Opinion
H031986
8-29-2008
LAMBERT G. CHAMBERS, Plaintiff and Appellant, v. J. DANE, et al., Defendants and Respondents.
Not to be Published
I. INTRODUCTION
On April 13, 2006, appellant Lambert G. Chambers, a state prison inmate, filed a personal injury complaint alleging that two correctional officers were responsible for the injuries he suffered when he was attacked by another inmate at Salinas Valley State Prison. In a minute order dated May 24, 2007, the trial court dismissed the action due to Chambers failure to obtain service, appearance, default or dismissal of defendant in a timely manner.
Chambers appeals from the minute order dismissing his personal injury action, arguing that the trial court abused its discretion because he could not prosecute the action due to his incarceration. For the reasons stated below, we conclude that Chambers seeks review of a nonappealable order and therefore the appeal must be dismissed. We further conclude that, even assuming the order was appealable, the trial court did not abuse its discretion in dismissing the action.
II. FACTUAL AND PROCEDURAL BACKGROUND
In his personal injury complaint filed April 13, 2006, Chambers alleged that he was injured on August 4, 2005, when he was attacked by another inmate during a modified lockdown at Salinas Valley State Prison. Chambers further alleged that defendants "J. Dane" and "Campos," two correctional officers at Salinas Valley State Prison, failed to prevent the attack. Chambers sought both compensatory and punitive damages.
On October 19, 2006, the trial court issued an order to show cause why sanctions should not be ordered for "plaintiffs failure to obtain service, appearance, default or dismissal of defendant in a timely manner." The order set a hearing date of January 25, 2007, and instructed Chambers to file a case management statement no later than 15 days prior to the hearing. Chambers did not file a case management statement.
The minute order of January 25, 2007, states that the hearing on the order to show cause was duly held on January 25, 2007, that Chambers did not appear at the hearing, and no proof of service had been filed. The minute order also stated that the next hearing on the order to show cause "for plaintiffs failure to obtain service, appearance, default or dismissal of defendant in a timely manner" was set for May 24, 2007, and that Chambers could appear by declaration in lieu of a personal appearance.
On February 5, 2007, Chambers filed a document entitled "Declaration of Waymon M. Berry, III, Informing the Court of Chronic Complications Occurring in the Processing of the Instant Cause of Action Preventing Meaningful Access to the Court." Among other things, Berry stated that Chambers was having difficulty serving the defendants because the trial court had failed to enforce its order allowing Chambers to proceed in forma pauperis and thereby have his complaint served by the "Marshals Office."
The second hearing on the order to show cause regarding Chambers "failure to obtain service, appearance, default or dismissal of defendant in a timely manner" was held on May 24, 2007. The minute order dated May 24, 2007, states, "Plaintiff has taken no action. Last filing occurred in February 2007. [¶] The court dismisses case without prejudice."
On July 23, 2007, Chambers filed a motion for reconsideration of the order dismissing his personal injury action. The motion had three grounds. First, Chambers argued that the trial court had erred because the order allowing him to proceed in forma pauperis "included the court having the Marshal and/or Court Clerk serve Defendants, and each of them, on Plaintiffs behalf. Plaintiff contends that this Honorable Court did not move the Marshals Office nor the Court Clerks Office to serve Defendants, and each of them, as Plaintiff anticipated." Second, Chambers contended that the trial court was obligated to procure his appearance in court by way of a "Writ of Habeas Corpus AdTestificandum" since he was incarcerated. Finally, Chambers claimed that he had filed a request for default on May 2, 2007.
In a memorandum addressed to Chambers and dated July 27, 2007, the trial court advised him that his motion for reconsideration was denied and the case had been dismissed.
On August 9, 2007, Chambers filed a notice of appeal from the May 24, 2007 minute order dismissing his personal injury action and the July 27, 2007 order denying his motion for reconsideration.
III. DISCUSSION
A. Appealability
We will begin our review by addressing the threshold issue of appealability. "`[S]ince the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion." (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 436, quoting Olson v. Cory (1983) 35 Cal.3d 390, 398.)
The Attorney Generals Office informed this court, in a letter dated July 24, 2008, that no respondents brief has been filed because no defendant has been served and therefore the Attorney General has not been requested to appear in the action. "[W]e do not treat the failure to file a respondents brief as a `default (i.e., an admission of error) but examine the record, appellants brief, and any oral argument by appellant to see if it supports any claims of error made by appellant." (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn.1; Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(a); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.)
This court first questioned whether Chambers sought review of an appealable order in a letter dated October 11, 2007, which noted that no final judgment had been entered in this case and it appeared that the notice of appeal was taken from a nonappealable order. The October 11, 2007 letter directed Chambers to show cause by letter brief why the appeal should not be dismissed. On October 25, 2007, Chambers filed a response in which he argued that it was "clear, by the record, that Plaintiff did appeal from a `final judgment . . . and did so in a timely manner."
The general rules regarding appealability are well established. "In California, the right to appeal is governed solely by statute and, except as provided by the Legislature, the appellate courts have no jurisdiction to entertain appeals. An appealable judgment or order is essential to appellate jurisdiction, and the court, on its own motion, must dismiss an appeal from a nonappealable order. [Citation.]" (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)
Accordingly, "a reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Grist v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) A dismissal order is appealable as a final judgment only where the order complies with the requirements of Code of Civil Procedure section 581d, which provides in part that "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 . . . ." An unsigned minute order is therefore not an appealable order. (Graski v. Clothier (1969) 273 Cal.App.2d 605, 606-607.)
After careful review of the record on appeal, we have determined that Chambers seeks review of an unsigned minute order of the Monterey County Superior Court, dated May 24, 2007, dismissing his personal injury action without prejudice. Because the minute order was not signed by the court as required by Code of Civil Procedure section 581d, it is not an appealable order. (Graski v. Clothier, supra, 273 Cal.App.2d at pp. 606-607.) Since Chambers seeks review of a nonappealable order, his appeal must be dismissed. (Art Movers, Inc. v. Ni West, Inc., supra, 3 Cal.App.4th at p. 645.)
B. The Appeal Lacks Merit
Even assuming that Chambers seeks review of an appealable dismissal order, we would find that his appeal lacks merit. The California Supreme Court has instructed that an order dismissing an action is presumed correct, and may not be reversed on appeal unless the appellant meets his or her burden of showing that the trial court abused its discretion. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
In his opening brief, Chambers contends that the trial court abused its discretion because "it was impossible for him to prosecute from his prison cell. The case was dismissed for failure to appear, not a fault of his own." Chambers also asserts that the case should not have been dismissed because he had filed a "Motion for Default."
We are not convinced by Chambers arguments. The record reflects that the trial court dismissed Chambers personal injury action because Chambers failed to timely serve his complaint in compliance with Superior Court of Monterey County, Local Rules, rule 6.08(c) (hereafter, rule 6.08(c)). When Chambers filed his complaint in 2005, rule 6.08(c) provided, "It is the policy of the Court that all complaints and cross-complaints be filed and served per California Rules of Court, Rule 201.7(b)." Under former rule 207.1(b), a "complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint."
Superior Court of Monterey County, Local Rules, rule 6.08(c) now reads: "It is the policy of the Court that all complaints and cross-complaints be filed and served per California Rules of Court, rule 3.110."
Former California Rules of Court, rule 201.7(b) was renumbered rule 3.110 and amended, effective January 1, 2007. Rule 3.110 (b) reads: "The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint."
The trial court has the discretion to dismiss an action for failure to comply with local court rules, such as rule 6.08, which were enacted pursuant to the Trial Court Delay Reduction Act (Gov. Code, § 68616; Code Civ. Proc., § 575.2; Garcia v. McCutcheon (1997) 16 Cal.4th 469.) However, "there are at least two limitations or restrictions on the trial courts power to dismiss an action for noncompliance with local rules: (1) dismissal is inappropriate if the noncompliance was the responsibility of counsel alone, rather than the party [citations]; and (2) dismissal is appropriate only if less severe sanctions would be ineffective (Gov. Code, § 68608, subd. (b).)" (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1061-1062.)
Government Code section 68616, subdivision (a) provides in pertinent part, "Delay reduction rules shall not require shorter time periods than as follows: [¶] (a) Service of the complaint within 60 days after filing. Exceptions for longer periods of time, (1) may be granted as authorized by local rule and (2) shall be granted on a showing that service could not reasonably be achieved within the time required with the exercise of due diligence consistent with the amount in controversy."
Code of Civil Procedure section 575.2 provides in pertinent part, "(a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a party if in pro se, fails to comply with any of the requirements thereof, the court on motion of party or on its own motion may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof . . . . [¶] (b) It is the intent of the Legislature that if a failure to comply with these rules is the responsibility of counsel and not of the party, any penalty shall be imposed on counsel and shall not adversely affect the partys cause of action or defense thereto."
Government Code section 68608, subdivision (b) provides, "Judges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes of this article."
Since Chambers is self-represented, it was his responsibility to timely serve his complaint in compliance with rule 6.08(c). Therefore, dismissal of his action for noncompliance with rule 6.08(c) is appropriate unless less severe sanctions would have been effective. (Tliche v. Van Quatham, supra, 66 Cal.App.4th at pp. 1061-1062.) The record reflects that lesser sanctions would not have been effective in this case. Chambers failed to make any effort to serve his complaint on the named defendants after the complaint was filed on April 13, 2006, despite the trial courts issuance of an order to show cause indicating that the action would be dismissed if Chambers failed to serve the complaint, followed by two hearings on the order to show cause. By the time the trial court dismissed the action without prejudice on May 24, 2007, over 13 months had passed without service of the complaint.
Chambers mistaken belief that the trial court was obligated to effect service of the complaint for him, because he was proceeding in forma pauperis, does not excuse his failure to serve the complaint. An order granting a litigant permission to proceed in forma pauperis allows the litigant to proceed without paying court fees and costs because of the litigants financial condition. (Gov. Code, § 68511.3; Cal. Rules of Court, rules 3.50, 3.61.) Therefore, proceeding in forma pauperis does not entitle a plaintiff to have service of the complaint effected by the court.
With respect to inmates, Government Code section 68511.3, subdivision (e) provides that a person incarcerated in a state prison or county jail is required to pay court fees according to the inmates financial condition. (Sanders v. Yarborough (2006) 137 Cal.App.4th 764, 767-768.) However, an inmate cannot be prohibited from bringing a civil action or appeal of a civil action "solely because the inmate has no assets and no means to pay the initial partial filing fee." (§ 68511.3, subd. (e)(5); Sanders v. Yarborough, supra, 137 Cal.App.4th at p. 768.)
Chambers is also mistaken in his belief that the trial court was obligated to procure his appearance at the January 25, 2007 and May 24, 2007 hearings on the order to show cause because he is incarcerated. A prisoner does not ordinarily "have the right to appear personally in court on civil matters. [Citations.]" (Hoversten v. Superior Court (1999) 74 Cal.App. 4th 636, 642; Payne v. Superior Court (1976) 17 Cal.3d 908, 926-927.) Additionally, even assuming that Chambers had filed a request for default, although no such request was included in the record on appeal, the request for default would not have prevented dismissal of his complaint. Default may not be entered in the absence of proof of proper service of the summons and complaint on the named defendants, pursuant to the requirements for entry of default set forth in Code of Civil Procedure section 585. Since Chambers failed to file a proof of service, his request for default would have been ineffective.
Penal Code section 2625 sets forth the circumstances under which a prisoner has a right to appear in court in a proceeding where his or her parental or marital rights are subject to adjudication.
Finally, we note that Chambers may not avoid compliance with the rules of civil procedure because he is a self-represented inmate. The California Supreme Court has instructed that "mere self-representation is not a ground for lenient treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) "Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation." (Id. at pp. 985-985.)
For these reasons, we further conclude that, even assuming that the May 24, 2007 minute order is appealable, under the circumstances of this case the trial court did not abuse its discretion in dismissing the action without prejudice.
IV. DISPOSITION
The appeal is dismissed.
WE CONCUR:
RUSHING, P.J.
PREMO, J.