeal from nonappealable order treated as writ proceeding where the briefs and record are sufficient for writ review, and dismissal for lack of appellate jurisdiction "would not further judicial economy"]; Safaie v. Jacuzzi Whirlpool Bath, Inc. (2011) 192 Cal.App.4th 1160, 1169 [similar]; Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 365; Fox Johns Lazar Pekin &Wexler, APC v. Superior Court (2013) 219 Cal.App.4th 1210, 1217-1218.)

II.

The Court Erred in Declining to Set Aside the Dismissal.

Here, plaintiffs argue the court abused its discretion in ordering their case dismissed and then taking no action on their subsequent filings, and also violated their due process rights, because dismissal was not warranted in light of the mistakes they brought to the court's attention when they filed objections to the dismissal. We agree.

To begin, terminating sanctions are disfavored. Although trial courts have inherent authority to dismiss an action "[t]rial courts should only exercise this authority in extreme situations, such as when the conduct was clear and deliberate, where no lesser alternatives would remedy the situation [citation], the fault lies with the client and not the attorney [citation], and when the court issues a directive that the party fails to obey." (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 800; see generally Lyons v. Wickhorst (1986) 42 Cal.3d 911 [dismissing lawsuit with prejudice because party refused to present any evidence in mandatory judicial arbitration exceeded trial court's authority]; Code Civ. Proc., § 583.150.) In this case, it is unclear why lesser sanctions, such as monetary sanctions, would not have sufficed to hold plaintiffs to account for failing to appear at the various hearings; indeed, the court did impose monetary sanctions at the same time. Imposing the sanction of dismissal on top of monetary sanctions was...