Metropolitan News-Enterprise


Tuesday, June 19, 2018


Page 1


Court of Appeal:

Judge Erred in Allowing Long-Banned ‘Speaking Motion’

Defendant Claiming Evidence Shows Inmate’s Action Is Sham Must Seek Summary Judgment—Opinion


By a MetNews Staff Writer


The Fifth District Court of Appeal, declaring that the trial judge granted what amounted to a long-banned non-statutory “speaking motion,” has reversed the dismissal of an action by a prison inmate against an attorney for repayment of an alleged $1.7 million loan and for $60,500 for paralegal services the plaintiff says he performed for the defendant while incarcerated.

Presiding Justice Brad R. Hill said in Friday’s unpublished opinion that because Kings Superior Court Judge Louis F. Bissig decided disputed issues of fact, he erred in doing so outside the context of a motion for summary judgment.

The notice of the motion to dismiss by the defendant, Walnut Creek attorney Kevin F. Bernie, declared that the motion was “made on the grounds that a state prisoner, appearing in propria persona, is not entitled to pursue an action in a state court for damages against a Defendant until the trial court first makes a determination that the state prisoner’s lawsuit is a bona fide action threatening the prisoner’s property interests, and that, in fact, the pending action is not a bona fide lawsuit and therefore must be dismissed.”

Dispute Over Procedure

The accuracy of Bernie’s legal proposition was not in dispute in the case. What was in question was the correctness of the procedure that was employed.

Agreeing with contentions of plaintiff Charles Anderson Miller, Hill wrote:

“Defendant’s motion was presented as a motion to dismiss. It did not invoke any of the express statutory grounds for dismissal, such as the sustaining of a demurrer without leave to amend, delay in serving the defendants, or delay in bringing the action to trial….The motion was supported by declarations and other extrinsic evidence. Thus, defendant submitted a nonstatutory speaking motion to dismiss the action, even though such motions were eliminated more than 50 years ago….[S]uch motions must now be brought as motions for summary judgment.”

Summary Judgment Introduced

On Feb. 10, 1956, the California Supreme Court said, in an opinion by Chief Justice Phil Gibson in Pianka v. State of California:

“Defendant raised the defense of sovereign immunity by means of a procedure commonly called a ‘speaking motion’ which, although not authorized by statute, has been permitted by the courts under certain circumstances in the exercise of their inherent power to prevent an abuse of judicial process….However, nonstatutory speaking motions have now been superseded by the procedure governing motions for summary judgment contained in section 437c of the Code of Civil Procedure….The remedy afforded by this section is broad enough to cover all situations in which speaking motions have been employed, and there is therefore no longer any need for the nonstatutory procedure. In the interests of orderly and efficient administration of justice the litigant should be required to employ the statutory remedy….”

Hill cited Pianka and subsequent cases in declaring that motions to dismiss, other than on statutory grounds, “must now be brought as motions for summary judgment.”

Separate Statement

It did matter, the jurist said, that summary judgment procedures were not utilized.

“The trial court lacked (and this court lacks) the benefit of a separate statement of undisputed material facts and supporting evidence, and a responsive separate statement identifying the facts remaining in dispute, which would have organized the moving party’s and the opposing party’s evidence into a more readily understandable format,” Hill wrote.

He noted that the motion to dismiss was set on 26 days’ notice (plus five days based on mailing) rather than the 75 days’ notice (plus five days) required under the summary judgment statute. Pointing to other prejudice to Miller, he said of the trial court:

“It did not place on defendant the initial burden of presenting facts and evidence demonstrating that plaintiffs claims were without merit. It did not liberally construe and give credence to plaintiffs opposing evidence. It did not accept as undisputed only the facts and evidence presented by defendant that were not contradicted by the plaintiffs evidence. It did not merely determine whether issues of fact remained in dispute, requiring a trial. Instead, it made findings of fact and determinations of credibility, which are inappropriate in the context of a motion for summary judgment, and which would not have been necessary if the facts had indeed been undisputed.”

Inherent Powers

Bernie contended in the trial court that a motion to dismiss was appropriate under Code of Civil Procedure §583.150 which declares that an action may be dismissed “under inherent authority of the court.” In light of the evidence—including that which purportedly shows that plaintiff Charles Anderson Miller had forged documents in order to establish timeliness of his action—dismissal was called for, Bernie asserted.

Hill’s opinion does not discount the permissibility of a judge terminating an action by an unrepresented inmate, under an inherent power, but noted that Miller—who represented himself on appeal—only mentioned “in passing” in his brief the contention that the judge had the inherent power to dismiss the action based on it being a “sham” or as a penalty for misconduct. Hill said the argument was waived.

The presiding justice also noted that Miller’s notice of motion did not include reference to inherent powers as a basis, and remarked:

“We cannot review an exercise of the trial court’s discretion when the trial court did not exercise its discretion.”

Hill observed that if Miller has filed a “bona fide civil action,” he is entitled to “meaningful access to the courts to prosecute the action.” He said this could entail teleconferencing between the court and the prison, appointment of counsel, transporting Miller to court, or other means.

An incarcerated plaintiff “need not prove his case in a contested mini-trial in order to avoid dismissal on the ground he does not have a bona fide action that involves his personal or property interests,” Hill said.

“If the plaintiff’s allegations, or undisputed facts, show the action is barred or without merit, the trial court may find the plaintiff does not have a bona fide action involving his personal or property interests.  We leave it to the trial court’s discretion to determine, in light of the stage of the proceedings at which the issue is presented and whether the plaintiff has had an opportunity to conduct necessary discovery, whether the evidence is so lacking as to make the plaintiff’s claims not bona fide and obviously without merit.”

The case is Miller v. Bernie, F073153.


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