Opinion
NOT TO BE PUBLISHED
APPEAL from a dismissal order of the Superior Court of Los Angeles County Super. Ct. No. BC267324, James C. Chalfant, Judge.
William Leader, in pro. per., for Plaintiff and Appellant.
Jackson & Wallace, LLP, Diane M. Coe and Karen E. Lintott for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiff and appellant William Leader (Leader) filed a legal malpractice action against, inter alia, defendant and respondent Russell Iungerish (Attorney Iungerish) stemming from Leader’s conviction in an underlying criminal proceeding during which Attorney Iungerish represented Leader. Although the trial court initially stayed the malpractice action pursuant to the parties’ stipulation, it thereafter lifted the stay, sustained Attorney Iungerish’s demurrer, and dismissed the action (first dismissal order). Leader’s appeal from the first dismissal order was assigned to this court, and we reversed that order and directed the trial court to stay Leader’s malpractice action “during the period in which . . . Leader timely and diligently is pursuing his postconviction remedies.”
Pursuant to our direction, the trial court stayed the malpractice action. The stay remained in place for approximately 30 months, during which time the trial court held status conferences every six months. After failing to appear at two prior status conferences, Leader failed to appear at a December 11, 2006, status conference. Without any notice to Leader or opportunity for him to be heard, the trial court dismissed the malpractice action (second dismissal order) pursuant to “[California] Government Code [s]ection 68609 [subdivision] (d).”
For purposes of this appeal, we will assume that the trial court’s reference to Government Code former section 68609, subdivision (d) is to current section 68608, subdivision (b), which replaced former section 68609, subdivision (d) and became operative July 1, 1992. (Interinsurance Exchange v. Faura (1996) 44 Cal.App.4th 839, 842-843; Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1059.) Unless otherwise indicated, all further section references are to the Government Code.
Leader now appeals from the second dismissal order, arguing that the order is premature, unfair, and harsh, and that monetary sanctions or an order to show cause would have been more appropriate remedies for his failure to appear at the status conference. Because the trial court failed to give Leader notice of its intent to dismiss the malpractice action and denied him the opportunity to be heard on the issue, we vacate the dismissal order.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Underlying Criminal Proceeding and the Civil Malpractice Action
The following facts are taken verbatim from this court’s February 10, 2004, unpublished opinion in Leader’s first appeal:
“Leader, a psychiatrist, was convicted following a jury trial of 14 misdemeanor counts of a violation of Health and Safety Code section 11156, prescribing controlled substances to an addict or habitual user. He was represented during the criminal proceedings by Attorney Iungerich. The jury reached its verdict on January 31, 2001, and Leader was sentenced to five years in county jail on February 5, 2001. At the time of sentencing, Leader requested a continuance in order to be represented by a new attorney, prepare a motion for new trial, and gather mitigating evidence. This request was denied.
Leader timely appealed to the appellate division. He contended Health and Safety Code section 11156 is unconstitutionally vague, the jury instructions were inadequate, he was not charged in the alternative, the term ‘habitual user’ is unconstitutionally vague, the statute of limitations had expired, and he was denied a fair sentencing hearing.
On January 31, 2002, Leader sued Attorney Iungerich for legal malpractice. On May 17, 2002, the parties stipulated to stay the civil proceeding pending completion of the appeal in the criminal case.
On November 21, 2002, the appellate division affirmed Leader’s conviction, but remanded for a new sentencing hearing. On December 23, 2002, the appellate division denied Leader’s request to certify his case to the Court of Appeal. The remittitur issued on January 7, 2003.
On January 13, 2003, the trial court lifted the stay in this civil matter. On February 3, 2003, Attorney Iungerich demurred to the complaint on the ground that Leader could not establish his factual innocence in postconviction proceedings following the affirmance of his conviction by the appellate division.
On January 23, 2003, Leader filed a petition for writ of habeas corpus with this court. He asserted the jury was not properly instructed, the statute of limitations had expired, and Attorney Iungerich had provided ineffective assistance of counsel. On that same date, the petition was summarily denied. On February 3, 2003, Leader filed a petition for review with the Supreme Court.
On March 5, 2003, the trial court sustained the demurrer without leave to amend. On March 18, 2003, the case was dismissed. This timely appeal followed.
On April 18, 2003, the petition for review was summarily denied by the Supreme Court.
On May 8, 2003, Leader was resentenced to three years in county jail. His second appeal from the May 8, 2003 sentence is pending in the appellate division.”
B. Our Unpublished Opinion in Leader’s First Appeal
On February 10, 2004, this court filed an unpublished opinion in Leader’s appeal. Citing the Supreme Court decision in Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, we observed that when a former criminal defendant sues his attorney for malpractice, the former client’s actual innocence of the underlying criminal charges is a necessary element of the malpractice action. We further noted the procedure outlined in Coscia v. McKenna & Cuneo, supra, 25 Cal.4th at pages 1210-1211 that requires a trial court to stay a malpractice action during the period in which a plaintiff timely and diligently pursues postconviction remedies. Because Leader’s second appeal to the appellate department in his criminal action was then pending, and because it was unclear whether Leader was entitled to further state or federal habeas relief, we held that the dismissal of the malpractice action was premature. We therefore reversed the first dismissal order with directions to stay the action so long as Leader was timely and diligently pursuing his postconviction remedies in the criminal proceeding.
C. The Stay and the Second Dismissal
The record before U.S. on this appeal shows that the remittitur in the malpractice action was returned on April 20, 2004. On November 15, 2004, the trial court held a status conference, but Leader failed to appear. As a result, the trial court set a hearing on an order to show cause (OSC) regarding sanctions and dismissal for November 29, 2004. On that date, the trial court called the matter for hearing, discharged the OSC, and set the matter for a further status conference on May 31, 2005, presumably because Leader appeared and explained the status of the criminal proceedings to the court’s satisfaction.
In our February 10, 2004, unpublished opinion, we noted that “the trial court enjoys considerable discretion to monitor with case management conferences [Leader’s] prompt pursuit of his postconviction remedies.”
The minute order for the November 29, 2004, hearing on the OSC does not identify who appeared on behalf of the respective parties.
On May 31, 2005, the trial court called the matter for a further status conference, but there were no appearances. As a result, the trial court set for hearing on June 13, 2005, a second OSC regarding dismissal. As he did in response to the first OSC, Leader appeared on June 13, 2005, prompting the trial court to discharge the second OSC and set the matter for a further status conference on December 12, 2005.
Leader subsequently appeared at further status conferences on December 12, 2005, and June 12, 2006. At the June 12, 2006, conference, the trial court set a further status conference for December 11, 2006. The minute order for that hearing states that “Habeas Corpus petition is pending in State Court. [¶] If [Leader] loses all his petitions, the case will be dismissed.”
On December 11, 2006, the trial court called the matter for a further status conference, but there were no appearances. Instead of setting the matter for an OSC regarding dismissal, as it had twice done in the past, the trial court dismissed the action “pursuant to Government Code [s]ection 68609, [subdivision] (d).” Leader timely appealed from the second dismissal order on February 8, 2007.
As noted, former section 68609, subdivision (d) was replaced with current section 68608, subdivision (b), which reads as follows: “(b) 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.”
DISCUSSION
Leader argues that dismissal of his malpractice action was premature and otherwise violative of our stay order because his habeas corpus petition in federal district court was pending at the time of the dismissal and because his request to the Ninth Circuit for a certificate of appealability is still pending. According to Leader, the dismissal of his malpractice action under these circumstances was harsh and unfair and, in lieu of the ultimate remedy of dismissal, the trial court could have imposed monetary sanctions or set another OSC.
Leader’s appendix on appeal contains an uncertified copy of an April 12, 2007, order of the United States District Court for the Central District of California denying and dismissing with prejudice an unidentified “petition,” presumably Leader’s federal court petition for habeas corpus relief. Leaving aside the deficiencies in the form and content of the purported order, it is clear from the timing of the order that it was not before the trial court on December 11, 2006, when it dismissed the malpractice action. In addition, there is nothing in the record to support Leader’s assertion that there is currently pending before the Ninth Circuit a request for a certificate of appealability. At oral argument, Leader represented that his federal habeas corpus proceedings are still pending.
Generally, “[d]ue process mandates adequate notice and opportunity to be heard prior to the imposition of sanctions. [Citation.] The trial court may raise the issue of sanctions on its own motion but, in doing so, it must give notice of its intent to impose sanctions. [Citation.] That ‘notice must be given before findings are made and at a time preceding the trial judge’s decision whether, in fact, to impose sanctions.’ [Citation.]” (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.)
In Reid v. Balter (1993) 14 Cal.App.4th 1186, a case factually similar to this one, the trial court dismissed the plaintiffs’ action because they failed to appear at a scheduled status conference. (Id. at p. 1190.) In response to the plaintiffs’ appeal of the dismissal order, the defendants argued that the dismissal was “authorized” under Government Code sections 68607 and 68608. (Id. at p. 1193.) In rejecting the defendants’ argument, the Court of Appeal explained that “[d]efendants . . . appear to be confused between the authority of a court to dismiss a case because of the actions (or inactions) of its litigants and the procedural requirements that precede any such dismissal. At a minimum, such requirements include notice to the plaintiff of a motion or intent to dismiss and an opportunity for the plaintiff to be heard. [Citation.] Contrary to defendants’ assertion . . . plaintiffs were not given notice that their case would be dismissed if they failed to appear for the status conference . . . . Therefore, dismissal was a clear violation of plaintiffs’ due process rights [citation] and the order of dismissal is void. [Citation.]” (Ibid.)
“Article 5 of the Government Code, commencing with section 68600, was enacted in 1986 as a pilot project. Known as The Trial Court Delay Reduction Act (the Act), it drastically altered the management of civil cases in California. In 1990 the original act was repealed and the current, revised act, with statewide application effective July 1, 1992, was adopted. [¶] . . . [¶] Under the Act, judges are to assume responsibility ‘. . . to eliminate delay in the progress and ultimate resolution of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare and resolve all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition of the action.’” (Tliche v.Van Quathem, supra, 66 Cal.App.4th at pp. 1059-1060, quoting section 68607.)
At the December 11, 2006, further status conference, the trial court dismissed the action―presumably as a sanction for Leader’s failure to appear―without any prior notice to Leader that his failure to appear would have such dire consequences. Although the June 12, 2006, minute order suggests that Leader may have been advised that, if he lost “all his petitions,” his malpractice action would be dismissed on the merits at the December 11 conference, that advisement did not constitute notice that the case would be dismissed on purely procedural grounds if he failed to appear.
Attorney Iungerish emphasizes that Leader had failed to appear at two prior status conferences, but does not acknowledge that on both occasions the trial court scheduled hearings on show cause orders, rather than immediately dismissing the action. And, on both occasions, the trial court ultimately discharged the show cause orders. In light of that procedural history, it is unclear why the trial court deviated from past practice and dismissed Leader’s action without some advance notice of its intent to do so.
By citing to former section 68609, subdivision (d) as the grounds for the second dismissal order, the trial court made clear that it was dismissing the action on procedural grounds based on Leader’s failure to appear, as opposed to dismissing on substantive grounds, as it had earlier done based on Attorney Iungerish’s demurrer. As a consequence, Leader was entitled to notice of the trial court’s intent to dismiss on procedural grounds and an opportunity to be heard. The trial court’s failure to provide that notice and opportunity therefore clearly violated Leader’s procedural due process rights and rendered the dismissal order void. (Reid v. Balter, supra, 14 Cal.App.4th at p. 1193, citing Lovato v. Santa Fe Internat. Corp. (1984) 151 Cal.App.3d 549, 553; see also City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 730 [“Under the due process clause of the federal Constitution a personal judgment rendered without service of process on, or legal notice to, a defendant is not merely voidable, but void . . .”].)
Based on the record on appeal, it does not appear that Leader was prejudiced by the entry of the second dismissal order because, among other things, he had failed to appear at three duly noticed status conferences and there is no competent evidence (see fn. 5, ante) that he was timely and diligently pursuing his postconviction remedies at the time of the dismissal. (See Code Civ. Proc. § 906.) But, because the second dismissal order was void, it must be vacated, regardless of whether Leader has made a showing of prejudice. (See Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 777 [“Because an order rendered by a disqualified judge is null and void, it will be set aside without determining whether the order was meritorious”]; see also Mitchell v. Auto. Etc. Underwriters (1941) 19 Cal.2d 1, 7 [right of a party to collaterally impeach a judgment void on its face not dependent on any showing of prejudice to that party’s interest].)
Upon remand, the trial court may issue an order to show cause regarding appropriate sanctions. (See, e.g., Tliche v. Van Quathem, supra, 66 Cal.App.4th at p. 1056 [“We find the trial court failed to consider less drastic measures than dismissal as the first sanction (Gov. Code, § 68608, subd. (b))”].)
DISPOSITION
The dismissal order is vacated. No costs are awarded.
We concur: TURNER, P. J., KRIEGLER, J.