Trial Should Have Proceeded in Absence of Defendant in Civil Case—Appeals Court
News and Analysis
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has reversed a default judgment in favor of a homeowner’s association in the case of a defendant who failed to show up for a trial readiness conference, was ordered to show cause why her answer should not be stricken, and was absent from the hearing on the OSC which was set for what was to be the first day of trial.
The trial should have proceeded in the defendant’s absence, Acting Presiding Justice Richard D. Huffman wrote, in an unpublished opinion filed Wednesday.
His opinion sets forth that there is case authority for the proposition that where the defendant has answered the complaint, a default may not be entered based on a failure to show up for trial. However, the opinion does not deal with the authority of a judge to strike an answer as a sanction for violating a local rule.
Huffman’s opinion reverses a default judgment awarded by San Diego Superior Court Judge Jacqueline M. Stern against Pamela Bennett, and in favor of Cielo Homeowners Association, Inc., in the amount of $81,307.35.
Stern’s order to show cause was issued on Aug 9, 2019, with a hearing date of Sept. 6, which was also the trial date.
Bennett was in pro per at the trial level, as she was on appeal.
Huffman said the default judgment “is void because the superior court lacked the authority to strike the answer and enter a default” based on the nonappearance at trial. In support of that proposition, he cited two Fourth District Court of Appeal opinions: Div. One’s July 2, 1969 decision in Wilson v. Goldman and Div. Three’s June 26, 2002 ruling in Heidary v. Yadollahi.
Neither case dealt with the answer being stricken as a sanction for a violation of a court rule.
Cielo argued that Stern properly struck the answer as a sanction, citing Rule 2.5.12 of the San Diego Superior Court’s local rules which says that if as lawyer, a party represented by counsel, or a pro per fails to comply with one of the local civil rules, “the court…may strike all or any part of any pleadings of that party; or dismiss the action or proceeding or any part thereof; or enter a judgment by default against that party….”
Lack of Citation
Although Rule 2.1.15 spells out that “[p]arties completely familiar with the case and possessing authority to enter into stipulations must be present” at the trial readiness conference, Huffman said that Cielo did not pinpoint the civil rule that was breached “and why, under those circumstances, the court could strike the answer and enter default.” He added:
“Moreover, even if we were to interpret Rule 2.5.12 to authorize a trial court to strike an answer and enter default when a defendant does not appear at trial, we would find this rule to be inconsistent with clear case law and thus not applicable here. Local rules may not be adopted that conflict with statute or case law.”
Huffman did not consider the effect of Code of Civil Procedure §575.2, the language of which is essentially tracked by San Diego’s Rule 2.5.12. The statute says that a local rule “may provide” that in the event of a local rule violation, “the court… may strike out all or any part of any pleading of that party, or, dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party.”
The acting presiding justice also did not discuss the possible applicability of Government Code §68608(b) which declares that “[j]udges 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.”
OSC Not Pertinent
Huffman also said:
“[T]he fact that the court set an OSC why it should not strike Bennett’s answer and enter default does not change our analysis here. The court did not have authority to strike the answer on the date set for trial simply because Bennett did not appear….Setting an OSC cannot bestow authority on the trial court that it does not have.”
The opinion does not quote the minute order and leaves unclear whether a terminating sanction was imposed based on Bennett’s failure to appear for trial, or based on her failure to abide by the order that she show cause for her nonappearance at the trial readiness conference, or based on her violation of the local rule to appear at the trial readiness conference.
With Stern having stricken Bennett’s answer, and a default entered, Cielo subsequently proved its case by declaration. It argued on appeal that whether it had proceeded with a trial in Bennett’s absence or followed the procedure that it did, “for all practical purposes, the outcome was the same.”
“Cielo’s argument misses the mark. It is axiomatic that a court cannot act beyond its authority. Here, the court did not have authority to strike the answer and enter default. As such, the fact that Cielo claims to have proven its damages through declaration as a default prove up is not of the moment. Cielo had to prove its case in trial even in the absence of Bennett. It did not do so. The judgment therefore must be reversed.”
The San Diego jurist did not explain why a trial-by-declaration was barred.
Not taken into account was the Aug. 6, 2007 decision of the California Supreme Court in Elkins v. Superior Court. Although that opinion, by then-Chief Justice Ronald George (now retired), holds that a local rule requiring testimony by declaration, only, in dissolution of marriage cases was invalid, the implication was that a trial-by-declaration would be authorized in the absence of an objection.
The opinion in Elkins recognizes the courts’ “inherent power to control litigation before them,” citing the high court’s 1997 opinion in Rutherford v. Owens-Illinois, Inc., which alludes to Code of Civil Procedure §128. Sec. 128(a)(8) authorizes a judge to “amend and control its process and orders so as to make them conform to law and justice.”
Rutherford also points to Code of Civil Procedure §187, which sets forth:
“When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”
Stern on June 20, 2019, denied Bennett’s motion to dismiss the action under Code of Civil Procedure §583.310 for failure to bring the case to trial within five years. She said:
“In this case, the complaint was filed on December 28, 2009. Thus, the five-year period would have run on December 28, 2014. Since that date fell on a Sunday, a statutory “holiday,” the last day for trial would have been postponed until the next court day, December 29, 2014….However, this case was automatically stayed for a total of 1,724 days due to Defendant’s five bankruptcy filings….As such, after adding these 1,724 days to the end of the five-year period (December 29, 2014), the time within which this action must be brought to trial is extended to September 18, 2019. Thus, the five-year statute has not yet expired.”
On appeal, Bennett challenged Stern’s arithmetic. Huffman declared:
“Based on the arguments presented here, it…might be judicious to allow Bennett to bring a new motion to dismiss under Code of Civil Procedure section 583.310 and permit the parties to fully brief and argue the issue.”
The case is Cielo Homeowners Assn., Inc. v. Bennett, D076824.
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