Filed 7/30/21 Reilly v. Sanchez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JOSEPH MICHAEL REILLY,
Plaintiff and Appellant, E074950
v. (Super.Ct.No. RIC1818165)
CAROLINA MARIE SANCHEZ et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Raquel A. Marquez,
Judge. Affirmed.
Perona, Langer, Beck, Serbin & Harrison and Ellen R. Serbin; The Law Offices of
Larry H. Parker and Camm Sublette, for Plaintiff and Appellant.
Keith L. Shoji & Associates and Bradley R. Blamires, for Defendants and
Respondents.
The plaintiff in this personal injury action went incommunicado for months—even
his own counsel could not contact him—during which time he failed to appear for trial.
He eventually was located, but not until after the trial court had ordered that the case be dismissed. In this appeal, he contends that the trial court abused its discretion by
declining to continue the trial for longer than it did and by dismissing the case. We find
no abuse of discretion and affirm the judgment.
I. FACTS
Plaintiff and appellant Joseph Michael Reilly filed his complaint on September 4,
2018, alleging personal injuries arising out of an automobile accident. Defendants and
respondents Carolina Marie Sanchez, Jorge Sanchez, and Emma Sanchez answered. In
July 2019, the trial court issued an order scheduling the case for jury trial on January 17,
2020, and setting a mandatory settlement conference for December 11, 2019.
Reilly initially participated in the litigation, appearing for his deposition and
verifying written discovery responses. He failed to appear, however, for a medical
examination scheduled for November 21, 2019. Reilly’s counsel represented that Reilly
had been homeless, but had been in touch a week earlier, asking for assistance in
arranging transportation to the medical examination. Counsel’s attempts to contact Reilly
to arrange pick-up, however, were unsuccessful.
On December 9, 2019, defendants applied ex parte for continuance of the trial
until at least May 8, 2020, as well as an extension of the discovery deadline to allow for
completion of Reilly’s medical exam and the deposition of one of the defendants. The
application was based on a stipulation between the parties. The trial court, however,
expressed concern that Reilly remained out of contact with his counsel, so it had “no
confidence that this problem is going to be solved within two months, or three months, or
2 four months, or five months.” On that basis, it denied the application “subject to it being
renewed if and when plaintiff surfaces.”
At the mandatory settlement conference on December 11, 2020, counsel for both
sides appeared, as did defendants, but Reilly did not and the case was not settled.
On the date set for trial, January 17, 2020, Reilly’s whereabouts remained
unknown. His counsel appeared, submitting his own declaration and that of his legal
assistant, describing their unsuccessful efforts to try to find Reilly. Counsel declared that
his understanding was that Reilly and his wife had been living in their car at the time of
his deposition, but the car had then been “destroyed” in “another car crash.” They then
had been staying in shelters in the Indio area and Reilly had been communicating with
counsel by email from public computers at the library. Searches verified that Reilly was
not in jail, prison, or any of the local hospitals. Reilly’s counsel requested a continuance
of “at least three months” to continue the search for him. Respondents objected to such a
delay, noting that Reilly had already been missing for about two months and suggesting
that the matter should be dismissed. The trial court continued trial for one week, warning 1 that if Reilly could not be found within that time, the case would be dismissed.
1 Counsel for defendants noted that they had previously been willing to stipulate to a continuance, but their “position . . . changed” after the search for Reilly had been unsuccessful for an extended period of time. Defendants’ counsel continued: “They can’t find this person. And if he has an interest in this litigation and he’s not motivated to be participating in his litigation, I don’t see what the benefit of continuing this is.” The trial court interpreted these comments as a request for dismissal (as do we), responding: “What the Court, I think, is willing to do is continue this matter for one week . . . If you can’t find him in a week, we’re going to dismiss the case.” 3 Reilly was not located by the continued trial date of January 24, 2020. His
counsel again requested a continuance (this time, for six months). The trial court denied
the request and ordered the case dismissed. The trial court at first indicated that the
dismissal would be with prejudice. When the judgment was entered on June 9, 2020,
however, the trial court on its own motion changed that decision, specifying that the
dismissal was without prejudice.
Meanwhile, about a week and a half after dismissal, Reilly contacted his counsel’s
office, and counsel spoke with Reilly personally on February 9, 2020. According to a
declaration counsel submitted in support of a March 3, 2020, motion seeking
reconsideration of the dismissal order, Reilly told his counsel that he had undergone
emergency surgery and had been “‘out of it’ mentally and physically since mid
November,” but that he was now “back on track” for participating in the litigation.
Before any ruling by the trial court, however, the motion for reconsideration, which
argued only that the trial court lacked discretion to dismiss the matter under Code of Civil
Procedure section 583.420 because “[t]he matter was not yet 2 years old,” was
withdrawn.
II. DISCUSSION
Reilly argues that the trial court abused its discretion by denying his requests for a
longer continuance of trial when he could not be located and by dismissing the action
based on Reilly’s failure to appear for trial. We find no abuse of discretion.
4 A. Continuance of Trial
A trial court’s ruling on a party’s request that trial be postponed is reviewed for
abuse of discretion. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 1004.)
“‘The policy favoring a full and fair hearing calls for a more careful appellate review of
the exercise of discretion in denying a continuance [citation], but it is usually upheld.’”
(Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863, fn. 1.) “An
abuse of discretion occurs ‘where, considering all the relevant circumstances, the court
has exceeded the bounds of reason or it can fairly be said that no judge would reasonably
make the same order under the same circumstances.’” (In re Marriage of Olson (1993)
14 Cal.App.4th 1, 7; see also People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled
on another point by People v. Rundle (2008) 43 Cal.4th 76, 151 [“[A] trial court’s ruling
will not be disturbed, and reversal of the judgment is not required, unless the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.”].)
We find the trial court’s decisions, granting a one-week continuance of trial but
otherwise denying Reilly’s counsel’s repeated requests for a months-long delay, to be
well within the bounds of reason. As of the date set for trial, Reilly had already been out
of touch for months. He had disrupted the completion of discovery by missing his
medical exam. He had not appeared at the mandatory settlement conference. Given that
Reilly’s counsel had already apparently made best efforts to find him, without results,
there was no non-speculative reason to believe Reilly would appear on any continued
5 trial date. The trial court had previously expressed willingness to consider a continuance
if Reilly “surface[d],” presumably upon a showing of good cause for his absence. The
defense, too, had previously been willing to stipulate to a continuance while plaintiff’s
counsel searched for Reilly. Reilly did not get back in touch with his counsel, however,
until after the defense’s position on continuances had changed, the trial date had come
and gone, and the matter had already been ordered dismissed. In such circumstances, we
do not find anything arbitrary, capricious, or patently absurd in the trial court’s rulings.
Reilly’s comparison of the facts here to those of Link v. Cater (1998) 60
Cal.App.4th 1315 (Link) is not persuasive. In that case, too, the plaintiff failed to appear
for trial, and his counsel requested a continuance, which was denied, and the matter was
dismissed. (Id. at pp 1318-1320). But the circumstances in Link were very different from
those in this case. Among other things, the Link plaintiff’s whereabouts on the trial date
were not unknown—he was travelling for medical appointments in New York and
Switzerland. (Id. at pp. 1318, 1324.) He had good cause for having scheduled medical
appointments out of town on the same day as trial; the appointments had been scheduled
so as not to conflict with trial, but the court had, on its own motion, with only a few days’
notice, and without consulting with the parties regarding availability, changed the trial
date so as to create the conflict. (Id. at p. 1324.) The plaintiff and his attorney had
previously been diligent in his prosecution of the case, participating fully in discovery,
attending multiple mandatory settlement conferences, and appearing for multiple
previous trial dates. (Id. at pp. 1325-1326.) The trial court also did not give the plaintiff
6 an opportunity to demonstrate the legitimacy of the medical treatment he claimed was
necessary, and on appeal the plaintiff was able to produce documentation that he
“presumably would have filed . . . with the trial court if given a reasonable opportunity to
do so upon pain of dismissal.” (Id. at p. 1326.) On such facts, the court of appeal found
that the trial court’s decision to deny the requested continuance and dismiss the matter to
be arbitrary, and that the plaintiff “was not given a fair hearing on the matter.” (Ibid.)
Our facts are different, and require a different conclusion: Reilly has not demonstrated
that the trial court abused its discretion in denying his requests for a continuance.
B. Dismissal
Citing provisions of the Code of Civil Procedure and the California Rules of Court
that concern dismissal for delay in prosecution, Reilly contends that the trial court erred 2 by dismissing the action even though the case was less than two years old. We are not
2 In this opinion, undesignated statutory references are to the Code of Civil Procedure, while undesignated rules references are to the California Rules of Court. The statutory provisions that are the focus of Reilly’s analysis include section 583.420, which prohibits a trial court from dismissing an action for delay in prosecution pursuant to section 583.410 unless one of several listed conditions has occurred. The two-year statutory limitation referenced by Reilly is in subdivision (a)(2)(B) of section 583.420: “Two years after the action is commenced against the defendant if the Judicial Council by rule adopted pursuant to Section 583.410 so prescribes for the court because of the condition of the court calendar or for other reasons affecting the conduct of litigation or the administration of justice.” Similarly, rule 3.1340 provides that the court on its own motion or the motion of a defendant may dismiss an action under sections 583.410 through 583.430 “if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.”
7 persuaded, however, that the trial court relied on the statutory provisions that Reilly
focuses upon.
The trial court did not specify the basis for its ruling when it ordered dismissal or
in the written judgment it entered later. In a minute order, however, issued in connection
with the entry of judgment, the court stated that the dismissal was pursuant to section
581, subdivisions (b)(5) and (l). Under section 581, the trial court may dismiss a civil
case when “either party fails to appear at the trial and the other party appears and asks for
dismissal.” (§ 581, subd. (b)(5) [allowing dismissal of “an action” in such circumstances;
see also id., subd. (l) [providing for dismissal of “the complaint in whole, or as to that
defendant” in such circumstances].) Unlike the provisions that are the focus of Reilly’s
arguments, these provisions do not limit the trial court’s authority based on when the 3 action was commenced.
We review the trial court’s decision to dismiss the matter for abuse of discretion.
(Link, supra, 60 Cal.App.4th at p. 1321.) California has a “strong public policy in favor
of deciding cases on the merits when possible . . . .” (Elkins v. Superior Court (2007) 41
Cal.4th 1337, 1365.) There is, however, a “countervailing policy, evidenced by the
dismissal statutes, of expediting the administration of justice . . . .” (Link, at p. 1321.)
3 In any case, we review the trial court’s ruling, not its reasoning. (See Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 330 [“[I]t is judicial action, and not judicial reasoning or argument, which is the subject of review; and, if the former be correct, we are not concerned with the faults of the latter”]; Young v. California Fish & Game Comm’n (2018) 24 Cal.App.5th 1178, 1192-1193 [“[I]t is a settled appellate principle that if a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court’s reasoning”].) 8 “The policy favoring trial or other disposition of an action on the merits [is] generally to
be preferred over the policy that requires dismissal for failure to proceed with reasonable
diligence.” (§ 583.130.) Nevertheless, a trial court has “broad discretion” in deciding
how to balance these policy goals on the facts before it. (Vernon v. Great Western Bank
(1996) 51 Cal.App.4th 1007, 1012-1013 (Vernon); see Link, at p. 1321.)
We find no abuse of discretion. Reilly’s counsel was present in court at the time
set for trial, although his client was not, but counsel was not prepared to proceed with
trial in the absence of his client, instead requesting lengthy continuances and all but 4 conceding that the trial could not go forward until Reilly was located. Reilly had not
submitted to the independent medical exam required to maintain his claim for medical
damages. (See § 2032.410 [issue, evidentiary, or terminating sanctions available where a
party fails to submit to a medical examination].) Reilly’s whereabouts had been
unknown for months, and they remained unknown when the trial court ordered the matter
dismissed. The defense opposed any further continuances, which the trial court
reasonably interpreted as a request for dismissal. On these facts, the trial court’s decision
to dismiss the matter was well within the scope of its discretion under section 581.
Reilly is incorrect that Cohen v. Hughes Markets (1995) 36 Cal.App.4th 1693
(Cohen) requires a different conclusion. In that case, the plaintiff Cohen was not
personally present for the start of a trial in a personal injury action, but his attorney was
4 On the initial trial date, counsel requested a three-month continuance, and then stated that “[i]f we don’t find him by that time, I’ll let the Court do what it should do.” 9 present and ready to proceed with jury selection even in his client’s absence. (Id. at pp.
1695-1696, 1700.) Moreover, Cohen’s whereabouts were not unknown; he was on his
way, travelling from abroad and arriving the evening of the first day of trial, well before
his presence as a witness would be required. (Id. at p. 1700.) The Court of Appeal found
that “the mere fact Cohen was not personally present in court on the morning trial was to
commence did not warrant dismissal pursuant to section 581, subdivision (b)(5).” (Ibid.)
In so concluding, the court noted that “‘[i]n civil cases personal appearance by a party is
not essential; appearance by an attorney is sufficient and equally effective.’” (Ibid.)
Here, in contrast, Reilly was not on his way to attend trial when the matter was
dismissed, but rather his whereabouts remained unknown, even to his counsel. His
counsel was present in court, but gave no indication of being prepared to proceed with
trial without Reilly. Rather, counsel twice requested lengthy continuances, explicitly for
the purpose of finding Reilly, and on one occasion told the court that if Reilly could not
be found, he would “let the Court do what it would should do.” At no point did counsel
state or even suggest that he might be prepared to proceed with trial in the absence of
Reilly; counsel made no objection when the trial court indicated that it intended to
dismiss the matter if Reilly’s whereabouts remained unknown after a week’s continuance,
nor did he object when the trial court dismissed the matter. The notion, suggested by
Reilly at oral argument on appeal, that his counsel might have been prepared to proceed
with trial in the absence of Reilly, but was not given the option of doing so before
dismissal, is implausible on this record. Indeed, where Reilly had failed to submit to his
10 defense-requested medical exam, it is hard to see how Reilly could properly be permitted
to recover medical damages at trial. In these circumstances, the trial court properly
treated Reilly’s attorney’s presence as neither sufficient nor effective as an appearance
for trial. Cohen correctly states the law, but our facts are different.
A case that is closer to ours than Cohen is Vernon, supra, 51 Cal.App.4th at p.
1007. In Vernon, on several occasions, rather than appear ready to proceed with trial on
the appointed day, the plaintiff’s counsel repeatedly appeared only to request
continuances, either personally or through another attorney making a “‘special
appearance.’” (Id. at pp. 1009-1010.) Eventually, counsel arrived six hours after the
time set for trial, only to move again for a continuance on the ground that he was too
“distraught” to proceed, the trial court issued an order to show cause why the case should
not be dismissed. (Id. at p. 1010.) At the next hearing, the trial court dismissed the case.
(Ibid.) The Court of Appeal affirmed, reasoning that neither the plaintiff nor plaintiff’s
counsel had appeared for trial, and that “no more was needed to justify the trial court’s
order of dismissal” under section 581, subdivision (b)(5) and the Rules of Court. (Id. at
p. 1012-1013; see also Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198,
1204 [cited in Vernon for the proposition that “dismissal is proper when the plaintiff is
not prepared to proceed on the day of trial”].) Although the pattern of dilatory behavior
by counsel detailed in Vernon is more egregious than the facts at issue here, the same
reasoning applies.
11 As Reilly notes, section 581 provides for dismissal only without prejudice, and the
trial court initially ordered the matter dismissed with prejudice. It does not follow,
however, that the judgment should be reversed. On its own motion, the trial court
corrected itself and entered a judgment specifying that the dismissal was without
prejudice. It is the judgment that is the subject of our review.
At oral argument, Reilly’s appellate counsel repeatedly emphasized “the interests
of justice.” We agree that it appears that the interests of justice would have been better
served if Reilly’s case could have been tried on the merits or, as the parties seem to have
anticipated was likely before Reilly went incommunicado, resolved by a mutually
agreeable settlement. It does not follow, however, that the trial court abused its
discretion in dismissing the case, or even that any unfairness here is best viewed as
flowing from that exercise of discretion. In that regard, we observe that once Reilly got
back in touch with his trial counsel, there may have been strong grounds for a motion
pursuant to section 473, subdivision (b); if credited, Reilly’s explanations for his absence
may well have been found to constitute excusable neglect, justifying relief from
dismissal. (See In re Marriage of Kerry (1984) 158 Cal.App.3d 456, 465-466
[“‘Excusable neglect’ may be the result of disability . . . [which includes] . . . [t]he
existence of some degree of mental confusion or illness of the party moving to set aside
an order”].) Reilly got back in touch with his trial counsel only weeks after the order of
dismissal, before any judgment was entered, and well within the time allowed for such a
motion. (See § 473, subd. (b) [application for relief “shall be made within a reasonable
12 time, in no case exceeding six months” after the order].) Nevertheless, trial counsel
never requested that the court consider granting Reilly relief from dismissal pursuant to
section 473, subdivision (b).5
Because Reilly has not demonstrated that the trial court’s orders were outside the
bounds of its discretion, we may not disturb them.
III. DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
I concur:
MILLER Acting P. J.
5 The notice of appeal in this action was filed on March 19, 2020, more than a month after Reilly was back in touch with his counsel. Even then, however, the notice of appeal was premature, as no appealable judgment had been entered, only an unsigned minute order of dismissal. (§§ 904.1, 581d; Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 368-369.) A premature appeal does not divest the trial court of jurisdiction, as it is only a “perfected” appeal that stays proceedings in the trial court. (§ 916, subd. (a); Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 360.) Only after the trial court entered judgment on June 9, 2020 (at the request of plaintiff’s counsel) was the appeal perfected and the trial court lost jurisdiction to consider a section 473, subdivision (b) motion. 13 [Reilly v. Sanchez et al., E074950]
MENETREZ, J., Dissenting.
On the original trial date, the court continued the trial for one week and stated that
plaintiff Joseph Reilly’s suit would be dismissed if Reilly’s whereabouts remained
unknown on the continued date. On the continued date, Reilly had not been located, and
the court dismissed the suit. (Reilly was located less than two weeks later.) On both the
original and the continued trial dates, neither the court nor any party mentioned any
statutory basis for dismissal of plaintiff’s suit. The court first referred to a statutory basis
five months later in a minute order accompanying the judgment of dismissal, citing Code
of Civil Procedure section 581, subdivisions (b)(5) and (l) (unlabeled statutory citations
are to this code).
Under subdivision (b)(5) of section 581, the court may dismiss “when either party
fails to appear on the trial and the other party appears and asks for dismissal.”
Subdivision (l) of section 581 is substantively identical, authorizing dismissal “when
either party fails to appear at the trial and the other party appears and asks for the
dismissal.”
In this case, no party failed to appear; both parties appeared through counsel. And
no party requested dismissal; the trial court announced its intention to dismiss sua sponte
on the original trial date and carried out that intention on the continued date. The
statutory requirements consequently were not met, so the trial court abused its discretion
by dismissing. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321; County of San Diego v.
1 P.B. (2020) 55 Cal.App.5th 1058, 1069 [trial court’s failure to comply with statute
constitutes abuse of discretion].) The error was prejudicial because, in the absence of the
error, Reilly would have avoided dismissal. We therefore should reverse.
The majority opinion reasons that although Reilly appeared through counsel,
counsel was not prepared to proceed, which can be treated as equivalent to failing to
appear. (Maj. opn., ante, at p. 9; see Hurtado v. Western Medical Center (1990) 222
Cal.App.3d 1198, 1204.) In fact, we have no idea whether Reilly’s counsel would have
been willing to go forward without Reilly if push came to shove, because no one ever
asked. Indeed, we have no idea whether defense counsel was willing to go forward
without Reilly. The court never presented the parties with that option, so we do not know
what they would have said if asked.
The majority opinion also asserts that the trial court interpreted defense counsel’s
statement “I don’t see what the benefit of continuing this is” as a request for dismissal,
and the majority opinion interprets it the same way. (Maj. opn., ante, at p. 3, fn. 1.) I
disagree. The statement on its face expresses opposition to the continuance requested by
Reilly’s counsel; defense counsel claimed not to see any point to “continuing this.”
Opposition to a continuance is not a request for dismissal, and nothing in the record
indicates the trial court interpreted it as such.
The majority opinion also notes that issue, evidence, and terminating sanctions are
available penalties under section 2032.410 for failure to submit to a medical examination.
(Maj. opn., ante, at p. 9.) But the defense never brought a motion for sanctions, let alone
2 terminating sanctions. We cannot affirm the dismissal on the basis of the putative merits
of a sanctions motion that was never filed.
This last point highlights the element of procedural unfairness in what transpired
here. Because no one ever identified any statutory basis for dismissal until months after
the court ordered the complaint dismissed, Reilly’s counsel lacked notice of the specific
dismissal criteria at issue. “The constitutional guarantee of due process requires that a
court give notice to a party and an opportunity to respond before sua sponte dismissing an
action.” (In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 538; see id. at
p. 539 [“The proper procedure for the trial court to use in ordering a sua sponte dismissal
of the dissolution action would have been the issuance of an order to show cause and the
setting of a hearing to consider a dismissal on the specified grounds” (italics added)].)
And even if we interpret defense counsel’s statement (“I don’t see what the benefit of
continuing this is”) as a request for dismissal, it does not cure the due process violation,
because defense counsel did not identify any legal basis for the request. (See Mathews v.
Eldridge (1976) 424 U.S. 319, 348 [“The essence of due process is the requirement that
‘a person in jeopardy of serious loss [be given] notice of the case against him and
opportunity to meet it’”].) If defense counsel had expressly asked for dismissal, the
court’s first question should have been, “Pursuant to what legal authority?” And then the
issues could have been joined.
If the court had asked the parties whether they were prepared to go forward
without Reilly, perhaps Reilly’s counsel would have said no. But perhaps, faced with
3 dismissal as the only alternative, Reilly’s counsel would have said yes. Moreover,
defense counsel might have declined to go forward and might instead have requested a
continuance in order to file a motion for terminating sanctions under section 2032.410.
Reilly’s counsel then could have opposed that motion by requesting a lesser sanction—
terminating sanctions are not the only penalty for failure to submit to a medical
examination. (§ 2032.410.) And in the interim, as we now know, Reilly would have
been located.
For all of the foregoing reasons, we should reverse the judgment of dismissal
rather than leave Reilly to the uncertain remedy of a malpractice action against his trial
counsel for failing to file a motion to vacate under section 473. I therefore respectfully
dissent. MENETREZ J.