Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 06CC08101, Charles Margines, Judge.
Bruce R. Senator, in pro. per., for Plaintiff and Appellant.
Wesierski & Zurek, Thomas G. Wianecki and John E. Stobart for Defendant and Respondent.
OPINION
ARONSON, J.
Bruce R. Senator appeals from a judgment entered after the trial court dismissed his medical malpractice and related claims against dentist Ty Caldwell for failure to prosecute the case. Senator contends the trial court erred in denying his motion to amend his complaint a second time to add additional defendants and claims, including product liability causes of action. Senator, who is imprisoned, also argues the trial court erred in denying several discovery motions because the court failed to account for “incessant and unending custodial authority actions” that amounted to inflicting “civil death” by interfering with his ability to litigate “over 100 state tort claims, ” including this one. He further argues the trial court erred by reversing course and vacating an earlier order in which it directed the California Department of Corrections and Rehabilitation (CDCR) to print out pages from five internet sites. Finally, Senator asserts the trial court’s dismissal violated his right to try his case by telephone from prison, and he asserts the trial court erred in awarding Caldwell his costs. As we explain, none of these contentions has merit, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Having previously been adjudicated a vexatious litigant, Senator obtained the required prefiling order from the trial court to file this lawsuit in July 2006 against Caldwell. In his prefiling motion, Senator described his case as “a basic issue of breach of contract” that “unfortunately led to negligent actions whereby defendant performed dental procedures clearly outside dental guidelines.” According to Senator’s account in his opening brief, he signed a contract with Caldwell for $279 to treat three small areas of decay on a molar and to fill them with amalgam. Senator claims Caldwell performed the procedure negligently when, “instead of filling with amalgam” after treating the decay, Caldwell “went ahead on his own and without notice recemented the gold onlay....” Senator “bit down on his own to do an occlusal check, ” “which checks for alignment and height[], ” and Senator “f[ound] it abnormally high.” Caldwell negligently attempted to level the tooth by grinding down the gold onlay, “creating a large chasm” through which the area became infected, killing the molar and requiring a root canal, which Senator obtained at a university dental clinic.
Two months after filing this action, Senator was arrested in September 2006 on criminal charges for which he remained in jail pending a trial held in June 2007. Meanwhile, his civil case against Caldwell proceeded. He opposed Caldwell’s demurrer, which the trial court sustained in part and denied in part. Senator filed an amended complaint in December 2006 alleging causes of action against Caldwell for “Professional Negligence, ” “Professional Misconduct, ” “Breach of contract, ” “Fraud, ” “Civil Extortion, ” “Fraudulent Deceit, ” and “Intentional Tort.” He also embarked on discovery aimed at Caldwell and numerous third parties, which continued throughout the litigation.
Following his conviction by a jury on the criminal charges, Senator was transferred to state prison in December 2007 and then to the California Men’s Colony in San Luis Obispo in March 2008. From there, Senator successfully opposed Caldwell’s summary judgment motion, but the trial court denied his motion to file a second amended complaint. Senator’s discovery motions and other filings eventually brought the clerk’s transcript in this matter to nearly 3000 pages. The trial court authorized direct dial phone calls to aid Senator in conducting discovery, and Senator routinely appeared by telephone at hearings and conferences over the three years leading up to trial. After several trial settings and continuances, trial was set for November 2009. On November 30, 2009, the trial court denied Senator’s request to present his case over the telephone and, after Senator refused alternatives including his transfer to the Orange County jail or a trial by declaration, the trial court ordered “the entire action dismissed without prejudice.” The trial court subsequently entered judgment on the dismissal, and Senator now appeals.
II
DISCUSSION
A. Denial of Motion to File a Second Amended Complaint
Senator asserts the trial court erred by denying his motion to file a second amended complaint, which alleged 19 causes of action in 76 pages, with 35 additional attachments pushing the filing over 100 pages. We evaluate the trial court’s ruling for abuse of discretion. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487.)
The trial court denied amendment on two grounds: first, because Senator’s proposed amendment violated California Rules of Court, rule 3.1324, and, second, because he failed to establish the requisite “substantial probability” he would prevail on his new punitive damages claim against his dentist, a healthcare provider (Code Civ. Proc., § 425.13). The first ground suffices. Senator did not file the required supporting declaration to identify the new or modified allegations in the amended pleading, or explain why these changes were necessary. (Rule 3.1324(a)(2) & (3), (b); see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu) [“pro. per. litigants must follow correct rules of procedure”].) The trial court was not required to wade through Senator’s voluminous filing unaided by the required declaration. In this respect, Senator was “‘entitled to no greater consideration than other litigants and attorneys. [Citation.]’” (Nwosu, at p. 1247; see also ibid. [“self-represented party ‘held to the same restrictive procedural rules as an attorney’”].)
All further statutory references are to the Code of Civil Procedure unless noted otherwise.
On appeal, Senator explains the “major revision” distinguishing the second amended complaint from its predecessor “had to do with naming as defendants” certain distributors and “manufacturers of the dental products actually used by Ty Caldwell, ” presumably for products liability causes of action, although Senator does not specify this. Senator sought the amendment after “a dentist happened to be an inmate [i]n the same facility as appellant” and, as Senator phrases it, he “put” this dentist-inmate “through months of questioning... in the run-up to trial.” But this explanation on appeal is too late to cure Senator’s pleading error. Our review under the abuse of discretion standard necessarily concerns the trial court’s exercise of discretion at the time of its ruling. There was no error, given Senator’s elementary pleading misstep.
In any event, Senator’s appellate challenge fails for several independent reasons. One, he did not attempt to cure any pleading deficiencies, but instead filed a motion for the trial court to reconsider the proposed amendment without any changes. But the reconsideration motion was itself procedurally deficient because it was untimely. (§ 1008; see Nwosu, supra, 122 Cal.App.4th at pp. 1246-1247.) Moreover, even assuming the motion was timely, Senator does not challenge the trial court’s denial of his reconsideration motion on the merits. Accordingly, he presents nothing to suggest the trial court abused its discretion when it denied his latest and presumably best arguments for leave to amend.
Two, Senator does not address on appeal the trial court’s alternative basis for denying amendment: his failure to meet the “substantial probability” of success threshold for adding punitive damage claims against Caldwell, or for adding Caldwell’s assistants and his professional corporation as new defendants subject to a punitive damages claim. (§ 425.13.) Instead, in the portion of his opening brief addressing denial of his motion to amend the complaint, Senator merely directs this court to “review” certain exhibits that mention, for example, “3M, ” presumably as a potential defendant the trial court should have added and presumably on a theory of products liability, but without explanation or citation to authority. Senator does not explain how any of the exhibits established error in the trial court’s alternative holding that he failed to show a substantial probability he would obtain punitive damages.
An appellant forfeits arguments he or she fails to raise or discuss with reasoned argument and citation to authority in required headings or subheadings in the opening brief. (Cal. Rules of Court, rule 8.204; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; see Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] waived”].) Employing a scattershot approach or waiting until the reply brief does not suffice; the appellant is not at liberty to tax the appellate court to formulate or piece together a basis for reversal, nor to scour the record on the appellant’s behalf in a roving search for error. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley); REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 (Del Real).) The standard of review is to the contrary: “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics (Denham).) Consequently, Senator’s unsupported attack on the trial court’s amendment ruling fails.
Additionally, Senator fails to demonstrate the trial court’s denial of his motion to amend the complaint had any bearing on the main issue in this appeal, namely, the trial court’s dismissal of Senator’s suit. A judgment after dismissal is appealable (§ 904.1, subd. (a)(1)), but an earlier order is subject to review only if it “involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of a party” (§ 906). Senator does not explain how the denial of his motion to amend his pleading affected the later dismissal of his lawsuit. Rather, as we discuss below, we must presume from the state of the record that the trial court dismissed the case because Senator chose not to go forward with trial in any manner available to him. Consequently, the issue of amending a complaint he later decided not to pursue is moot. For all the foregoing reasons, Senator’s amendment challenge is without merit.
B. Discovery Claims
1. Discovery Motions Heard on December 10, 2008
Senator argues the trial court erred by denying several unspecified discovery motions because they were untimely. Senator identifies the trial court’s order denying the motions at a hearing on December 10, 2008, but he does not explain the nature of the motions, their timing, or procedural history. Instead, in the two pages of his opening brief devoted to the topic, he asserts generally that any untimeliness was “due to custodial authority impediments.” In another portion of the opening brief, Senator apparently refers to one of the discovery motions the trial court denied, acknowledging he (Senator) “misunderstood what the term ‘signing’ meant, as in effect when preparing the two subpoenas he dated and signed his own name.” Senator forfeits his discovery challenges by failing to present a coherent argument, compounded by omitting the substantive and procedural background on the motions necessary to review his claim.
The burden rests on the appellant to demonstrate reversible error. (Denham, supra, 2 Cal.3d at p. 564.) We presume the trial court’s rulings are correct (ibid.), and nothing “on the face of” the challenged discovery order suggests error (Cal. Rules of Court, rule 8.163; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521). The trial court on December 10, 2008, denied Senator’s motion “to order compliance with [a] court-ordered subpoena duces tecum....” Senator apparently had tried to obtain discovery in July 2008 from the state dental board, which informed him he lacked authorization to issue the subpoena he directed at the board, and the trial court similarly notified him to obtain the court’s assistance to issue subpoenas on his behalf, since he was not an attorney. (§ 1985, subds. (a) & (c).) Nevertheless, Senator signed his own name as the “signature of [the] person issuing” later subpoenas. He casts blame variously on the court clerk, the prison librarian, and others for his failure to proceed properly, but he assumed the responsibility of self-representation. “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties in the litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
In its December 10, 2008, order, the trial court also denied Senator’s motions “for the issuance of out-of-state commissions, etc.” and “to order compliance with plaintiff’s discovery efforts....” Regarding the “commissions, ” by which Senator apparently intended to conduct depositions by mail, the court expressly noted in its order that the discovery cut-off date was three days away and therefore impossible to meet. As to Senator’s motion to compel Caldwell’s responses to discovery requests, the trial court noted the subpoenas Senator apparently issued were invalid because he signed them and, in any event, Senator had not sought to compel compliance within 45 days of the responses defendant provided. The trial court therefore found the motions untimely, and we discern no error in the order.
Senator’s excuse based on impediments interposed by custodial authorities has no merit given the time periods involved and his demonstrated filing ability. The record on appeal is almost 3, 000 pages, and that includes only the clerk’s transcript, the bulk of which Senator generated with motions and filings. Given this prodigious output demonstrating frequent court access and given also that Senator filed his lawsuit against Caldwell in July 2006, the trial court reasonably could conclude a motion to issue commissions two and one-half years later on the eve of the discovery cut-off was untimely. Similarly, Caldwell had served his discovery responses more than a year earlier, in September 2007, amply justifying the trial court’s conclusion Senator’s motion to compel further responses 15 months later was too late.
In any event, we observe the trial court’s discovery rulings had no bearing on the dismissal that followed. As with the denial of his motion to amend the complaint, Senator does not connect the denial of his discovery motions to the ultimate result below. To the contrary, he asserts in his opening brief that he was “factually ready for trial, and importantly had all necessary[, ] relevant and material evidence to prevail... on each cause of action.” Accordingly, Senator’s attack on the trial court’s discovery rulings is a moot point in light of the subsequent dismissal for failure to pursue his claims. Simply put, the discovery ruling furnishes no independent ground for reversal.
2. Attempt to Compel Prison Authorities to Print Out Internet Web Site Pages
Senator contends the trial court erred at the December 10, 2008, hearing by vacating a October 2008 order it issued directing “the California Department of Corrections to forthwith provide Mr. Senator with one copy each of printouts from the following [w]eb sites....” The order listed five Web addresses provided by Senator. CDCR filed an ex parte motion to vacate the October order on grounds Senator failed to provide it notice of his motion to obtain the Web site printouts and therefore CDCR had no opportunity to be heard on the matter. CDCR also objected on grounds it was not a party to the litigation and therefore could not be compelled to aid Senator in his discretionary civil suit, since Senator had failed to obtain a discovery order or administrative or habeas corpus relief concerning its prison management policies. After Senator and CDCR submitted briefing on the subject, the trial court vacated its October order, which Senator challenges as an abuse of discretion.
Senator does not clearly describe on appeal the nature or content of the Web site material he wanted printed out. Consequently, even assuming arguendo he was entitled to compel CDCR to download and print the material for him, which we do not decide, it is impossible to determine whether he suffered prejudice because the civil discovery process did not yield these particular documents. Absent prejudice, which the appellant bears the burden to demonstrate, an appellate court has no power to order reversal. (Cal. Const., art. VI, § 13; Denham, supra, 2 Cal.3d at p. 564.) The Web site addresses, which Senator never provides but which are listed in the trial court’s October order, offer little insight into the nature of the materials, e.g., www.springerlink.com/ index/D90166YCHDAC1JKK/pdf. The bare reference to a “dental glossary” in the lone semi-intelligible address, www.geodentist.com/page/php?id=dental-glossary-30k-, does not by itself suggest indispensable information, nor information that could not be obtained elsewhere. No court is obliged to construct an argument for reversal based on this scant showing. (Stanley, supra, 10 Cal.4th at p. 793; Del Real, supra, 95 Cal.App.4th at p. 768.)
In his reply brief, Senator states a “Univ[ersity] of Tel Aviv study, ” which was apparently available at one of the Web sites, “found that 3M/3M ESPE ‘Ketac Cem’ [a dental cement?] showed no anti-bacterial properties in comparison with competitor’s products.” But Senator does not explain how the study was essential to his claims in the first amended complaint. To the extent the study conceivably may have been relevant to Senator’s manufacturer product liability claims, the issue is moot because the trial court did not err in denying Senator’s attempt to amend his complaint to add those claims, as discussed above. Senator’s failure to show prejudice from the absence of the Internet discovery materials moots his attack on the trial court’s decision not to require CDCR to produce those documents. As noted above, Senator asserts in his opening brief that despite his discovery setbacks he was “factually ready for trial, and importantly had all necessary[, ] relevant and material evidence to prevail... on each cause of action.” Accordingly, we now turn to the trial court’s dismissal of his claims.
C. Dismissal
Senator challenges the trial court’s dismissal of his lawsuit “without prejudice” on November 30, 2009. The Code of Civil Procedure provides for discretionary dismissal when a party fails to bring a matter to trial within three years. (§§ 583.410, 583.420, subd. (a)(2)(A).) Senator does not provide the reporter’s transcript for the dismissal hearing, and therefore our review is limited to “error [that] appears on the face of the record.” (Cal. Rules of Court, rule 8.163; see Leslie v. Roe (1974) 41 Cal.App.3d 104, 107 [“The ordinary civil litigant is not entitled to free transcripts on appeal at public expense”], cert. denied, 375 U.S. 976; see also Bus. & Prof. Code, §§ 8030.2, 8030.4; subd. (e) [self-represented litigants ineligible for reporter’s transcript fund established for civil pro bono services], 8030.6.) We discern no abuse of discretion in the trial court’s order.
The minute order for the hearing reflects that Senator appeared by telephone. The minute order also reflects the trial court read into the record an email from CDCR regarding “the court[’]s request for a jury trial by telephone from the Calif[ornia] Men[’]s Colony, ” where Senator was incarcerated. CDCR stated in the email its position “that this would be a practical impossibility due to security, monetary, and logistical needs, therefore CDCR is unable to comply with the judge[’]s request in this matter.” The email continued, “Hopefully this issue could be resolved through declarations and written materials or waiting until... Senator is released in August of 2011.” The minute order reflects that after reading the email, the trial court and the parties addressed “Abatement, ” “Stay, ” and “Trial by Declaration, ” “as noted on the record.” Senator and Caldwell each announced ready for trial, but because Senator could not try the case telephonically without CDCR’s assistance and he agreed to no alternatives, the trial court ordered “the entire action dismissed without prejudice.”
Senator argues the trial court abused its discretion in dismissing the case because “[e]verything was set for [an] agreed trial via telephone.” Senator provides no record citation for this agreement and the record cited above reflects the opposite. It appears the trial court inquired about the possibility of conducting the trial by telephone, which suggests no agreement had been reached. (Denham, supra, 2 Cal.3d at p. 564.) The fact the trial court permitted Senator to appear by telephone for pretrial hearings on a multitude of occasions through a court-call service paid at public expense does not establish he was entitled to conduct a full-blown trial in this manner. (See Cal. Rules of Court, rule 3.670(c) [civil litigant “may appear by telephone” at case management and status conferences, discovery and law and motion hearings, and similar proceedings].)
Senator insists the trial court should have ordered CDCR to facilitate a trial by telephone, “specifically using a speakerphone so appellant’s hands were free (Try litigating a trial for eight hours holding a phone handset).” Senator asserts “custodial authorities have been mandated to use ‘technology’” on behalf of prison litigants “since 1995, ” citing Wantuch v. Davis (1995) 32 Cal.App.4th 786 (Wantuch). According to Senator, “in the last 15 years... with internet/intranet televideo capabilities going way up and costs coming way down..., ” “[t]he courts need to take Wantuch v. Davis and command this technology be provided for inmate court needs....”
Senator’s reliance on Wantuch is misplaced. Inmates retain an express statutory right to file civil suits (Pen. Code, § 2601, subd. (d)), which encompasses a right of meaningful court access that may not be abridged unrelated to “legitimate penological interests” (Pen. Code, § 2600). But “[a] prisoner does not have the right to any particular remedy.” (Wantuch, supra, 32 Cal.App.4th at p. 793; accord, Payne v. Superior Court (1976) 17 Cal.3d 908, 927.) Indeed, trial-by-telephone is specifically disfavored. Court rules authorize civil litigants to appear by telephone for certain pretrial matters (see Cal. Rules of Court, rule 3.670(c)), but expressly exclude “Trials” or “hearings at which witnesses are expected to testify” (rule 3.670(d)). The trial court retains discretion to permit a telephone appearance as it deems appropriate (rule 3.760(e)(3)), but Senator fails to show the trial court abused its discretion here. Absent the reporter’s transcript, there is no evidence Senator made a record at the hearing disputing CDCR’s objections based on security, cost, and logistics.
The court rules also presumptively exclude telephonic hearings on temporary restraining orders, settlement conferences, trial management conferences, and hearings on motions in limine, among others. (Cal. Rules of Court, rule 3.760(d).)
Senator now attacks CDCR’s email as an ex parte act of sabotage, but the email itself reflects the trial court, not CDCR, initiated an inquiry and did so on Senator’s behalf in considering a telephonic trial. The trial court provided Senator notice of the email and an opportunity to respond at the dismissal hearing, but the record is silent as to his response, if any. In any event, Senator did not seek reconsideration of the dismissal, nor attempt to refile the action, nor otherwise propose additional alternatives or considerations, nor respond to the trial court’s concerns stemming from CDCR’s objections. On the record presented, we cannot say the trial court erred in rejecting a telephonic trial. (Denham, supra, 2 Cal.3d at p. 564.)
Senator suggests he could have used the office and telephone of a prison official who happened to be on vacation at the time; the official’s two-week absence would afford time for a telephonic trial. Senator also asserts CDCR has “televideo” “facilities in every prison, but doesn’t make them available for inmate court needs.” It is not our role, however, to take evidence or consider new arguments on appeal. As noted, Senator fails to specify in any fashion in his appellate briefing where he presented these matters to the trial court for its considered discretion. (Denham, supra, 2 Cal.3d at p. 564; see People v. Partida (2005) 37 Cal.4th 428, 435 (Partida) [“A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct”]; see also Cal. Rules of Court, rule 8.204(a)(1)(C) & (2)(C); Del Real, supra, 95 Cal.App.4th at p. 768.) Even assuming CDCR has “televideo” capability, we note that while Penal Code section 2624 provides a court may accept the testimony of an incarcerated witness via “two-way electronic audiovisual communication, ” it says nothing about conducting an entire trial in this manner (contra, Cal. Rules of Court, rule 3.760(d).) The record does not disclose Senator provided any time estimate for his trial, nor any consideration of security or logistics in opening a private office to inmate use on a regular or exceptional basis, nor any reason why he should have access to an office available by chance. We observe, moreover, that the notion of Senator litigating his claim eight hours a day from a prison official’s office misconceives the role of a penal institution, which is not a personal litigation outpost. In short, all “intendments and presumptions” amply support the trial court’s denial of a telephonic trial. (Denham, supra, 2 Cal.3d at p. 564.)
Senator complains the trial court’s ruling resulted in “civil death, ” depriving him of meaningful access to the courts. The complaint rings hollow. In his opening brief, Senator tacitly acknowledges the trial court offered to have him transferred to Orange County for the duration of the trial. Senator rejected this offer of direct, meaningful access to court for his civil trial. He offers a litany of excuses in his opening brief. He had been housed at the jail for his criminal trial and claims that returning to local custody would result in “abuse at the hands of jail deputies who already repeatedly threatened to murder appellant or have inmates murder him, to murder appellant[’]s family, to rape appellant’s mother” and who previously had confiscated his eyeglasses, “leaving appellant to litigate legally blind.” But Senator points to nowhere in the record where he raised these concerns for the trial court to evaluate and address, nor that he sought the trial court’s protection, assuming his claims were credible. We therefore find no error in the trial court’s denial of alternative access to court via a telephonic trial. (Denham, supra, 2 Cal.3d at p. 564; Partida, supra, 37 Cal.4th at p. 435; Del Real, supra, 95 Cal.App.4th at p. 768.)
Having filed “over 100 state tort claims” and “over 100 [prison] administrative litigations, ” Senator also objects on appeal that a transfer would have left him “no ability to continue litigation in other matters... (litigation demands do not take a time-out because one litigation requires out-to-court travel).” While this is true, it is a factor other litigants and attorneys face, whether incarcerated or not, and therefore entitled Senator to no special consideration. Similarly, he complains a transfer would have meant “[h]aving to lug by hand, boxes of work product every day from [his] cell” (original italics). Nor, due to a bad back, could he “medically tolerate the lengthy travel, out-to-court, from San Luis Obispo County to Orange County, ” but these are considerations others also face; moreover, he does not point in his appellate briefing to where he raised these logistical issues with the trial court. (Denham, supra, 2 Cal.3d at p. 564; Partida, supra, 37 Cal.4th at p. 435; Del Real, supra, 95 Cal.App.4th at p. 768.)
In his reply brief, Senator addresses the possibility of a trial by declaration mentioned in the trial court’s dismissal order. He explains the option of “a Trial by Declaration is unmasked as a lie, actually being a refusal to accept a Trial by Stipulation that would waive key rights to evidence and appeal.” From this we infer the parties discussed trial by declaration at some point in the litigation and it now appears Senator viewed procedures Caldwell may have proposed as one-sided, but Senator points to nothing in the record to support this claim, nor that he raised his objections for the trial court to evaluate and address. (Denham, supra, 2 Cal.3d at p. 564; Partida, supra, 37 Cal.4th at p. 435; Del Real, supra, 95 Cal.App.4th at p. 768.)
In his reply brief, Senator also suggests the trial court “could have moved trial up to San Luis Obispo County, ” but he did not raise this with the trial court, nor does he explain how venue would be proper or why a defendant should be forced to litigate far away on account of another’s incarceration. The trial court earlier denied a stay of the trial until Senator’s release. He does not argue on appeal that the trial court erred, nor could he, since his release date in August 2011 would have aged the case beyond five years, requiring mandatory dismissal. (§ 583.310.) In sum, nothing in the record or on appeal suggests the trial court abused its discretion in denying a trial by telephone or in ordering dismissal when Senator would not proceed otherwise. Senator fails to meet his burden to establish error.
D. Costs
Senator challenges the trial court’s award of approximately $3,000 in costs in favor of Caldwell. Caldwell did not seek costs until Senator obtained, as a vexatious litigant, the required prefiling order to file his notice of appeal. Senator contends Caldwell’s cost motion was untimely because it fell outside the 15-day window from “the notice of entry of judgment or dismissal” by the clerk of the court or by a party. (Cal. Rules of Court, rule 3.1700(a)(1), italics added.) If neither the clerk, nor any party provides notice of “entry of” the judgment, a 180-day period for filing a cost motion applies. (Ibid.)
In Daniels v. Robbins (2010) 182 Cal.App.4th 204 (Daniels), this court observed that “[b]y its terms, rule 3.1700 refers only to notice of entry of judgment or dismissal.” (Id. at p. 229, italics added.) Accordingly, the court clerk’s service of an unsigned dispositive order in Daniels did not trigger the 15-day rule for a cost motion. “The order granting the anti-SLAPP motion did not qualify as a dismissal, as it was an unsigned minute order. (§ 581d [‘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’].)” (Daniels, at p. 229, italics added.)
Here, the trial court directed Caldwell at the dismissal hearing to “give notice” and Caldwell immediately served a one-page written notice of the ruling, without attaching the unsigned minute order. Under Daniels, this bare “notice of ruling” that “the case was dismissed without prejudice” did not constitute notice of entry of a judgment to trigger the 15-day time frame in California Rules of Court, rule 3.1700. Accordingly, the 180-day window applied and Caldwell’s cost motion was not untimely.
Senator argues that because the trial court did not dismiss his claims on the merits, Caldwell was not a prevailing party entitled to his costs. But a prevailing party includes “a defendant in whose favor a dismissal is entered....” (§§ 1032, subd. (a)(4); see also § 1032, subd. (b) [a “prevailing party is entitled as a matter of right to recover costs in any action or proceeding”].) Senator’s reliance on federal authority concerning distinct federal statutory costs provisions is neither relevant, nor binding.
Senator asserts two items of the cost bill totaling approximately $500 were “defective, ” but he merely incorporates by reference his attack on these items in the trial court, without explaining his argument. The contention is therefore forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B).)
Senator contends the trial court should have stricken the reporter costs Caldwell incurred in taking his deposition in prison because neither Caldwell nor the reporter provided, as agreed: (1) a copy of the transcript to Senator to review for correction or (2) a postage prepaid envelope for Senator to return the corrected deposition. Senator argues this “breach” of “specific performance agreements” required disallowing the reporting cost. The fact remains, however, that Caldwell incurred the cost in defending against Senator’s suit, and Caldwell’s alleged breach had nothing to do with the dismissal of Senator’s claims. Consequently, the trial court reasonably rejected Senator’s attempt to strike this cost item.
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P.J., FYBEL, J.